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[2017] ZAGPPHC 1313
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S v Mchunu and Others (146/16) [2017] ZAGPPHC 1313 (28 June 2017)
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RTF formatIN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 146/16
In the matter of:
THE STATE
vs
MBONGENI MCHUNU Accused 1
SPHESIHLE ZWANE Accused 2
CEBO MDLOLO Accused 3
ZAKHENI MVELASE Accused 4
SIYABONGA KHUMALO Accused 5
ZAMOKUHLE NAFTAN DUZE Accused 6
THEMBA
FELOKWAZI
MCAMBI
Accused 7
PATRICK
SENZO
MTSHALI
Accused 8
JUDGMENT
BAM J
Appearances :
For the State: Adv J Badenhorst.
For accused 1, 2, 3, 5, 6 and 8: Adv L Cindi.
For accused 4: Adv E Crispy .
For accused 7: Adv T Mpanza.
1. The accused are charged as follows : Count 1: Accused 1 to 8:
Contravention of Section 18(2)(a) of the Riotous Assemblies Act, 17 of 1956 -- Conspiracy to commit robbery with aggravating circumstances.
Count 2: Accused 1 to 8.
Contravention of Section 120(10)(b) of the Firearms Control Act, 60 of 2000 - Possession of a firearm - by accused 1 to 3 and 5 to 8 - with intent to commit an offence or to use the firearm to resist arrest or prevent the arrest of another person.
(It was controversial whether accused 4 was charged with this offence. It will be discussed below.)
Count 3: Accused 1 to 8. Murder.
Count 4: Accused 1 only.
Contravention of Section 3/alt sect 4 - of the Firearms Control Act, 60 of 2000 - Unlawful possession of a firearm/prohibited firearm - "Dashprod Model SAR M14" semi-automatic rifle ;
Count 5: Accused 1 only.
Contravention of section 90 of the Firearms Control Act - Unlawful possession of ammunition.
Count 6: Accused 2 only.
Contravention of section 4 of the Firearms Control Act - Possession of a prohibited firearm ("AK 47" ) fully automatic firearm.
Count 7: Accused 2 only.
Contravention of section 90 of the Firearms Control Act - Unlawful Possession of ammunition.
Count 8: Accused 3 only.
Contravention of section 3/ alt section 4 of the Firearms Control Act
>- Unlawful possession of a firearm/ prohibited firearm: "Dashprod Model SAR M14 N semi-automatic rifle.
Count 9: Accused 3 only.
Contravention of section 90 of the Firearms Control Act - Unlawful possession of ammunition.
Count 10: Accused 5 only.
Contravention of section 4 of the Firearms Control Act - Possession of a prohibited firearm: 38 Special revolver - serial number obliterated/ changed.
Count 11: Accused 5 only.
Contravention of section 60 of the Firearms Control Act - Unlawful possession of ammunition.
Count 12: Accused 6 only.
Contravention of section 3/alt section 4 of the Firearms Control Act - Unlawful possession of a firearm/ prohibited firearm - Semi automatic pistol/ serial number removed);
Count 13: Accused 6 only.
Contravention of section 60 of the Firearms Control Act -Unlawful possession of ammunition.
Count 14: Accused 7 and 8 only:
Contravention of section 120(6)(b) of the Firearms Control Act – Pointing of a firearm at several police officers.
In summary:
Accused 1 is charged with counts 1, 2, 3, 4 and 5;
Accused 2 is charged with counts 1, 2, 3, 6 and 7;
Accused 3 is charged with counts 1, 2, 3, 8 and 9;
Accused 4 is charged with counts 1, 2 and 3;
Accused 5 is charged with counts 1, 2, 3, 10 and 11;
Accused 6 is charged with counts 1, 2, 3, 12 and 13;
Accused 7 and 8 are charged with counts 1, 2, 3 and 14.
2. The State's summary of substantial facts contains the following: On 16 May 2016, the accused, the deceased in respect of count 3, and several unknown men, conspired to commit the crime of robbery. To that purpose the conspirators would make use of two Quantum Kombis and a Toyota Corolla, and they were heavily armed. The police, however, acting on information, intercepted the gang. In the follow up some of the conspirators confronted the police with firearms. One of them, the deceased, was shot and killed by the police. Several members of the gang got away save for the accused who were arrested.
3. The accused pleaded not guilty to all the charges.
Accused 1, 2, 3, 5, 6, and S' s plea explanation was that they were falsely implicated.
Accused 4 and 7 did not advance any plea explanation.
4. During cross examination of the first state witness, Sergeant Molefe, the versions of the accused, which included certain admissions, were recorded as follows :
Accused 1, 2, 3, 5, 6, and 8:
They intended to attend a traditional marriage ceremony of the deceased. They convened at the Jabulani Hostel. There they removed the seats of both Kombis. Several unknown men, with two carry bags, joined them. The accused did not know what the bags contained. They drove away from the hostel. Close to the hostel, next to the Jabulani Police Station they were confronted by the police, who, without warning, opened fire at them, in the process killing the unarmed deceased. The unknown men split up, ran in different directions and got away. The accused denied that they were in possession of any fi rearms.
Accused 4.
The only thing he did was to be the driver of one of the Kombis. He knew nothing about any conspiracy or any firearm .
Accused 7.
He was the owner of the Corolla. He went to Jabulani Hostel to meet up with accused 8. When they left the hostel accused 7 was the driver. When they heard gunshots they sped off. They were not armed.
5. In view of the aforesaid explanations and admissions, the disputed facts were limited to the following main issues, namely:
(i) Whether the accused were involved in any alleged conspiracy;
(ii) Whether accused 1 to 3 and 5 to 8 were in possession of any firearm;
(iii) Whether any of the accused posed a threat to the police;
(iv) Whether the deceased was in possession of a fi rearm;
(v) Whether the deceased's killing was justified in law.
6. The accused made the admissions set out in Exhibit A.
It included the following: Accused 1 to 8:
The identity of the deceased, count 3, Phakamani Aron Hudla, as well as the cause of death, a gunshot wound, and the chain evidence;
The photographs in the albums Exhibits C and D, inter alia depicting the scenes where the three vehicles eventually stopped;
The report of the ballistic analysis of the firearms, ammunition and cartridge casings found at the scenes, Exhibit E;
That accused 6 is linked with DNA to pair of gloves found in the first Quantum.
The other admissions made by individual accused in respect of cell phones, and other exhibits found, will, where relevant, be dealt with later.
7. The State's evidence.
7.1 Sergeant S B Molefe is a policeman with 14 years' experience stationed at the Crime Intelligence Head Office. His duties, inter alia, included the collection of information concerning the commission of, crimes. On 14 May 2016 he received information of a conspiracy at Jabulani Hostel to commit a robbery at some unknown location. This he reported to his commanding officer. The information included that the conspirators would convene at Block 14, room 3 of the hostel. Arrangements were then made to prevent or intercept the conspirators from executing their plans. The intelligence also included that the conspirators were armed with high calibre automatic rifles. Several police units and the Metro Police were commandeered. Early morning of the 16th of May all arrangements were in place. The units involved were deployed in the area, most of them at the close-by Jabulani Police Station. At about 4h00, the team Sergeant Molefe referred to as the “foot soldiers”, consisting of himself and two colleagues, Sergeant Moloi and Sergeant Tosani, already on the premises of the hostel, approached the gathering area from different directions. The information included that two Kombi's and a Toyota Corolla would be used by the conspirators.
Close to the specific hostel room where the conspirators were to gather, Sergeant Molefe, from his observation post, noticed two Quantum Kombis, the one parked behind the other. A silver grey Corolla then arrived and parked some distance from the Kombis. Next to the Kombis were about six men. They were conversing. Two men alighted from the Corolla, approached the men at the Kombis and shook hands with them. Sergeant Molefe was able to approach the Corolla and photographed it with his cell phone. About six men then removed several seats from the Kombis. The men at the two Kombis then entered the hostel room and returned after a few minutes. There were about fourteen and they had two sport bags with them. The two men who had previous alighted from the Corolla, and a third, went to that vehicle and the others boarded the Kombis. The vehicles drove off with the Corolla between the Kombis. The three policemen then returned to their own vehicle, parked close to the entrance of the hostel, with the intention to follow. However, gunshots from the direction of the vehicles they were about to follow, caused them to wait for things to calm down. After about 30 to 40 minutes they drove to what became known as the three crime scenes. At the crime scenes he took photographs of the arrested people and the firearms discovered inside and outside the two kombis. Eventually seven firearms were found, including two “Dashprod” semi-automatic rifles (photographed inside a Kombi), an AK 47, many rounds of ammunition, three semi automatic pistols and a revolver. The photographs of the firearms form part of the albums Exhibits C and J. The latter album contains photos he took, inter alia, of the firearms found at the scenes.
During cross examination by Mr Cindi he said it appeared that the men at the Kombis knew each other. Accused 7 and 8 shook hands with them upon their arrival. Mr Cindi recorded the defence of accused 1, 2, 3, 5, 6, and 8 to which I have alluded to in paragraph 4 above.
During cross examination by Mr Crispy he said accused 4 was one of the people who removed the seats of the Kombis.
During cross examination by Mr Mpanza he repeated that accused 8 was the driver of the Corolla and not accused 7.
7.2 Mr SP Mapangwa, a taxi owner, identified one of the Kombi's as his property. (Exhibit C photos 212 to 220.) On the day of the incident the Kombi was in possession of his driver Mr J Mathebula. Mr Mathebula was not supposed to be in Jabulani with the taxi and has since disappeared.
7.3 Mr Madunani is employed as an inspector of a taxi organization. On the day in question the Corolla crashed into his vehicle at a crossing in Jabulani. (Exhibit C photos 227 and 228.) The driver wore a red jersey and the passenger was wounded on his arm. When asked whether he saw a firearm he said he did not check the Corolla.
7.4 Sergeant TE Mudau is a member of the Tactical Response Team. He and several colleagues were in a marked police vehicle close to Jabulani Hostel. At about 7h20 he spotted the Corolla and the two Quantums driving at a high speed in the direction of the Jabulani Police Station. The police units moved in. One of the Quantums stopped but the other one and the Corolla sped off. He heard gunfire but kept on pursuing the Corolla and the second Quantum up to where they stopped at a robot controlled intersection. He then approached the Corolla which was closest to the police vehicle. There were three occupants in the vehicle. He instructed them to alight, but instead of complying, the driver pointed a firearm at him, causing him to fire at the driver with his RS rifle. The Corolla and the Quantum then sped off with the policemen following in hot pursuit. The Quantum eventually stopped again and about 7 people, most of them holding firearms, alighted and ran off in different directions between private residences. The policemen raced after them. On one of the private properties they found a man hiding inside a toilet. His name was given as Siyabonga Khumalo. (Accused 5.) He had a hidden handgun, a revolver, inside his trousers at the front of his body. The revolver's serial number was obliterated, and there were three live rounds in the roll magazine. The man also had a cell phone. A photograph of the firearm was later taken. Exhibit C - photos 197 and 198.
He then heard that he Corolla was involved in an accident a short distance from where the Quantum had stopped. At the scene he found two men. One was still inside the vehicle.
During cross examination Mr Cindi recorded that accused 5 would deny that he was found hiding inside a toilet and that he was in possession of a revolver. It was also put to him that the firearm was defunct, the hammer was broken. The sergeant was also accused that "he came with the firearm", and that he "planted" it, in order to falsely implicate accused 5.
The sergeant conceded that the firearm that he said was pointed at him by the driver of the Corolla, was not found. It was put that accused 8 was the driver and that he was afraid when the shots were fired at them, and that no firearm was pointed at him. He repeated that the driver pointed the firearm at him.
Cross examined by Mr Mpanza, he said the driver wore a blue top, and not a red top, according to accused 7's version. He could not say whether accused 7 was the driver or not. He denied that any shots were fired at the Corolla before he was pointed with the firearm.
Mr Crispy put it to him that accused 8, who was the passenger, was shot in the arm, and that there were only two people in the Corolla. He repeated that there were three occupants in the Corolla when he was pointed with a firearm.
7.5. Sergeant V S Simenya was in the same police vehicle as Sergeant Mudau. He stated that there were three passengers in the Corolla.
He noticed that the driver had a handgun. He then heard two shots. He could not see what was happening on the passenger side and moved there in a crouch. The passenger also had a firearm and pointed it at him and he heard two shots. He then returned fire with two shot s. The passenger was not pointing his firearm anymore. The Kombi and the Corolla then took off. He and his three colleagues got into their vehicle and gave chase. The Corolla overtook the Kombi. When they were alongside the Kombi, it stopped. About six armed men alighted and ran into the yards of the close by houses. They searched up and down for the suspects. He did not arrest anybody. Upon his return to the Quantum he noticed the Corolla some 200 metres further along the street. It was involved in an accident. At the scene he recognised the man who had pointed the firearm at him, he wore a red T-shirt . The other one was wearing a blue shirt.
During cross examination by Mr Cindi he conceded that the windows of the Corolla were tinted, but added that it was but lightly tinted and that he was able to see into the vehicle. When he heard the two shots the firearm was pointed at him. When the Kombi and the Corolla took of the traffic light was still red.
In cross examination by Mr Mpanza he denied that the man with the red T-shirt was the driver of the Corolla. He conceded that no firearm was found in the Corolla.
7.5 Mr K Dhlamini is the owner of the second Quantum. Accused 4 was his driver. He had no reason to be in the Jabulani area with the taxi on the day of the incident and had no permission to remove the seats of the taxi.
7.6 Constable NA Mosemane is a member of the Tactical Response Team. He was with Constable Mudau in the marked police vehicle. They drove pass the first Quantum and followed the Corolla and the second Quantum. When the two vehicles stopped he alighted and moved from the passenger side of their vehicle to where Mudau was behind the vehicle. He then noticed a firearm pointed at them from the drivers' side. He and Muda opened fire. The Quantum and the Corolla then ignored the red traffic light and sped off, with the policemen in pursuit. When the policemen caught up with the Quantum, it stopped and the occupants alighted and ran off in different directions. He and Mudau searched the same area and found accused 5 sitting in a toilet. He pointed his RS at accused 5 and Mudau ordered him to get out. Accused 5 was put on the ground and searched by Mudau, who found a revolver and 3 rounds in his possession.
During cross examination by Mr Cindi he said he saw only the firearm pointing from the driver's door. He repeated that initially the Corolla had three occupants.
He was adamant that they found accused 5 inside the toilet. During cross examination by Mr Mpanza it was put to him that accused 7 would say that they had no firearms and that the policemen fired at them solely because of the information that the men were armed. This he denied and repeated that he saw a fi rear m. He could not say whether accused 7 was the driver of the Corolla. The arm he saw holding the gun on the driver's side was dressed in something blue.
7.7 Constable C M Moagi, stationed at the Honeydew police station, was in a marked police vehicle at the Jabulani Police Station with constables Mokatla, Koza and Mukumbani. They noticed the three vehicles and followed them. Sergeant Mudau's vehicle was in front of them. One Quantum stopped and Mudau' s vehicle drove past . When he heard shots, they stopped. A man came running in their direction with a firearm in his hand. He was chased by other policemen. The man pointed the firearm at him and he fired two shots at the man. Constable Makumbani also opened fire. More shots were fired by other policemen. When he realised that policemen were following behind the man, he stopped firing and they returned to their vehicle. They then drove in the direction of the second Quantum and the Corolla, and caught up at the corner of Moloi and Motlala Streets. Several men alighted from that Quantum and ran into different directions. His colleague, Constable Mogatswa, called out that they should stop. Only one man stopped. In his possession, pushed inside his trousers at his groin, they found a pistol of which the serial number had been obliterated. The man's cell phone was also seized. His name was Zama Duze (accused 6). He was taken back to the second Quantum. The firearm and cell phone were photographed -- Exhibit C -- photos 198 and 207.
During cross examination it was put by Mr Cindi that accused 6 would deny that he was found in possession of a firearm and that Constable Moagi "came with the firearm."
7.8 Constable E M Sebutjeni was with Constable Moagi and other colleagues when the three vehicles passed. Despite endeavours by other policemen to block them, the second Quantum and the Corolla managed to get away. Constable Thupudi and his colleagues gave chase and stopped behind the vehicles at a traffic light. When he alighted from their vehicle, he noticed a man coming from the direction of the first Quantum, running in their direction pointing a firearm at the policemen. He then knelt down and fired three shots at the man. They returned to their vehicle and followed directions to where the other Quantum and the Corolla had driven off to. In approaching the second Quantum he noticed men alighting and running in separate directions. They chased after them and caught up with one. A pistol was pushed inside his trousers at his groin. The man also had a cell phone. He gave his name as Zama Duze (accused 6). The pistol is depicted in photo 198 of Exhibit C- marked 831.
During cross examination by Mr Cindi he agreed that accused 6 co operated when he was arrest ed. Mr Cindi stated that accused 6 would deny that he had a firearm.
7.9 Constable MM Malepe is an official photographer. He complied the album, Exhibit C. He sealed the exhibits found at the scenes in exhibit bags and marked them with the seal numbers reflected in Exhibit K.
He took a swap for DNA analysis from the black balaclava depicted in Exhibit C, photographs 84 and 86. The seal number of the forensic bag – PAB 000285735.
He also took a swab rom the Astra pistol, Exhibit C, photograph 200 and seal number – PAB 4001908238.
He did not take a photo of the pistol in possession of Constable Moage because he did not know where it came from. It was not on the seat of the Quantam when he took photo 78 of Exhibit C.
He was later recalled and testified that he was qualified to take swaps for DNA analysis.
7.10 Constable T Thupedi of the Tactical Response Team, and three colleagues were waiting in a marked police vehicle. He was aware of the information about the conspiracy. That morning, when the three vehicles drove past Jabulani Police Station, they managed to stop the second Quantum. He ordered the driver to alight. When he moved to the left of the vehicle, he noticed a man in the back seat. The passenger sliding door of the Quantum then opened and a man alighted and ran away. He called out to the man that they were the police and commanded the man to stop. Instead of stopping, the man turned towards him and pointed him with a firearm, causing him to fire several shots at the man, but the man kept on running. More shots were fired by someone else and the man dropped his firearm but ran on. Constable Thupedi then returned to Quantum. The man sitting in the back seat held an automatic rifle on his thighs, but, when requested to drop it, he put it on the seat beside him. He was surprised to see two other men lying where the Quantum’s middle seats were supposed to be. One had a black carry bag and the other a blue/black one. Each bag contained an automatic rifle. The men were handed to Captain Shigange. The name of the man who sat on the back seat was Mbongani Chunu (accused 1), the name of the man with the black bag was Cebo Mdlolo (accused 3), and the third man, who had the black and blue bag was Sphesihle Zwane (accused 2). The driver (accused 4) was not in the vehicle. The last time he looked him, Constable Sambo was standing next to him, at the driver’s door. Somebody called from the Mall and when he rushed there he found the man who earlier ran away. He had blood on his body. It was the deceased. On his way back from the Mall, followed the route the deceased ran to look for his firearm. He found it in a ditch. When alerted about another suspect at the close-by garage, he handed the firearm to Constable Mavuso. The pistol depicted on Exhibit J, Photo 13, was not there at the time he found the three men inside the Quantum. The pistol looked like the one dropped by the deceased. The rifle depicted in the album Exhibit C, photos 65 and 66 is the firearm that was in the blue bag and the firearm in photos 70 and 71 in the black bag. The cartridge casings depicted in photo 12 of exhibit C were all found at the crossing from where the police fired at the deceased. During cross examination by Mr Cindi he denied that accused 3 sat in the left front passenger seat. He said he saw the deceased pulling the firearm from his waist at the front of his body. He did not dispute the fact that the bullet that hit the deceased entered his body on his back. It was disputed by Mr Cindi that the deceased was armed, but the witness remained adamant in that respect. It was further put that the men who were in possession of the two bags got away whilst the policemen were concentrating on the deceased. This was denied. The witness also denied that accused 3 sat in the passenger seat next to the driver when the vehicle stopped. It was further recorded that accused 1,2 and 3 would deny that they were in possession of the firearms.
Mr Crispy put it to the witness that accused 4, the driver, would also testify that accused 3 was sitting next to him in the passenger seat when the vehicle stopped. The witness disagreed
7.11 Captain R G Jansen van Rensburg is a forensic DNA analyst. In the line of duty she analysed the black hat (balaclava, found inside the first Quantum) - Exhibit C, Photos 84, 85 and 86 (marked A8), and the swab taken from the pistol butt depicted in photograph 193 and 194 of Exhibit C. The analysis showed that the DNA found on the black balaclava matched that of accused 7 and the DNA found on the pistol butt that of accused 6.
(The evidence that DNA of accused 3 was found on the pair of gloves found by the police in the first Quantum was not in dispute. See admissions - Exhibit A.)
7.12 Constable SA Langa is a member of the Tactical Response Team. He was in the company of Constables Samba and Thupedi. He was next to Constable Thupedi when the deceased, who ran from the Quantum, pointed his firearm at them. He also opened fire at the deceased. The deceased dropped his firearm. The deceased was the only person running away from the Quantum. Inside the Quantum he noticed a man sitting in the back seat with a rifle on his thighs. (Accused 1). Two other men lay on the floor where the middle seats of the Quantum had been removed. They had carry bags on their laps. Inside the bags were the semi-automatic rifles. The blue/black bag was in possession of accused 2, Zwane, and the black bag in possession of accused 3. Constable Thupudi was called away and upon his return he had the pistol, which he said he had picked up. This firearm he gave to Constable Mavuso.
During cross examination by Mr Cindi it was disputed that the deceased was armed. The witness remained adamant that he was. The witness further denied that anybody else ran away from the Quantum.
7.13 Constable T Mavuso is a detective stationed at Jabulani Police St at ion. He was not involved in the operation. On his way to work that morning he passed the scene where the first Quantum had stopped . He recognised Constable Sephudi as one of the policemen present. He then noticed a man getting out of the Quantum and running away. The man did not stop when the policemen screamed at him to do so. Shots were then fired. He did not see whether the running man was armed. One of the TRC pol icemen asked him to assist, and asked for his hand cuffs. Constable Thupudi, whom he knew, then arrived with a pistol in his hands, saying it belonged to the deceased, and which he requested the witness to keep. This firearm was put on the backseat of the Quantum after the photographer had left . It is depicted in Exihibit J - photo 13. (Album compiled by Sergeant Molefe for his own purposes.)
During cross examination by Mr Cindi it was again disputed that the deceased was armed.
7.14 Captain A Sereo is the investigating officer. He confirmed that two other men were arrested that day at the close-by garage. They could however not be linked to the conspiracy, both men had alibis. During cross examination by Mr Cindi it was recorded that the two men were earlier inside the Quantum.
8. Mr Crispy ' s application for the discharge of accused 4 was refused.
9. Evidence for the defence.
9.1 Accused 1, Mr Mbongerni Chunu , explained how it came about that he was arrested. Everything started with an arrangement he had with his friend, the deceased, who lived at Jabulani Hostel. Arrangements were already made the previous day that he would assist the deceased to buy clothes for a traditional marriage ceremony. He forgot the name of the place where the clothes were to be purchased. He knew the deceased very well. They both worked at the MTM rank. On the day in question at about 7h00 he and accused 3, who stayed in the same flat, arrived at the hostel. At the hostel they found a Quantum. Accused 4 was the driver. There was a lot of other people including accused 2, 5, 6 and 8. They were removing the seats from the Kombi, but all he did was to greet accused 4. The deceased was inside the hostel. He was then told that they were waiting for another vehicle which then arrived. It was another Quantum with four occupants. They were strangers and only the deceased and one Kuhla, who lived at the hostel, knew them. A man called Sibisi, who was not present, was apparently the owner of the second Quantum. The 4 strangers had two bags with them. Two strangers then boarded the first Quantum with the two bags, and sat on the bags. They were seven men in the Quantum. The two Quantums and another vehicle, a Corolla, then left the hostel area. Close to the Jabulani Police Station they were confronted by the police who shouted at them to get out of the vehicles, and fired shots at them. They alighted from the Quantum and sat on the ground. The deceased ran away and the police shot at him. He denied that he had a rifle on his thighs as testified by the State witnesses. One of the strangers in the Quantum was also arrested, but he did not see him again at the police station. He did not know what happened to the other one. Later he heard that the deceased was shot. The deceased did not have a firearm . He did not know what the two bags contained.
During cross examination by Mr Crispy he said he knew accused 4 well. During cross examination by Mr Badenhorst he said that when the police approached the Quantum he sat on the backseat. He denied that he, accused 2 and 3, were the only passengers in the vehicle. He did not see the number plates of the Quantum inside the vehicle as depicted in Photo 56 of Exhibit C, and also did not see any of the firearms allegedly found by the police. He knew nothing about the balaclava found in the second Quantum and did not see accused 7, whose DNA was found on it, wearing it at any time. He conceded that the deceased organised whatever was planned. He did not know why the deceased ran away . He could not remember where they were supposed to buy the stuff they needed. He added that accused 7 and 8, on that day, were supposed to trade the Corolla for a Quantum. He admitted that accused 8 was his cousin. That morning, upon his arrival, all the accused, except accused 7 who arrived later, were already at the hostel. The two strangers sat on the bags and he and accused 2 and the deceased sat in the back seat. It was pointed out to him that there was not one bullet hole in the Quantum, although he said the police were continuously firing at the vehicle. He did not know why the deceased ran away. He knew nothing about any conspiracy.
9.2 Accused 2, Mr Sphesihle Zwane, said the deceased was his uncle. He also worked at the MTM taxi rank. They were supposed to buy wedding gifts that day. The deceased informed him about it about two days before. He did not know the four men who arrived in the second Quantum with the two bags. He did not know what the bags contained. When they were confronted by the police the deceased got out of the Quantum and ran away, he did not know why. He denied that he had any firearm in his possession and said they were falsely implicated.
During cross examination by Mr Badenhorst, he said his relationship with the deceased was good. He did not know where they were supposed to buy the goods for the ceremony. He said they were supposed to go to the homeland, Kwa-Zulu Natal, on the same day to deliver the goods, but with other transport, but he was not supposed to go with. He did not see the number plates of the Quantum inside the vehicle. He did not know accused 4, the driver. He never saw any firearm. He also did not see anybody wearing the black balaclava found in the second Quantum.
9.3 Accused 3, Cebo Mdlolo, said that morning he was awakened by accused 1 who asked him to accompany him to buy certain goods for a wedding ceremony. From the people present he only knew accused 1. Before they left from the hostel all of them went inside because it was very cold. He did not know the four men who arrived with the two bags, neither did he know what the bags contained . There were seven men inside the Quantum. He was surprised when the police started shooting at them. They were arrested with another person whom he did not see again after they were taken to the police station .
During cross examination by Mr Badenhorst he said he had a good relationship with the deceased. He knew the deceased because he lived with the deceased's previous neighbours. He did not know why the deceased ran away . That morning the deceased did not ask him why he was there. When accused 1 asked him to accompany him that morning he told him that he had forgotten the name of the place they were supposed to buy the goods, but that it was around Soweto. When asked why he had to go with to purchase the goods, he said he had the " spirit" to accompany people to buy stuff . He did not see the Quantum's number plates inside the vehicle.
In respect of the gloves in the Quant u m, linked to him by DNA, he said he wore the gloves that morning because it was very cold. After his arrest the police removed the gloves, but he did not know who put the gloves inside the Quantum . He denied that he was in possession of the bag containing the AK 47 .
9.4 Accused 4, Zakheni Mvelase, is of occupation a taxi driver and earns about R1000 per week. He works from the MTM taxi rank. The owner of the taxi is Mr Dhlamini. At about 5h00 that morning the deceased knocked at his door and hired him to transport certain goods that still had to be purchased in Florida. They agreed on a fee of R1000 They then drove to Jabulani. The deceased told him that the goods they were to purchase, blankets and pots, required that the seats of the Quantum be removed. He remained sitting in the Quantum whilst the seats were removed. He said Sergeant Molefe (the first State witness) lied when he said that he was involved in the removal of the seats, because at the time he was sitting in the taxi with accused 3. He never alighted from the vehicle that morning until ordered to do so by the police. He did not know where to go He did not know why the deceased did not sit next to him in order to direct him where to go. When they were stopped by the police he did not look whether accused 3 was still sitting in the passenger seat next to him, because it was a "terrible situation" he was facing people with guns. At Jabulani hostel they were waiting for other people until the second Quantum showed up. The seats of the second Quantum were likewise removed. They were seven men in the taxi when they drove off. Three sat in the back seat and two lay on the floor where the seats had been removed. He got out of the vehicle when instructed by the police. He knew accused 7 very well. He did not see what the bags contained. When asked about his communication with the deceased the previous day, he said they knew each other very well from the homelands, KZN.
During cross examination by Mr Badenhorst he said he did not know why the deceased picked him to supply the transport. When it was put that the owner of the vehicle would not have approved the use of the taxi at Jabulani and that the seats could be remove, he said that when the owner receives his share of the fee there would be no problem.
He admitted that he knew accused 1 well. He also knew accused 7. It was pointed out to him that the cell phone records show that they communicated three times earlier that morning, a few minutes after 5h00. He denied that he discussed the prospected purchasing of the goods with accused 7, and admitted that he was surprised to find him at Jabulani Hostel. He agreed that it was a coincidence that he and accused 1 and 7 arrived at the same place at the same time. He said they were the only two people he knew. Earlier that morning he cleaned the taxi himself, there was nothing lying about. He did not know how it came about that the number plates were removed and ended up inside the vehicle. If the number plates were removed at Jabulani he would have noticed it because he was sitting in the driver's seat all the time. The deceased would have given him directions where to go. He did not know why the deceased did not sit next to him in order to give him the directions.
9.5 Accused 5, Mr Siyabonga Khumalo, denied that he was found in possession of the revolver, as alleged. (Count 10.) On the 15th June the deceased came to his place, looking for accused 2, who was not at home. He was requested by the deceased to assist with the purchasing of goods. He duly arrived at Jabulani Hostel early the next morning. The deceased asked him to help to carry the seats of the Quantum inside the hostel. He remained inside the hostel until they were about to leave. He did not discuss anything with the deceased due to his respect to older people. The second Qantum arrived. As requested by the deceased he boarded the second Quantum. He did not know the other occupants. They drove off. There was shooting , and the driver said somebody was shooting at them. He then lay on the floor of the Quantum. The driver took off but bumped into the pavement. The other occupants alighted and ran off. Because of the shooting he ran for his life . He went into a yard and hid behind a wall. The police then arrived and he relaxed. He was surprised when the police pointed their firearms at him. He thought that the reason why the police testified that he was in possession of a revolver, was to “frame” him.
During cross examination by Mr Badenhorst he said he never looked back after he had started running. The police did not ask him why he was running, all they wanted to know was where the others were. He did not know why the policemen pointed their firearms at him. Back at the Quantum he saw accused 6 and two others. He did not know what happened to the other two, but said one of them was also an occupant of the Quantum before they stopped. He conceded that the driver of the Quantum also ran away . The deceased, his friend's father, asked him to accompany them because, traditionally, he regarded the deceased as his father. He denied that he was supposed to go to KZN afterwards, and could not explain why Mr Cindi recorded that at the inception of the trial. He said he was told they were going to Florida. He was asked how many people got into the Corolla at the hostel, and he said he did not count them but thinks they were two. He denied that he was found in the toilet and that he had a firearm in his possession.
9.6 Accused 6. Mr Zamakuhle Naftan Duze, resided at Jabulani Hostel. He and the deceased were occupying different rooms but shared the same kitchen. The morning of the 16th he was awakened by the deceased who requested him to accompany him to buy goods for the traditional "Mbezu". He and the deceased were “home boys”, and he knew about the wedding. He knew that the deceased wanted to hire vehicles but was not aware of the arrangements. The vehicles arrived and the seats were removed, because they intended to buy a lot of goods, including big pots and blankets. He boarded the second Quantum. There were five occupants. Close to the Jabulani police station he heard gunshots . The driver said somebody was shooting at them.
Accused 8, who was in the Corolla, is his brother, they have different mothers but the same father. There were only two occupants in the Corolla .
When the Quantum stopped, he wanted to get away, at first he lay down but then ran away.
The deceased did not have a firearm.
He denied that he had a firearm in his possession. Back at the Quantum after his arrest, the policemen found his cell phone and money on his person. The first time he saw the firearm was when it was on the pavement.
Mr Cindi drew his attention to the evidence that his DNA (mixed) was found on the firearm the policemen testified they found in his possession. He answered : "I do not agree."
He did not know how the firearm got to the pavement where it was later photographed .
He then added that when he was brought back to the Quantum, one of the policemen removed the firearm from a plastic bag and hit him on his head with it.
During cross examination by Mr Badenhorst he was confronted with the contradiction in his evidence in chief concerning when he saw the firearm for the first time. He was asked when he told his legal representative that he was hit with the firearm. He said: “Now”.
He said according to his knowledge the deceased hired all the vehicles, including the Corolla, but added that the owners should know. The people he knew were the deceased, accused 2 and accused 8.
9.7 Accused 7, Mr Themba Felokwazi Mcambi is the owner of the Corolla. That morning of the 16th he received a call from accused 8 to assist him with something at Jabulani Hostel, and he agreed, saying he was on his way. At the hostel he parked the Corolla at the end of the road, some distance from where the deceased stayed. He waited in his vehicle for about 5 minutes and then walked as directed by accused 8, who had told him that he would find two Quantums there. He found the Quantums. Accused 4 sat in the driver' s seat of the one vehicle, relaxing. There was no driver in the other vehicle. Accused 1, his cousin, then came out of the hostel. He was not aware that accused 1 would be present. Accused 7 said he was asked by accused 8 to accompany him to Moragi to buy a car. Accused 8 then emerged from the hostel and they proceeded to the Corolla. Accused 8 said that after their visit to Moragi they would join up with the rest of the group in Florida North. When they were about to enter the robot controlled circle at Jabulani Police Station, he heard a sound, but did not know what caused, and he drove on. He then noticed a police vehicle driving parallel to the Corolla. A shot was fired, hitting the steering wheel, which caused him to accelerate. What happened hereafter he did not really know, save that he collided with another vehicle.
He denied that there were three occupants in the Corolla and that he and accused 8 pointed firearms at the policemen.
When asked about his DNA on the balaclava, found in the first Quantum, he denied that he was ever inside that vehicle.
He knows accused 1, 4 and 8.
During cross examination by Mr Badenhorst, he admitted that he also worked at the MTM taxi rank, but that he worked "outside".
When asked about his DNA on the black balaclava found in the first Quantum, he responded that he had two other hats, and not a balaclava. He had no other explanation. It was pointed out to him that the distance from where the shots were fired by the police up to the point where his vehicle collided, was more than two kilometres. (2180 Metres -- evidence admitted by the defence - Exhibit N). It was further pointed out to him that no shots struck the Corolla on the side. He again denied that he pointed a firearm at the police and remained adamant that he was the driver of the Corolla. It was also put to him that there is abundant evidence before court that the three vehicles left Jabulani Hostel at the same time.
9.8 Accused 8, Mr Patrick Senzo Mtshali, said he was shot, but added that he did not know why. The bullet entry wound is on the right front upper arm and the exit wound directly in line at the back. He was the passenger in the Corolla driven by accused 7. He said he would not have been able to drive a vehicle with that wound for the distance of 1km. He did not have a firearm and did not see any firearm in possession of accused 7. No firearm was found in the Corolla . The reason why he was at Jabulani Hostel that day was because he and the deceased worked together at the MTM taxi rank, and knew that the deceased intended to buy goods for the ceremony, UMbezu, and wanted to assist him. The previous day the deceased told him that another vehicle with four occupants would arrive . That morning he found a Quantum at the hostel. The deceased and accused 6 were present. Accused 4 sat in the Quantum . The seats were removed. Soon thereafter a second Quantum arrived . He did not know the four occupant s, but the deceased knew them. A man called Sibisi knew where the goods had to be purchased, however, he could not get hold of him on the cell phone. Two of the unknown men boarded the first Quantum. He wanted to assist the deceased but also needed to go to a place called Moragi to buy a vehicle, but as time was problem, the deceased phoned accused 7, a man who had taxis, for transport . Accused 7 arrived and they drove off. He was then shot and hospitalized . He did not know who shot him. He never heard from Sibisi again .
During cross examination by Mr Badenhorst he said Sibisi actually sent the four unknown men, to whom he then referred as the “Four Men Power”, "to help us.”
It then transpired that what he meant was that Sibisi, in order to have them arrested, falsely implicated them by sending the four unknown men with the firearms to “assist” them, and that Sibisi and the police co-operated.
He did not know accused 3, but he and accused 5 are family.
He denied that he was the driver of the Corolla , and that the police were on the driver' s side when he was shot . It was then pointed out to him that on his version the bullet would have entered his arm posterior , whilst in fact the bullet entered his upper arm anterior, which is consistent with the police's version that he was at that time facing them, pointing the firearm at them.
Evaluation
10. ln acting upon information the police planned an operation to restrain alleged conspirators from committing an armed robbery. The place where the robbery would be committed was unknown . The evidence about the information received by the police has no evidential value. It serves only one purpose namely to explain the reason for the police operation.
11. The operation included the monitoring of the movements and conduct of the alleged conspirators by three policemen, and the assistance of other police units in order to prevent the conspirators from executing their plans, and to arrest them.
12. It is not in dispute that early morning of 16 June 2016 a number of men, including the deceased, the eight accused and several unnamed men, gathered at the Jabulani Hostel, where the deceased lived. There were two parked Quantum Kombis. The seats of the Quantums were removed before the two vehicles, together with Toyota Corolla, drove off. The police were waiting close by at the Jabulani Police Station, and a confrontation ensued, during which shots were fired by the policemen. After the first Quantum had stopped , the deceased alighted and ran away. He was fatally wounded by the police. Accused 1, 2, 3 and 4 (the driver}, who were occupants of that vehicle, were arrested. Inside the vehicle the police found two carry bags, two semi-automatic rifles, one automatic rifle and ammunition. The second Quantum and the Corolla, in the meantime, had driven off. Shots were fired and the police gave chase. The second Quantum eventually stopped and the occupants alight ed and fled. The police arrested accused 5 and 6. About 2km from the place where the policemen fired shots, the Corolla collided with another vehicle and two occupants, accused 7 and 8, were arrested. Accused 7 had a bullet wound in the right upper arm.
13. The accused contended they knew nothing about any conspiracy, or any firearm, and that they were falsely implicated by the police. Accused l, 2, 3, 5, 6, and 8 further contended that they were only involved in arrangements to attend the MBezu ceremony of the deceased. Accused 4 maintained that he was just the driver of the first Quantum, hired by the deceased. Accused 7 became involved when he honoured an appointment to meet accused 8 at the hostel. None of the accused knew the four strangers who were in possession of the carry bags containing (unknown to them) the rifles. In respect of accused 5 and 6 it was contended that the policemen “came” with the firearms and that it was “planted”.
It also transpired from the evidence of accused 8 that a man called Sibisi J working with the police, set a trap for the accused, by "planting# semi automatic firearms and an automatic firearm in one of the vehicles used by the accused.
14. It is trite that the State bears the onus to prove its case beyond reasonable doubt. The accused bear no onus. If doubt exists in respect of whether the State has proved what it alleged, the accused will be entitled to the benefit thereof. However, if it is found that the State's evidence is unassailable, no room exits for a finding that the defence's version is reasonable and possible true. See 5 v Trainor 2003(1) SACR 35 SCA, pars [8] and [9].
15. ln this case where no direct evidence of the alleged conspiracy (count 1) was adduced, any finding that the accused were involved, will depend on the circumstantial evidence. The circumstantial evidence concerning the alleged conspiracy will necessarily include evidence, if accepted, of the possession of the firearms .
16. The State adduced evidence that seven firearms were found at the scenes. It includes the three rifles found in the first Quantum, the firearm allegedly dropped by the deceased, the two firearms allegedly found in possession of accused 5 and 6, and another firearm retrieved from the area where some of the suspects alighted from the second Quantum.
17. ln respect of the firearms found in the first Quantum, the dispute actually turned upon who was in possession, and not whether the firearms were in fact found inside the Quantum. The defence that the firearms were planted in the Quantum via the four unknown men, working with a certain Sibisi, who co-operated with the police, and that the accused were totally unaware of the firearms, is in the circumstances so improbable that it can be rejected as a fabrication.
The problem lies in the following: The deceased, who was in control of all the arrangements, requested friends and family, including the accused, and also involving a bona fide taxi driver, to assist him with an innocent shopping excursion, and then allowed four heavily armed men, strangers to the accused, to join in. The heavily armed strangers surely did not have a lawful objective and would definitely not have been part of the initially planned innocent shopping excursion. The “innocent” excursion, in any event, will, on the version of the accused, for ever remain a mystery, in view thereof, amongst others, that none of the 8 accused could tell where they were intended to buy the goods for the deceased. Another unexplained mystery is why the deceased and the unknown men ran away when confronted by the police. A list of inconsistencies and improbabilities in the defence of the accused will probably cover more than a page.
18. There is no reason to doubt the evidence that accused 1, 2 and 3 were in physical possession of the firearms found in the first Quantum.
19. Concerning the firearms respectively found by the policemen in possession of accused 5 and 6, which they denied, it can evenly be stated that their versions are similarly so improbable that it can safely be rejected as false. To start with: Accused G's DNA was found on the firearm which the police said they found in his possession. His attempt to explain the presence of his DNA on the firearm, namely that he was at some point hit with the it, was not alone inconsistent with his evidence in chief, but came as a total surprise. Both accused 5 and 6 were also unable to advance a cogent explanation why they ran away from the Quantum. Their version that the police came with the firearms, falsely implicating them with the possession thereof, was clearly a fabrication. It was remarkable, that if the police were involved in “planting" firearms, why they did not "plant" firearms on accused 4, 7 and 8 as well. The alleged police conspiracy, is in the circumstances palpably false.
There was no reason why the evidence of the four policemen involved in the finding of the firearms should not be accepted.
20. The denial of accused 7 of having been involved in any conspiracy is gainsaid by the fact that the black balaclava with his DNA on it was found in the first Quantum. Accused 7 was unable to explain this. This fact, on its own, linked him to accused 1, 2 and 3 who were found in possession of the firearms.
His version that the police fired at him for no reason at all, added to his dilemma. He could also not explain why he drove on for more than two kilometres after the shots were fired by the police. If the Corolla was not involved in an accident, it is extremely doubtful whether they would have stopped off own accord.
The mere fact that no firearm was subsequently found in his vehicle, did not affect the veracity of the State's evidence at all. They clearly had ample opportunity to get rid of their firearms, the third person disappeared. In view thereof that accused 7 clearly lied about the black balaclava, his evidence, in any event, became tainted.
21. Accused 8's problems included the fact that he sustained an entrance bullet wound anterior to his right upper arm; how that came about on his own version, he was unable to explain. The location of the wound, on the other hand, is consistent with the State's version, namely that he was facing the police at the time they fired at him. Another problem in his version is that he ignored the uncontested evidence that the three vehicles left the Jabulani hostel in a convoy mode, totally inconsistent with his version. He clearly attempted to get some distance between the Corolla and the Quantums, for obvious reasons. What is also of importance is that he intended to join the group again after having attended to his car deal. The problem is that none of the accused knew where the group was heading to. The presence of accused 7, linked to the conspiracy by inter alia the black balaclava found in the first Quantum in which the semi-automatic firearms and the AK 47 were transported, is another aspect counting against him.
22. Accused 4 claimed that he was a bona fide taxi driver, hired by the deceased for transport purposes which was not crime related.
The following circumstances, however, collectively, militate against accused 4' s version of non-involvement in the conspiracy and no knowledge of the firearms:
(i) He used the taxi in an area where was not entitled to operate;
(ii) The owner of the taxi did not know anything about the use of the taxi in the Jabulani area , and would not have consented;
(iii) The number plates were removed from the Quantum – obviously to avoid identification - about which he, inexplicably, knew nothing;
(iv) Coincidentally the taxi was already in his possession the day before the incident, which was specifically arranged with the owner.
(v) It is totally improbable that a gang of robbers would involve an "innocent" taxi driver in their activities.
(vi) He was in constant contact with the deceased, the " organizer" .
23. Accordingly it falls to reason that the State's evidence directly implicated accused 1, 2, 3, 5, 6, 7 and 8 with physical possession of firearms and accused 4's acute awareness of its presence. This was proved beyond reasonable doubt .
24. Apart from the evidence linking accused 1, 2, 3, 5, 6, 7 and 8 to the possession of firearms and accused 4's involvement and awareness, the following circumstantial evidence has to be taken into account:
(i) The 8 accused and the deceased, as well as the "unknown" men, were on friendly terms, "like a soccer team", at the time of the gathering at Jabulani Hostel, early morning of the 16th. They created the impression that they were well known to each other. This is borne out by the evidence of Sergeant Molefe, which is accepted;
(ii) All the men present, at a certain stage, entered the hostel. Accused 4's version that he, at all relevant times, remained in the driver's seat of the Quantum, is rejected, for the reason that he knew exactly what was going on;
(iii) Several of the men were involved in the removing of the seats of the two Quantums. The version of the accused that it was done to create space to load the pots and blankets at an unspecified place, is rejected. Accused 4's denial of having been involved is rejected as improbable. He was in control of, and responsible for the vehicle, and was in any event observed by Sergeant Molefe.
(iv) The deceased, who pointed a firearm at the police when he attempted to escape, was in control of all the arrangements. This brought a dark cloud over any "innocent" arrangements;
(v) The accused and their companions, were rigged and prepared to commit serious crimes, probably armed robbery;
(vi) The improbability that only the deceased knew where they were heading. Although the group had already started on their journey, with the deceased in the third vehicle, the last vehicle, the three vehicles drove off blindly without any of the 8 accused knowing where they were going. This is so improbable that it can be safely rejected.
25. Concerning whether the State succeeded in proving its case, the following is found :
The preferred crimes :
26. Count 1:
26.1 S v Libazi 2010(2) SACR 233 (SCA),(n9), defines a conspiracy to commit a crime as follows :
"A conspiracy is an agreement between two or more persons/ to commit, or to aid or procure the commission of a crime."
26.2 Section 18(2) of the Riotous Assemblies Act/ Act 17 of 1956, provides that:
"Any person who...
(a) conspires with any other person to aid or procure the commission of
or to commit; or
(b) incites/ instigates/ commands/ or procures any other person to commit/
any offence/ whether at common law or against a statute or statutory regulation shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”
26.3 Although there is no direct evidence proving the alleged conspiracy, it is a matter of common sense, and inferential reasoning, that the following circumstances justify such inference :
(i) The deceased and most of the accused was in direct contact at least a day before their arrest,
(ii) Arrangements for their transport were made, again at least the previous day.
(iii) The accused and others gathered in a group, at, and inside, the hostel where the deceased lived;
(iv) The group was heavily armed with prohibited firearms, at least two semi-automatic rifles, an automatic rifle and numerous handguns, with a large supply of ammunition;
(v) The group departed in three vehicles (to an unknown destination) . The registration plates of the vehicles were removed, clearly to avoid identification;
(vi) Inside the first Quantum was a balaclava, linked by DNA to accused 6, more often than not used by armed robbers;
(vii) When confronted by the police several armed members of the group escaped;
(viii) The deceased and accused 7 and 8 (I will deal more specifically with count 13 later) pointed firearms at the police, obviously in an attempt to avoid arrest.
26.4 It follows that it has to be found that the accused conspired to commit armed robbery. There is no room for any other inference.
27. Count 2.
27.1 Section 120(10)(b) of the Firearms Control Act forbids the possession of firearms with the intention to commit an offence or to use the firearm to resist arrest or prevent the arrest of another person.
27.2 At the inception of the trial Mr Crispi pointed out that accused 4 was specifically excluded from having been in possession of any firearm. Mr Badenhorst, at that stage, contended that all 8 accused were charged, implying that the alleged possession of the firearms was joint possession. I agreed with Mr Badenhorst and overruled Mr Crispy. As alluded to above, accused 4 pleaded not guilty to this count.
27.3 The State alleged, counts 5 to 13, that the accused (with exception of accused 4) were in possession of firearms, clearly the same firearms that played a role in count 1. In view thereof that no firearms were subsequently found in possession of accused 7 and 8, and that accused 4 is not specifically mentioned in the charge, it appears that the State intended to charge all the accused jointly in respect of count 2.
27.4 However, it must be taken into account that possession of the firearms probably played an integral role in respect of count 1, in view thereof that the conspiracy involved robbery with aggravating circumstances, which, on the facts, could have been nothing less than robbery with the use of firearms.
27.5 It is further of importance that accused 1, 2, 3, 5 and 6 are separately charged for having possessed the same firearms, and that accused 7 and 8 are also separately charged for having pointed, on the probabilities the firearms in their possession, at the police. These charges, like count 2, are charges in respect of the contravention of the Firearms Control Act.
27.6 Despite Mr Badenhorst's submission that section 120(1)(b) of the Firearms Control Act creates a totally different crime of which the elements differ from that of the other charges. However, in view thereof that possession of the firearms is an cardinal and integral element of all the charges I am of the opinion that to convict the accused on count two will indeed amount to double jeopardy to the accused and a splitting of charges.
In respect of accused 4 the State did not prove that he was in physical possession of any firearm as required in S v Mbuli 2003 (l}SACR 97 SCA.
27.7 It follows that all the accused have to be acquitted on count 2.
28. Count 3 - murder
28.1 In respect of count 3 the test is subjective. In this case the required form of mens rea is dolus eventualis. In S v Mgedezi 1989(1) SA 687 (A), approved in S v Thebus 2003(6) SA 505 CC, par 20, the legal limits of dolus eventualis are stated as follows: "... 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."
In PRINCIPLES OF CRIMINAL LAW (Fourth Edit ion )- Jonathan Burchell, p252, defined dolus eventualis as follows:
"Dolus eventualis exists where the accused foresees the possibility that the prohibited consequence might occur, in substantially the same manner in which it actually does occur, or the prohibited circumstance might exist and he or she accepts this possibility into the bargain (i.e. is reckless as regards this possibility).
The requirements of do/us eventualis in consequence crimes are, therefore: (a) foresight, (b) possibility, (c) correlation between foreseen and actual manner of consequence occurring, and (d) recklessness.
28.2 It is not always an easy task to determine what any accused subjectively foresaw, accordingly subjective foresight can be determined by way of inferential reasoning . See S v Dougherty 2003(4) SA 229 (W). I will return to this issue .
28.3 What has to be determined is whether the accused, in planning the armed robbery, subjectively foresaw the likelihood that they would be confronted by the police; that shots would be exchanged between them and the police, that the police would open fire at them, either in self-defence or in order to detain and arrest them; that they would point their firearms, or fire at the police to avoid being arrested, and that somebody, be it a policeman, a member of the gang, or a member of the public, could be shot and killed. See S v Nkombani and Another 1963(4) SA877 (A), and S v Munonyo and Others 1990(1) SACR 360 A at 346a.
28.4 The accused, throughout, denied that they conspired and/or intended to commit armed robbery, and that they were armed at all. Accordingly, in view of the fact that they were successfully prevented to execute their plans, there was no direct evidence about what they did foresee. However, as alluded to above, their subjective foresight can be determined by inferential reasoning. See S v Humphreys 2013(2) SACR 1 SCA. In this regard the following was said in 5 v Mini 1963(3) SA 188 (A), 55: "In attempting to decide by inferential reasoning the state of mind of a particular accused at a particular time it seems to me that a trier of fact should try mentally to project himself into the position of that accused at that time. He must of course also be on his guard against the insidious subconscious influence of ex post facto knowledge.”
28.5 It is further important to keep in mind, that, in drawing a negative inference against the accused, and it has been emphasized in many authorities, that the inference sought to be drawn must be the only one that can reasonably be drawn from the circumstances. See S v Campos 2002(1) SACR 233 (SCA), para 38.
28.6 In considering whether the death of the deceased was indeed foreseen by the accused, it was emphatically stated in 5 v Horn 1958(3) SA 457 (A) that the probability of the consequences is not required but that the realisation of the possibility of such death is sufficient.
28.7 The contention of defence counsel that the accused did not, and could not have foreseen that the deceased could be killed in the circumstances, cannot be accepted. It is a matter of fact that armed robbers, when confronted by the police, will attempt to avoid arrest and in doing so would probably open fire at the police, or threaten the police with their firearms, which, in return, would draw fire from the police in order to defend themselves and/or arrest the perpetrators. Death of a human being in such circumstances is a probable consequence, satisfying a stricter test than the required possibility (S v Horn). The consequential death of the deceased was therefore a real probability and foreseen by the accused, and they, nevertheless, proceeded to execute their plans concerning the armed robbery. What has to be kept in mind is that the conspiracy was past its initial phase and had developed to the extent that the conspirators, by driving off, armed to the teeth, were executing their plans.
28.8 It follows that the requirements of dolus eventualis are met, proving that the accused are liable for the death of the deceased.
29. In respect of the additional charges against accused 1, 2, 3, 5 and 6, concerning the unlawful possession of firearms and ammunition-:
accused 1 - counts 4 and 5 (Dashprod semi-automatic rifle and ammunition);
accused 2 - counts 6 and 7 (AK 47 automatic rifle and ammunition);
accused 3 - counts 8 and 9 (Dashprod semi-automatic rifle and ammunition);
accused 5 - counts 10 and 11 (.38 revolver);
accused 6 - counts 12 and 13 (9mm pistol); I am satisfied that the State's evidence, alluded to above, should be accepted. The said accused were found in physical possession of the respective firearms. All the resort under Section 4 of the Act.
30. In respect of the additional charges against accused 7 and 8 - pointing of firearms at the policemen. The evidence of the two policemen was clear and satisfactorily. The fact that accused 7 and 8 were actively involved in the conspiracy and that the rest of gang was armed, make it most probable that they were also armed. The fact that no firearm was found in physical possession of either accused 7 or 8, is of no avail to them. They had ample opportunity to get rid of the firearms before their arrest in view thereof that the third person in the Corolla also disappeared. The denial of the two accused of having pointed their firearms at the police must be considered against, inter alia, the lie of accused 7 in respect of the black balaclava and the consistency of the how accused 8 sustained the wound to his arm with the evidence of the relevant policemen.
31. Accused 1, 2, 3, 4, 5, 6, 7 and 8:
Count 1 – Conspiracy to commit robbery with aggravating circumstances: Guilty.
Count 2 -Contravention of section 120(10)(b) of the Firearms Control Act, 60 of 2000.
Not Guilty.
Count 3 - Murder:
Guilt y.
In addition:
Accused 1;
Count 4: Guilty - Main count.
Count 5: Guilt y.
Accused 2;
Count 6: Guilty -- Main count.
Count 7: Guilty.
Accused 3:
Count 8: Guilty --Main count.
Count 9: Guilt y.
Accused 5:
Count 10: Guilty- Main count.
Count 11: Guilty.
Accused 6:
Count 12: Guilty -- Main count.
Count 13: Guilt y.
Accused 7 and 8:
Count 14: Guilt y.
AJ BAM
JUDGE OF THE HIGH COURT
28 June 2017