in the high court (bisho) in the matter between: 5 the ... · 2080982. the firearm was in a holster...
TRANSCRIPT
1
IN THE HIGH COURT
(BISHO)
CASE NO.: C C 9 7 / 2 0 0 3
DATE: 3 NOVEMBER 2 0 0 3
In the mat ter be tween : 5
THE STATE
versus
SEBENZILE QONGQO
JUDGMENT 10
EBRAHIM J
The accused Sebenzile Qongqo has been charged w i t h one count
of robbery ; one count of a t tempted murder; one count of murder ; t w o
coun ts of the con t raven t ion of sect ion 2 of the Arms and Ammun i t i on
A c t , 75 of 1 9 6 9 , namely tha t he had a f i rearm in his possession w i thou t 1 5
a l icence to possess same; t w o coun ts of the cont ravent ion of sect ion 36
of the aforesaid A rms and Ammun i t i on A c t , 75 of 1969 , namely that he
w a s in possession of ammun i t ion whi le not lawfu l ly in possession of a
f i rearm capable of f i r ing the said ammun i t i on ; t w o counts of the
con t raven t ion of sect ion 35(1 )(a) of the aforesaid A rms and Ammun i t i on 20
A c t , 75 of 1 9 6 9 , namely tha t he suppl ied another person w i t h a f i rearm
w i t h o u t being a dealer l icensed to do so; and t w o counts of the
con t raven t ion of sect ion 35( 1 )(b) of the aforesaid A rms and Ammun i t i on
A c t , 75 of 1 9 6 9 , namely tha t he supplied ammuni t ion to a person
w i t h o u t such person produc ing a l icence or permi t or author izat ion to 25
possess a f i rearm capable of f i r ing such ammun i t i on .
The accused pleaded not gui l ty to the aforesaid charges and
2
e iected, in terms of the provis ions of sect ion 115(1) of the Criminal
Procedure Ac t , 51 of 1 9 7 7 , not to disclose the basis of his defence to
any of the charges. The accused 's elect ion was conveyed to the Court
by Mr Gabelana, w h o appears for h im, and thereupon conf i rmed by the
accused. 5
The f irst w i tness to test i fy for the State was Thembelan i Neville
Gxakwe . The fo l low ing is a summary of his ev idence: On 28 Ju ly 2 0 0 2
be tween 1 0 to 11 pm he was on his w a y to a fr iend in Mdantsane . In
his possession was a 9 m m Star Parabellum f i rearm w i t h serial number
2 0 8 0 9 8 2 . The f i rearm was in a holster wh i ch was tucked into the f ront 1 0
of his t rousers . He stated tha t he had a l icence to possess the f i rearm.
Near NU 5A, Mdantsane, he met the accused w h o m he knew. Af ter
greet ing each other the accused spoke to him about money for beer. He
to ld the accused tha t he did not have any. He was on cru tches and the
accused then pushed him and he fell to the g round . Whi le he w a s lying 1 5
on the ground the accused grabbed his f i rearm and ran of f . A t that
stage Phiwe Vuso appeared and he told him w h a t had happened and
asked Phiwe to chase after the accused. Phiwe did so, but was unable
to ca tch the accused and came back. The w i tness then heard shots
being f ired in the v ic in i ty of a school and told Phiwe to invest igate. Phiwe 20
left and returned a little later. The w i tness then not iced tha t Ph iwe 's
hand was b leeding. The fo l l ow ing day the w i tness repor ted the incident
to the pol ice. He stated fur ther that the f i rearm had thus far not been
returned to h im. Asked about his relat ionship w i t h the accused he said
tha t he had k n o w n the accused f rom his boyhood days. The accused 25
also stayed in the same area as he d id . A l though it was dark at the area
where the inc ident occurred there was suf f ic ient l ight for him still to see.
They had not been far f rom a tail py lon wh i ch had a cluster of electr ic
l ights on it. He and the accused had been alone and had walked for
about 8 paces and ta lked before the accused pushed him over.
Cross-examined by Mr Gabelana the w i tness , Thembelan i Gxakwe ,
stated that Phiwe Vuso had only arrived on the scene after the accused 5
had robbed him and had not seen the accused robbing h im. The accused
w a s lying if he claimed tha t he had not robbed h im. It w a s also untrue
tha t he gave the f i rearm to Phiwe Vuso . He denied tha t he had sold the
f i rearm to Phiwe Vuso . He denied fur ther that he was falsely impl icat ing
the accused and said that the accused 's claim tha t the incident never 10
happened, was unt rue.
In reply to quest ions f rom the Court , this w i tness s tated that prior
to the incident he and the accused had been on good terms and the
accused used to visi t h im. The accused was aware tha t he owned a
f i rearm. He though t that the accused may have seen the f i rearm in his 1 5
safe w h e n he opened it. But, he had never s h o w n the f i rearm to the
accused.
Phiwe Vuso test i f ied tha t on 28 Ju ly 2 0 0 2 at about 1 0 pm he was
on his w a y to 791 NU 5A, Mdantsane . He saw the w i tness , Thembelani
G x a k w e , coming t o w a r d s him and the accused wa lk ing in the opposi te 20
d i rec t ion. The accused approached Thembelani G x a k w e and the latter
fell d o w n . He did not k n o w w h y Gxakwe had fa l len. But he then saw
the accused bending over Gxakwe and though t that he was going to help
Gxakwe to get up. Instead the accused s t ra ightened up and ran away .
The w i tness w e n t to Mr Gxakwe and spoke to him and then chased after 25
the accused. However , as he could no longer see the accused he w e n t
to the accused 's home. There he spoke to the accused 's brother . He
4
then heard gunshots and wen t to invest igate. He saw a person shoot ing
and though t that the person was f ir ing into the air. When he spoke to
the indiv idual , he recognised the person 's voice as that of the accused,
but as it was dark he could not see his face. He spoke to the accused
and told him to hand over the f i rearm. The accused responded by tel l ing 5
him to go back or he wou ld shoot h im. Four shots were f ired by the
accused of wh i ch the th i rd s t ruck the w i tness on the middle f inger of his
r ight hand. He sustained an open w o u n d , but the injury was not
ser ious. On the w a y back to the accused 's home the police arrived and
he reported the incident to t h e m . A f te r at tending hospital for t rea tment 10
he returned home.
T w o days later he w e n t to the accused and spoke to h im. The
accused said tha t he had heard that he had shot the w i tness , but claimed
that he had not done so, but only f ired into the air. The accused said
tha t he wou ld bring the f i rearm to h im, but never did so. He stated that 15 .
he had k n o w n the accused since ch i ldhood and tha t they stayed in the
same area. The nearest l ights to the place where the incident occurred
were those tha t were mounted on a tall py lon .
It emerged dur ing cross-examinat ion that Mr Gxakwe was his
uncle. He was aware tha t Mr Gxakwe o w n e d a f i rearm and had seen it 20
w h e n he opened his safe. He denied the accused 's claim that he had
s h o w n the accused the f i rearm at a shebeen. He also denied that he
had told him tha t he obta ined the f i rearm f rom G x a k w e . He denied
fur ther that he had to ld the accused tha t he bought it f rom Gxakwe and
w a s pro tect ing the latter. He also denied tha t he ever asked the 25
accused to keep the f i rearm as there were tsots is nearby. He refuted
the claim that he was falsely impl icat ing the accused in the robbery . He
insisted that the accused had fired shots at him and that a bullet had
struck h im. He rei terated that he had met the accused t w o days later
and that the accused had claimed that he had f ired into the air.
In response to the Cour t ' s quest ions he said tha t he had met the
accused at a shebeen a f ew t imes and spoken to h im. Prior to the 5
incidents he and the accused had been on f r iendly terms. The accused
had not to ld him where he obta ined the f i rearm when he claimed tha t he
had f ired shots into the air. The accused appeared to be shocked w h e n
he showed him the injury to his f inger.
Xolisile Mandara test i f ied tha t he was an inspector in the South 10
Af r ican Police Services and was a t tached to the Criminal Invest igat ing
Service at Mdantsane. He had been a detec t ive for the past 9 years.
On Saturday, 3 Augus t 2 0 0 2 , at about 9 :15 am he received a radio
report of a shoot ing tha t had occurred the prev ious evening. As a result
of this he proceeded to 9 4 6 8 NU 3, Mdan tsane . There he not iced drops 15
of blood in the street . Next to the b loodsta ins he found four empty
cartr idge cases wh i ch were about a metre apart as wel l as t w o bullet
heads. He took possession of these and returned to the NU 1 Police
Stat ion where he recorded these i tems in the SAP 13 Exhibits Register
under the reference no. 5 7 7 / 2 0 0 2 and handed the i tems to the exh ib i t ' s 20
clerk.
Cross-examinat ion of th is w i tness did not reveal any th ing of
s igni f icance.
Mthethele l i Shushwana test i f ied tha t on Friday, 2 Augus t 2 0 0 2 , at
about 9 pm he was on his w a y to an in i t iat ion ceremony. He met the 25
deceased, Unathi Dick, w h o accompan ied h im. The w i tness then w e n t
into a house to buy l iquor whi le the deceased cont inued wa lk ing . When
6
he came out of the house the deceased was about 48 paces away .
Three young men approached the deceased f rom the f ront and took his
lumber jacket f rom him and shot h im. Three shots were fired before the
deceased fell d o w n . He stated that he wou ld be able to recognise the
person w h o shot the deceased. He stated fur ther that t w o shots were 5
fired in his d i rect ion, forc ing him to take cover in the grass. The
assailants had then ran of f .
During cross-examinat ion he admi t ted that he had been drunk that
even ing. He and a f r iend had drunk t w o litres of Paarl Perle w ine . He
had lain on his back w h e n he took cover in the grass. The person w h o 10
shot the deceased had w o r n a hat wh ich was pulled d o w n to his eyes.
In reply to quest ions f rom the Court the w i tness stated that he had
never been asked to point out the person w h o had shot the deceased.
He had also not been asked to point out the other t w o men. He had not
prov ided the police w i t h a descr ip t ion of the three men. Prior to the 15
incident he had not seen any of the men before. There were no street
l ights in the v ic in i ty where the shoot ing occur red .
The State then tendered in ev idence, in te rms of sect ion 21 2(4) of
the Criminal Procedure A c t , 51 of 1 9 7 7 , an af f idavi t a t tested to by
Captain J Ras, wh i ch is EXHIBIT "A" . There was no object ion to the 20
admission of this af f idavi t f rom the de fence , nor were the con ten ts
thereof or the conc lus ions reached placed in d ispute.
In te rms of the same provis ions an af f idav i t f rom Dr D T John and
a report on a medico- legal pos t -mor tem examinat ion that he conduc ted
on the body of the deceased was tendered in evidence and is EXHIBIT 25
" B " . Here, t oo , there were no object ions f rom the defence to its
admission and the f ind ings and conclus ions conta ined in the report were
7
accepted.
Sabeio Nobangule was then called to test i fy . The State requested
that the provis ions of sect ion 2 0 4 of the aforesaid Criminal Procedure
Ac t be conveyed to the w i tness as his replies to quest ions could
incr iminate him in regard to cont ravent ions of sect ion 2 and 36 of the 5
Arms and Ammun i t i on Ac t , 75 of 1 9 6 9 . The Court thereupon conveyed
the provis ions of sect ion 2 0 4 to the w i tness and he conf i rmed that he
understood same.
His tes t imony was to the ef fect that on 4 Augus t 2 0 0 2 at about
9 :30 am he had met w i t h the accused, w h o m he knew and requested the 10
accused to supply him w i th a f i rearm. He wan ted the f i rearm for self-
p ro tec t ion . He stated that he felt threatened as he had been told that
individuals w i th w h o m he had fought were looking for h im. The accused
had indicated to him that he had a f i rearm, but that it was pledged to a
fr iend f rom w h o m he had bor rowed R60-00 . The w i tness had then 15
w i t h d r a w n R60-00 f rom an automat ic teller machine, (an ATM) and they
wen t to the accused 's fr iend to retr ieve the f i rearm wh ich the accused
had handed to this person. The f i rearm was a Norinco Star f i rearm and
had one live round of ammuni t ion in its magazine. He was unable n o w
to recall the calibre of the f i rearm and had not bothered to look at the 20
serial number.
On 1 5 Augus t 2 0 0 2 be tween 4 am to 5 am he was te lephoned by
a member of the Serious Vio lent Crimes Unit and told to bring the f i rearm
to the pol ice. A t about 7 am he w e n t to the unit and handed the
f i rearm, w i t h the one round of ammun i t ion , to a pol iceman and made a 25
s ta tement . On his arrival at the unit he saw the accused whose
f ingerpr ints were being taken .
8
He ident i f ied the s tatement s h o w n to him by Mr Kruqer as the one
wh i ch he had made to the pol ice. in the s ta tement the f i rearm was
described as a black 9 mm shor t f i rearm and its serial no. was recorded
as 2 0 8 0 9 8 2 .
During cross-examinat ion the w i tness conf i rmed tha t he was not 5
a l icensed f i rearm's dealer. He stated tha t he w a s an a t to rney and was
employed by the f i rm Dambuza Nqandi Incorpora ted. He was aware that
it was illegal to purchase a f i rearm on the street . The individuals w i t h
w h o m he had fough t were f rom the cr iminal underwor ld and posed a
threat to h im. He admi t ted that he had not received any direct threats 10
to his life f rom these indiv iduals. The accused, and not accused 's
f r iend, had handed the f i rearm over to h im. Even t hough he gave the
accused R60-00 he did not consider tha t he was buy ing the f i rearm. He
then stated tha t the accused had fe tched the f i rearm f rom his f r iend. He
denied that he had obtained the f i rearm f rom someone else. 1 5
Quest ioned by the Court he conceded tha t it was logical to
conclude that he had bought the f i rearm f rom the accused. He could
not explain w h y he had resorted to buy ing a f i rearm un lawfu l l y , except
to say that he was ove rwhe lmed by t hough ts of his chi ld and feared for
his l ife. He had kept the f i rearm w i th him at Bu t te rwor th and no-one had 20
access to it. He did not use the f i rearm at all. The police had
contac ted him a f ew weeks after he go t the f i rearm f rom the accused.
The next w i tness was Da l iwonga T o t w a n a . In his case, too , Mr
Kruqer requested tha t he be in formed of the provis ions of sect ion 204 of
the Criminal Procedure Ac t . This was done and the w i tness conf i rmed 25
tha t he unders tood the prov is ions.
He test i f ied tha t on Sunday, 12 A u g u s t 2 0 0 2 , at about 2 :30 pm
9
the accused approached him at his place of emp loyment , Savuka General
Dealers. The accused was a cus tomer and had asked him if he wan ted
to buy a f i rearm for R300 -00 . He told the accused tha t he did not have
R 3 0 0 - 0 0 and the accused then reduced the price to R200 -00 and then
to a R100 -00 . As he had a R110 -00 w i t h him he gave the accused the 5
R1 1 0 -00 and purchased the f i rearm. It was a 9mm Norinco and had f ive
rounds of ammuni t ion in it. He did not look at the serial no. He took the
f i rearm home and placed it under the mat t ress of the bed in his bedroom.
On 15 Augus t 2 0 0 2 at about 4 : 3 0 pm a pol iceman named
Nokombo t i arr ived and accompany ing him was the accused. Another 10
po l iceman Esben was also w i t h and they to ld him they were looking for
the f i rearm. He showed them where the f i rearm w a s and they took
possession of it as wel l as the f ive rounds of ammun i t ion . During the
per iod that he had the f i rearm he had not used it.
Cross-examinat ion of th is w i tness was brief. He stated that he 1 5
had k n o w n the accused for over a year, but they were not good f r iends.
He denied the accused 's claim that he had shown the accused the
f i rearm when they were dr ink ing. He rei terated that the accused had
sold the f i rearm to h im.
Ross Peter Sont laba test i f ied tha t he was an inspector in the South 20
A f r i can Police Services and was the exh ib i t ' s clerk at NU 1 Police
S ta t ion . On 5 Augus t 2 0 0 2 he examined the SAP 1 3 Exhibits Register to
establ ish if any exhibi ts had been handed in whi le he was not on du ty .
He establ ished that t w o bullet heads and four empty car t r idges had been
handed in by Inspector Mandara . These were received by Inspector Toba 25
and placed in the safe in the charge o f f i ce . The relevant reference
number was SAP 1 3 / 5 7 7 / 2 0 0 2 . He then placed these exhib i ts in the
10
exhibi t safe. On 1 6 Augus t 2 0 0 2 the exhibi ts were fe tched by Inspector
Esben of the Serious Vio lent Crime Unit.
This w i tness was not cross-examined by the defence.
A t this stage of the trial the defence made certain admissions in
terms of sect ion 2 2 0 of the Criminal Procedure A c t , 51 of 1 9 7 7 . These 5
were reduced to wr i t ing and handed in and is EXHIBIT "C" . The
admissions were duly recorded and conf i rmed that the deceased was
Unathi Dick, and that he had died f rom injuries wh i ch he had sustained
on 2 Augus t 2 0 0 2 . Further that apart f rom those injuries he had not
sustained any other injuries unti l Dr John per formed the pos t -mor tem 10
examinat ion on 6 Augus t 2 0 0 2 . It was admi t ted that Dr John ' s
observat ions and f indings as set out in the pos t -mor tem report , EXHIBIT
" B " , were correct . It was admi t ted fur ther that the f indings and
conclus ions in the bal l ist ic 's report , EXHIBIT " A " , were correct .
Moreover , the 9 m m Parabelium Star f i rearm w i th serial no. 2 0 8 0 9 8 2 , 15
referred to in paragraph 3.1 of EXHIBIT " A " , was the f i rearm wh ich
Detect ive Inspector B E Esben had recovered f rom the w i tness Sabelo
Nobangule on 13 Augus t 2 0 0 2 . Finally, it was admi t ted that the
cartr idge cases referred to in paragraph 3.3 of EXHIBIT "A" had been
recovered by Detect ive Inspector X Mandara at the scene where the 20
deceased Unathi Dick had been found w i th gunshot w o u n d s on 2 Augus t
2 0 0 2 .
The State case was then c losed.
Thereafter the defence also closed its case w i t h o u t tender ing any
evidence. 25
Both Mr Kruger and Mr Gabelana addressed the Court on the
meri ts. I shall not recount their submiss ions. Suff ice to say Mr Kruger
1 I
sought a conv ic t ion on each of the counts in the ind ic tment . Mr
Gabelana on the other hand conceded tha t the State had proved the guil t
of the accused beyond a reasonable doub t in respect of counts 4 to 1 1 .
Whi ie not conceding the same in respect of counts 1 and 2, he made no
submiss ions to the cont rary , but left it to the Court to determine whe the r 5
or not the guilt of the accused had been proved beyond a reasonable
doub t . In respect of count 3, however , Mr Gabelana submi t ted that the
evidence did not establish the accused 's guilt and he shou ld , there fore ,
be acqui t ted on the charge of murder.
I tu rn to an evaluat ion of the ev idence. It is sel f -evident that the 10
only vers ion of events is tha t wh i ch the State has presented since the
defence elected not to tender any evidence in answer there to . I am ful ly
cogn isant of the fact tha t the accused bears no onus at all in prov ing his
innocence. It is for the State to prove his gui l t beyond a reasonable
d o u b t . The crucial quest ion, there fore , is whe ther the evidence reaches 1 5
tha t necessary s tandard.
In respect of count 1 ; there is the evidence of the compla inant ,
Thembelan i Neville G x a k w e , that the accused is the individual w h o
robbed him of his 9 m m Star Parabel ium f i rearm w i th serial no. 2 0 8 0 9 8 2
on the n ight of 28 July 2 0 0 2 . During cross-examinat ion it was put to 20
Mr G x a k w e tha t the accused had not robbed him and tha t he was falsely
impl icat ing the accused. It w a s put to him fur ther that he had actual ly
sold the f i rearm to the w i tness Phiwe Vuso and had not been robbed by
anyone . In other w o r d s tha t the robbery never occur red . The
tes t imony of Phiwe Vuso did not provide any suppor t for the accused 's 25
a l legat ions. Instead his ev idence cor roborated Mr G x a k w e ' s claim tha t
the accused was the person w h o had robbed h im. A l t hough Phiwe
12
Vuso never c laimed that he saw the accused robbing Thembelani
Gxakwe he placed the accused on the scene. In addi t ion, he
corroborated certain other aspects of Thembelani Gxakwe ' s vers ion.
These are tha t G x a k w e had fallen to the g round ; and that the accused
had run away after f i rst bending over Gxakwe . He also conf i rmed that 5
he then spoke to Gxakwe and chased after the accused. Further, both
he and Gxakwe test i f ied that shots were f ired thereaf ter . While Gxakwe
was not able to say w h o had done so, it is clear f rom the evidence of
Phiwe Vuso tha t it was the accused and that one of the shots had struck
V L S O ' S f inger. Phiwe Vuso test i f ied fur ther that he had spoken to the 10
accused a f ew days later about the events of tha t even ing . The accused
then admi t ted to him that he had fired shots , but said he had not f ired at
Phiwe Vuso , but into the air. The accused also under took to bring the
f irearm to him but had not done so.
Both Gxakwe and Vuso were credible and honest w i tnesses and their 1 5
tes t imony was reliable. As the accused elected not to test i fy their
evidence s tands uncon t rad ic ted . There is no th ing w h i c h indicates that
either of t hem have sought to falsely impl icate the accused in regard to
the robbery and the surrounding events . I accept their versions as the
t ru th . The ev idence establ ishes beyond a reasonable doubt that the 20
accused robbed Gxakwe of his f i rearm and six rounds o f ammuni t ion as
averred in the ind ic tment .
The posi t ion in respect of count 2 is similar. The only evidence
before the Court of w h a t t ranspired w h e n Phiwe Vuso was shot , is his
o w n tes t imony . Here, t oo , the accused elected not to place his vers ion 25
before the Cour t . Consequent ly the Sta te 's version stands
uncont rad ic ted . As I have stated Phiwe Vuso w a s a credible and honest
13
w i tness and his tes t imony was reliable. I f ind that he has to ld the t ru th
in respect of the shoot ing . The ev idence establ ishes that w h e n he to ld
the accused to hand over the f i rearm the accused had threatened to
shoot him if he did not move back. Immediate ly thereaf ter the accused
f ired four shots and the third st ruck the middie f inger of his r ight hand, 5
7'he cn ly reasonable inference to be d rawn f rom the accused 's
conduc t is that he had the .ntent icn of shoot ing Phiwe Vuso in order to
kill h im. Fortunately the accused did not succeed in doing so. I am
satisf ied that the evidence establ ishes beyond a reasonable doubt that
the accused is gui l ty therefore of a t tempted murder, 10
I tu rn n o w to counts 4 to 1 1 . I shall in due course return to count
3 wh i ch is the charge of murder . Mr Gabelana has conceded , and
r ight ly so, that the evidence adduced by the State establ ishes the guilt
of the accused in respect of each of these counts . Since the evidence
establ ished that the accused un lawfu l l y d ispossessed Thembelan i 15
G x a k w e of the 9 m m Star Parabelium pistol and six rounds of ammun i t ion
it fo l l ows that his possession thereo f was clearly un law fu l . The
evidence also establ ished tha t the robbery occurred on 28 Ju ly 2 0 0 2 .
Further on 5 Augus t 2 0 0 2 tha t he had sold the f i rearm and one round of
ammun i t ion to Sabelo Nobangule . Sabelo Nobangule was initially 20
re luctant to concede tha t he had bough t the f i rearm f rom the accused.
He c la imed instead that the accused had s imply handed it to him after he
had requested the accused to supply him w i th a f i rearm. Ul t imate ly ,
howeve r , he admi t ted tha t he had purchased the f i rearm and tha t it had
not been handed to him by the accused w i t h o u t him having to pay for it. 25
Sabelo Nobangule 's tes t imony is also uncont rad ic ted as the accused
elected not to tes t i fy . Despite Nobangu le 's c lumsy ef for ts in t ry ing to
14
just i fy his o w n cr iminal conduc t in un lawfu l l y purchasing the f i rearm
there is no doub t tha t the accused sold the f i rearm w i th one round of
ammuni t ion in it to h im. The ind ic tment alleges that there were t w o
rounds of ammun i t i on , but the evidence proves that it was only one
round. Whatever cr i t ic isms I may have of Sabelo Nobangule as a
wi tness there is no doub t that he u l t imate ly told the t ru th w h e n he
admi t ted that he purchased the f i rearm. There is no doubt either that
the accused recovered the f irearm f rom the person to w h o m he had
pledged it for R60 -00 and thereby retook possession of the f i rearm and
ammuni t ion before sell ing it to Nobangule.
I am sat isf ied therefore that the State has proved the guil t of the
accused beyond a reasonable doubt in respect of counts 4 , 5, 6 and 7.
In respect of coun ts 8, 9, 10 and 11 the Sta te 's case rests on the
evidence of Da l iwonga T o t w a n a . His tes t imony is also uncon t rad ic ted .
He was fo r th r igh t in his tes t imony f rom the outset . It is clear that he
purchased the 9 m m Norinco pistol w i t h f ive rounds of ammuni t ion f rom
the accused on 12 A u g u s t 2 0 0 2 . I am sat isf ied that he has to ld the
t ru th and I accept his tes t imony . The evidence establ ishes beyond a
reasonable doub t t ha t the accused commi t t ed the of fences in coun ts
8, 9, 10 and 1 1 .
I turn n o w to coun t 3, namely the charge of murder . Here the
State case is dependent on the tes t imony of Mthethele l i Shushwana and
the results of forensic tests conduc ted on four empty 9 m m cart r idge
cases found at the scene of the cr ime. In addi t ion thereto the State
case is also dependen t on the inference being d r a w n tha t the accused
was in possession of the 9 m m Star Parabel lum pistol f rom wh i ch the four
9 m m cart r idge cases had been f i red. This is the f i rearm w h i c h the
15
accused had taken f rom Thembelan i Gxakwe when he robbed him and
wh i ch he later sold to Sabelo Nobangule.
There are t w o problem areas in the evidence adduced by the State.
First ly, Mthethele l i Shushwana , w h o claimed that he could ident i fy who
had shot the deceased, Unathi Dick, did not test i fy that it was the 5
accused w h o had done so. He did not even say that the accused was
one of the three persons w h o had accosted the deceased. Secondly ,
the ev idence does not establ ish, either direct ly or by in ference, tha t the
accused was in possession of the f i rearm on 2 Augus t 2 0 0 2 w h e n the
shoot ing occur red. The evidence of Sabelo Nobangule revealed that the 1 0
accused had pledged the f i rearm to someone else and had then fe tched
it f r o m this person upon payment of R60-00 before handing it to
Nobangule . In v iew of this evidence it cannot be said that, the only
reasonable inference to be d r a w n f rom the accused 's possession of the
f i rearm on 28 July 2 0 0 2 and then again on 5. Augus t 2 0 0 2 is tha t he 15
was in possession thereof for the entire period be tween these dates and
thus also on 2 Augus t 2 0 0 2 w h e n the deceased was ki l led. The
inference that it was in the possession of someone else on 2 Augus t
2 0 0 2 canno t reasonably be exc luded , since on the ev idence of the
Sta te 's o w n w i tness , namely Sabelo Nobangule, the accused had to 20
recover the f i rearm f rom the person to w h o m it had been p ledged. In
other w o r d s , the evidence does not permi t the inference to be d r a w n , as
the only reasonable one, that the accused had possession of th is f i rearm
t h r o u g h o u t the entire period f r om 28 July 2 0 0 2 unti l 5 A u g u s t 2 0 0 2 .
Since the State has failed to prove the accused was in possession of this 25
f i rearm on 2 Augus t 2 0 0 2 and tha t he is the individual w h o murdered the
deceased, Unathi Dick, the accused is ent i t led therefore to be acqu i t ted
16
25
on this charge.
In the result , the State has proved beyond a reasonable doub t that
the accused commi t ted each of the of fences in counts 1 , 2, 4 , 5, 6, 7,
8, 9, 10 and 1 1 . Accord ing ly the accused is found gui l ty of the
fo l l ow ing : 5
1. In respect of count 1 of the robbery of Thembelani Neville
Gxakwe .
2. In respect of count 2 of the a t tempted murder of Phiwe Vuso .
3. In respect of count 4 , of a cont ravent ion of sect ion 2 of the Arms
and Ammun i t i on A c t , 75 of 1 9 6 9 . 10
4 . In respect of count 5, of a cont ravent ion of sect ion 36 of the
Arms and Ammun i t i on A c t , 75 of 1 9 6 9 .
5. In respect of count 6, of a cont ravent ion of sect ion 35(1 )(a) of the
Arms and Ammun i t i on A c t , 75 of 1969 .
6. In respect of count 7, of a cont ravent ion of sect ion 35(1 )(b) of the 15
Arms and Ammun i t i on Ac t , 75 of 1969 .
7. In respect of count 8, of a cont ravent ion of sect ion 2 of the Arms
and Ammun i t i on A c t , 75 of 1969 .
8. In respect of count 9, of a cont ravent ion of sect ion 36 of the
Arms and Ammun i t i on A c t , 75 of 1969 . 20
9. in respect of count 10, of a cont ravent ion of sect ion 35(1 )(a) of
the Arms and Ammun i t i on A c t , 75 of 1969 .
1 0. In respect of count 1 1 , of a cont ravent ion of sect ion 35(1 )(b) of
the Arms and Ammun i t i on Ac t , 75 of 1 9 6 9 .
17
Y EBRA-HIM
JUDGE, BISHO, HIGH COURT
In respect of count 3, namely the of fence of murder, the accused
is found not gui l ty and d ischarged.