Court name
High Court of eSwatini
Case number
Criminal Trial 127 of 2002

Rex v Gamedze and Others (Criminal Trial 127 of 2002) [2003] SZHC 99 (23 October 2003);

Law report citations
Media neutral citation
[2003] SZHC 99
Coram
Annandale, ACJ









IN
THE HIGH COURT OF SWAZILAND


Crim.
Trial No. 127/2002


HELD
AT MBABANE


In
the matter between


REX


Versus


KENNETH
GAMEDZE 1st Accused


SABELO
MAZIYA 2nd Accused


MADALA
MATSENJWA 3rd Accused


CORAM J.P.
ANNANDALE, A

C
J


For
the Crown Ms. N. Lukhele


For
all 3 accused persons Mr. S. Bhembe


JUDGMENT


(23
October 2003)


In
this protracted trial the three accused persons are charged with the
hi-jacking of a motor vehicle, during which the driver was shot and
killed, also further charges relating to unlawful possession of a
fire arm and ammunition by the second accused. All three were
represented by Mr. Bhembe who meticulously and painstakingly
challenged the crown's case on their behalf, following their pleas of
not guilty to all


2


charges
in the indictment. Under the term "protracted" is to be
understood that the accused persons altogether appeared in court on
twenty-two different days, from the day they pleaded on the 27th
January 2003 until finalisation of submissions by counsel on the 23rd
June 2003. On many of these days no evidence was heard due to diverse
reasons as recorded in the record of proceedings. Nevertheless, it is
indicative of how long a criminal trial in Swaziland can take to be
brought to finality, a trial that could have been thought to take no
more than a day or two under ideal circumstances.


The
three accused persons have been detained since the first quarter of
2001 with two being released soon before the commencement of the
trial, again kept in custody after the commencement of the trial.


This
observation is not recorded as a criticism of counsel but to indicate
that criminal trials can and do take considerable time to be
finalised, which in turn does not auger well for the expeditious
trial of other accused persons who may very well be incarcerated for
the time being, bearing in mind that presently more than four hundred
trials are in line to be heard at the High Court of Swaziland. This
is apart from eight times more civil matters on the waiting list, all
this with a small bench of only five judges, two of whose
appointments are challenged and pending determination by the courts.
This is in a country with an estimated population figure of almost 1
million people, in the year 2000. Furthermore, there is presently no
prospect of a timeous hearing of any appeal which arises from this
decision or any other as no Court of Appeal is in existence at the
moment, since the end of November 2002.


That
this bleak situation cannot be tolerated to continue bears no
argument.


In
the first count, all three accused are charged with the murder of
Mthunzi Dlamini, acting jointly with a common purpose, on the 10th
February 2001, at Lugongolweni in the Lubombo district. The second
count of Robbery has it that all three, again acting jointly with a
common purpose, threatened Mthunzi Dlamini and Assiana Nomsa Dlamini
by threat of being shot on the same date and place and unlawfully
(sic) stole various items (nineteen in all) especially so a Toyota
Hilux SD 497 JG, briefcase, cell phone, keys, airline ticket,
passport, bankbook, cards, etcetera, being property or in their
lawful possession.


3


The
third and fourth counts apply to the second accused only, being
statutory contraventions of sections 11(1) and (2) read with Section
11(8) of the Arms and Ammunition Act of 1964 (Act 6 of 1968),
relating to the alleged "wrongful and unlawful" possession
of a brown 9 mm pistol, serial No. EF 6223 and a magazine with 4 live
rounds of 9 mm ammunition, at the Mpolonjeni bus stop area, on the
9th March 2001.


In
all, apart from documentary evidence, the testimony of twelve
witnesses for the crown was heard, two of which were introduced as
accomplices and five of which are police officers, as well as four
defence witnesses.


In
the chronological sequence of events, the evidence commences with
what could be termed the planning and preparation of the anticipated
crime which would have entailed the hi-jacking or theft of a Toyota
double cab four wheel drive bakkie. The evidence on this aspect, as
well as the later events, were related by one Mandla Emmanuel
Matsenjwa, hereafter referred to as PW1. He was introduced by the
Crown as an accomplice, meaning that Section 234 of the Criminal
Procedure and Evidence Act, 1938 (Act 67 of 1938 and here under
referred to as the Act) has application, apart the relevant
cautionary rules and principles.


The
Act reads in part, under Section 234(1) that:


"If
any person who to the knowledge of the public prosecutor has been an
accomplice, either as principal or accessory, (my emphasis) in the
commission of any offence alleged in any indictment...

is
produced as a witness...

and
submits to be sworn as a witness, and fully answers to the
satisfaction of the court ... all lawful questions put to him...

he
shall be absolutely freed and discharged from all liability to
prosecution for such offence...".


Such
discharge is to be duly entered on the record of proceedings of the
criteria are met.


4


It
is not so much the fact that a witness is formally introduced as an
accomplice that matters most, as this really only serves to place the
presiding judge on guard prior to hearing of the evidence and
secondly to make the witness aware of what is expected of him,
possibly to include immunity from prosecution, if applicable. Being
so introduced does not release and activate any magical formula of
acceptance of evidence. More important is the caution with which his
evidence will have to be evaluated, especially so by corroboration of
the accomplice in material respects. If the corroboration evidence
does not implicate the accused, or if there is no evidence aliunde
that implicates the accused person(s), further caution will have to
be applied and the evidence of a single witness, who is an accomplice
in addition, begs very careful scrutiny prior to acceptance. I shall
refer to these aspects further down.


PW1,
Mandla Matsenjwa's evidence, is that he knows each of the three
accused persons to different degrees. On the 9th February 2001, a day
before the crime was committed, he says that the second accused,
Maziya, called him to his car, inside which the other two accused
also were. The first accused then enquired from him about the
whereabouts of a certain 4

x
4
vehicle, used by the late Mtunzi, belonging to the Ministry of
Agriculture. After arranging to see him the following day at the
third accused's homestead, the three left.


As
arranged, he went to the homestead of the third accused the following
day, where he found all three and was again asked about the 4

x
4,
this time if he knew whether it uses diesel. He says that it was at
this stage that he was told by the first accused that he, Gamedze,
had already secured a buyer for the vehicle, in Maputo.


A
taxi then arrived, driven by PW4, one Mandla Gamedze, which took the
four of them to consult with a Nyanga or Traditional Healer, PW2
Sarah Fakudze. There, according to this witness, the first two
accused talked to the Nyanga and they then went to the place "where
her herbs are kept." A few minutes later he and the third
accused were also called to the hut wherein he saw some bones having
been cast, to foretell problems, difficulties and illnesses. He says
that the Inyanga then asked the first two accused "why they do
mischief and causing us to join them - we are weak and not strong
enough for criminal activities."


5


The
Inyanga then said that it is not a problem, she would give the two
(PW1 and accused 3) something to cleanse them, to avoid bad luck. At
this stage he and the third accused were sent out of the hut while
the other two remained inside with the Inyanga, as she wanted to give
them "something", a "muti".


The
first two accused are said to then have emerged from the hut, on
which the second accused told them that the "father of the home"
had been sent to fetch something and that in the meantime, they
should move to a sports ground. There, some boys arrived and they
joined them to play soccer, while the first accused remained outside
the grounds, 'till sunset, when the first two accused decided it is
time to go home. On their way, PW1 says that he saw a bulge on the
waist of the first accused. He enquired what it was and was told it
is a firearm, which he says frightened him. He heard that the man who
was sent to fetch something did not get what they wanted.


I
have summarized the evidence relating to the visit at the Inyanga in
some detail, as much was made during the course of the trial about
differences of opinion as to what exactly transpired there, as
enumerated further down.


PW1
testified further that along the way home, the planned robbery of the
4

x
4
was again discussed and that it was agreed that it would be taken by
force, without the use of a firearm.


Later
that evening, around 21h00 , the four of them congregated at the
place where the arrival of the vehicle was awaited, at a gate leading
to the homestead of the late Mtunzi Dlamini who used the vehicle. He
says that while waiting, he and the third accused were sent to the
homestead to verify if the vehicle had not in the meantime been taken
home. On their return, the two of them were sent off to wait on the
other side of the road as the first two accused were going to take
the vehicle by themselves.


Some
twenty minutes later, the awaited vehicle arrived and turned off the
road towards the closed gate where the first two accused were
standing. As he watched, the driver got out to open the gate, exiting
the white 4

x
4
double cab bakkie which had stickers on it. He left the door open and
the engine running and as he was busy with


6


the
gate, the first two accused went to the bakkie. The driver's wife was
inside the vehicle and he heard a noise as if an alarm was raised,
and as the driver ran back to the car, he was blocked by the two
accused. A fight ensued between them during which he heard the sound
of two shots, which he suspected to have been fired by the first
accused, who earlier on told him that he had a gun. His suspicion was
fortified when after the shots were fired, they all converged at the
vehicle, with the witness remaining standing at a door. He was then
pointed with a fire arm by the first accused who swore at him saying
"voetsek", asking why he stood waiting outside the car and
accusing him of trying to be "smart", adding that he could
see that he, the witness, wanted to report to the police that he, the
first accused, killed a person.


As
they were about to drive off, he saw the deceased, Mr. Dlamini, lying
on the ground with blood on his head, visible in the lights of the
car. He says that at this stage the second accused, who drove the
vehicle, unsuccessfully suggested to the first accused that as they
had killed someone, they should abandon the vehicle. On the way, he
again asked to be left behind as their objective, to rob the vehicle,
had been achieved. Again the first accused said that he wants to
report them to the police as he thinks he is "smart."


They
drove to Lomahasha, which borders on Mocambique where the intended
purchaser was; the vehicle was hidden at some homestead where he and
the third accused remained for the night while the first two went off
to make arrangements for a border crossing. They returned at
daybreak, angry that their plans were frustrated by additional
military presence along the border after soldiers were reportedly
shot.


The
vehicle was then concealed until the following day, Sunday 11th
February, when it was refuelled for the border crossing which was
re-arranged by the first two accused. The witness says that the
vehicle was then driven off, heading for Mocambique through an
illegal access point, again with accused number two behind the wheel,
and apart from the four of them, a further person brought along by
the first two accused. They stopped en route where that man got out
and another two persons joined the party.


7


Along
the way they encountered trouble in the form of a parked police car
from which shots were fired at them. They sped off, later to abandon
their bakkie and fled on foot through the bushes, towards Lomahasha,
where some ten kilometres later they took refuge in a homestead until
the following day. The others then set off to Maputo with the witness
being allowed to return home after some haggling between them.


After
some time, during the month of March, he received word that the
police were looking for him and he reported at the police station
where he was taken into custody. He says that his conscience bothered
him all along and that he decided to give a full account of events to
the police. He described the hi-jacked vehicle as white in colour,
registration No. SD 497 JG, with green stickers depicting trees, on
it its doors and bonnet. He thought it to belong to the Ministry of
Agriculture, usually driven by the deceased who lived very close to
his own homestead.


At
court, the vehicle exhibited during an inspection in loco was
identified by this witness as one and the same which was robbed from
the deceased. He noted that the number plate had since been changed.
He said that the stickers on the vehicle, depicting green trees and
some words, are the same as those which were initially on the
vehicle. The wording on the stickers read:- "Ministry of
Agriculture and Cooperatives" and "Forest Policy &
Legislation Project" and "Forestry Section, Swaziland".
The present registration number is SG 072 AG. It is a white Toyota
double cab 4

x
4,
2.8 diesel.


The
second witness for the prosecution was the Inyanga that was consulted
on the day before the crime was committed, Sarah Fakudze (nee
Malaza). She has it that the first accused, accompanied by three
others, one of them being the second accused, came to consult her as
traditional healer. Although the Inyanga was non-specific as to how
the accused persons and PW1 arrived at her place, the crown called
the taxi driver that took them there, one Peter Gamedze (PW4). His
evidence is in line with that of PW1, namely that on the 10th
February 2001 he conveyed the three accused and a fourth person from
Siteki to the Inyanga at Masotsheni, with the instructions coming
from the first accused. In her hut, before she cast the bones, she
told the younger two persons (PW1 and accused 3) to leave, upon which
she saw that the bones forecasted "bad luck" or "darkness",
such that "a person could die for him" (referring to the
first


8


accused),
or that if he was to "pick up a fight with someone, that person
can die at his hand". As in the case of Macbeth, he asked for
some "muti" to cleanse himself with.


In
cross examination she confirmed that she did not administer anything
to the companions of the first accused, that she sent the younger two
persons out of the hut, not that she called them in and that she did
not send her husband on an errand in relation to this matter. She
also confirmed that she did not ask the first and second accused why
they are "going around with people that do not use muti."


The
evidence of both PW1 and the soothsayer, that the third accused and
PW1 did enter the hut but were sent out before the bones were cast is
contrary to the defence version. The defence attorney, Mr. Bhembe,
emphatically put it to PW1 that he was instructed that PW1 and the
third accused "never, at any stage, entered the hut of the
traditional healer, only accused 1 and 2 who knew her, entered."


Chronologically,
the next witness, PW6, is the wife of the deceased, Mrs. Assianah
Nomsa Dlamini. Her evidence centred on the events that occurred at
the scene of crime. During the night of the 10th February 2001, she
and her late husband, Mthunzi Dlamini returned home. They drove in
his official vehicle, the Toyota Hilux double cab 4x4, registered SD
497 JG, bearing the green Forestry Policy Legislation Project
stickers described above - her late husband was a project coordinator
in the Agricultural Ministry.


After
about 21h30 they stopped at their gate and her husband got out to
open it, leaving the engine running and the headlights on. She says
that it was full moon that night. As he returned to the bakkie she
heard a shout of "voetsek!" and "shaya" (hit), a
gunshot was fired and she saw her husband holding his chest. As he
tried to regain his balance another shot was fired and his head
"swayed". She saw two men, the taller one light in
complexion and the shorter one dark. She then opened her door and
fell down, expecting to die.


Their
vehicle was then driven off by their attackers after which she
attended to her husband who was bleeding, hoping to get him to a
hospital. She set off seeking for help, but got none after going to a
number of nearby homesteads, eventually to find a


9


Samaritan
with a cell phone who made some calls. She again set off, this time
to the apparently nearby army barracks where she obtained a vehicle
to return to the scene. En route, they heard emergency vehicle alarms
and on arrival, found that her husband had already been removed with
only a pool of blood remaining where he fell down. She was then also
taken to the hospital where she found her husband on a stretcher,
already dead. She then went to the police station to have her
statement recorded.


She
described a number of personal belongings that were left in their
vehicle, mainly as listed in the indictment. None of these items were
exhibited in court at the trial, nor was any evidence heard about the
recovery of any of those items.


After
the police recovered the vehicle, she positively identified it as the
same that was taken from them by force at the time her husband was
killed. She noted that the stickers had been removed and that there
was a (bullet) hole in a window, apart from some scratches.


In
court, her evidence was that their vehicle appeared to her to be
"similar" as the one depicted in the photographs marked as
exhibits 1, 3 and 4. It has the same registration number (SD 497 JG)
but is without the stickers (the green tree and forestry wording).
The holes she saw in the side window and mirror at the police station
were not so patently visible to her in the photographs.


During
cross-examination it surfaced that indeed almost all the additional
personal items that were taken together with the vehicle were
recovered. She was not shown any of those items to identify nor were
any later produced as evidence during the trial. It remains a mystery
how and where or by whom it was found. It remains a lacuna in the
case for the prosecution.


She
further confirmed that she was not shown any suspect to identify nor
could she positively identify any of the accused in court in
connection with the crime. She also did not see that the deceased was
involved in any physical scuffle with his assailants at the scene of
crime.


10


The
prosecution also introduced witness Samuel Makhubula (PW3) as an
accomplice, with the same implications as those which pertain to its
"star witness", PW1. He is a resident from Lomahasha, a
village bordering on Mocambique and who says he knows the first
accused very well.


One
Saturday in February 2001 the first and second accused persons came
to his house where the first accused asked him to help smuggle a
vehicle into Mocambique. He agreed to it, saying that he could not do
it alone. The two then left, to return later in the company of two
others, Elias Malindzisa and Angelina Mabila. They set off on a recce
by foot to check their intended crossing point, during which
Malindzisa left the group under the pretext of answering the call of
nature. On their way back a vehicle approached and they dispersed.


The
following day the first accused again came to his house, this time
accompanied by one Booyzen Silombo, to arrange the illicit whisking
of the vehicle into Mocambique. They arranged to bring it from where
it was hidden and later met at a bus stop, from where they drove off,
only to find the white Astra, already mentioned by the first witness
and later in the trial by the police. From this Astra car they were
fired upon by the police. The driver (accused 2) continued for a
short distance, they stopped and the occupants all made off on foot.


A
few days later he was fetched by the police and shown to accused one
and two who confirmed that "he is the one they looked for."
This witness also confirmed that the vehicle he was to have helped
smuggle into Mocambique is the same Toyota 4

x
4
and that it is "similar" to the one depicted in photograph
marked "exhibit 1".


Defence
counsel challenged his evidence on various aspects and most notably
to deny the association he said he had with the first two accused and
the helpers. He steadfastly maintained it to have been as he related
it to court and would not budge at all. When told that he is mistaken
as to when (in the year 2000 or 2001) the events he spoke of took
place, although it was shown that he can get somewhat confused with
dates, he again adamantly maintained his version as related in his
evidence - in -chief. The same applies to the version put to him that
it was a different vehicle brought to him by the first two accused
persons. He motivated his denial by referring


11


to
the number of persons that were in the bakkie in question, especially
so with reference to the back row of seats, three in front, three in
the backseat.


It
was also challenged that the people he said to have travelled with
them to assist were there at all, again causing him to hold to his
original evidence. Although he did not actually see the fire-arm when
the policeman fired it from the white Astra they met on their way at
Shewula, nor hearing the impact of a bullet when it hit their
vehicle, he has no doubt or reservation about his recollections. He
readily conceded that the vehicle in photograph No. 1 looks exactly
like the one he testified about, it might possibly be another similar
vehicle as he did not pay notice to any special unique features it
had. He could not recall whether it had the "green tree"
stickers on it at the time either, but attributed his apparent
inattentiveness to the very short time he actually saw the vehicle's
exterior.


At
no stage did he impress as a witness who adjusts his sails according
to the prevailing winds, nor that he embellishes his evidence at all,
nor that he has any improper motive to either implicate anybody
falsely or has any malice against the accused persons. He did not try
to underplay his own role nor to exaggerate. In all, he made a good
impression as witness. He did not require much prompting from the
crown counsel and though he kept his eyes averted to the floor most
of the time, nothing adverse is to be drawn from it. He
unhesitatingly responded to all questions without appearing to be
searching for answers. All that one cannot be sure of is exactly when
he was employed, and where.


Identification
of the stolen vehicle vis-a-vis the recovered one was placed in issue
at the trial. To this end, the crown called Mr. Solomon Gamedze
(PW7), a colleague of the late Dlamini who was shot on the fateful
night when he returned home in the Toyota 4x4 double-cab bakkie. This
witness said that Dlamini used the bakkie, donated by the Danish, in
the course of his work as coordinator of a Forestry Policy
Legislation Project. A week or two after the incident he heard that
the police had recovered the stolen vehicle. At the Ministry's
request, the vehicle was released to it after an application in
court.


12


Mr.
Gamedze gave a description of the hi-jacked vehicle, SD 497 JG, which
was used by the deceased at the time of the incident, namely a white
Toyota Hilux 4

x
4
double cab with 2.8L diesel engine, bearing the afore-described
"green tree" stickers of the "Forestry Policy
Legislation Project." He said that at the time, such stickers
were on the doors of both sides, the tailgate and bonnet. During his
evidence he produced the original registration document (exhibit Bl
and B2) relating to SD 497 JG - a Toyota Hilux L.

D.
V.
registered in the name of "Forestry Policy Legislation Project",
the same entity as per the "Green Tree" stickers on the
bakkie. He also identified the vehicle depicted in photographs 1,3
and 4 as one and the same vehicle.


His
further evidence is that on its release by the Siteki Magistrate
Court, the stickers had been removed and there was fresh minor damage
to the vehicle. Most notably were markings at the right hand side
window sealing rubber and the mirror, which had a hole in it.


He
also explained that in November 2002 the vehicle was donated to
Government, after it had been kept in use during the preceding three
or four years. In order to have it serviced and maintained by
Government, the registration was changed to an official Government
number, SG 072 AG (SD= Swaziland Government; AG=Ministry of
Agriculture). It is this vehicle registration number that is affixed
on the vehicle exhibited to court. The holed exterior mirror was also
replaced.


During
an inspection of this vehicle at court it was found to match with all
aforementioned evidence relating to it. The registration document of
SD 497 JG, the original number plate, also indicates the engine and
chassis numbers. These match the numbers seen on the vehicle itself,
a white Toyota diesel Hilux 4

x
4
double cab. The "Green Tree" stickers have since recovery
been replaced. Both the engine and chassis numbers also match with
the numbers recorded in his diary by PW8, Mkhatshwa, who was present
when the Toyota was shot at by the Police who were in the white
Astra, near the Mocambique border.


Noteworthy
was a deep scratch mark of approximately 1 x 6 cm, grooved into the
lower window sealing rubber of the driver's door, near the mirror,
which had since been replaced. Prior to its replacement, the damage
can best be seen on photographs


13


5
and 6. The hole in the mirror is said to have been caused by a
bullet, fired from the white astra vehicle by a policeman, Shabangu,
as related by Detective Constable Mkhatshwa (PW 8) whose evidence
follows further down.


Gamedze
(PW7) was taken to task in cross examination about the change of
number plate, re-affixing of the "Green Tree" stickers and
replacement of the broken mirror, contrary to an assumed condition of
release to his Ministry. The court order itself was not produced
during the trial.


Most
essentially, it was put to him as fact that the vehicle exhibited to
court is not the same which was released to the Ministry of
Agriculture. This version of the defence was denied by Gamedze and
quite rightly so, in my view. Gamedze's evidence is supported not
only by his own evidence but also by the registration document and
the vehicle itself, beyond the identification on the photographs.
Whether the changes made to the vehicle are contrary to a court
release order or not, his explanation and motivation for the changes
do hold water. It is quite understandable that in order to have the
vehicle fuelled, serviced and maintained by Government, that it was
allocated the present Governmental number plate. Further, in order to
use it, the replacement of the exterior mirror which by all accounts
had a bullet fired through it. Considering the fact that it is a
vehicle donated by the Danish Government to be used in a Forestry
Policy Legislation Project, it is in line with the appropriate
stickers to be replaced after they were removed following the
hi-jacking. It may well violate the letter of a court order of which
the terms remain unknown, but there is nothing sinister about these
changes. Furthermore, the bald assertion that the exhibited vehicle
is not the same as which the police recovered after it was shot at
and abandoned by the occupants, later to be released to the Ministry
of Agriculture and used since then, remains a bald assertion and no
more.


One
further distinguishing feature of the vehicle remains the deep groove
in the window sealing rubber near the side mirror. This mark was seen
and commented on both before and after release of the recovered
vehicle. There is no room to speculate that the damaged rubber was
removed from the recovered vehicle, to be fitted to the vehicle shown
to this court as an exhibit.


14


Direct
evidence about the events that ended in the recovery of the vehicle
was heard from Detective Constable Mkhatshwa (PW8). Acting on a crime
report late at night on the 10th February he and other police
officers went to the Lomahasha area, which borders on Mocambique.
They fruitlessly spent the night checking on known exit points along
the border. The following day at Shewula, another such area, in the
late afternoon, they heard the sound of an approaching vehicle. As it
came towards them he noted six occupants, which tallies with the
evidence of both PW1 and 3. It was a white Toyota 4x4 twin cab which
failed to stop when the police tried to bring it to a halt.


It
was then that officer Shabangu fired a shot at it. Some 200 metres
further it came to a standstill. The occupants scrambled out and ran
off into the bush, outpacing their pursuers who then gave up the
chase and returned to the abandoned vehicle.


This
witness noted the damage to the window sealing rubber where the
bullet ricocheted into and through the side mirror. He further noted
that the engine and chassis numbers were the same as the vehicle
reported to be stolen, also that there were telltale signs that
stickers had been removed. He recorded the engine and chassis numbers
in his diary. Of noteworthy importance is his evidence that in the
process of the bakkie being driven past them, he noticed that the
driver was Sabelo Maziya, the second accused, whom he knew to stay in
Siteki. This evidence again corresponds with that of PW1 and 3 who
both testified that it was the second accused who drove the stolen
vehicle.


He
identified the recovered vehicle as being the same as the one shown
in photographs 5, 6 and 7, with specific reference to the bullet
marks and the faintly visible marks of residue on the tailgate where
a sticker had been removed.


Officer
Shabangu who is said to have fired at the Toyota LDV was not called
as a witness - he has since passed away.


Mr.
Bhembe established during cross examination of PW8 that although the
witness said he recognised the driver of the Toyota 4 x 4 as the
second accused, he knew that he stayed in Siteki and recorded this in
his police statement, this accused was not


15


sought
for by this witness, nor was he arrested until the month of March.
For his failure to search for and arrest the accused, also his
apparent loss of interest in the case after the vehicle was
recovered, Mkhatshwa explained that he got word that his father was
seriously ill and that he took time off to attend to his father, in
the belief that the other police officers would look for the
suspects.


I
find no reason to doubt or disbelieve anything this witness said. His
identification of the driver, the second accused, was fortified by
statements made to him by the defence counsel, to the effect that he
was likewise known to the second accused. The correctness and
authenticity of his recording the engine and chassis numbers of the
vehicle he saw at Shewula on the 11th February 2001 was left
unchallenged. It matches the numbers seen by court on the exhibited
vehicle, also those recorded on the registration document. His
evidence further ties in with the deep groove on the window sealing
rubber and its origin - a bullet fired at the moving vehicle at the
time they tried to stop it in the vicinity of the border of
Mocambique, the destination according to PW1 and 3. His evidence that
the shot was fired from a white Astra also tallies with the evidence
of these same two persons, who said that they were inside the Toyota
4

x
4
when it was fired at from the white Astra.


Evidence
of the arrests was heard from Constable Mbatha - PW9, one of the
investigating officers. On the 8th March 2001 he arrested PW1 Mandla
Matsenjwa. The following day the second accused, Sabelo Maziya was
arrested, also the first accused, Kenneth Gamedze. A few days later
the third accused, Madala Matsenjwa was likewise taken into custody.
According to him, all were duly cautioned and charged with the murder
of the late Dlamini and the robbery of his vehicle.


A
slightly more detailed account of his evidence was solicited in cross
examination, namely, that the second accused was arrested while on a
bus by Detective Inspector Ndlela (PW 10, below) and that the
cautioning in terms of Judges Rules was done by the late Shabangu,
who also effected the arrest of the first accused, in his presence. A
long debate ensued as to whether indeed the arrestees were duly and
properly cautioned and whether they made any statements or not. He
was also accused of torturing the third accused, which he denied. He
also denied that PW3 - Samuel Makhubela, was not traced with the help
of the first and second accused but that he


16


found
them at the police station. He further denied soliciting the third
accused for his evidence against his co-accused, or that he sought to
speak with the accused persons in prison. Whether the accusations
levelled against him have merit or not, it does not do away with the
fact that each of the accused persons were indeed arrested, charged
and prosecuted. PW9 did not testify about discoveries of exhibits
that might be contentious, following unorthodox investigative
methods. Nor did he testify about potentially inadmissible pointings
out by any accused resulting in self incrimination. No new evidential
material was discovered and used at the trial as result of any
"confession" made to the police. The nearest to that would
be a confirmation by the first two accused persons, when shown the
witness Makhubula (PW3), and saying that "he is the one."
The defence version which was put to him is that it actually was PW3
- Makhubula, who came to the police station after they were already
in custody, not that they accompanied the police to Makhubula's home.
He also denied this. It does not take the matter any further either.


A
further two policemen testified about photographs that they took. The
first of these, Detective Constable Sihlongonyane (PW11) photographed
the recovered vehicle after its release by court. He is the
uncontested author of photographs 1, 3 and 4 handed in as exhibits in
this trial.


The
second, Sergeant Joubert Magagula (PW12) photographed the scene of
crime, depicted in the photographs marked exhibits 8, 9, 10 and 11.
It shows a closed farm gate, the general scene, also the remains of
what apparently was the residue of a pool of blood and two different
empty handgun cartridges on the ground.


No
forensic evidence was adduced in an effort to prove that the empty
cartridges were fired from any particular handgun or about the blood
either, to link it to the deceased.


These
four photographs were taken the day after the robbery and shooting
the previous night.

Four
days later, on the 15th February, 2001, he took further photographs
of the recovered vehicle, SD 497 JG. He handed in exhibits 5, 7 and
12 but was not asked about photo number 6, an apparent omission of no
consequence.


17


The
evidence summarised above is the crown's case pertaining to the
murder and robbery charges. In respect of the two firearm related
charges against the second accused the crown called Detective
Inspector Ndlela (PW10), a single witness on the material issues.


As
part of a group of seven police officers, he went to Mpolonjeni area
on the 9th March 2001. There, they stopped and entered a bus, this
witness following Mbatha (PW9), as also related by the latter. Mbatha
is said to have entered first because "he had knowledge of the
suspects."


His
specific evidence is that he found the second accused, Sabelo Maziya,
in the third row of seats of the bus. After introducing themselves to
him as police officers and asking to search him, he stood up. He says
that as the man raised his arms, he noticed a bulge in the front of
his trousers. He pulled it out and found a loaded 9mm pistol. Unable
to produce a licence for it, he was taken off the bus, put into the
police van and taken to Siteki Police Station. There, after due
cautioning, he elected to remain silent and was formally charged with
the unlawful possession of the firearm and four rounds of ammunition.
On the 13th March 2001 he took the second accused and the firearm to
the police firearms expert who tested it in the presence of the
second accused and found it to be serviceable. He handed in the 9mm
pistol, serial number EF 6223 together with three live rounds, one
empty cartridge and a magazine as exhibits at the trial.


In
cross examination he said that Mbatha (PW9) witnessed how he found
the pistol tucked into the trousers of the second accused and that he
was surprised that Mbatha did not testify about it. He vehemently
denied that instead of finding the pistol concealed on the body of
accused two, that he would have found it on the floor of the bus,
blaming ownership of it on the second accused as he was said to be a
killer and that he would bear the consequences of dropping it. He
further refuted the defence version that would be to that effect,
even if given by the person who was with the second accused on the
bus at the time, one Macoseso Kunene.


18


As
said above, Ndlela remains a single witness on the firearm related
charges. Although both he and Mbatha said that they entered the bus,
Mbatha did not give any evidence about the discovery of the pistol
that Ndlela said he would have seen to occur. None of the other
passengers on the bus who surely would have seen the event happen
were called to corroborate Ndlela either.


Lastly,
the crown called the Police Force Armourer who tested the firearm,
Sergeant Gamedze (PW5), a man appropriately experienced to testify
about the serviceability of firearms. His evidence is that on the
13th March, 2001, PW10 - Ndlela, gave him a Makarov 9mm pistol with
magazine and four 9

x
18
mm rounds to test. He tested it and found it in working order - he
fired one of the four rounds from it. He has it that it is classified
as an "arm of war" under the relevant Act.


Following
an admission of the Post Mortem report by consent of defence counsel,
wherein pathologist Dr. Reddy recorded his findings and concluded
that the deceased died due to "cranio-cerebral injury consequent
to gunshot", the case for the prosecution was closed, as
outlined above.


The
evidence presented by the crown clearly establishes a prima facie
case against the accused persons and no application for their
discharge under Section 174 of the Criminal Procedure and Evidence
Act was made. All three accused gave evidence in their defence and
the second accused furthermore called a witness to support his
version of the events on the bus when he was arrested. Predictably,
their collective version of innocence flies in the face of the
accounts of events heard from the prosecution witnesses and require
careful scrutiny to determine whether it couldn't well be reasonably
possibly true. Throughout however, one has to bear in mind that the
accused do not have an onus or a burden of proof to prove their
innocence - the onus is on the crown to prove guilt beyond a
reasonable doubt. If the exculpatory version of an accused could
reasonably possibly be true, even if the court does not believe it to
be so, he is entitled to an acquittal. Ultimately, what will have to
be borne in mind, is not whether the totality of evidence is only
consistent with the guilt of the various accused persons, but whether
it is inconsistent with their possible innocence on the diverse
charges levied against each of them.


19


The
sworn evidence of the first accused, Kenneth Gamedze (DW1) is a
denial of knowing PW1, Matsenjwa, to a further extent than merely
having seen him before, certainly not that he ever went to his house
and enquired from him anything about a 4x4 vehicle or disclosing any
plans to "take" one and sell it in Mocambique.


He
readily concedes that PW1 accompanied him and the others to the
Inyanga's homestead on the 10th February 2001 and gave an elaborate
explanation as to how it came to be. In a very cumbersome manner he
says that he went to the home of the second accused from where the
latter's brother would have been sent to Siteki town to fetch a taxi
as the taxi of the 2nd accused had a problem. It was here that he
coincidentally found PW1 and the third accused. He says that when PW4
arrived with his taxi, the second accused "requested" PW1
and the third accused to also go with them to the Inyanga. He himself
wanted to consult the Inyanga (PW2) about health and business
problems.


At
the Inyanga's homestead, they all entered her ancestoral hut, from
which she would have sent out PW1 and the third accused as they did
not come to seek help. He said that they were "weak" for
her "muti". Some bones were then cast, he obtained his
business advice from the Inyanga and also some "muti",
which he used to cleanse himself with outside the hut, after which
they left her hut and joined the other two who were waiting for them,
then returned to the nearby town on foot. He says he did not tell the
woman of any planned vehicle robbery, nor that he told the others to
wait while the woman's husband was sent somewhere or that he returned
to her hut at that stage. He is emphatic that he did not get any fire
arm from her, nor did he conceal one in his trousers and that he
never told PW1 anything about a gun.


He
further denies that he would have gone to Lugongolweni on that day,
that he would have sent PW1 to check if a vehicle had been returned
to the homestead of the deceased and especially that he robbed any
vehicle at all. His denial of any wrongdoing include any prior
discussion of plans with PW1, whom he only knew by sight, or any
arrangement to abstain from violence, or that he would have ordered
PW1 and the third accused to move a distance away from himself and
the second accused at the time of the robbery. Also dismissed as lies
by PW1 is his admission of having shot the deceased or forcing him
into the vehicle at gunpoint before driving off


20


to
Lomahasha, or himself going there in the Toyota 4x4 bakkie which had
green stickers on it.


His
evidence continues as essentially denying all attributed to him by
PW1, including the events at Lomahasha pertaining to arranging a
border crossing into Mocambique, the shooting incident from the white
Astra car with the subsequent running away from the Toyota and any
threat made to PW1 to ensure his silence in the matter. He says the
first time he again saw PW1 subsequent to the visit at the Inyanga
was when he met him at the Siteki Police Station, after their arrest.
A further set of denials centred on the aspects of being cautioned in
terms of Judges Rules by the police during and after his arrest.


He
further disagrees that he and the second accused would have taken the
police to the homestead of Samuel Makhubula (PW3) - instead, it was
the other way round -they were taken there by the police. He also
denies Makhubula's evidence that he was engaged to assist in the
smuggling of the Toyota into Mocambique at a promised payment of
E500, as recounted by his attorney.


His
only admitted dealings with PW3 Makhubula is an admission of a
previous occasion in the year 2000 when he, the second accused and
another person solicited Makhubula's assistance in smuggling a South
African registered single cab Toyota LDV, "which had documents
that are not straight" into Mocambique. During that matter he
got to know where Makhubula stays and therein he was promised E500,
which he did not get.


At
the trial, I did not get the impression that the mention of the E500
not received as reward for his own participation in the earlier
illegal border crossing with a suspect or stolen vehicle, was to lay
a basis to discredit Makhubula. If anything, it is the first accused
who has an axe to grind with Makhubula, not vice versa. In my
understanding the E500 was mentioned in passing, as part of the
earlier illegal dealings the two had, with the objective of shifting
the focus away from the present matter to a similar deal in the past,
also to explain how his association with Makhubula came into being,
other than the denied dealings which concern the double cab Toyota
4x4 which Makhubula testified about.


21


His
further evidence focused on the vehicle itself. He says that the
Toyota LDV released by the magistrate at Siteki was seen by him and
that it is not the same one produced during this trial. He motivates
it by referring to the conditions of release, inter alia that the
Agricultural Ministry was not to change any of its features without
leave of court. The released vehicle had SD (Swaziland) registration
letters, whereas the exhibited vehicle has SG (Government)
registration letters. Further, the released vehicle had no stickers
on its sides, whereas the exhibited vehicle has prominent "Green
Tree" stickers affixed to it. Further again, the man who
produced the exhibited vehicle (PW7) is not the same as the one to
who it was released (the Principal Secretary, Agriculture.)


No
proof of the release order with its conditions was produced during
the trial, nor of any subsequent application to change the
registration, replace the broken mirror or affix the stickers. There
is also no reason to doubt what the first accused had to say about
the court order and its contents. Herein, it prima facie appears that
the Ministry of Agriculture did not adhere to the provisions and
stipulations, in disregarding an Order of Court and going ahead to
change features of an exhibit to be used in court, knowingly it to be
impermissible to do so without leave of court. It is a matter that
readily could adversely impact on a criminal prosecution and is
ordered to be brought to the attention of the Acting Director of
Public Prosecutions and the Attorney General. However innocent and
well-meaning the intentions of the Ministry may have been, such
conduct cannot be merely condoned and overlooked and needs strong
discouragement. It may also cause courts of law to adversely rule on
applications for the release of motor vehicles to be used in criminal
prosecutions where the conditions of release are anticipated to be
disregarded, as the case appears to be here.


In
this specific matter, the probative evidentiary value and
consequences of the unauthorised changes of the features of the
vehicle concerned was the subject of protracted argument by defence
counsel and the crown. The impact and final analysis follows further
down in this judgment.


Concerning
the position of PW1 Matsenjwa the evidence of the first accused is to
the effect that he initially was charged and held as a fourth
accused. After repeated


22


efforts
by the police, who are said to have visited him a number of times in
prison, seeking him to confess and falsely implicate the others,
which resulted in his eventual release after a prosecutor also
stepped in. Most of this is based on hearsay, as is his apparent
initial refusal to testify for the crown. The mother of PW1, as well
as his sister and others are also said to have helped persuade him,
unlike the third accused, to eventually decide on rather being a
witness than an accused. He nevertheless is said to have visited his
former co-accused a number of times after his release, to "check
on them and find out if they are okay".


Lastly,
on leading questions as to whether he conspired with his co-accused
to kill the deceased and rob him of his vehicle and other
possessions, he simply replied: "never".


This
manner of giving his evidence also manifested throughout the bulk of
his evidence. Portions of the crown's case was frequently put to him,
soliciting his comment, which invariably came to bare denials, save
for the odd occasions where he spoke his mind, mainly on peripheral
issues. He did not offer an explanation as to why the witnesses
called by the prosecution would falsely implicate him in so many
aspects, save for the unfounded implication that PW1 Matsenjwa, would
have decided to conjure up a fanciful story about a man he barely
knew, in exchange for his release. He seems to disregard Matsenjwa's
evidence about his own personal involvement in the event, save for a
threadbare denial of it all. He also did not seem to appreciate the
corroborating evidence of other witnesses who connect him to events.
He does not say where he was at the time the crime was committed, or
at the subsequent happenings at Lomahasha on the Mocambique border.


He
was cross examined at length. He was not shown to be a compulsive
liar, nor did he seriously deviate from his evidence in chief. If
some of his explanations seem to be over-elaborate, like the taxi
episode to transport them to the Inyanga, it was not shown to be
manifestly untrue or impossible. It may be doubtful if his
explanations of the arrangements for the taxi and his reasons for
walking or not walking certain distances, with an ailing chest, are
really the truth, likewise with the reasons why PW1 had to accompany
them on the visit to the Inyanga.


23


Various
aspects of his evidence were questioned in detail without any real
impact on his credibility, like the events in the inyanga's hut and
the manner in which the former fourth accused was liberated and
persuaded to be a witness for the crown. This aspect showed his
conclusions to be based on hearsay, not that he is untruthful.
Whether he last saw PW1 at the Inyanga's place or in Siteki town is
not of serious consequence either.


More
relevant to this matter and in forming an opinion of his performance
as witness is his evidence about his past dealings with the car
smuggler, PW3 (Makhubula). If anything became clear it is his
resistance to come clear on the details of his past association and
dealings with this man. Like a cat on a hot plate, he tried to
downplay his own role as either intermediary or facilitator. His
explanations as to why he would have to be paid E500 for his role
also smack of evasiveness, a reluctance to own up to his past
dealings, which he himself introduced in his evidence in chief.


The
manner in which he sought to dismiss the evidence of the two
accomplice witnesses did not come across as convincing at all. He
tried to substantiate the position of PW1 Matsenjwa, as going through
all of his fabricated evidence merely because he was released from
custody to avoid being placed on trial. He tried his best to diminish
any prior knowledge of this person in a dismissive manner, saying he
only knew him from sight. The alleged "misunderstanding"
between himself and Makhubula, PW3, is equally unconvincing. The
version of the first accused is that it is Makhubula who used the
E500 due to him after helping to smuggle a vehicle into Mocambique.
Ordinarily, it would be the accused who could hold a grudge against
Makhubula not that Makhubula has reason to get the accused into
trouble by giving false evidence against him.


One
also has to bear in mind that the bare denials and repeated
allegations of fabricated evidence has to be seen from a bigger
perspective than the evidence of the individuals. Where evidence is
fabricated the details are more likely to diverge between the
versions of individuals than what it would be if they speak the
truth. In this regard, one may for instance look at the crown's
version of who the occupants in the Toyota 4x4 were at the time it
was shot at. PW1 and PW3 both said that they were six in all, with
the second accused being the driver. The first accused says that


24


he
is not able to drive a car. Both Makhubula and Matsenjwa said that
there were two additional passengers to show the way across the
border. The police officer who was present when a shot was fired at
the Toyota, Constable Mkhatshwa (PW8), recognised the driver as being
the second accused. This again raises the question as to how it would
tally with the allegation by the first accused that Matsenjwa dreamed
up his fabricated evidence in order to be released from custody, that
Makhubula did likewise because of the "misunderstanding"
about the E500 he did not give to the accused, and that constable
Mkhatshwa fortuitously saw the same man driving the vehicle as
related by the others.


The
first accused did not go further with his bare allegations of
fabrication to also include a conspiracy between the various witness,
to falsely blame him for the crime. The reasons he gave for the
fabrication of evidence, in my view, are without any substance or
proper foundation. His threadbare denials are equally unmotivated
with the sufficiency one would expect of a man who has an
overwhelming body of evidence that squarely places him in the arena
of the criminal acts at its various stages of planning, execution and
attempted disposal of the stolen vehicle.


Likewise,
his efforts to convince the court that the exhibited vehicle is not
the same one that the police recovered after it was shot at and
abandoned by the six occupants, does not take into account the
evidence by constable Mkhatshwa who independently recorded its engine
and chassis numbers at the time the police found it.


Judging
on the totality of evidence presented by the first accused, Gamedze,
one would be extremely hard-pressed to hold it as reasonably possibly
true. As witness, he is unconvincing.


To
some extent, the second accused, Maziya, fared slightly better. Apart
from being alleged to have been involved in the same manner as the
first accused related to the killing and robbery, he was also said to
have possessed a loaded handgun at the time of his arrest.


His
version of the events on the 10th February 2001 is that he was at
home, together with the third accused and PW1 when he received a
phone call from the first accused,


25


asking
his whereabouts. On hearing that he was at home, he came over and
asked for transport to the inyanga (PW2). He then told him that his
car was without petrol, as opposed to the evidence of the first
accused who said that the car "had a problem." It was then
agreed that his younger brother would go to town to bring a taxi and
he returned with Gamedze (PW4) and his "Badonse Taxi".


On
their arrival at the Inyanga (PW2) the four of them entered her hut,
after which the younger two (accused three and PW1 Matsenjwa) were
sent out while the first two accused remained and the Inyanga did her
thing, before the four of them walked back home. He says that
contrary to the evidence of PW1, the Inyanga did not send her husband
to fetch anything for them, nor did the first accused have any gun
with him nor was anything discussed about an intended robbery of a
motor vehicle. As in the case of the first accused, much of his
evidence is a denial of the crown's evidence in so far as he is
implicated.


He
denies any involvement with the robbery, the murder and the
subsequent disposal of the vehicle or the coercion of PW1 Matsenjwa
to participate against his will. He also denies that Constable
Mkhatshwa (PW8) could have seen him behind the steering wheel of the
stolen vehicle at the time the police shot at it, as "it never
happened." Also, that he does not know the police officer or
that the officer knew where he stayed and never came to look for him.
He further denies that he and the first accused would have taken the
police to the homestead of Makhubula (PW3) at Lomahasha. He does
concede to a marginal acquaintance with PW3 (Makhubula) on similar
lines as that of the first accused, when in the year 2000 they met
for the purpose of Makhubula's assistance with dealings pertaining to
a white single cab Toyota bakkie.


He
disputes the evidence of Constable Ndlela (PW10) about the finding of
a pistol at the time he was arrested on a bus. Whereas Ndlela said
that he found the pistol inside his trousers while he was inside the
bus, the second accused says that he was already taken outside the
bus when Ndlela emerged with the pistol from the bus, saying that "he
found it in the bus", adding that he saw the accused "drop
it".


26


Concerning
the recovered and subsequently released vehicle, he disputes it to be
the same one that was exhibited during the trial, due to the
different registration plates and absence/presence of the "green
tree" stickers, mindful of the conditions imposed by court on
its release.


His
further evidence centred on the events that culminated in the release
of PW1 (Matsenjwa) after he agreed to testify for the crown, much on
the same line as the first accused, and how PW1 subsequently would
have visited them in prison.


Much
of the crown's version of events was put to him in cross-examination
all of which he consistently denied when contrary to his own version.
Also, the defence version as put to the crown's witnesses, was
explored, without any serious discrepancies between the attorneys'
instructions and his own version. He was not shown to be an outright
liar, nor that he tripped over smaller details. His evidence is
consistent throughout.


What
does become clear from his evidence, especially under cross
examination is the flimsiness of his denials and excuses. For
instance, he readily acceded to be on friendly terms with PW1
(Matsenjwa) and that there is no "bad blood" between them,
yet he cannot readily explain why Matsenjwa would falsely testify
against him, save that he has been "schooled" and would
fear re-arrest and prosecution if he did not testify for the
prosecution. Yet, when confronted with corroborating aspects of
evidence, like the three different witnesses (Matsenjwa, PW3
Makhubula and PW8 Constable Mkhatshwa) who independently place him
behind the steering wheel of the stolen vehicle when it was shot at,
he comes up with a new excuse, saying that PW3 had a misunderstanding
with a person he (the second accused) knew, that PW1 would lie as he
wanted to be released but not saying a word about why the police
officer, PW8, would be the third person to tell the same lie. His
reasons why the two accomplice witnesses, PW1 and 3, would falsely
testify against him are not persuasive or convincing at all. On the
contrary, the first time the court was to hear of the possible
reasons why they would have fabricated their evidence was when he was
specifically asked by the crown's counsel and not when the two men
were cross examined by defence counsel.


27


The
remarks made above pertaining to the evidence of the first accused,
referring to the manner in which his evidence was solicited and the
constantly repeated denials are equally apposite to the second
accused.


His
evidence about the firearm falls in a different category. Both in his
evidence in chief and in cross examination, he related his own
version of events, from the time the policeman confronted him in the
bus, saying it has "burned", until the time he was taken
away by the police. His version is radically different from that of
the police officer, Ndlela (PW10). It is clear from both men's
evidence that Ndlela was not alone when he entered the bus, but that
other policemen were with him. The version of this accused was put to
Ndlela by his attorney and it clearly transpired that there were
further police officers on the bus at the time the second accused was
arrested, apart from himself, who would have been able to corroborate
his evidence. Yet, he remained a single witness. The crown chose not
to call a corroborating witness, despite the challenges to his
evidence and the version of the accused, that he was outside the bus
when the witness Ndlela emerged with the firearm.


The
Crown did not inform the court of any plausible reason as to why none
of the other policemen who were on the scene were called to testify
and support Ndlela's version. The court does not know why Ndlela had
to remain as a single witness, whereas he said there were others who
could support his evidence, in the face of the defence version that
was put to him. When this is the case, an adverse inference may
possibly be drawn against the prosecution's evidence, especially so
where there is no explanation as to why the crown chose not to add
any of the other police officers who were present when Ndlela was on
the bus, confronted the accused and would have discovered the weapon
concealed on his body, contrary to what the accused said and which
was put to Ndlela. It is accepted that the evidence of a single
witness may suffice under certain circumstances, but in the present
matter, it becomes necessary to look at the evidence with a sceptical
eye, moreso when the evidence of his own witness, Makhosazana Kunene
(DW3) has to be considered.


The
second accused called DW3 to testify about the events on the bus at
the time of his arrest. Kunene said that he was travelling with the
second accused on a bus in March 2001 when it was stopped by the
police at Mpolonjeni. He said that two


28


policemen
boarded the bus and came to the accused, who sat next to him and that
they were both told to get outside, where they were ordered to lie on
the ground. While the two officers who fetched them from the bus were
guarding over them, a further three officers entered the bus. On
their exit from the bus, one of the latter three officers exited,
holding the firearm (that eventually formed the substance of the
further charges against the second accused).


He
has it that when that police officer, one of the three that entered
the bus after the first two removed the two suspects from the bus and
guarded over them whilst prone on the ground, that it was this
officer who came out of the bus and told the second accused:- "Here
is your firearm".


Essentially,
his version is that the police found the weapon inside the bus, after
the second accused had already been taken out of the bus. On face
value, it seems to support the version of the second accused, who
said the same. He also corroborates the second accused, as well as
officer Ndlela, who all placed the second accused in the third row of
seats of the bus. When prompted by defence counsel, he said that it
is not true that the gun was recovered from his person, tucked away
under the belt.


This
evidence, that the gun was retrieved from the bus only after the
second accused had been ordered to exit the bus, prone on the ground,
in line with what the evidence of the second accused but contrary to
Ndlela's evidence, has to be seen in context. On a proper
understanding, it seems prima facie that DW3 (Kunene) says that it is
the second batch of police officers, the three persons, who found a
gun inside the bus, only after the first batch of two officers
removed the two persons from the bus. Thus, the two officers who
first entered the bus and took them outside and guarded over them,
were not the same officers who recovered the gun.


This
has to be compared with the evidence of the second accused, who said
that he saw police officers Mbatha, Ndlela and others when their bus
was stopped. Mbatha would have told him that "it has burned, we
came to collect you," after which they alighted, to be searched
outside the bus. He said that it was only then, while the other
officers remained inside the bus, to search there, that Ndlela came
out and said that he found the gun inside the bus, asking him why he
dropped it there.


29


In
cross examination, the witness (Kunene) said that he did not know the
police officer who came out of the bus with the gun he was said to
have found there. He also said that he did not know the two officers
who would have first entered the bus, ordering the two men to the
outside. Thus, if his story is to be contextualised, it is that two
officers first entered the bus, took them out, and that three other
officers then went in, searched the interior of the bus, after which
one of them came out with the gun, saying it belongs to the second
accused, and notably, that he does not know any of those five
policemen, except officer Shabangu. Shabangu, he says, he found at
the police station. The officer who told the second accused "here
is your firearm", he does not know.


Yet,
Ndlela testified in court for the crown, and was fully well known to
the second accused, being the man he said to have told him it is his
gun. Kunene says that the two policemen who first entered the bus and
took them out, remained outside while the others entered. The upshot
of this is that according to Kunene it could not have been Ndlela who
found the gun, but one of the other three, while the second accused
has a conflicting story, namely that Ndlela remained inside the bus
after the accused was taken outside and that it was Ndlela who came
out with the gun.


From
this, the inevitable conclusion is that according to the second
accused, Ndlela found the "abandoned" gun inside the bus
and came out to confront him with it. His witness Kunene however
comes with a conflicting version, that it could not have been Ndlela,
who he avers he does not know, but a different officer, one of the
second group of three, who found the weapon inside the bus. Their two
versions are mutually destructive. It cannot be so that Ndlela first
entered the bus, took the two suspects outside and guarding them,
while at the same time also being one of the group of three officers
who are said to have discovered the "abandoned" gun inside
the bus. The only inference that can be drawn under these
circumstances is that neither of the two witnesses, the second
accused and his defence witness Kunene, can be believed in this
aspect, as to when the gun was found and by whom. Ndlela could not
have been inside and outside the bus at the same time.


30


It
is with a factual finding as outlined above, that the evidence of
both the second accused and his witness Kunene has to be rejected as
impossible and patently false as pertaining to the discovery of the
firearm. In this context, the absence of an available corroborating
witness to support the evidence of Ndlela on the discovery of the
firearm takes a different turn than an adverse inference.


A
single witness can be relied upon inter alia when the opposing
evidence is patently false and is rejected, leaving the evidence of
the single witness as the only available evidence, which by all other
means remains intact. Apart from the false and rejected version of
the second accused and his witness Kunene, there is no other reason
to doubt the version of Ndlela as to how he came about to find the
handgun on the person of the second accused, while he was inside the
bus. The adverse inference that otherwise might have been drawn
against the single witness ceases to be an impediment which might
have reflected as a potentially adverse credibility issue and his
evidence is accepted as the true and correct version of events.
Furthermore, no reason has been advanced by the defence as to why he
should be disbelieved. The onus remains on the crown to prove not
only the guilt of an accused person, but to do so without a
reasonable doubt. There is no reason to doubt the crown's version,
but there is a severe credibility problem with the defence version,
which cannot be found to be reasonably possibly true.


The
third accused was also called to testify and had a difficulty to
understand the oath, which was to bind his consciousness to speak
only the truth and nothing else. His sworn evidence is, just like
that of his two co-accused, that on the 10th February 2001 he was at
the home of the second accused when PW1 (Matsenjwa) arrived, later to
be followed by the first accused, who then talked with the second
accused, after which the "Badonse" taxi (of PW4 Gumedze)
arrived. He omitted to also say, as his co-accused did, that the
brother of the second accused was sent to fetch the taxi from Siteki
Town.


The
four of them went to the inyanga by taxi, where she was consulted by
the first accused, with the second being present, after the third
accused and PW1 were sent out of her consulting hut. Afterwards, they
all walked back to town.


31


His
further evidence continues on the pattern of his co-accused, to deny
aspects of the crown's case as held to him by his attorney. He denies
having murdered or robbed, he denies having been at the scene of the
crime where the deceased was shot, denies that the Jnyanga's husband
was sent to fetch something while they waited at her homestead. He
also denies that PW1 (Matsenjwa) was forced or coerced to board the
motor vehicle to go to Lomahasha and to remain there. He said he
himself never got into the Toyota 4x 4 double-cab as related by
Matsenjwa, nor that he himself went to Lomahasha after their visit at
the Inyanga. He disputes being inside the 4x4 double cab when it was
shot at by the police, also that he was cautioned in terms of Judges'
Rules by Mbatha after his arrest. He says that no incriminating items
were found in his possession.


His
evidence about the Toyota 4x4 is that he did not ever see it before
it was shown to court during the trial and that the vehicle he saw at
Big Bend (Magistrates) court when it was conditionally released, is
not the same one that was eventually exhibited, as it had no stickers
at that time, also, the registration letters had been changed from an
SD to an SG prefix.


He
testified that he had also been asked to testify for the crown but
did not do so, as he "knew nothing about the case" and that
he "did not know what to testify about." He further has it
that after the release of PW1, he was visited by him in prison, where
he says he was told by PW1 that "he was forced to testify in
this matter" and that officer witbooi and his mother promised
him "green pastures."


These
latter aspects appear to be afterthoughts, which he did not instruct
his own attorney about. His attorney meticulously and painstakingly
put as much as he possibly could to the witness Matsenjwa without
canvassing the "promised green pastures" and the "forced
to testify" with PW1 as he most assuredly would have done if so
told by the third accused. From his answers in cross examination it
seems as if he was not physically present when Witbooi and the mother
of PW1 spoke to the witness about the "promised green pastures",
but in an adjacent room, with an open door. It was not canvassed
whether he actually heard what was said or whether it was a
conclusion he drew, either from bits and pieces he put together or
based on hearsay. With his evidence that Matsenjwa was forced to
testify and that PW1 did not know


32


what
to testify about, the position is worse. Over and above not
canvassing it properly with Matsenjwa himself, there is no basis on
which the accused formed these opinions. If Matsenjwa really did not
know what to testify about and was somehow coerced and forced to give
evidence for the crown, he by necessary implication would have to be
taught what to say in court. All of the many details he gave would
have to be learned by heart and practised over and over, ensuring in
the process that it tied in exactly with the evidence by the other
witnesses, to avoid him being caught out as a false witness. It also
would have had to be so that the other witnesses, where applicable,
would likewise have had to be taught to adjust their own evidence in
order to include Matsenjwa's presence, while he was not there at all,
to fabricate corroborating evidence.


This
was not in line with the evidence as a whole, as heard during the
trial. If Matsenjwa really fabricated his evidence, as from the time
the men left the inyanga until their arrest, because he was not
there, it is my firm view that he would not have been able to
rehearse his lies so well that it could tie in with the corroborating
evidence, without at least one person being caught out. This was not
the case at all, quite the contrary.


Matsenjwa
gave a clear account of what he could recall. He mentioned many
details of the events he was involved in that would have contradicted
the evidence of other witnesses, were they not speaking about their
own observations experienced at the same time. There are some
differences between his own evidence and that of for instance the
inyanga, PW2 Sarah Fakudze, like the mission of her husband before
the group of men returned to town. It has to be borne in mind that
different people do in fact observe the exact same event from
different perspectives, forming different opinions and recollections
of what has actually happened. What also has to be considered is the
importance of the aspect that gets to be elevated to a level of great
importance by counsel in the course of cross examination. How much
does it really matter who was asked to leave her hut and who was
asked to stay behind and for what purpose to stay? How much does it
really impact on the case whether the husband was thought to be sent
somewhere, on a mission unknown, or whether he was not sent off?
There is no evidence that he supplied a fire arm to the first
accused. If it is a conclusion sought to be inferred from the facts,
it certainly is not the one and only one


33


that
excludes other reasonable conclusions and no such factual finding can
be made on the available evidence.


If
Matsenjwa subjectively deduced that it had to be the husband of the
inyanga that procured a gun, he certainly did not say so in his
evidence. He also remains a single witness on the aspect of whether
or not the first accused in fact did have a firearm concealed in his
trousers at the time they walked back to town. On a consideration of
this evidence it would not be possible to come to an adverse finding
that the first accused was in possession of a firearm at the time he
and the other men walked back to Siteki Town after their visit to the
inyanga. But also, it does not imply that PW1 gave false evidence in
this regard. What it comes down to is that there is insufficient
evidence to sustain a factual finding, beyond reasonable doubt, that
the first accused did have a gun at the time the four men walked back
to town.


The
cross examination of PW1 was exhaustive, prolonged and intensive.
Throughout this all, he remained calm, collected and unruffled. His
answers were to the point and he never made a negative impression by
trying to be evasive or being contradictive. He readily conceded his
role in the criminal activities he had been called to testify about -
how he and the third accused were initially taken along to the
inyanga and the subsequent events, how he had to establish the
whereabouts of the vehicle that was the object of the exercise and
how it came about that the driver was shot and the efforts to get the
vehicle into Mocambique.


From
his own evidence and that of the third accused it is clear how they
were both approached by the police, prosecutors and in the case of
PW1, his family as well, to exchange their roles from accused persons
to crown witnesses. PW1 Matsenjwa accepted and the third accused
refused. There is no basis at all, in my view, to find that Matsenjwa
was originally falsely and erroneously charged, to be prosecuted as a
co-accused with a common purpose, but later on tutored to come forth
with a perfectly rehearsed fictitious account of the events. The
third accused so easily could have obtained immunity from prosecution
if only he also took up the same offer made to Matsenjwa.


34


The
evidence of Matsenjwa is credible and believable. It is also
corroborated in many material respects, which corroboration
implicates the accused persons independently from Matsenjwa. To
mention a few of the latter aspects:


Matsenjwa
said that the incident took place at the gate leading to the
homestead of the late Mthunzi Dlamini and that he heard two shots
being fired. Mrs. Assianah Dlamini, the widow of the deceased, also
placed the incident to have been at the gate leading to their
homestead and also heard two shots. Sergeant Joubert Magagula (PW12)
found two empty cartridges at that same place, which he photographed
(exhibits 10 and 11).


PW
3, Makhubula, corroborates PW1 as to the events at Lomahasha, as
described above, like who arrived at his home, what he was required
to do, the fetching of further people to help them, who drove the
vehicle at the time it was shot at, who sat where in the vehicle and
from what make and colour vehicle the shot was fired at them. This
last aspect is further confirmed by PW9, Constable Mkhatshwa, who was
a passenger in the white Opel Astra when his colleague fired at the
stolen Toyota, driven by the second accused. To a lesser extent, the
photographs on which the hole in the mirror of the Toyota can be seen
(exhibits 4, 5 and 6) are at minimum consistent with the evidence by
PW1, 3 and 8 as to the firing of a bullet at the vehicle, just before
it stopped and was abandoned by the fleeing occupants.


As
is the case with PW1, the evidence by PW3 Samuel Makhubula is also
credible and corroborated. Not only are there no reasons to doubt the
veracity of their evidence, but also there are the impressions they
made as credible witnesses. Both men put forth their stories in
logical, plausible and convincing manner. They made a clean breast of
their own wrongful participation in crime, knowing of the possible
consequences. It is without any reservation or hesitation that they
are both found to be credible witnesses whose evidence is supported
or corroborated separately and independently.


I
have been referred to various authorities on the aspect of accomplice
evidence. Invariably, the authorities draw from the salutary words of
Schreiner J

A
in Rex vs Ncanana 1948(4) SA 399(A) at 405 - 406 which I yet again
find a most useful


35


guideline,
"a classic statement of what has been described as 'the common
rule of practice."


"What
is required is that the trier of fact should warn himself, or, if the
trier is a jury, that it should be warned, of the special danger of
convicting on the evidence of an accomplice; for an accomplice is not
merely a witness with a possible motive to tell lies about an
innocent accused but is such a witness peculiarly equipped, by reason
of his inside knowledge of the crime, to convince the unwary that his
lies are the truth. This special danger is not met by corroboration
of the accomplice in material respects not implicating the accused,
or by proof aliunde that the crime charged was committed by
someone... The risk that he may be convicted wrongly,.. will be
reduced, and in the most satisfactory way, if there is corroboration
implicating the accused. But it will also be reduced if the accused
shows himself to be a lying witness or if he does not give evidence
to contradict or explain that of the accomplice. And it will also be
reduced, even in the absence of these features, if the trier of fact
understands the peculiar danger inherent in accomplice evidence and
appreciates that acceptance of the accomplice and rejection of the
accused is, in such circumstances, only permissible where the merits
of the former as a witness and the demerits of the latter are beyond
question."


It
is with this in mind that the evidence of especially Matsenjwa but
also of Makhubela has been critically evaluated both in abstract and
in context, searching for a possible clue that they may have been
either mistaken or false. Both withstand the acid test, especially so
when the corroborating aspects are added to the equation. The second
accused has shown himself as a lying witness about the events on the
bus. None of the accused have been able to explain away the
collective body of evidence against them. Independently obtained
evidence, like the recording of the engine and serial numbers of the
4x4 Toyota double-cab that was abandoned at Shewula after the police
shot at it, correspond with the same numbers appearing in the
registration document of the vehicle used by the deceased at the time
he was killed. Each of the accused has all the reason in the world to
dispute that it is this same recovered vehicle which was driven by
the second accused at the time it was shot at, that it was released
on strength of a court order to the Ministry of Agriculture and
subsequently exhibited


36


to
court during this trial. But it could not be explained away that the
noted changes to the vehicle, namely the new Government registration
number and the stickers again placed on it, is due to any other
reason than that explained by the Ministry's official, Mr. Solomon
Gamedze - PW7. Also, it could not be explained away that the same
engine and chassis numbers features on the same vehicle, throughout,
namely the vehicle donated by the Danish government and recorded in
the registration document and used by the deceased at the time of the
robbery, also recorded by Constable Mkhatshwa (PW8) when it was
abandoned after being shot at by the police, and finally when
exhibited during the trial.


The
manner how this hi-jacked vehicle came into the possession of the
three accused before court has been reliably related by Matsenjwa,
who partook in the crime at all its different stages, and his
evidence has been extensively corroborated by various others, who
implicated the three accused independently from PW1, as set out
above.


Accordingly,
the factual findings made in this matter is that on the 9th February
2001, PW1 was solicited for information about the Toyota 4x4
Double-Cab bakkie, the main subject matter of the second count, which
was used by the deceased who was well known to the witness. The
following day, as arranged, the three accused again met with him,
seeking further information about the vehicle and he was told by the
first accused that he had a purchaser for the Toyota in Maputo. The
four men then set off to an Inyanga where she "cast the bones"
for the first two accused, after which they all walked back to town
discussing their plans to rob the Toyota, by force, if necessary but
as apparently agreed between them, without use of a firearm, the
possession of which the first accused declared to have when asked by
the fourth man, Matsenjwa. Later that evening the four lay in ambush
at a farm gate leading to the homestead of Mthunzi Dlamini, the
driver of the vehicle they wanted.


Before
the vehicle arrived and stopped at the gate, the third accused and
the witness Matsenjwa were told to stand a distance away as the first
two accused would take the vehicle by themselves. After the driver
(Dlamini) got out of his bakkie to open the gate, two shots were
fired, one fatally wounding him. Dlamini's wife fell out of the
vehicle and was left behind at the scene while the four attackers
took off with the


37


Toyota
4x4 double-cab bakkie, driven by the second accused, and registered
SD 497 JG, containing various personal items of the Dlaminis.


By
this time PW1 Matsenjwa had "cold feet" but could not
persuade his partners in crime to let him go. The four ended at
Lomahasha, where the plans to get the vehicle across the border were
less successful than the robbery. The following day, 11th February
2001, the four robbers and two locals were driving towards a
clandestine border crossing point when from a stationary police car
the police tried to make them stop and when ignored, fired a shot at
the vehicle which was, again driven by the second accused. A short
distance later it stopped and the occupants all managed to get away.
The bakkie was confiscated and its details noted by the police, later
found to match with the vehicle used by the murdered Dlamini,
subsequently released by the Magistrate's Court to the Ministry of
Agriculture and eventually exhibited during the trial, sporting a new
registration number, the mirror shot by the police being replaced and
with the similar big distinctive green stickers removed between the
robbery and recovery also neatly replaced.


All
four men were later arrested with the second accused being found in
possession of a pistol and ammunition. The fourth man in the first
two crimes of murder and robbery wisely took the offer of not being
prosecuted in exchange for his evidence. The car smuggler, Makhubela
(PW3) did the same.


It
is from these facts that the crown seeks a conviction of all three
accused persons in respect of the murder and robbery charges, on the
basis that the accused persons "acting jointly with a common
purpose did unlawfully and intentionally kill Mtunzi Dlamini"
and also robbed him and his wife at the same time and on the same
basis.


A
very brief overview of the degrees of participation in a crime might
be useful at this juncture. INNES CJ held in R vs PEERKHAN and LALOO
1906 TS 798 at 802 that:


"Our
Law knows no distinction between principles in the first and second
degree and accessories. I call a person who aids, abets, counsels or
assists in a crime a Socius Criminis - an accomplice or partner in
crime. And being so


38


he
is... as guilty and liable to as much punishment as if he had been
the actual perpetrator of the deed."


Perpetrators
and co-perpetrators are those persons whose actions and intent must
satisfy all the definitional aspects of the crime. The liability of a
perpetrator or co-perpetrator is founded on his own act and his own
intention and it is not accessory as in the case of an accomplice.
The doctrine of common purpose provides that if two or more persons
decide to embark on a joint unlawful or wrongful activity the acts of
one are imputed to the other(s) which fall within their common
purpose - see Du Toit et al., commentary on the Criminal Procedure
Act, service 21, 1998 @ Section 155, page 22-10 and the authorities
there quoted, notably R v Shezi and others 1948 (2) SA 119 (A) at 128
and S v Safatsa & others 1988(1) SA 868(A). In cases of murder a
causal connection between the acts of each participant in causing the
death of the deceased need not be proved (Safatsa).


An
accomplice (both PW1 and PW3 were so introduced) is a person who
takes part in the commission of an offence but who is neither a
perpetrator or a co-perpetrator, nor an accessory after the fact. His
liability is accessory so there can be no question of an accomplice
without a perpetrator or co-perpetrator - an accomplice is not a
perpetrator as he lacks the actus reus of a perpetrator but he
knowingly affords the perpetrator or co-perpetrator the opportunity,
means or the information which furthers the commission of the crime.
(S v Williams en 'n ander 1980 (1) SA 60 (a)). An accessory after the
fact (PW3 - Makhubela) is a person who knowingly renders assistance
after the completion of the crime, "... (to associate)
him/herself with the commission of the crime by helping the
perpetrator or accomplice to evade justice" (S v Morgan &
others 1993(2) SA 134(A) at 174, per Corbett, CJ)
.
One
aspect of the evidence that is crucial to establish, is whether there
was a common purpose in respect of the killing of the deceased and
whether it can be factually found that the person who did not fire
the fatal shot was aware of the possession of a firearm by the other
accused or not, and if so, whether he foresaw that it may be used
during the robbery. I here refer to the first and second accused, who
separated themselves from the third accused and PW1 while they waited
for the Toyota 4x4 to arrive at the farm gate. The latter two were
told to wait across the road while the first two accused


39


would
take the vehicle by themselves. The fatal shot could only have been
fired by either the first or second accused, not by the third accused
or PW1.


PW1
testified that after they left the homestead of the Inyanga, he saw
that "something was bulging around the waist of accused number
one. I asked myself what it was. As we proceeded, I tried to ask him
(accused 1) what it was, he said it was a firearm. Because of that I
was frightened".


He
further testified that also along the way, they again discussed the
plan about the taking of the vehicle - "It is the motor vehicle
we discussed previously, that the owner would have to be robbed by
force. At that meeting, it was agreed that the motor vehicle must be
taken by force only, without using a firearm."


After
the two shots were fired during the scuffle with the deceased PW1 and
the third accused went to the vehicle. He then said "the origin
of the gunshot -

I

suspect it was from accused number one, I previously asked him about
a firearm". He continues to say that as he (PW1) stood at the
vehicle, with the rear door still open, that "accused one come
by the side of the motor vehicle, pointed the firearm at me, said
"voetsek" to me, why are you waiting outside the car. It
was then that I got inside the vehicle, he completed his comments and
said I think I am smart, he can see I want to report to the police
that I killed a certain person."


After
PW1 saw the blooded deceased laying on the ground and commented on
it, he testified that the second accused then suggested to the first
accused that they abandon the vehicle "as it looks like we (my
emphasis) killed that person."


From
the above, it is clear that when PW1 asked the first accused about
the firearm he suspected him to have, the question was posed in the
presence of the second accused. It was also in the presence of the
second accused that the first accused confirmed that he had a
firearm, tucked into his trousers. At that point, each of the four
were aware that the first accused had a firearm with him and that
they were on the point of hiĀ­jacking a motor vehicle. They went
further than having just the mere realisation that there is a firearm
with the first accused, in that they decided to take the vehicle by
force only, without using a firearm.


40


It
is with this knowledge that the first accused had a gun with him that
the second accused stayed with him at the farm gate, waiting for the
bakkie to arrive, while PW1 and accused three were on the opposite
side of the road. During the ensuing confrontation, the deceased was
fatally shot. There is no direct evidence as to which of the two
fired the shot, but all the circumstances point to the first accused.
Before the robbery he said he had a gun, immediately after the
robbery he pointed a gun to PW1.


The
second accused, who was with the first at the time the two of them
had split ranks with the other two, to take the vehicle, said
afterwards that "we" had killed the deceased. He was, as
aforesaid, aware that the first accused had a firearm, shortly prior
to the robbery, when the first accused spoke in his presence to PW1
about the gun. All four decided to overcome possible resistance "by
force" and "without using a firearm".


The
next question is whether the second accused did foresee that the
firearm may be used during the robbery, with fatal results. There is
no evidence whatsoever from the second accused that he did not think
that the first would use the firearm, nor for that matter, that he
did not know the first accused had a gun at the scene. His evidence
is a total denial of having been on the scene at all, which has been
dismissed in the face of the acceptance of the evidence given by PW 1
and corroborated as aforesaid. I cannot and do not accept that the
second accused did not foresee that the first accused would use the
gun. He knew that they were going to rob the vehicle and the inherent
distinct possibility that resistance may be offered by their intended
victim. Knowing that the first accused was armed and that the
reaction of their victim was an uncertainty, they nevertheless
continued with their plan, especially so when PW1 and the third
accused were sent away from the gate, to wait across the road.


The
evidence of both PW1 and PW6, the wife of the deceased, is that the
deceased moved back to the vehicle from the gate and that there was
then an altercation during which the shot was fired. The second
accused willingly and knowingly actively participated with the first
accused to take the vehicle by force, in the knowledge that the first
accused had a firearm that he might well use during the event despite
an


41


arrangement
not to use it. In the end, the firearm was used and fatally so,
causing the death of Dlamini, in the course of reaching their common
and shared goal, namely the robbery of the vehicle.


In
the event, it is found that both the first and second accused had
acted with a common purpose to rob, and in the process of doing so,
caused the death of Dlamini. In both the first two counts of murder
and robbery, the crown relies on common purpose, which in my view,
has been sufficiently proven to establish its applicability.


The
position of the third accused differs to some extent. His purpose and
intent was also to participate in the planned robbery of the vehicle.
However, in respect of the murder charge, it has not been established
that he participated to the extent that he can be found to have acted
with a common purpose regarding the killing, as is the case with the
second accused.


Willingly
or not, he and PW1 were distanced from the first two accused who said
that they would take the vehicle by themselves. He was told to wait
on the other side of the road. He did not physically partake in the
actual taking of the vehicle and the killing during that phase of the
activities. It is this which distinguishes his position from that of
the second accused, who actively and physically shared the task of
depriving the driver of his vehicle. It therefore follows that it
cannot also be said of the third accused that he acted in common
purpose with the first two accused in so far as count one, murder, is
concerned.


The
third accused however acted with a common purpose in concert with the
others as far as count 2, robbery, goes, as did PW1 Matsenjwa.


Regarding
the third and fourth counts, as indicated above, the exculpatory
version of the second accused stands to be rejected in so far as it
is inconsistent with the version of the crown. This results in a
factual finding that he indeed had the firearm and ammunition he has
been charged with having in his possession. It is common cause that
he had no legal authority, like a licence to possess the items, which
might have rendered his conduct lawful. Both the firearm and the
ammunition were tested by a police officer (PW5, Sergeant Jabulane
Gamedze) who is sufficiently skilled in his


42


trade
as police force armourer to have proven the items in good working
order. The only aspect of his evidence that I do not rely on is that
he labours under the impression that a Makarov Pistol is classified
in the Arms and Ammunition Act as "an arm of war". In the
copy of the amended Act I have at my disposal, there is no such
statutory classification of a 9mm Makarov pistol being of that
category. Also, the second accused has not been charged with the
possession of an arm of war but of an ordinary firearm, as mentioned
in Section 11(1) of the Act.


It
is to be noted that no forensic evidence has been adduced to
establish whether this pistol found in possession of the second
accused is the same or a different one that was used during the
hijacking of the vehicle and the killing of the driver. Further
evidence conspicuous by its absence is anything whatsoever about the
many items listed in the indictment that were in the vehicle at the
time of the robbery.


From
all that was said above, it is the judgment of this court that the
crown has proven beyond reasonable doubt that the first and second
accused, but not the third, are guilty of the crime of Murder, count
one, and that all three are guilty of Robbery, count two and that the
second accused is guilty of the unlawful possession of a firearm and
ammunition, as set out in counts three and four.


Regarding
the two witnesses, PW1 and PW3, it is endorsed in terms of Section
234(2) of Act 67 of 1938, that both be freed and discharged from any
prosecution in respect of the offences they were involved in
regarding this matter.


Orders
regarding the exhibits are to follow at the end of the trial, after
sentence.


The
matter stands to be postponed to the first available date for
proceedings on sentence, following a determination of possible
extenuating circumstances in respect of the murder conviction of the
first and second accused.


JACOBUS
P. ANNANDALE


ACTING
CHIEF JUSTICE