republic of south africa high court, south …noble nyathi, were each convicted on 29 april 2013 by...

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REPUBLIC OF SOUTH AFRICA

HIGH COURT, SOUTH GAUTENG LOCAL DIVISION (JOHANNESBURG)

Case No: A103/2017

In the matter between:

XOLANI BATISTA NKOMO First Appellant

JESUS EMMANUEL MAVHUNDUSE Second Appellant

ZAMANI MOYO Third Appellant

MALUSI MOYO Fourth Appellant

KHULUMANI DUBE Fifth Appellant

KHUMBULANI NGWENYA Sixth Appellant

THEBE MAXWELL Seventh Appellant

NOBLE NYATHI Eighth Appellant

and

THE STATE

Case Summary: Criminal Law – trial court convicted eight appellants on charges of murder, robbery with aggravating circumstances and malicious damage to property and each sentenced to imprisonment for life, for fifteen years and for three years respectively, the latter two sentences to run concurrently – evidence of identification and implication of the third, fourth, fifth and sixth appellants not satisfactory and their convictions and sentences accordingly set aside - first, second, seventh and eighth appellants’ convictions of murder and malicious damage to property and their sentences pursuant to those convictions confirmed – their convictions of robbery with aggravating circumstances and their sentences pursuant to such convictions set aside and replaced with convictions of theft and sentences of

(1) REPORTABLE: No.

(2) OF INTEREST TO OTHER JUDGES: No.

(3) REVISED.

…………………….. ………………………...

DATE SIGNATURE

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imprisonment for one year, the latter sentence to run concurrently with the sentence for malicious damage to property – state failed to prove the act of applying or threatening to apply force to the person of the victim required for a conviction of robbery.

JUDGMENT

MEYER J (VAN DER LINDE J concurring)

[1] Arising from an incident that happened on 21 June 2012 at the Durban Deep

shooting range (the shooting range) when the late Mr Solomzi Livingston Jafta (the

deceased) was attacked by a group of men, who also damaged the Nissan pick-up

with registration numbers and letters JLF 495 GP (the pick-up) belonging to Mr

Godknows Nkosyazi Motloung (Mr Motloung) and stole certain items from it, the first

appellant, Mr Batista Xolani Nkomo, the second appellant, Mr Jesus Emmanuel

Mavhunduse, the third appellant, Mr Zamani Moyo, the fourth appellant, Mr Malusi

Moyo, the fifth appellant, Mr Khulumani Dube, the sixth appellant, Mr Khumbulani

Ngwenya, the seventh appellant, Mr Thebe Maxwell and the eighth appellant, Mr

Noble Nyathi, were each convicted on 29 April 2013 by the Gauteng Local Division

of the High Court (Mophosho AJ) of murder read with s 51(1) of Act 105 of 1997

(count 1), of robbery with aggravating circumstances as defined in s 1(1) of the

Criminal Procedure Act 51 of 1977 (count 2) and of malicious damage to property

(count 3).

[2] On 3 May 2013, the trial court sentenced each appellant to imprisonment for

life pursuant to the conviction of murder, to imprisonment for a period of 15 years

pursuant to the conviction of robbery with aggravating circumstances and to

imprisonment for a period of three years pursuant to the conviction of malicious

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injury to property. The trial court ordered that each sentence of imprisonment for

three years pursuant to the conviction of malicious injury to property runs

concurrently with the sentence of imprisonment for fifteen years pursuant to the

conviction of robbery with aggravating circumstances. The effective sentence

imposed upon each appellant, therefore, is imprisonment for life. The appeal of each

appellant against his convictions and sentences is with the leave of the trial court.

[3] The state relied on the eyewitness evidence of Mr Motloung and of Mr

Memory Skhumbuzo Phiri (Mr Phiri). It is common cause that Mr Motloung, Mr Phiri

and each appellant conducted illegal gold mining activities at a mine in Matholeville,

Roodepoort (the mine), which mine is near the shooting range. They are all

originally from Zimbabwe. Mr Motloung testified that he had been at the shooting

range with the pick-up during the afternoon on 21 June 2012 at about 16.00, waiting

for a friend by the name of Sonny. He noticed the deceased being chased by a

group of nine (or more) people at a distance of about 15 metres from where he was

standing next to the pick-up. Amongst the group were the eight appellants, who

were all known to him from their illegal mining activities and some of them were his

‘home boys’ from Zimbabwe. The first, second, fifth, sixth and seventh appellants

were, according to him, armed with stones and the first and seventh appellants were

also carrying ‘reinforce’ or metal rods of just under a metre in length. The third and

fourth appellants each were armed with a metal knobkierie and the eighth appellant

with an object that resembled a panga or an axe.

[4] According to Mr Motloung, the group was throwing stones at the deceased

while chasing him. The deceased was running towards the pick-up. Some stones

hit the pick-up as well. The first appellant was one of the persons who was throwing

stones at the deceased at that stage. The deceased tried to get into the pick-up, but

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then proceeded to run past Mr Motloung and onto the shooting range. Mr Motloung

asked the first appellant what was happening, but he did not respond. Mr Motloung

was frightened and he ran away from the pick-up after the deceased and those who

were chasing him had passed him. He observed the continuation of the attack on

the deceased from a distance, which he estimated to have been about 15 to 20

metres. The visibility, according to Mr Motloung, was clear and it was ‘a clear place

with no trees’. Mr Motloung witnessed the second and fifth appellants throwing

stones at the deceased on the shooting range, the third appellant hitting him with a

metal knobkierie, the seventh appellant hitting him with a metal rod while the

deceased was lying on the ground, the eighth appellant hitting him with his panga

and the fourth appellant assisting them in the attack. The deceased was left in a

position where he was seated on the ground with his upper body leaning against a

fence. Mr Motloung gained the impression that he was dead.

[5] The group, according to Mr Motloung, then returned to the pick-up, hitting it

with stones and iron rods and the eighth appellant chopped it with his axe or panga.

Its windscreen, doors, headlights, indicators, side indicators, rear lights, tyres, rims,

carburettor, air cleaner and steering were damaged and they took the car radio,

speakers, battery, steering lock and Mr Motloung’s keys. He estimated the value of

the damage to be about R12 000. The deceased was afterwards taken to the

Leratong hospital by a person named Madoda. Mr Motloung noticed that the

deceased’s forehead was injured and his cheek was bleeding. It is common cause

that the deceased died in hospital on 23 June 2012 at 06:00 as a result of the head

injuries that he had sustained during the attack upon him on 21 June 2012, which

included skull fractures.

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[6] Mr Phiri testified that on 21 June 2012 at the time in question he had been

sitting next to the shooting range sifting sand in an effort to retrieve gold. He,

according to his initial evidence, was with the deceased and Mr Motloung, but he

added that they were many who were working there on that day. A group of around

20 men, according to Mr Phiri, emerged and passed him and those in his presence;

some were carrying stones, others axes and others ‘metals’. Amongst those in the

group whom he had known were the first, second, fourth, seventh and eighth

appellants. The group, according to him, was throwing stones at the deceased and

some of the men were ‘using’ axes. The deceased was running away in the

direction of the pick-up, which, according to Mr Phiri, ‘was parked very close’. The

deceased hid behind the pick-up, but the group pursued him and he then proceeded

to run towards the shooting range.

[7] According to Mr Phiri the group then split into two at the pick-up; some ran

after the deceased onto the driving range and others remained at the pick-up. Mr

Phiri could not estimate the distance between him and the pick-up, but he said that

he was able to see what was happening at the pick-up. The shooting range, he said,

was not far from him and he ‘could see clearly’ what was happening on the shooting

range. After the group had followed the deceased onto the shooting range, they

assaulted him and then left. The deceased, according to Mr Phiri, was lying on the

ground when the group left. Mr Phiri believed that the group was going to come

back to where he and those in his company were working and they accordingly left

and returned after about 30 minutes. Mr Phiri did not testify about the further events

about which Mr Motloung testified when the group returned to the pick-up.

[8] On 22 June 2016, Mr Motloung reported the damage to and theft from his

pick-up to the Roodepoort SAPS when a police statement was taken from him.

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Another police statement was taken from him at the Roodepoort SAPS on 26 June

2012, also dealing with the attack on and killing of the deceased. Captain Eugene

Pienaar, who was stationed at the Roodepoort SAPS assisted the investigating

officer, Constable Obed Senosi, in arresting the first and second appellants on 26

June 2012 and the seventh appellant on 28 June 2012. They were pointed out to

Cpt Pienaar by Mr Motloung prior to their arrests. Cnst Senosi arrested the third,

fourth, fifth and sixth appellants on 27 June 2012 and the eighth appellant on 15

February 2012. They too were pointed out to Cnst Senosi by Mr Motloung prior to

their arrests. On 20 August 2012, Mr Phiri attended an identification parade. It is

common cause that all the appellants, except the eighth appellant, were in the line-

up at the identification parade and it is undisputed that Mr Phiri pointed out the first,

second, fourth and seventh appellants. The eighth appellant was not yet arrested at

the time.

[9] Each appellant denied any participation in the attack on the deceased, the

damage to the pick-up or the theft of items from it on 21 June 2012. Each one

denied being part of the group who committed those acts. Except for the seventh

appellant, each one denied being present at the shooting range at the date and time

in question: the first appellant testified that he had been at the mine sifting sand to

retrieve gold, but not at the place where the incident happened; the second

appellant testified that he had been visiting a friend by the name of Ahkim in

Roodepoort, who had told him that the deceased was being assaulted by people;

the third, fourth, fifth and sixth appellants each testified that they had been at home;

and the eighth appellant testified that he had left for Zimbabwe on 18 April 2012 and

only returned in August 2012. The seventh appellant testified that he had been at

the bushes of the shooting range sifting sand for gold and in his company, amongst

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others, was Siphiwe Moyo. A large group approached him, Siphiwe Moyo and those

in their presence, looking for the deceased. The seventh appellant gave them false

directions to where the deceased had been and the group left, following his

directions. The seventh appellant then ran away and went home. The seventh

appellant called Mr Siphiwe Moyo as a witness, but his evidence did not advance the

seventh appellant’s defence.

[10] The trial court concluded that the state had proved the guilt of each appellant

beyond a reasonable doubt on all three charges. The trial court held that they

committed the crimes in the execution of a common purpose. It accepted the

evidence of Mr Motloung incriminating all the appellants and that of Mr Phiri

incriminating the first, second, fourth and seventh appellants. It rejected the

exculpatory evidence of each appellant. The trial court considered Mr Motloung a

single witness in respect of his evidence implicating the third, fifth, sixth and eighth

appellants. It recognised that his evidence and that of Mr Phiri were not without

criticism, but was satisfied that the truth had been told by Mr Motloung despite the

shortcomings. The trial court held the evidence of the state witnesses to be credible

and acceptable. It further held that Mr Motloung-

‘. . . was a truthful, genuine and reliable witness in his identification of not only accused 1, 2,

4 and 7 who were pointed out at an identification parade by Phiri, but also of accused 2, 3, 5,

6 and 8. Motloung knew the accused persons for periods of between three to five years, he

lived in the same area as them. He had a good opportunity to observe them as they chased

after the deceased, he was not only in their close proximity as they assaulted him, even at

the car, but also spoke to accused 1 and asked him what was happening. He observed

them as they continued chasing after the deceased into the shooting range and continued

assaulting him there. He observed them when they came back to the motor vehicle and

started causing damage to it by stoning and hacking it.’

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[11] Approaching the evidence of Mr Motloung with the necessary caution that

should be applied to evidence of identification (see S v Mthetwa 1972 (3) SA 766

(A), at p 768A-C) and to that of a single witness (S v Sauls and Others 1981 (3) SA

172 (A), at pp 179G – 180G), especially a single witness with regard to identification

(see S v Miggell 2007 (1) SACR 675 (C) at 678d-f), I am unable to find that the trial

court erred in its acceptance of the evidence of Mr Motloung relating to the events

which unfolded at and on the shooting range during the afternoon on 21 June 2012

and of his identification and incrimination of the first, second, seventh and eighth

appellants. Counsel for the appellants, in my view correctly, also conceded that the

first, second, seventh and eighth appellants were properly and adequately identified.

[12] Mr Motloung identified and implicated the first, second, seventh and eighth

appellants in the police statement that had been taken from him at the Roodepoort

SAPS on 26 June 2012, a few days after the incident and after the deceased had

died. He was able to refer the police to some distinguishing features of those four

appellants. The probability that his identification of each one of them was reliable is

strengthened by the fact that they were known to him beforehand. (See R v Dladla

and others 1962 (1) SA 307 (A) at 310C; S v Kolea 2013 (1) SACR 409 (SCA), para

21.) It is common cause that Mr Motloung and the first, second, seventh and eighth

appellants knew each other for a few years prior to the incident on 21 June 2012,

although the exact number of years was in issue. They all were originally from

Zimbabwe and some of them were Mr Motloung’s ‘homeboys’ in Zimbabwe. They all

undertook illegal gold mining at the mine in Roodepoort. Furthermore, the incident

took place in broad daylight, Mr Motloung’s view of the group chasing the deceased

had not been impeded, he was in close proximity to the group, particularly when they

ran towards the pick-up and passed him and onto the shooting range and he had

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adequate opportunity for observation, both as to time and situation. (See S v

Mthetwa (supra), at 768A; S v Ngcamu and another 2011 (1) SACR 1 (SCA), para

11.)

[13] Mr Phiri identified the first, second, fourth and seventh appellants at the

identification parade which was held on 20 August 2012. They were also known to

him for a few years before the incident on 21 June 2012. I have mentioned that the

eighth appellant was not in the line-up at the identification parade. But Mr Phiri also

identified him as one of the persons who was amongst the group that chased and

attacked the deceased. Leaving aside the fourth appellant to whom I return, Mr

Phiri’s evidence was corroborative of Mr Motloung’s evidence of identification of the

first, second, seventh and eighth appellants up to the point where the group,

according to his evidence, split into two groups at the pick-up; the one group

chasing the deceased onto the shooting range and the other remaining at the pick-

up, and damaging it. Mr Phiri conceded that he was actually unable to say who

remained at the pick-up and who continued chasing and attacking the deceased. Mr

Phiri left the scene when the group left the shooting range and he did not witness

that group returning to the pick-up where they, according to Mr Motloung’s evidence,

then damaged and stole articles from it.

[14] I have mentioned that a police statement was first taken from Mr Motloung on

22 June 2016 when he reported the damage to and theft from his pick-up to the

Roodepoort SAPS prior to the death of the deceased on 23 June 2012. I take into

account that the purpose of police statements is to obtain details of an offence in

order to decide whether or not to institute a prosecution, they are frequently not

taken down with accuracy and completeness, there may be language and cultural

differences between the witness and the police officer who takes down the statement

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and not every error by a witness and every contradiction affects his or her credibility

as a witness. (See: S v Gqulagha 1990 (1) SACR 92 (A); S v Mafaladiso en

Andere 2003 (1) SACR 583 (HHA); and S v Govender and Others 2006 (1) SACR

322 (ECD).) Mr Motloung spoke in Zulu and this statement was taken down in

English without any interpretation. The following was inter alia noted in this

statement:

‘THE Regtration of the CAR is JLF495gp, NISSAN RED Open BAKKIE. Some OF the

suspect are unknown to ME as Batista, JESUS and NDBEESta. And FOUR OF them I don’t

know them. THE total amount of the Damagesd property is R7 100 – 00.’

In this statement reference was only made to the first, second and seventh

appellants and not to the eighth appellant. But a reading of this statement satisfies

me that the police officer who took it from Mr Motloung was probably inexperienced

in taking down police statements or at least inattentive, that it was not taken down

with accuracy and completeness, that there might have been language differences

between Mr Motloung and the police officer who took it down and that the trial court

was correct in disregarding the contradictions between this police statement and his

evidence in court.

[15] I am, however, not satisfied that Mr Motloung’s identification and incrimination

of the third, fourth, fifth and sixth appellants was reliable in the light of his previous

inconsistent police statement which he had made at the Roodepoort SAPS on 26

June 2012. This the state counsel, in my view correctly, conceded.

[16] In that police statement Mr Motloung was quite clear that the deceased and

four of the nine persons who chased after the deceased had been known to him. He

named them - the first, second, seventh and eighth appellants – and gave a brief

description of their distinguishing features. He expressly referred to the other

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members of the group as ‘the other five unknown black males’ or the ‘other people

that I don’t know’. That police statement, different to the police statement that had

been taken from Mr Motloung on 22 June 2012 when he reported the damage to and

theft from the pick-up to the Roodepoort SAPS, is comprehensive and coherent and

it cannot be said that it was not taken down with accuracy and completeness. The

inconsistencies between that police statement and his evidence at the trial when he

also included the third, fourth, fifth and sixth appellants as having been part of the

group in question cast serious doubt on the reliability of his evidence identifying

them. It must be accepted on the totality of the evidence that Mr Motloung and the

third, fourth, fifth and sixth appellants were known to each other. If they indeed

formed part of the group that chased after the deceased and attacked him one would

have expected Mr Motloung to have said that to the police just as much as he had

told the police about the involvement of the first, second, seventh and eighth

appellants who had also been known to him. The contradictions between that

police statement and his evidence in court were not adequately explained, are

material to the issue of the third, fourth, fifth and sixth appellants’ guilt and negatively

impacts the reliability of Mr Motloung’s identification and implication of them.

[17] Mr Phiri corroborated Mr Motloung’s unsatisfactory evidence of identification

of the fourth appellant up until the point where the group chased after the deceased

onto the shooting range. But Mr Phiri was not a satisfactory witness at all. His

evidence was not always clear and coherent and he contradicted himself and also

the evidence of Mr Motloung in several material respects. The trial court, in my view,

should not have accepted his evidence identifying and implicating the fourth

appellant.

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[18] Mr Phiri contradicted his evidence in chief when he said under cross-

examination that the deceased and Mr Motloung had not been at work on the day in

question. He also contradicted his evidence in chief when he said that he, Mr Phiri,

had been working with Beke and Ndu on the occasion of the incident. He then

contradicted his evidence under cross-examination by saying that the deceased and

Mr Motloung had been present, but that the deceased had not been working. He

further testified under cross-examination that the deceased had just been standing

‘on the other side’ and that he was unable to say how far away the deceased and Mr

Motloung had been from each other, because he, Mr Phiri, had been busy working.

He testified under cross-examination that the deceased and Mr Motloung each had

been having a conversation with people known to them and who had been working

when the group had been approaching them. This evidence of Mr Phiri is

irreconcilable with Mr Motloung’s satisfactory account of the events.

[19] Mr Phiri contradicted his evidence in chief that the first, second, fourth,

seventh and eighth appellants had been amongst the group of men that followed the

deceased onto the shooting range by saying that the first and the fourth appellants

had been part of the group that remained at the pick-up. Upon further cross-

examination on that aspect, Mr Phiri said:

‘Well, I cannot say who was there or who was not there as there were many people on (sic)

that place.’

And:

‘Well, I cannot really point out the people who actually attacked the deceased, but there was

a point in time where I saw them giving chase to the deceased.’

[20] Mr Phiri’s evidence of the group splitting at the pick-up is irreconcilable with

Mr Motloung’s evidence. The deceased, according to Mr Motloung, was running

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towards the pick-up while being chased by the group, he tried to enter it but instead

continued running onto the shooting range. Mr Motloung was frightened and he ran

away from the pick-up after the deceased and those who were chasing him had

passed Mr Motloung at the pick-up. He observed the continuation of the attack on

the deceased by the group on the shooting range from a distance. The group

returned to the pick-up, ‘hitting’ it with stones and iron rods and the eighth appellant

chopped it with an axe or panga. This, according to Mr Motloung, was when the

group also stole items from the pick-up.

[21] The trial court correctly in my view rejected the exculpatory evidence of each

appellant. Each one’s evidence had material unsatisfactory features and the

exculpatory versions of particularly the first, second, seventh and eighth appellants

cannot reasonably possibly be true in the light of the sufficiently strong evidence that

showed that the first, second, seventh and eighth appellants had in fact been part of

the group that chased and attacked the deceased, first to the pick-up and from there

onto the shooting range. (See R v Khumalo en Andere 1991 (4) SA 310 (A), at

327h.) The first, second, seventh and eighth appellants were, in my view, correctly

convicted of murder and of malicious damage to property as charged. But on the

totality of the evidence the state failed to prove the guilt of the third, fourth, fifth and

sixth appellants on any one of the charges and the trial court, therefore, ought to

have acquitted them. It is trite that the trial court was obliged to consider the

evidence as a whole and such defects as there may be in the evidence of the of the

third, fourth, fifth and sixth appellants do not materially assist the state in discharging

the onus if the evidence of the state witnesses is open to serious criticism. (See S v

Jochems 1991 (1) SACR 208 (A) at 211J.)

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[22] I now turn to the first, second, seventh and eighth appellants’ convictions of

robbery with aggravating circumstances. ‘Robbery’, Streicher JA said in Maneli v S

2009 (1) SACR 509 (SCA) para 6, ‘consists in the theft of property by intentionally

using violence or threats of violence to induce submission to its taking of the

property’. In the present case the first, second, seventh and eighth appellants and

the men who accompanied them obviously went back to the pick-up with the

intention to damage and to steal whatever they wanted to take from it. But Mr

Motloung, who at that stage was some distance away from the pick-up and the

group, did not resist the taking nor were the items stolen from the pick-up obtained

by the use of violence or threats of violence against the person of Mr Motloung. The

evidence also does not establish that he submitted to the taking because his will was

overcome by fear. (See LAWSA Vol 6 First Reissue paras 313-315.) Theft being a

competent verdict on a charge of robbery in terms of s 260(d) of the CPA, it follows

that the trial court ought to have convicted the first, second, seventh and eighth

appellants of theft instead of robbery with aggravating circumstances.

[23] Finally the matter of sentence. The sentence of imprisonment for fifteen years

imposed upon each of the first, second, seventh and eighth appellants pursuant to

their convictions of robbery with aggravating circumstances must be set aside. I

consider a sentence of imprisonment for a period of one year for each of the first,

second, seventh and eighth appellants appropriate pursuant to each one’s conviction

of theft and for such sentence to run concurrently with each one’s sentence of

imprisonment for three years pursuant to the conviction of malicious damage to

property.

[24] In sentencing the first, second, seventh and eighth appellants on the

charges of murder and of malicious damage to property the trial court exercised its

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discretion judicially and the cumulative effect of the prescribed minimum sentence of

imprisonment for life imposed by the trial court for each one’s conviction of murder

and of three years’ imprisonment for each one’s conviction of malicious damage to

property does not induce a sense of shock (see S v De Jager 1965 (2) SA 616 (A) at

629B.) All the relevant factors and circumstances were well considered and duly

taken into account by the trial court. It correctly held that there were no compelling

and substantial circumstances that warranted the imposition of a lesser sentence

than the prescribed one for the individual convictions of murder. I also agree with

the trial court that the criminal acts ‘. . . in the present case were executed with

brazen and callous brutality’. Interference with the sentences imposed for the

murder and malicious injury to property convictions is not warranted.

[25] In the result the following order is made:

(a) The third, fourth, fifth and sixth appellants’ appeals against their convictions of

murder (count 1), of robbery with aggravating circumstances (count 2) and

malicious damage to property (count 3) and against the sentences imposed

upon them pursuant to their convictions succeed.

(b) The first, second, seventh and eighth appellants’ appeals against their

convictions of murder (count 1) and of malicious damage to property (count 3)

and against their sentences of imprisonment for life and of imprisonment for

three years imposed pursuant to those convictions are dismissed.

(c) The first, second, seventh and eighth appellants’ appeals against their

convictions of robbery with aggravating circumstances (count 2) and against

their sentences of imprisonment for fifteen years imposed pursuant to such

conviction succeed in part and each one’s conviction of robbery with

aggravating circumstances (count 2) and sentence pursuant to such

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conviction are set aside and replaced with a conviction of theft and a sentence

of imprisonment for one year, which sentence is to run concurrently with each

one’s sentence of imprisonment for three years pursuant to his conviction of

malicious damage to property (count 3).

(d) The trial court’s orders are set aside and replaced with the following order:

‘(i) Accused 1, Mr Batista Xolani Nkomo, is found guilty of murder as

charged (count 1), of theft (competent verdict on count 2), and of

malicious damage to property as charged (count 3) and sentenced to

imprisonment for life pursuant to his conviction of murder (count 1), to

imprisonment for one year pursuant to his conviction of theft (count 2)

and to imprisonment for three years pursuant to his conviction of

malicious damage to property (count 3). The sentence of

imprisonment for one year pursuant to accused 1’s conviction of theft

(count 2) is to run concurrently with the sentence of imprisonment for

three years pursuant to his conviction of malicious damage to property

(count 3).

(ii) Accused 2, Mr Jesus Emmanuel Mavhunduse, is found guilty of murder

as charged (count 1), of theft (competent verdict on count 2), and of

malicious damage to property as charged (count 3) and sentenced to







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(count 3).

(iii) Accused 3, Mr Zamani Moyo, is found not guilty and acquitted on count

1 (murder, read with s 51 of Act 105 of 1997), on count 2 (robbery with

aggravating circumstances as defined in s 1 of the Criminal Procedure

Act 105 of 1997) and on count 3 (malicious damage to property).

(iv) Accused 4, Mr Malusi Moyo, is found not guilty and acquitted on count

1 (murder, read with s 51 of Act 105 of 1997), on count 2 (robbery with

aggravating circumstances as defined in s 1 of the Criminal Procedure

Act 105 of 1997) and on count 3 (malicious damage to property).

(v) Accused 5, Mr Khulumani Dube, is found not guilty and acquitted on

count 1 (murder, read with s 51 of Act 105 of 1997), on count 2

(robbery with aggravating circumstances as defined in s 1 of the

Criminal Procedure Act 105 of 1997) and on count 3 (malicious

damage to property).

(vi) Accused 6 Mr Khumbulani Ngwenya, is found not guilty and acquitted

on count 1 (murder, read with s 51 of Act 105 of 1997), on count 2

(robbery with aggravating circumstances as defined in s 1 of the

Criminal Procedure Act 105 of 1997) and on count 3 (malicious

damage to property).

(vii) Accused 7, Mr Thebe Maxwell, is found guilty of murder as charged

(count 1), of theft (competent verdict on count 2), and of malicious

damage to property as charged (count 3) and sentenced to



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(count 3).

(viii) Accused 8, Mr Noble Nyathi, is found guilty of murder as charged

(count 1), of theft (competent verdict on count 2), and of malicious

damage to property as charged (count 3) and sentenced to








(count 3).

WRIGHT J (dissenting)

[26] I respectfully disagree with my learned brothers to some extent.

[27] The first state witness was Mr Motloung. He was near a shooting range in

Roodepoort. At about 4pm on 21 June 2012 he was standing next to his car. He saw

his friend Bheki Jafta, the deceased, being chased by a group of about nine people.

Included in the group were all of the appellants. He knew all of the appellants as co-

workers mining gold illegally, or otherwise associated with that industry, which work

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occurred close to the shooting range. The persons in the group were armed with

different items like stones and a kind of metal bar about two thirds of a meter long.

Appellant 1 had a stone in his right hand and a metal bar in his left hand. Appellant 2

had stones in both hands. Appellant 3 had a metal knob-kierie. Appellant 4 was

likewise armed. Appellant 5 was in possession of stones. Appellant 6 had stones in

both hands and appellant 7 was in possession of a metal bar and a stone. Appellant

8 had a panga or an axe.

[28] The group chased the deceased passed Mr Motloung and to the shooting

range. Mr Motloung asked appellant 1 what was happening but got no reply. The

deceased had tried to seek refuge in Mr Motloung’s car but could not enter the car

and so he ran on. Appellant 1 threw stones at the deceased and at Mr Motloung’s

car. Mr Motloung was not threatened but he was in danger of being hurt because of

stones that were being thrown at the deceased who was very close to Mr Motloung.

Mr Motloung’s car was damaged and various items like keys, the battery, the

steering lock and radio were taken by members of the group. In particular, a hammer

was taken from the car by the group.

[29] Mr Motloung did not see appellant 1 use either stones or the metal bar he was

carrying other than appellant 1 throwing a stone at the deceased. Appellant 2 was

throwing stones at the deceased. Appellant 3 assaulted the deceased with a knob-

kierie. Appellant 4 assaulted the deceased. Appellant 5 threw stones at the

deceased while the latter was lying on the ground. Appellant 6 was hitting the

deceased with stones. Appellant 7 hit the deceased with a metal bar as the latter

was lying in the ground. Appellant 8 hit the deceased with a panga.

20

[30] The attack on Mr Motloung’s car, for the most part, occurred after the attack

on the deceased.

[31] Mr Motloung pointed out appellant 2 to the police on the street shortly after

the crime had been committed. Appellant 2 was arrested by Captain Pienaar. After

the arrest of appellant 2, Mr Motloung proceeded with the police and appellant 2 to

the residence of appellant 1, which residence was pointed out by appellant 2.

Appellant 1 was then pointed out to the police by Mr Motloung. Appellants 3, 4, 5 and

6 were arrested on the same day. Appellant 4 had been pointed out to the police on

the way to appellant 1’s residence when Mr Motloung saw appellant 4 washing gold.

Appellants 3, 5 and 6 were with appellant 4 and were also arrested.

[32] Appellant 7 was not at home when Mr Motloung and the police went to arrest

him but shortly thereafter the police received a call that appellant 7 was at home.

When Mr Motloung and the police arrived at the home of appellant 7 they found

appellant 7 and the hammer that had been taken from Mr Motloung’s car during the

attack.

[33] Mr Motloung was unable in evidence to describe any particular identifying

features of the hammer which showed that it was his. The hammer is of the

tomahawk type and is commonly used in the illegal gold mining industry.

[34] According to Mr Motloung, appellant 8 was arrested at his house just as he

was trying to run away.

[35] If Mr Motloung’s memory served him correctly, appellants 1 and 2 were

arrested on the day of the crime and appellants 3, 4, 5, 6 and 7 were arrested the

next day. Mr Motloung was not sure of the date of appellant 8’s arrest.

[36] Mr Motloung was not present at a subsequent identity parade.

21

[37] At one point in his evidence he had mixed up, momentarily, the names of

appellants 5 and 6. In my view, this is insignificant in that all the appellants were

known to Mr Motloung and the first names of appellants 5 and 6, Khulumani and

Khumbulani might understandably be momentarily confused.

[38] Mr Motloung’s evidence gives me much cause for concern. On 22 June 2012,

that is the day after the crimes, and at about 9:30am Mr Motloung made a statement

to the local police. In that statement he said that he saw about seven men running

after the deceased. He stated further that he recognised appellants 1, 2 and

“Nobeesta”. He stated that he did not know the other four. Mr Motloung did not

explain in evidence the startling discrepancy between his clear identification in the

witness box of all 8 appellants and his clear statement to the police the day after the

crimes. In this statement Mr Motloung speaks of seven men running after the

deceased, Mr Jafta, but there is no mention of any attack on Mr Jafta. During cross-

examination Mr Motloung said that the day after the crimes he went to the police

station to report the damage to his car, and not to report the murder of the

deceased. He said in evidence that when he mentioned the murder to the police

they told him that the victim, Mr Jafta, who at that time was in hospital, could lay a

charge of assault later on.

[39] On 26 June 2012, that is five days after the crimes, Mr Motloung made

another written statement to the police at Roodepoort. In it he stated that he knew

four of the approximately nine men involved in the crimes namely appellants 1, 2, 8

and “Turbie”. This latter name may be a reference to appellant 7 whose first name is

Thebe. In evidence Mr Motloung did not explain the striking discrepancy between

his ability to name only four persons in his second statement and his apparent ability

to identify all eight appellants during the trial.

22

[40] The ability of Mr Motloung to name only some of the attackers in his

statements to the police impacts seriously on the reliability of his dock identifications

of all of the appellants and not only of those whom he was not able to name in his

statements to the police.

[41] Mr Phiri testified next for the state. On 21 June 2012, between 2:30pm and

4pm Mr Phiri was with the deceased and Mr Motloung. Mr Phiri saw a group of about

twenty people. The group passed Mr Phiri and went to the deceased. Members of

the group carried stones, axes or metal bars. Appellants 1, 2, 4, 7 and 8 were part of

the group. The group chased the deceased, pursuing him behind Mr Motloung’s car

and then to the shooting range. Some members of the group remained behind and

hit the car. Mr Phiri could see clearly the group assaulting the deceased at the

shooting range. Mr Phiri knew appellants 1, 4, 7 and 8 as illegal gold mine workers.

[42] An identification parade was held on 20 August 2012, some two months after

the incident. Mr Phiri attended the parade. The relevant identification parade form,

SAPS 239, forms part of the record but for at-least one missing page. Paragraphs 18

– 23 of the SAPS 239 appear to be missing. Paragraph 24 records the names of only

twenty persons taking part in the parade. Photo 9 refers to a twenty-fourth person

standing in the line. Photo 10 refers to a twenty-seventh person standing in the line.

Photo 3 refers to “fourth to seventh” persons standing in the line. This description is

incorrect if photo 2 is correct with its description of the “first three black males” from

the left side. Other photographs of the persons in the line have incorrect descriptions

of position in the line.

[43] In paragraph 25(1) of the SAPS 329 form it is recorded that the person

standing at position 21 was identified by Mr Phiri. Nowhere on the form is there any

23

mention of a person standing at position 21. Under paragraph 25(1) it is further

recorded that the persons standing at positions 17 and 8 were identified. Standing at

position 17, according to paragraph 24 and if the position is correct given the general

confusion in the recording and presentation of what happened at the ID parade, was

appellant 4, Malusi Moyo. Standing in position 8, according to paragraph 24, if that is

where he actually stood, was appellant 2, Emmanuel Jesus Mavhunduse.

[44] Paragraph 24 records the names of twenty persons in the line-up. Paragraph

25(1) records that the persons standing at places 21, 17 and 8 were identified.

According to paragraph 24 there was no twenty-first person. In paragraph 25(2) the

names of four persons are written down as having reacted normally during the

pointing out. These persons are Maxwell, Malusi, Xolani and Emmanuel. Presumably

these are appellants 7, 4, 1 and 2 respectively. However, no person described as

Maxwell is recorded as having taken part in the parade in paragraph 22 (or more

particularly places 12 – 20, places 1 – 11 being part of the missing page) or in

paragraph 24 which records the positions of the twenty persons recorded as

standing in the line-up.

[45] Only appellants 2 and 4 are recorded in paragraph 24 as having been in the

line-up and in paragraph 25(1) as having been pointed out after a specific amount of

time and in paragraph 25(2) which sub-paragraph records reaction during the

pointing out.

[46] Under cross-examination Mr Phiri conceded that he could not say “who was

there or who was not there as there were many people at that place”. He also

conceded that “I cannot really point out the people who actually attacked the

24

deceased, but there was a point in time where I saw them giving chase the

deceased”.

[47] In cross-examination he conceded, when asked how he could have observed

both the actual attack at the shooting range on Mr Jafta and the attack on Motloung’s

car, that “I was in shock, so my eyes were running all over the place, so I could see

both scenes.”

[48] Captain Pienaar testified. He arrested appellants 1 and 2 on 26 June 2012 at

the instance of, and on their pointing out by Mr Motloung. Likewise, appellant 7 was

arrested on 27 June 2012.

[49] A hammer was confiscated from the home of appellant 7 on his arrest.

Appellant 7 had claimed then that the hammer was his and used for crushing rock.

Captain Pienaar told the court that Mr Motloung had identified the hammer as his by

its unique looks, particularly the length of the handle, the cut of the handle and an

initial that was on the hammer. Be that as it may, when Mr Motloung testified he was

unable to point to specific identifying features in the hammer.

[50] Appellant 1 testified saying that he was working at the relevant time at a dam

in Roodepoort, sifting sand. He did this from about 10am to 5pm. He was not part of

the group which attacked the deceased. He testified that perhaps Mr Motloung had

implicated him falsely because in 2011 Mr Motloung had stabbed appellant 1’s

younger brother Praymore Nkomo. Appellant 1 knows appellants 2, 3, 4 and 8. He

does not know appellants 5, 6 and 7. During cross-examination appellant 1 stated

that his brother had been stabbed earlier, not only by Mr Motloung but also by Mr

Phiri, the latter two having acted together.

25

[51] Appellant 2 testified. At the time of the crimes appellant 2 was in Hillbrow. He

returned to the Roodepoort area on the afternoon on the 21st of June 2012 between

3:30pm and 4pm. He was with a fellow illegal gold miner named Akhim. He left

Akhim’s place at about 4pm. At Akhim’s place he had heard, from Akhim, that the

deceased, whom he knew, was being assaulted by people. He did not ask Akhim

how Akhim knew. Appellant 2 maintained his innocence when it was put to him in

cross-examination that he could not have learnt of the attack from Akhim as the

attack was happening when appellant 2 claims he was at Akhim’s place. Appellant 2

admitted in cross-examination that his alibi had not been disclosed in his bail

application. Akhim did not testify, apparently on the grounds of unavailability.

[52] Appellant 3 testified. He was sleeping at home when the attack took place. He

had been working underground until about 11am. He was tired, went home and went

to bed. He does not know the deceased. He saw Mr Motloung for the first time when

he was arrested on 27 June 2012. He had been pointed out to the police by

appellant 1, rather than by Mr Motloung. He was pointed out by appellant 1 after Mr

Motloung had told appellant 1 to point out appellant 3. He conceded in cross-

examination that his evidence about his arrest had not been put to Mr Motloung

when the latter was cross-examined. He maintained that he did tell his attorney.

[53] It happens, not infrequently in trials, both civil and criminal that while a litigant

is being cross-examined, she is challenged on the fact that the testimony given by

the litigant had not been put to earlier witnesses. The duty to put a version derives

from the accepted fact that a party may not at the end of the trial argue that a

witness’ contrary evidence on a point is to be disbelieved and the first party’s

evidence accepted unless the first party’s evidence will have been put to the witness.

The inference sought to be drawn against the litigant being cross-examined when a

26

version was not put, is that the testimony is a recent fabrication. The logic here is

that if the testimony was not recent fabrication it would have been put to the earlier

witness. What litigants tell and do not tell their lawyers in consultation with litigation

in mind is privileged. The privilege is that of the litigant. The litigant, for example

appellant 3 in the present case, may waive the privilege but very often this appears

to happen without the litigant knowing of the right. The lawyer for the litigant, sitting

in court while her client is being cross-examined is in a difficult position. It may be

that the lawyer may not waive the privilege without the authority of the client.

Compare R v Matonsi 1958 (2) SA 450 AD. If the lawyer does nothing when a

litigant, like appellant 3, claims that the lawyer was told in consultation of a fact that

should properly have been put to an earlier witness in cross-examination the lawyer

appears to admit to having made an error. If the lawyer stands up and says that the

fact was not told to the lawyer in consultation, the lawyer drives a wedge between

herself and client.

[54] In the evidence of the appellants generally, there are numerous instances

where the appellants’ evidence is challenged along these lines. The legal

representatives of the appellants concerned remained silent. In doing so they

maintained their clients’ privilege. It leaves open the question of whether the version

not put to earlier witnesses is in fact recent fabrication.

[55] Appellant 4 testified. On 21 June 2012 he was underground. He had been

there since the day before. On the morning of 21 June 2012 he came up from

underground and went straight to the crushing place. Appellant 3 had come up from

underground early on the morning of 21 June 2012. Appellant 3, who had been with

appellant 4 had told the latter that appellant 3 had come up from underground about

11am. The crushing place is very close to where appellant 4 resides. After leaving

27

the crushing place appellant 4 went home, bathed, ate and went to sleep. He woke

up at night. He was arrested on 27 June 2012. Appellant 4 was pointed out by

appellant 1. Mr Motloung was told by the police to point out appellant 4 and

appellants 1 and 3. Appellant 4 does not know the deceased. In cross-examination

appellant 4 stated, in my view implausibly, that he and appellant 3, with whom he

had shared a cell had never discussed the matter. Appellant 4 could not explain why

appellant 3 had not given testimony about the two of them having come up from

underground together.

[56] Appellant 5 testified. At about 4pm on 21 June 2012 he was at home. He had

not worked that day although sometimes he does work mining illegally. He was not

part of the attacking group and did not know the deceased. When he woke up on the

morning of 27 June 2012 he went and met appellant 3 and appellant 4. This was at

the tap where sand is washed for gold. The police arrived and he was arrested.

Appellant 1 pointed out appellants 3 and 4. Appellant 5 was arrested simply because

he is a Zimbabwean. Appellant 5 was not pointed out at an identification parade. He

testified that Mr Motloung never pointed him out, even in court. (This latter testimony

was incorrect as appellant 5 had been directly identified in court by Mr Motloung).

[57] Appellant 6 testified. He woke up early on the morning of 21 June 2012 and

went to the top of a hill to pray. That was at about 6am. He prayed for about two

hours. He went straight home afterwards, arriving shortly after 8am. He went back to

sleep, woke up and then washed his car. He then stayed at home and rested. He

was alone on the day in question. He was present at the identification parade in

August 2012. Mr Phiri did not point him out at the parade. He said in cross-

examination that his alibi defence had been told by him to his lawyer but that it had

not been put to the relevant state witnesses.

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[58] Appellant 7 testified. At about 4pm on 21 June 2012 he was at home. He was

with a person named Siphiwe. On the day in question he had been at the bushes of

the shooting range with Siphiwe and a person named Noktula sifting sand for gold.

That day, a group of about sixty people had come towards the three of them. He did

not know any persons in the group. None of the appellants were part of the group.

They were looking for the deceased. Appellant 7 told them that he did not know

where the deceased was. Nevertheless, he directed them, wrongly and on purpose,

towards a dam. Appellant 7 then ran away to his house leaving Siphiwe and Noktula

behind. He did not witness the assault on the deceased.

[59] Appellant 7, in cross examination claimed that he had given the group wrong

directions because he was scared. In the same breath he said that he intended to

run to the deceased to warn him that the group was looking for him. Appellant 7

claimed, in my view somewhat implausibly, not to be able to say if the group was

armed.

[60] Siphiwe Moyo testified for appellant 7. He said that on 21 June 2012 he last

saw appellant 7 between 11am and 2pm. This evidence does not operate as an alibi

as the events in question occurred after 2pm.

[61] Appellant 8 testified that he had left for Zimbabwe on 18 April 2012 and

returned in August 2012. He was an illegal immigrant to South Africa and did not

have any passport. He made a vague reference to a person, Bheki Mpofu whom he

suggested could confirm his alibi. Under cross-examination, even on appellant 8’s

version it turned out that Bheki Mpofu would not be able to confirm the alibi.

[62] Generally speaking, none of the appellants gave convincing testimony. But

they do not have to convince as they have no onus. So long as their testimony is

29

reasonably possibly true they are entitled to be acquitted. The evidence of the state,

considered in the light of all the evidence is unreliable to a worrying degree. The

evidence of the appellants is in my view reasonably possibly true, if only just, given

the weaknesses in the state’s case.

[63] I would have allowed the appeals of all eight appellants on all three counts.

P.A. MEYER

JUDGE OF THE HIGH COURT

G. WRIGHT

JUDGE OF THE HIGH COURT

W.H.G. VAN DER LINDE

JUDGE OF THE HIGH COURT Date of hearing: 15 September 2017 Date of judgment: 19 September 2017 Counsel for the appellants: G.Y. Sidwell Instructed by: Legal Aid South Africa, Johannesburg Counsel for the state: J.M. Tloubatla Instructed by: Director of Public Prosecutions, Johannesburg

republic of south africa high court, south …noble nyathi, were each convicted on 29 april 2013 by...

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