HIGH COURT (BISHO) JUDGMENT ~~ 1. The indictment sets out two charges against the accused. The first charge is

Transcription

1 HIGH COURT (BISHO) CASE No. CC13/2000 THE STATE versus INGA BONIWE Accused JUDGMENT ~~ EBRAHIM J: 1. The indictment sets out two charges against the accused. The first charge is that 'on or about the15th June 1999 and at or near NU 1 Mdantsane in the District of Mdantsane, the accused did unlawfully and intentionally kill Nkosinathi Gwebeleo Ngcayiya, a male adult'. The second charge is 'that on or about 15th June 1999 and at or near NU1 Mdantsane in the district of Mdantsane, the accused did wrongfully and unlawfully have in his possession a 9mm short Browning pistol without a licence to possess the said arm', thereby contravening s 2 read with s 1, 39(1 )(l) and 39(2) of Act 75 of The accused pleaded not guilty to count 1 and in terms of s115 of the Criminal Procedure Act 51/77 ('the CPA') elected not to disclose the basis of his defence. On count 2 the accused pleaded guilty. The State accepted this plea of guilty but indicated that it would still lead evidence in respect of this charge. The

2 -2- admission by the accused that he was in possession of the firearm was recorded as a formal admission in terms of s 220 of the CPA. 3. A number of witnesses were called by the State to testify in substantiation of both charges. These witnesses were Nkosinathi Tshwaku, Ayanda Ntengento, Khaya Nkonyana, Siphelele Lose, Andile Patrick Ntengento, Bongani Goniwe, Thandile Minki Sileku and Inspector Elliot Molosi. 4. Additional witnesses who testified were Inspector Khayalethu Newell Potwana and Sergeant Ntsikelelo Richman Nkwenkwe who are members of the SA Police Service. Thei r evidence related to Exhibit 'A' which is a set of photographs depicting the scene of the shooting and the deceased's body lying in the street. Inspector Mkhuseli Potwana testified in regard to Exhibit 'F' which is a series of photographs depicting the premises outside which the firearm was recovered and where the accused was arrested. It also shows the spot where Inspector Elliot Molosi was standing when he observed the accused pushing the firearm out of the door of the house. The testimony of Inspector Elliot Molosi was that he arrested the accused and took possession of the firearm which was handed in as Exhibit no.1. He also stated that he sent the firearm to the Ballistics Unit for the purpose of having tests conducted. 5. The State's version of the events which resulted in the death of the deceased, Nkosinathi Gwebelelo Ngcayiya, is as follows: on the evening of 15 June 1999 at about 8:00 pm the deceased was one of a group of youths walking along a

3 -3- road in NU 1 Mdantsane. The aforementioned witnesses were also part of the group who were all joking and singing. At some stage the deceased asked Andile Ntengento for a cigarette and when Andile refused to give him one the deceased said that he would produce a flywheel. Some of the witnesses have explained that a flywheel is slang for a gun. At this stage the accused arrived and asked the deceased for the flywheel. When the deceased explained to the accused that he did not have one the accused threatened to shoot him. The deceased replied to this by saying 'Shoot me!' and thereafter a shot was fired. 6. In addition to this evidence certain formal admissions were made by the defence and recorded in terms of s 220 of the CPA. These related to the removal of the deceased's body from the scene of the shooting to the Cecilia Makiwane Hospital and from there to the Mdantsane Hospital during the course of which no injuries were inflicted on the body of the deceased. It was also admitted that the cause of the deceased's death was a gunshot injury to the chest and that Exhibit no. 1 was the firearm from which the fatal shot was fired. 7. The accused's defence, as it emerged during cross-examination of the State witnesses by defence counsel, is that the deceased and other members of the group of youths had attempted to rob him. The deceased, who was armed with a firearm, had said that he would shoot the accused and thereafter the accused and the deceased became involved in a struggle over the gun. During the course of the struggle a shot went off which struck the deceased.

4 -4-8. When the accused testified in his own defence he expanded on the version which defence counsel had put to the state witnesses. This was to the effect that the deceased had demanded money from him and had approached him in order to search him. In the process he grabbed the deceased's hand holding the firearm and they struggled. A shot went off and both of them fell to the ground and the firearm also fell. He then picked up the firearm and took it with him, leaving the deceased lying in the street. This firearm he gave to the police when they arrived at his house. He denied having met the witness Bongani Goniwe and had not taken the firearm (Exhibit No. 1) from him. The accused did not tender any further evidence. 9. Mr Kristafor, who appears for the State submitted in argument that there was a simple issue which had to be determined. This was whether the accused was in possession of the firearm and had shot the deceased or whether the deceased had the firearm and a struggle ensued between them during the course of which a shot went off fatally injuring the deceased. He submitted that the State witnesses had not contradicted each other nor were there contradictions in their evidence. Although the witnesses had not been forthcoming their stories, as he says, hang together and are consistent. The accused's claim that all the witnesses, including the police, had conspired to implicate him falsely, was without substance. There was no indication that the different witnesses were involved in a conspiracy. There was no connection between the witness Bongani Goniwe and the group of youths who were at the scene of shooting. There was nothing to suggest either that Inspector Molosi

5 -5- had a motive to falsely implicate the accused. Even if the Court was dissatisfied with certain aspects of their evidence the Court should not reject their evidence in its entirety. It was clear that their story was consistent in regard to the shooting and that they had told the truth. It was the version which the accused had furnished that was untruthful and should be rejected by the Court. He asked that the accused be convicted on both counts. 10. Mr Swartbooi who appears for the accused, has contended that these witnesses cannot be believed - to put it more bluntly, he says that they have lied about the events giving rise to the shooting of the deceased. He also contends that the differences in their evidence and the statements which they made to the police amount to contradictions and as a result the Court must reject their versions. 11. Mr Swartbooi submitted that even though all the witnesses had kept to the skeleton of their story they had contradicted each other on other aspects. Some of them were also untruthful in their claim that they did not know what a flywheel was. There were also contradictions in regard to the manner in which the accused pointed the firearm at the deceased. Since they had lied about certain things this reflected on their credibility and the Court should reject the evidence of these witnesses. 12. He contended further that the version of Inspector Molosi regarding the recovery of the firearm did not differ from that of the accused. But even if the Court found that the versions differed, he contended that the version of the accused should

6 -6- be accepted in preference to that of Inspector Molosi. Defence counsel conceded, however, that the evidence of Inspector Molosi had not been disputed by the defence. Further, the accused's version was reasonably possibly true and he had been a good witness and had answered questions without hesitation. 13. Defence counsel conceded further that he had not been able to bring into question the evidence of Andile Patrick Ntengento in regard to what had transpired when the deceased was shot. His contention was nevertheless that the Court should not accept his evidence in preference to that of the accused. Even though the evidence of Inspector Molosi had not been disputed it was probable that the witnesses had conspired. He submitted that the accused should be acquitted on count 1 and only be convicted on count 2, to which he had pleaded guilty. These briefly were the submissions of both counsel. 14. An evaluation of the evidence establishes the following The version of the witnesses at the scene of shooting are, by and large, similar but are diametrically opposed to the version that the accused has provided While the witnesses differ, to some extent, in regard to certain events the question is whether there are contradictions that are of a material nature and are such that it casts doubt on the truthfulness of their evidence in its entirety. I shall in due course comment further on this.

7 The conduct of the witnesses after the deceased was shot is to be criticised. None of them thought of rendering any assistance to him nor of summoning the assistance of some one else. When they were asked by the Court to explain why they had displayed such lack of concern for the deceased the answers provided by some of them were far from satisfactory. It is clear that they were only interested in safeguarding their own interests and were not concerned about the well-being of the deceased They all say that the accused approached them from behind and not from the front as claimed by the accused. They also deny that they or the deceased tried to rob the accused Although they all state that there was talk of a flywheel by the deceased some have claimed not to know what is meant by a flywheel. They are obviously being untruthful in this regard They also say that when the accused demanded that the deceased hand over the flywheel to him that the deceased responded by saying that he did not have one They say further that the accused then threatened to shoot the deceased if he did not hand over the flywheel and that the deceased replied, 'Shoot me!'. There are slight differences in the wording of the witnesses in

8 -8- regard to what the deceased said but in essence it amounts to the deceased having issued a challenge to the accused to shoot him All of them deny that the deceased was in possession of a firearm. They say that they considered the deceased to be joking when he said that he had a flywheel Any differences in the versions of the witnesses are confined almost solely to issues which are peripheral to the shooting incident or occurred subsequent thereto. Indeed, Mr Swartbooi was obliged to concede that the witnesses had not deviated from their stories The defence has not disputed that the word flywheel is meant to refer to a revolver. It should be noted, however, that Exhibit no. 1 is not a revolver but a firearm which is equipped with a magazine containing the bullets. The defence has confirmed that this is the weapon that the accused says the deceased had in his possession and which the accused picked up when it fell from the grasp of the accused. 15. I turn to consider the implications of these aspects. One may undoubtedly be critical of the individual conduct of some of the witnesses in relation to events after the deceased was shot and of their attempts to distance themselves from the shooting. But, ultimately the question is whether they have lied about what occurred or merely not been entirely frank in every respect. In the final analysis,

9 -9- is their evidence to be rejected in its entirety or have they been truthful in regard to certain events. 16. The claim by the defence that they have conspired to falsely implicate the accused is not substantiated by the facts. It emerges from the evidence that all of them were confronted and interviewed by the police a matter of some hours after the deceased was shot. If they have conspired in constructing the story which each was to tell the police the only opportunity they had for doing so was in the few hours before the police came to their respective homes. It goes without saying that they would have had to assemble as a group to co-ordinate their versions. But, this is not borne out by the evidence. 17. It is not disputed that they dispersed immediately on hearing the shot and ran off in different directions. Some ran to the home of a person named Thando and others to their own or some one else's place. Nkosinathi Tshwaku and an individual, Sonwabo, who was part of the group, were with Ayanda Ntengento and rantothando'shome. Khaya Nkonyana ran to a nearby house. Siphelele Lose and a person named Siyabonga also ran to Thando's house. Andile Patrick Ntengento ran to the house of a person called Mandla and stayed there for about five minutes before going home. There is no evidence to suggest that when they were at the house of Thando that they concocted a false or different version of the events and that they then conveyed this to those not present there.

10 The witnesses were intervieved by the police, and made statements, on different dates. Nkosinathi Tshwaku made a statement to Inspector E Molosi and so did Andile Ntengento as well as Thandile Sileku. Ayanda Ntengento, on the other hand, made his statement to Sergeant Gcukana. There is no indication that there was any collusion between Inspector Molosi and Sergeant Gcukana. 19. The versions of the witnesses are substantially similar and any variations in their stories are attributable to differences in observation or the position from which they saw what was happening. There is no indication that they have adjusted their versions so that they agree with each other in regard to the details of the events of that evening. 20. If there was a conspiracy, as claimed by the accused, involving the witnesses and Inspector E Molosi then this would surely have been apparent from their statements to the police. A perusal of the statements of the witnesses, Nkosinathi Tshwaku and Andile Ntengento, which were introduced by the defence as Exhibits 'B\ and 'E' respectively, does not support this. On the contrary what they highlight is that each witness had a different perspective of the incident. But, I need not speculate in regard to the claim of a conspiracy since this was never put to any of the witnesses nor, in particular, to Inspector Molosi. In fact, as I have stated previously, the evidence of Inspector Molosi stands completely undisputed. The submission by defence counsel that the evidence of Inspector Molosi should nevertheless not be accepted in preference to that of the accused is without foundation. It needs to be noted that the issue

11 -11- of the credibility of Inspector Molosi in comparison to that of the accused as a witness, against the background of the accused's allegation that Inspector Molosi conspired with the other State witnesses to falsely implicate the accused, was understandably not addressed by counsel. Significantly, too, the allegation of a conspiracy, which was never put to any of the witnesses, only came to the fore when the accused testified. 21. I find no basis for rejecting the evidence of Inspector Molosi. He was a credible witness and conveyed his observations of the accused's attempt to distance himself from the firearm honestly and in an unbiased manner. He described what he had seen in a straight-forward manner. There was no indication that he was exaggerating what he had observed or that he was seeking to implicate the accused falsely. Inspector Molosi was a truthful and reliable witness and I accept his evidence in preference to that of the accused where they conflict with each other. 22. The witness Tshwaku, despite any criticism one may have of his evidence regarding events subsequent to the shooting, was a credible witness. There is nothing improbable in his version and it does not contradict the findings of the doctor as set out in the Post-Mortem Report in respect of the wound on the body of the deceased. Such inconsistences or contradictions as there may be in his evidence are confined largely to peripheral issues. In any event, they are not of a material nature. He was not a perfect witness but I find his observations of what transpired between the accused and the deceased to be a reliable and

12 -12- truthful account of the shooting. His version does not contradict that of the other witnesses and I accept his evidence in this regard. 23. The witness Ayanda Ntengento was similarly not a perfect witness. In his case, too, there are certain inconsistencies in respect of his account of events subsequent to the shooting. But these are not of a material nature nor are they such that I should reject his evidence in its entirety. I do not consider his account of the events leading up to the shooting to be a fabrication nor is it contradictory. It would have been an easy matter, if he was fabricating, to have said that he saw the accused shoot the deceased. Instead, he says that when the shot was fired he had his back to them. I find his evidence regarding the circumstances of how the shooting occurred to be reliable. He was a credible witness in this regard and his version does not contradict the evidence of the other witnesses. I accept his evidence. 24. The evidence of the witness Khaya Nkonyana was also not free of imperfections. However, the inconsistences in his evidence are not of a material nature and do not lead me to the conclusion that he has lied about the actions of the accused or of the circumstances surrounding the shooting of the deceased. He, too, says that he had only heard, but did not see, the shot being fired. Prior to the gunshot he had seen the accused holding the gun to the head of the deceased but he (i.e. the witness) then turned away. It is only thereafter that he heard the gunshot. I do not find his evidence to be contradictory of that of the other witnesses. The fact that the deceased was actually shot in the chest is not an

13 -13- indication that this witness is lying nor does it make it improbable that the gun may have been pointed at the head of the deceased at some earlier stage. He was a credible and reliable witness and his version of the events is not contradictory of the versions of the other witnesses. I accept his evidence. 25. In the case of the witness, Siphelele Lose, too, one may be critical of certain aspects of his evidence. But, again the inconsistencies are not of a material nature. He confirms that there was a conversation between the deceased and Andile concerning a cigarette. He similarly only heard the gunshot but did not see the shot being fired. Prior thereto he had heard the accused demand the flywheel from the deceased and threaten to shoot him. He could easily have fabricated that he had seen the accused shoot the deceased but clearly he has not done so. I find him to be a credible witness and his observations reliable. I accept that his evidence is truthful in this regard. He, too, has not contradicted the versions furnished by the other witnesses. 26. The witness Andile Patrick Ntengento is the person whom the deceased approached for a cigarette. In his case, too, one may be critical of certain aspects of his evidence but these concern peripheral issues. In regard to the circumstances of the shooting of the deceased his evidence is trustworthy. His account of the events accords with that of the other witnesses. Thus, he confirms that the accused had demanded that the deceased hand over the flywheel which the deceased had spoken about, and that the accused had said that he would shoot the deceased if he did not do so. He also confirms that the

14 -14- deceased was not in possession of a firearm nor had the deceased or any of the members of the group been involved in robbing the accused. He also denied the suggestion by defence counsel that he had concocted the version which he had related to the court. I find him to have been honest in his description of what had transpired and that his evidence is reliable. His version is supported by the evidence of the other witnesses. He created a good impression and was a credible witness. I find his evidence regarding the shooting to be the truth and I accept same. 27. The evidence of Bongani Goniwe was introduced by the State for the purpose of establishing that the accused had obtained possession unlawfully of the firearm, which is Exhibit no. 1, prior to his encounter with the deceased. He testified that he had gained possession of the firearm when a person known as Brighty dropped it during the course of a fight in a shebeen. Some three days thereafter he met the accused, who was in the company of some other men, and the accused then dispossessed him of the firearm. This had occurred less than five days before the death of the deceased. Even though he was unable to provide the dates of any of the events this does not diminish the trustworthiness of his evidence. He was able to identify the firearm through a defect it had and described this to the Court before Exhibit no.1 was shown to him. He was a credible witness and created a favourable impression. I accept his evidence. 28. The credibility of the witness, Thandile Minki Sileku, was impeached by the State as his evidence conflicted with the statement which he had previously made to

15 -15- the police. His evidence related to a cartridge case and bullet head which he and a person named Sonwabo had supposedly found lying next to the body of the deceased a short while after the shooting. The relevance of this evidence in establishing the guilt of the accused was not clarified by the State and since its exclusion would not be prejudicial to the accused I do not intend taking account thereof. 29. It is manifest that the accused's version of the events is not supported by any of the State witnesses. His version is diametrically opposed to their's. He says that he was the victim of an attempted robbery by the deceased and some members of the group of youths. He also says that he was unarmed and that it was the deceased who was in possession of a firearm which the deceased had pointed at him. He thereupon grabbed the arm of the deceased and a struggle ensued during the course of which the deceased was shot and the firearm fall to the ground. He then picked up the firearm and ran away leaving the deceased lying on the ground. 30. The accused says that he was not in possession of the firearm, which is Exhibit No.1, prior to the night of the shooting but this is not borne out by the proved facts. The evidence of Bongani Goniwe establishes that the accused dispossessed him of the firearm even though he is unsure of the date. It is clear from all the evidence that this could only have occurred prior to the night of the shooting since the firearm was recovered from the accused by the police some six hours after the shooting. The evidence establishes further that the only

16 -16- person in possession of a firearm that evening was the accused. In my view, therefore, the State has proved beyond a reasonable doubt that the accused was already in possession of Exhibit no. 1 prior to his encountering the deceased and the others. The claim by the accused that he obtained possession of this firearm when it was dropped by the deceased is manifestly untrue. It should be noted that the deceased referred to a flywheel, which is a revolver, whereas it is clear the firearm is not a revolver. I reject the accused's version of how he obtained possession of Exhibit no The version which the accused provided during his testimony regarding the circumstances under which the firearm was recovered from him at the time of his arrest conflicts with the evidence of Inspector Molosi. As I have stated previously the testimony of Inspector Molosi was not disputed nor was his credibility as a witness placed in issue at any stage. The accused, on the other hand, was an unsatisfactory witness. While he may have answered questions promptly his replies in certain instances were evasive and at times non-sensical. This is illustrated by his assertion that when Bongani Goniwe heard that the police had found the firearm that Bongani had then alleged that the accused had taken it from him. However, he had never met Bongani Goniwe and did not know who he was. Similarly, he claimed that he had stored the firearm underneath the stone and not in the house as it was safer to do so and would be found when the police asked for it. 32. The accused's version is not merely improbable but is exposed as being

17 -17- untruthful by the proved facts. It is improbable that the accused would have concealed the firearm under a stone outside the house if he honestly intended handing over the firearm to the police. The evidence establishes beyond a reasonable doubt that he attempted to conceal the weapon when the police arrived at his house. It is clear, too, that he did not hand the firearm to the police but that it was Inspector Molosi who had recovered it from its hiding place. The actions of the accused were not consistent with that of a person who was the victim of a robbery but indicative rather of someone who had committed a wrongful act and was now seeking to conceal his involvement therein. His explanation for not reporting to the police that he had been robbed is implausible, if not absurd. On the basis of the accused's version there was absolutely no reason for him to have feared or delayed in going to the police to report what had happened. After all, he had not committed any crime and had only sought to protect himself during the course of being robbed by a group of people, one of whom was armed with a firearm. It is clear that his decision not to report the incident to the police was due to the fact that he had tried to rob the deceased, and not vice versa, and more particularly, because he had unlawfully shot the deceased. It is for these reasons, too, that he tried to hide the firearm when the police arrived. After both counsel had addressed argument to the Court it came to the attention of the Court that the Post-Mortem Report had not been handed in as evidence. The report was thereupon handed in and received as Exhibit 'H'. After perusing

18 -18- the report the Court, in terms of s 186 of the CPA, required that Dr Dominic Thadathilankal John, who had conducted the post-mortem examination, be subpoenaed to testify as his evidence appeared to be essential for a just decision to be arrived at. The evidence of Dr John confirmed the findings in his report to the effect that the deceased had died as a result of a gunshot wound to the chest. The entrance wound was on the front of the right chest near to the armpit. The path of travel of the bullet was through the chest in a downwards direction with the bullet exiting at a spot on the right-hand side of the chest which was lower than the entrance wound on the left-hand side. 35. It emerged from cross-examination by both counsel, and questions from the Court, that since there was no gunpowder residue in the vicinity of the entrance wound that it was not possible to determine from what distance the fatal shot had been fired. Dr John was also not in a position to confirm whether there had been a scuffle or struggle between the deceased and the accused when the fatal shot was fired. It was clear, however, that from the position of the wounds and the direction of travel of the bullet that the shot was fired from a position which was either at the same height of the deceased's shoulder or slightly higher. 36. In presenting argument both counsel suggested that the medical findings supported the respective versions of the defence and the State. In my view, what the findings of Dr John, and his testimony in Court, reveal is that it is improbable that the firearm was in close contact with the body of the deceased when the shot was fired. Had this been the case Dr John would have expected

19 -19- to find some indication of gunpowder. At best his evidence is substantiation, but only of a very limited nature, for the evidence of Andile Patrick Ntengento to the effect that he had seen the accused point the firearm at some stage at the head or face of the deceased. It was also the evidence of Khaya Nkonyana that he had seen the firearm being pointed at the face of the deceased. Their evidence lends support to the opinion of Dr John that, in view of the trajectory of the bullet, the firearm would have been at shoulder height or slightly higher when the shot was fired. But, on the available evidence I am unable to make a specific finding in this regard. In any event, such a determination is not definitive of whether or not the accused fired the fatal shot. This determination rests on whether the Court accepts the State case or the version of the accused. 37. The Court also raised with the State whether the reference to s 39(1 )(l) of Act 79 of 1969 in count 2 was correct or not. The State informed the Court that this was an error and applied for count 2 to be amended by deleting the reference to s 39(1 )(l). This was not opposed by the defence and the amendment was granted. 38. The approach which is to be adopted in evaluating the evidence is set out in S v Hadebe and Others 1997 (2) SACR 641 at 645i-j and 646a-b where Marais AJ, judge of the Supreme Court of Appeal, quoted with approval the comments in Moshephu and Others v R ( ) LAC 57 at 59F-H: 'The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding

20 -20- and evaluation of it. But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. It that is not done, one may fail to see the wood for the trees.' As I have stated previously, I am mindful of the shortcomings in the evidence of the witnesses in certain respects. Ultimately, however, on the evidence as a whole I am satisfied that they have furnished the Court with the true version of what transpired when the deceased was shot. I do not consider the accused's story to be reasonably possibly true. On the basis of all the evidence it is manifestly false and I reject same. He has fabricated the story that he was the innocent victim of a robbery perpetrated by the deceased. The same applies in respect of his claim that Inspector Molosi together with Bongani Goniwe and the other witnesses have all conspired to implicate him falsely as having murdered Nkosinathi Gwebelelo Ngcayiya. There is manifestly no evidence of any conspiracy on the part of the witnesses. It is clear that it is not the witnesses who have lied in regard to the circumstances of the shooting but the accused. After an evaluation of all the evidence I am satisfied that the State has proved the guilt of the accused beyond a reasonable doubt in respect of both counts. In the result, the accused is found guilty of the charges as set out in the

21 -21- indictment, namely: (a) On count 1 of the murder of Nkosinathi Gwebelelo Ngcayiya; and (b) On count 2 of a contravention of section 2 read with sections 1 and 39(2) of Act 75 of 1969, namely being in possession of an arm, described as a gunshot Browning pistol, without being the holder of a licence to possess such arm. Date: 10 May 2000 Heard on 17/4/2000, 18/4/200, 19/4/2000, 25/4/ /4/200, 2/5/2000, 8/5/2000 Judgment delivered on 10 May 2000 Counsel for the State Adv J G Kristafor Counsel for the Accused Adv S J Swartbooi Boniwe.jud