IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CRIM. CASE NO. 81/92
In
the matter between:
THE
KING
vs
1.
BHEKI BOYCE GALUJA GAMA
2.
SIKHATSI MATSENJWA
3.
BHEKI RICHARD SHONGWE
4.
SIPHO SIMELANE
5.
SAKHIWO MICHAEL LONGWE
6.
GEORGE LUKHELE
CORAM:
DUNN J
FOR
ACCUSED A1
MR. S. C. DLAMINI
FOR
ACCUSED A3 AND
A6
MR. B. MAPHALALA ACCUSED NOS. 2, 4, AND 5 IN
PERSON
JUDGMENT
22ND
SEPTEMBER 1993
The
indictment in this case consists of 20 counts.
On
counts 1 and 2 accused numbers 1 and 6 are charged with the crimes of
murder and armed robbery respectively. Both crimes are alleged to
have been committed at Mphosi area on the 15th March 1992. It is
alleged that in each case, the two accused were acting in furtherance
of a common purpose. The deceased in count 1 is Joseph Dlamini a bus
owner of Mphosi area. The property which is the subject of the
robbery charge consists of –
A
Nissan light delivery vehicle valued at E45,000.00
2
A
sum of E15,000.00
A
Berea pistol valued at E1,628.30
A
Musgrave rifle valued at E3.033.65
A
.22 rifle valued at E1,254.00
A
12 bore shotgun valued at E529.00
On
count 3, accused numbers 1 and 2 are charged with armed robbery. It
is alleged on this count that the two accused robbed May Dlamini of
E16.308.15 at the Swazi Inn, Mbabane, on the 24th January 1992.
On
count 4, accused Numbers 1, 3, 4 and 5 are charged with armed
robbery. It is alleged on this count that the accused robbed
Wellington Mkhombe of the sum of E2,000 and a grinder valued at
E630.00 at Siteki, on the 5th January 1992.
On
count 5 accused No.1 is charged with assault with intent to do
grievous bodily harm. The complainant on this count is Mcoshwa
Hlatshwayo and the assault is alleged to have taken place at Mphosi
area on the 15th march 1992.
On
count 6 accused Nos. 1, 3, 4 and 5 are charged with the crime of
assault with intent to do grievous bodily harm. The complainant on
this count is Tsotsi Dlamini and the assault is alleged to have taken
place at Mphosi area on the 20th January 1992.
On
count 7 accused No.1 is charged with the attempted murder of Moses
Masina at Mphosi area on the 15th March 1992.
On
count 8 accused Nos. 1 and 2 are charged with armed robbery at Siteki
on the 1st February 1992.
The
3
complainant
on this count is Sheffield Munro and the property involved is E700.00
in cash and a cash register valued at E3,500.00.
On
counts 9 and 10 accused No.2 is charged with the possession of a 7.62
calibre rifle and 4 live rounds of ammunition in contravention of
sections 11(1) and 11(2) respectively, of The Arms and Ammunition Act
No. 24/1964 as amended.
On
counts 11 through to 20, accused No.1 is charged with possession of
various firearms and live ammunition in contravention of sections
11(1) and 11(2) of the Arms and Ammuniction Act as amended.
The
accused pleaded not guilty to all the charges with which they are
faced. I ruled at the close of the crowns case, for reasons given at
that stage, that the crown had not made out a prima facie case to
place accused No.1 and his defence on count 7 (attempted murder).
Accused No.1 was accordingly found not guilty and was acquitted and
discharged on that count.
It
is convenient that I deal with the various counts in chronological
order. That will be in the following order. Count 4 (robbery of
Wellington Mkhombe at Siteki on the 5th January 1992), Count 6
(assault on Tsotsi Dlamini at Mphosi area on 20th January 1992),
Count 3 (robbery of May Dlamini at the Swazi Inn on the 24th January
1992), Count 8 (robbery of Sheffield Munro at Siteki on 1st February
1992), Counts 1, 2 and 5 (murder, robbery and assault with intent to
do grievous bodily harm at Mphosi
4
area
on the 15th March 1992), Counts 11 to 20 (contraventions of the Arms
and Ammunition by accused No.l) and counts 9 and 10 (contravention of
the Arms and Ammunition Act by accused No.2).
COUNT
4 : (Robbery of Wellington Mkhombe at Siteki on 5th January 1992.
A
number of unidentified persons came to the house of Wellington
Mkhombe during the night of the 5th January 1992. Mkhombe was not at
home. The persons woke up Mkhombe's niece Nomfundo Makhandanja, who
was asleep in the house and ordered her to show them where Mkhombe
was. On being told by Nomfundo that Mkhombe was not at home the
persons demanded the keys to the safe from her. Nomfundo indicated
that the safe keys were with Mkhombe. The persons then made Nomfundo
to sit outside the house and she heard the sound of an angle grinder
coming from the room where the safe was kept. The persons whom
Nomfundo said were 6 in number then left. Nomfundo later realised
that the safe had been opened.
Mkhombe
told the court that he received a report of what had happened and
found that a sum of E2,000 had been removed from his safe. A grinder
which belonged to him and which was kept at this homestead was also
found to have been removed.
Sometime
thereafter Mkhombe identified his grinder at the Siteki Police
Station. The grinder was identified by its serial number which was
also reflected on the invoice which Mkhombe received when he
purchased the grinder.
5
It
is common cause that the grinder was found lying under a tree at the
homestead of the deceased, in count 1, Joseph Dlamini during the
night of the 20th January 1992. That is the night during which the
offence charged under count 6 is alleged to have been committed. As
will be seen when I consider count 6 there is sufficient credible
evidence that accused Nos. 1, 3, 4 and 5 were present at Dlamini's
homestead at Mphosi during the night of the 20th January 1992. That
evidence is however not such as would lead to the conclusion being
made that the persons who left the grinder were the persons who
removed the grinder from Mkhombe's homestead. The grinder is a fairly
big machine and would in my view have been seen by the main witness
on count 6 if it had been carried to Mphosi by accused Nos. 1, 3, 4
and 5.
Mr.
Wachira for the crown conceded that the evidence led on this count
did not prove the offence of robbery charged and particularised on
this count. He submitted that accused Nos. 1, 3, 4 and 5 could
properly be convicted of the theft of the grinder. Such a verdict
would not, in my view be justified by the evidence. The crown has not
established a sufficient link between any of the accused and what
transpired at Mkhombe's house during the night of the 5th January
1992.
Accused
Nos. 1, 3, 4 and 5 are found not guilty they are acquitted and
discharged on count 4.
COUNT
6 (Assault on Tsotsi Dlamini at Mphosi area on 20th January 1992)
Tsotsi Dlamini was employed as a bus driver by the deceased Joseph
Dlamini. Tsotsi lived at his place of employment at Mphosi. During
the night of the 20th January
6
1992
certain persons came to where Tsotsi was staying and woke him up
under the pretext that they required some assistance with their
vehicle that had broken down. Tsotsi was forced out of his room and
told to go and knock at the deceased's door. Tsotsi was forced to the
deceased's door and after he was assaulted, he was forced to knock at
the deceased's bedroom window. Tsotsi was told to tell the deceased
to throw money out of the house. It is common cause that the deceased
and his wife who were in the house realised that Tsotsi was being
held to ransom and that the deceased threw several bank plastic bags
containing money into the yard. The money was picked up by the
attackers and in the process there was an exchange of gunfire between
the deceased and the attackers. It is common cause that the deceased
managed to shoot one of the attackers on the left side of the body
with a shotgun.
The
attackers eventually left the homestead and Tsotsi went to report the
matter to the Siphofaneni police. Tsotsi told the court that he was
taken for medical treatment on the 21st January 1992. No evidence was
led of the extent of the injuries he sustained.
It
was when the police arrived in the early hours of the 21st January
that the grinder referred to under count 4 was found together with a
firearm under a tree in the yard of the deceased's homestead.
The
crown led the evidence of a taxi driver, Bongani Freedom Motsa, to
link accused Nos. 1, 3, 4 and 5 with the assault on Tsotsi at the
deceased's homestead. Bongani identified Accuseds Nos. 1, 4 and 5 as
people that he was hired to transport to Mphosi area in the evening
of the 20th January. Bongani was hired by accused No.1 whom he
7
knew
from Manzini . He explained how on the instructions of accused No.1
he picked up the rest of the accused and proceeded to Mphosi area.
Bongani dropped of the three accused at Mphosi area at about 9:00
p.m. Accused No.1 told Bongani to return to that spot after an hour.
Bongani returned to Manzini but was unable, because of matters he had
to sort out with his employer, to keep the time stated by accused
No.l. As Bongani was returning to Mphosi he came across accused No.5
walking towards Manzini. Bongani stopped and accused No.5 enquired as
to why Bongani had delayed.
Accused
No. 5 got into the vehicle and Bongani continued in the Mphosi
direction. Accused No.5 told Bongani to stop at a certain spot from
where accused Nos.l and 4 emerged. The two accused were with a third
person who was identified by Bongani as accused No.3. Accused No.3
appeared to be injured on his left side. Bongani enquired as to how
the accused had got to that spot and accused No.1 replied that they
would inform Bongani later. Bongani was directed to drive towards
Siteki . He was told to stop at Mpaka where accused No.1 alighted.
Accused No.1 told Bongani to drive to Manzini with the other accused
and told him that he would be paid at Fairview in Manzini. Bongani
drove towards Manzini. He was asked to drive fast so that the injured
man (accused No.3) could be taken to hospital. Accused No. 3 was
dropped off outside the Raleigh Fitkin Memorial hospital in the early
hours of the morning. Bongani drove accused Nos. 4 and 5 to Fairview.
Bongani's
identification of accused Nos. 1, 3, 4 and 5 is beyond and doubt. He
knew Accused No.1 well and had met and seen the rest of the accused
through accused No.1 in Manzini.
8
Bongani
was an impressive witness. His evidence was not seriously challenged
or shaken under cross examination. One could perhaps have some doubts
about his evidence of not having made any enquiries as to where the
accused were going to and what the purpose of their mission was. In
several cases which have been heard in this court however it has been
found that taxi drivers appear to concern themselves with their
business of collecting money and do not concern themselves with the
business of their clients. There can be no doubt, however, that
Bongani must have realised overall that the accused had been up to
some mischief.
It
is common cause that accused No.3 was admitted to the Raleigh Fitkin
Memorial hospital. A medical report filed by Dr. Nacionales and which
was handed in by consent sets out the extent of the shot gun injuries
sustained by accused No.3 to the left of his body and in particular
his left arm.
Police
officers who reported to the deceased's homestead observed some blood
stains on the ground which led from the deceased's homestead in the
direction of the main tarred road. A green jacket was found in the
deceased's yard. The jacket had holes on the left arm and had what
appeared to be blood stains.
Accused
No.3 made an unchallenged admission to his mother, Florence Mamba,
that he had been to the deceased's homestead with friends, on the
20th January 1992. The admission was made at the Mbabane Government
hospital whilst accused No. 3 was undergoing treatment. The admission
was made in the course of accused No/3 explaining to his mother
9
how
he had sustained the injuries to the left side of his body. Accused
No.3 did not give evidence.
Accused
Nos. 1, 4 and 5 gave evidence on oath and denied having gone to
Mphosi area on the 20th January.
As
pointed out earlier the evidence of the taxi driver Bongani is beyond
any doubt true. He transported the accused to Mphosi area. On his
return accused Nos.1 and 4 emerged from the side of the road with
accused No.3 who was injured.
I
find it to have been proved beyond reasonable doubt that accused No.
3 was shot by the deceased at the deceased's homestead during the
night of the 20th January. I find as a matter of fact that accused
Nos. 1, 4 and 5 were with accused No. 3 at the deceased's homestead
that night. There can be no doubt that Tsotsi Dlamini was assaulted
by the persons who came to the deceased's homestead namely accused
Nos. 1, 3, 4 and 5 and whoever else might have been with them.
The
only problem arising on this count is as to the nature of the assault
on Tsotsi. There is in my view insufficient evidence to justify a
verdict of guilty of assault with intent to do grievous bodily harm.
there is evidence that Tsotsi was merely assaulted.
I
find accused Nos. 1, 3, 4 and 5 guilty of common assault on count 6.
COUNT
3 (Robbery of May Dlamini at the Swazi Inn on the 24th January 1992.
Accused Nos. 1 and 2).
10
The
complainant on this count gave a straight forward account of the
robbery. There is no doubt that the crime was committed. An amount of
E16,308.15 made up of cash, cheques and credit card vouchers was
taken in the robbery.
May
was not in a position to identify the robbers. He did however have a
pretty good picture of one of them. The robber in question was
shorter and fairer in complexion than his colleague and appeared to
have an abnormal left eye. It appears that May gave this description
to the police. No attempt was, however, made by the police to mount
an identification parade after the arrest of accused Nos. 1 and 2 as
the suspects in the robbery. I cannot recall the number of cases in
which I have had to deal with the question of the need and importance
of identification parades in cases of this nature. It is either that
the police do not bother to acquaint themselves with judgments of
this court or they are simply not prepared to try and obtain the best
evidence available.
The
failure to mount an identification parade in this case resulted in
the complainant attempting to make the most of a dock identification,
no doubt fortified by the knowledge that accused No.2 is now one of
the persons charged with the robbery. It has been stated in numerous
cases that dock identifications are not reliable and should be
discouraged.
The
only evidence linking the two accused with the robbery is the
evidence of the investigating officer Detective Inspector
Ndlangamandla who arrested and interrogated accused Nos.1 and 2.
According to Ndlangamandla, the two accused led him to a cave in the
11
Malagwane
area on the 4th April 1992. In the cave, the accused pointed out
plastic bags containing 1 and 2 cent coins together with wet cheques.
The cheques were endorsed by the Swazi Inn and were subsequently
identified as having been stolen in the course of the robbery on the
24th January.
The
two accused have simply denied knowledge of the pointing out of the
coin and cheques. It is clear from Ndlangamandla's evidence that the
police had no knowledge of the whereabouts of the coins and cheques
and that it was the accused who pointed them out. The two accused
have not given any explanation of how they knew of the coins and
cheques. In the absence of any such explanation I find that they must
have been involved in the robbery.
Accused
Nos. 1 and 2 are convicted as charged on count 3.
COUNT
8 : (Robbery of Sheffield Munro at Siteki on 1st February 1992.
Accused Nos. 1 and 2).
Sheffield
Munro, the owner of a shop and restaurant at Mzilikazi in the Siteki
area, told the court that there was a sudden burst of gunfire outside
his restaurant in the evening of the 1st February 1992.
Customers
in the shop and restaurant ran out of the premises. Munro and his
assistant who was operating the cash register in the restaurant were
also forced to flee and take cover from the gunfire.
After
the shooting, Munro discovered that the cash register had been
removed from the restaurant. He estimated that there would have been
between E700.00 and E1,000 in the cash register at the time it was
taken.
12
A
report was made to the police and sometime thereafter the police
showed Munro a broken cash register. Munro was able to identify the
broken cash register by its Serial No. 8A833527. This was the number
Munro had obtained from the dealer from whom he had purchased the
cash register. Munro's assistant, Gregory Munro, confirmed the
evidence of the shooting and the disappearance of the cash register.
Detective
Inspector Ndlangamandla told the court that he was taken by accused
Nos. 1 and 2 to a cattle dipping tank in the Ka-Langa area. Members
of the National Fire and Emergency Service were called to the dipping
tank and requested to search the bottom of the tank. They did not
retrieve anything but a member of the local community entered the
tank and retrieved the broken cash register which was later
identified by Munro.
Various
explanations were made by accused Nos. 1 and 2 when cross examining
Inspector Ndlangamandla and in their evidence in chief, of how the
cash register was recovered. I accept without any hesitation, the
evidence of Ndlangamandla that the cash register was recovered from
the dipping tank as a result of the pointing out by the two accused.
The pointing out of the cash register is sufficient to link the two
accused with its removal from Munro's restaurant.
There
has been no direct evidence of any threats to Sheffield Munro to
induce submission by him to the taking of the cash register as
particularised in the charge. That is not, however, the end of the
matter. A firearm was used
13
inside
and outside Munro's restaurant causing the owner and customers to
flee to enable the removal of the cash register. This amounts, in my
view, to robbery.
I
find the two accused guilty as charged on Count 8.
COUNTS
1, 2 AND 5 : (Murder, Robbery and Assault with Intent to do grievous
bodily harm at Mphosi area on the 15th March 1992. Accused Nos. 1 and
6).
The
deceased, Joseph Dlamini, left home with his wife and three children
to attend a church service on Sunday 15th March 1992. He left home at
about 11:00 a.m. and travelled in a Nissan light delivery motor
vehicle registration No. SD 690 UM. The church service ended at about
1:00 p.m. and the deceased left for home shortly thereafter. The
deceased was seated with his wife Thembani (PW2) in the cab and the
three children were seated at the back. As the deceased turned off
the main road into the road leading to his homestead and before
reaching his gate a man was seen running from within the perimeter
fence towards the gate. Thembani alerted the deceased and the
deceased stopped the motor vehicle. As the vehicle stopped there was
a sound of a gun on the deceased's side of the motor vehicle. The
deceased was ordered out of his vehicle and told to leave the
ignition keys in the vehicle.
Two
of the men, who were armed, escorted the deceased towards his house.
The two men repeatedly fired shots into the ground next to the
deceased as they walked towards the house. A third man entered the
motor vehicle and drove it towards the gate. As the vehicle
approached the gate Thembani was ordered to get out and to walk
towards her husband. She
14
realised
that the deceased was injured as there was blood on his shirt at the
back. When Thembani got to the homestead she found the deceased in
distress, seated at the side of the house with the two men next to
him. The deceased enquired what the men wanted and they replied that
they wanted money. The deceased directed Thembani to go into the
house and give the men whatever they desired as his life was
finished. Thembani took the keys from the motor vehicle which had by
then arrived at the homestead. Thembani opened the house and went
into the bedroom followed by two of the men. She was being assaulted
by the two men. One of the men had his face covered. In the bedroom
Thembani opened the safe and was forced to lie facing down. The man
whose face was covered proceeded to remove money from the safe and
placed it in a bag. 3 riles, a pistol and a camera were also removed
from the safe. The cash removed from the safe amounted to about
E15,000.00.
Whilst
the safe was being emptied, Thembani heard a shot being fired
outside. The two men then left the house and shortly thereafter
Thembani heard the deceased's motor vehicle driving off. Thembani
waited for a while in the house before going to where she had left
the deceased. She found the deceased lying on the ground with his
legs outstretched. He was injured on both ears. A report was made to
the deceased's relatives and the police. This incident took place at
about 2:00 p.m.
Mcoshwa
Hlatshwayo (PW 2 and the complainant on count 5) was at the
deceased's homestead during this incident. He saw the armed men
arriving with the deceased. Mcoshwa was made to lie face down under a
marula tree at the homestead. He noticed the deceased hands being
tied with an
15
electric
cable by one of the men. Mcoshwa was seen looking at what was going
on by one of the men and was kicked in the ribs by the men for doing
so. Mcoshwa saw Thembani being led into the house.
He
also heard the man who had remained with the deceased asking the
deceased where their gun which the deceased had taken was. Mgoshwa
did not hear what reply the deceased gave and the next thing he saw
was the man firing at the deceased's head. Mcoshwa got up and ran
away to raise the alarm immediately after the deceased was shot.
Mcoshwa spent some few days in hospital undergoing treatment
following the assault. A medical report was handed into court by
consent as part of the evidence of the assault. The report reflected
that Mcoshwa was treated for a contusion of the right anterior chest
wall.
Thembani
subsequently identified the deceased's motor vehicle, 3 rifles,
pistol and camera before the police. She exhibited the deceased's
permits to possess the the firearms. The permits contain the serial
numbers of the firearms. She further produced the registration book
in respect of the motor vehicle.
According
to the post-mortem report, which was handed in by consent, the
deceased died as a result of a gunshot wound of the head. The
deceased had gunshot wounds near both ears indicating that a bullet
entered near the left ear and exited near the right ear.
The
evidence I have outlined and based on the unchallenged evidence of
Thembani and Mcoshwa sufficiently proved the commission of the
offences of murder, robbery and assault with intent to do grievous
bodily harm.
16
I
turn them to consider the evidence led by the crown in support of the
allegation that the afore-said offences were committed by accused
Nos. 1 and 6. I will deal first with the position of accused No. 1.
Accused
No.1 was said by Florence Mamba (PW15) to be a friend of accused
No.3. It will be remembered that Florence is accused No.3's mother.
Florence as stated earlier had visited accused No.3 at Mbabane
Government hospital and had been informed by accused No. 3 of the
circumstances under which he had been injured on his left arm.
Florence was informed that certain of accused No.3's belongings had
been left with accused No.l. Florence went to accused No.1's place of
residence in Manzini. Accused No.1 was not at home and Florence left
a message for him. A few weeks thereafter accused No.1 reported to
Florence's work place. A discussion took place between Florence and
accused No.1 in which Florence indicated that accused No.3 had a debt
to settle for goods he had purchased on hire purchase. Accused No.1
offered to assist in that and also promised to bring accused No.3's
belongings to Florence.
Accused
No.1 returned to Florence on a Wednesday and gave Florence E400.00
towards accused No.3's hire purchase account. At that stage Florence
told accused No.1 that she had seen a report in the newspaper that
the owner of the homestead at which accused No.3 had been injured had
been killed. Florence explained her concern as to how the person had
been killed. According to Florence accused No.1 confessed to her and
told her how the murder and robbery had been committed.
Florence
was challenged in her evidence to the extent that it was put to her
that accused No.1 would deny having confessed to her.
17
The
investigating officer Inspector Ndlangamandla (PW17) told the court
that accused No.1 was arrested on the 23rd March 1992. His rented
room was searched and an amount of E543.85 was found in an electric
stove. Accused No.1 was then taken to the police station for
interrogation. On the following day, according to Ndlangamandla,
accused No.1 led him to his parental house at Ka-Langa.
There,
accused No.1 pointed out various spots where the police dug and found
firearms and ammunition. A similar pointing out was done by accused
No.1 at his parental homestead on a later date and further firearms
and a sum of E4,053.10 in cash were found by the police.
Of
the firearms found by the police as a result of the pointing out by
accused No.1 Thembani (deceased's wife) was able to identify all the
firearms which were removed from the safe at the deceased's homestead
on the 15th March 1992. Their serial numbers corresponded with the
numbers on the deceased's firearm permits.
Ndlangamandla's
evidence of the pointing out by accused No.1 is clear and straight
forward and stands completely unshaken. I shall refer to it again
when dealing with the charges of contravention of the Arms and
Ammunition Act by accused No.1.
There
is therefore the evidence of the confession made by accused No.1 to
Florence and the evidence of the finding of the deceased's firearms
in accused No.1's possession within some 15 days of the deceased's
murder.
Accused
No.1" denied the confession made to Florence. He denied
knowledge of the murder and robbery of
18
the
deceased. He explained that all the firearms which were found had
been brought to his homestead by one Jeremiah Matsenjwa who was to be
charged with the accused but has since absconded.
Florence
was a most impressive witness. She is an elderly woman who I consider
went about seeing to her son's affairs after he was hospitalised. She
knew accused No.1 prior to her son's injury. I accept her evidence of
having been surprised to learn that the owner of the homestead where
her son had been injured had been killed and of the enquiry she made
from accused No.1.
Accused No.1's concern for accused No.3's well being clearly
indicated to Florence that accused No.1 had also been at the
deceased's homestead on the night accused No. 3 was injured. 1 am
alive to the fact that I am here dealing with the evidence of a
single witness and have carefully considered Florence's evidence and
that given by the accused. I accept Florence's evidence as the truth.
That evidence when considered in the light of the finding of the
deceased's firearms at the homestead of accused No.1 leaves no room
for any doubt that accused No.1 participated in the murder, the
robbery and the assault at the deceased's homestead.
Accused
No. 6 was arrested by the Siteki police on the 24th December 1992. He
went before the Senior Magistrate Siteki, on the 29th December 1992.
He made a long and detailed statement to the Senior Magistrate of his
involvement with accused No.1 and two other persons through a series
of events leading to the murder and robbery at the deceased's
homestead along the lines testified to by the crown witnesses; The
admissibility of the statement was not placed in issue. The statement
was made freely and
19
voluntarily
by accused No.1.
What the defence sought to do was to argue that the statement was
exculpatory to the extent that accused No. 6 had shown in the
statement that he had been co-erced into joining accused No.1 and the
other persons in the events leading to the murder and robbery.
Accused
No. 6 gave evidence on oath, in court, confirming his statement and
his presence and involvement in the events of the 15th March 1992 at
the deceased's homestead. His evidence in court was equally detailed
and given at some length. Accused No.6's statement is annexed to this
judgment and marked 'A'. The camera which was taken from the
deceased's safe was recovered by Inspector Ndlangamandla on the
directions of accused No.6. As earlier pointed out the camera was
positively identified by the deceased's wife, Thembani.
Accused
No. 6 cannot at the end of the day be heard to complain that he was
co-erced and that he acted under duress. He had ample opportunity of
breaking away from the rogues he claims he was taken in by. He had
ample opportunity after the event of reporting the matter to the
police. The statement made by accused No.6 clearly amounts to a
confession. The evidence led by the crown clearly proved the
commission of the crimes accused No. 6 confessed to. Accused No.6 was
aware at the time the gang he was in entered the deceased's premises
that the deceased was to be shot on sight. The gang remained within
the deceased's premises from about 11:00 a.m. when the deceased left
for church until his return at about 2:00 p.m. The mission and
purpose of the gang must have been quite clear to accused No.6.
20
Accused
No.6's evidence also touches on accused No.1. According to accused
No.6 accused No.1 was present at the homestead of the deceased.
Accused No.1 was one of the persons who escorted the deceased from
his motor vehicle to his house. Accused No.1 was according to accused
No. 6 carrying a firearm. Although accused No.6 did not see the
actual shooting of the deceased when he (accused No.6) came out of
the house, he found accused No.1 outside and the deceased lying on
the ground. The gang then drove off in the deceased's motor vehicle.
I
find accused Nos. 1 and 6 guilty as charged with murder on count 1;
robbery on count 2 and assault with intent to do grievous bodily harm
on count 5.
COUNTS
11 TO 20 : (Contravention of the Arms and Ammunition Act at Ka-Langa
on the 24th and 28th March 1992 by Accused No.1).
As
earlier stated accused No.1 was arrested by Inspector Ndlangamandla
at Sicelwini area on the 23rd March 1992. Accused No.1 was
interrogated and on the 24th March, he led the police to his parental
homestead at Ka-Langa. The accused pointed out a spot at the edge of
the yard.
Ndlangamandla
dug at that spot and two plastic sacks were found. In the first sack
were – 22 x 7.62 calibre live rounds of Ammunition (Exhibit 19) 84
shot gun cartridges (Exhibit 29) In the second sack were -
21
1
AK 47 assault rifle (Exhibit 21)
3
Magazines for an AK 47 rifle (Exhibit 22)
50
live AK 47 rounds of ammunition (Exhibit 24)
41
x .22 live rounds of ammunition (Exhibit 25)
The
accused led Ndlangamandla to a second spot where another sack was
found. The sack contained –
1
AK 47 assault rifle (Exhibit 26)
1
AK 47 magazine (Exhibit 27)
A
shotgun which had its barrel and butt sawn off was found wrapped in a
plastic bag at a third spot pointed out by the accused. A .22 calibre
rifle was found at a fourth spot pointed out by the accused.
On
the 28th March 1992 the accused again led the police to his parental
home. Again the accused pointed to a certain spot. The police dug at
this spot and found a tin containing E4,053.10, a Bersa pistol, 17
live rounds of .38 calibre ammunition and a further 10 live rounds of
ammunition.
The
accused had no permit to possess the firearms and the ammunition. The
firearms and ammunition are the subject of the charges on counts 11
to 20.
The
explanation given by the accused was that the firearms and ammunition
were left at his homestead by Jeremiah Matsenjwa. According to the
accused Jeremiah left the firearms on a Saturday night. Jeremiah left
the homestead on the Sunday morning.
22
I
reject this evidence as totally false. The accused knew where all the
firearms were buried. He led the police to the firearms. He did not
explain to the police, before pointing out the firearms, that the
firearms belonged to Jeremiah. That would have been the simplest
thing to do particularly at the stage when the accused was asked to
produce a permit for the arms and ammunition. It is common cause that
all the firearms were serviceable and that the ammunition is live.
I
find accused No.1 guilty as charged on counts 11 to 20.
COUNTS
9 AND 10 : (Possession of a firearm and ammunition by accused No.2 on
6th April 1992).
Accused
No. 2 was arrested by the Siteki police on the instructions of
Ndlangamandla. He was interrogated by Inspector Ndlangamandla.
According to Inspector Ndlangamandla accused No. 2 led him to his
parental home at Maphungwane on the 6th April 1992. At the homestead
accused No.2 pointed to a certain spot in the yard. Ndlangamandla dug
at that spot and found a 7.62 calibre rifle loaded with 4 live rounds
of ammunition. Accused No.2 failed to produce a permit to possess the
firearm and ammunition.
Ndlangamandla
was cross-examined by accused No. 2 who denied that any firearm was
found at his homestead. It transpired from the cross-examination that
there were other persons at accused No.2's home, including his father
when the police came with accused No.2. Ndlangamandla replied under
cross-examination that accused No.2's father was woken up but that he
was not shown what was found at the homestead.
23
Accused
No. 2 gave evidence on oath denying all knowledge of the firearm.
Accused No.2's (Elliot Matsenjwa) uncle was called to give evidence
on behalf of accused No.2. Matsenjwa told the court that he was at
accused No.2's home when the police arrived. He explained how accused
No.2 was taken out of the police vehicle and ordered by the police to
produce the firearm. Accused No. 2 led the police to a heap of
building sand. The police dug in the sand and nothing was recovered.
The policemen went away with accused No.2.
The
crown attempted to make much play of the fact that Matsenjwa was not
specific as to the date on which this incident occurred. The police
had not, however, testified that they had been to accused No.2's
homestead on more than one occasion and there is nothing to suggest
that Matsenjwa was testifying to a different occasion.
I
find it very strange that the police would have reported to accused
No.2's father's home, requested to conduct a search and then gone
away without having shown accused No.2's father what had been
recovered at the homestead. The homestead belonged to accused No.2's
father and one would have expected that a report would have been made
to him by the police. Accused No.2's uncle's evidence throws doubt on
the very brief evidence given by Ndlangamandla, on the finding of the
firearm.
The
crown has failed to prove the charges on counts 9 and 10. I find
accused No.2 not guilty. He is acquitted and discharged on those two
counts.
My
two assessors, for whose assistance I am indebted, are in agreement
with this judgment.
B.
DUNN
J
U D G E
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