S v Buda and Others

• Jurisdiction: South Africa
• Judge: Van Rooyen AJ
• Judgment Date: 30 July 2003
• Counsel: P M Moalosi for the State. J M Mojuto for the first accused. H Engelbrecht for the second accused. K K Kekana for the third accused. E Seima for the fourth accused.
• Hearing Date: 30 July 2003
• Citation: 2004 (1) SACR 9 (T)
• Court: Transvaal Provincial Division
• Docket Number: CC8/02

Van Rooyen AJ:

Introduction

D [1] The four accused were charged with the murder of a shopowner, a Mr Khuzani Buda, robbery with aggravating circumstances and the possession of three firearms and ammunition without a licence, the firearms being two revolvers and one pump-action shotgun. The alleged E attempted robbery and murder had taken place on 20 May 2000 in Oukasie in the district of Brits.

[2] One of the participants in the robbery and murder, a Mr Dibodu (Dibodu) who had acted as a contact between two nephews of the deceased and accused 3 and 4, who would perpetrate the robbery, turned F state witness in terms of s 204 of the Criminal Procedure Act 51 of 1977.

Testimony of Dibodu

[3] The testimony of Dibodu was that one of the Buda brothers, accused 2, had contacted him in May 2000 to find someone who could rob G the safe of his uncle, the deceased. Dibodu contacted accused 3 who, in turn, drew in accused 4. Two other friends of Dibodu, Walther and Khami, were also involved in the initial discussions but only Walther, ultimately, accompanied the four accused on the evening of the murder.

[4] Except for not having the necessary expertise to execute a robbery, accused 2 felt that persons who were unknown in the area where H his uncle had the shop (Oukasie-Brits) should execute the robbery. Accused 3 and 4 were from Soshanguve. Dibodu and accused 1 and 2 took accused 3 and 4 to Oukasie so that they could see where the shop was and also enter the shop under the pretense of purchasing articles. I

[5] They decided to commit the robbery shortly afterwards, on 20 May 2000 before the shop closed at 21:00. They were at a braai and left for Oukasie. Accused 1 was the driver of the car and Dibodu was seated next to him. Accused 2 was also in the car. They found accused 3 close to his home and accused 4 also joined them. Both accused 3 and 4 had on J

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lumber jackets of a dark colour, thought to be navy blue. At that stage accused 3 ran to his house and returned with a A sport bag, which was large enough to hold a pair of No 10 tackies. When they were close to Brits, accused 3 said that he needed a 9mm pistol since he only had revolvers. They stopped at a spot where accused 2 contacted someone who might have had such a pistol. But he returned and said that this person did not have a 9mm. Under cross-examination counsel for accused 4, Mr Seima, questioned this testimony B on the basis that the 9mm was obviously meant for Dibodu and that in any case, Dibodu as a s 204 witness, was protecting his friends (Walther and Khami), who were not charged and was pinning this robbery on accused 3 and 4.

[6] Accused 1 parked the car about 500 metres away from the shop near a river. There were four persons sitting on the back seat. Accused C 1 was behind the steering wheel and Dibodu was in the passenger seat in front. Dibodu looked over his shoulder and saw that accused 3 handed accused 4 a revolver, which he took from the sport bag. Accused 3 was also armed. They alighted from the car and accused 3 had the sport bag with him. Walther accompanied accused 3 and 4 to show them the way. He D returned shortly after that. When Walther returned, accused 2 alighted from the car. Walther and he stood outside. While they were waiting, they heard the sound of a shot from a firearm. They commenced to argue and Walther said that he had heard two shots. Dibodu said he had heard one shot. Thereafter they heard another shot. Shortly after that accused 3 returned and said that accused 4 had been caught. Accused 1 E failed in his attempt to start the car and accused 2 pushed him over and took control. Walther, Dibodu and accused 1 then pushed the car to a start. Then accused 4 appeared. They drove off. Accused 4 appeared to be out of breath. Accused 3 told them that when they entered the shop, accused 4 pointed a firearm at the owner of the shop and the shopowner F then approached accused 4. Accused 4 fired a warning shot. The shopowner pushed him against the iron gate of the shop and a struggle between them ensued. At the stage when the fighting commenced accused 3 left the shop and ran away. As he was leaving members of the community G arrived. That is when he fired the shots in the air. Thereafter, in the car, accused 4 explained that the deceased was grabbing and strangling him, so that he had to shoot him in his thigh, so that he could release him. When they arrived in Soshanguve they drove to the home of accused 3. When they arrived there, accused 3 placed the firearms in the sport bag and went into the house. He left the sport bag with the firearms at his home. They then left for the braai where they had been H earlier that evening. Thereafter, accused 3 and 4 left on foot and accused 1, 2, Walther, Khami and Dibodu left by car for Brits. In the following days the police contacted Dibodu and he made a statement as to what had happened. He then also made a statement before a magistrate. As stated above, the charges against Dibodu were withdrawn I and he became a s 204 witness.

[7] When Mr Moalosi, for the State, asked Dibodu whether it was true that he was shot thereafter, I ruled the evidence to be inadmissible. Even if he answered in the affirmative, it would have been unfair to have J

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allowed such evidence, which could only have been led so as to implicate one or all of the accused in the deeds with A which they are presently charged. Such evidence could only lead to speculation as to the nexus with the present charges. If any one of the accused were involved in such a shooting, they should be charged separately for those alleged deeds.

Testimony of Thomas Nzima B

[8] Mr Thomas Nzima, a friend of the deceased, who was sitting in the shop when the two robbers entered, testified that there was an electric light on in the shop and that he, accordingly, could see what was happening. Two men entered the shop. One pointed a firearm at his head. The other person walked to the deceased and fired a single shot into C the floor. The deceased was behind the counter. The deceased attempted to fight him off and take the firearm from him. During the struggle they left the shop. Mr Nzima still had a firearm pointed at him by the other robber. Shortly thereafter the person who was pointing a firearm at Mr Nzima left him. He stood up. A gunshot was heard and when he left D the shop he found that the deceased had fallen to the ground. The men were no longer there. He was unable to identify the robbers. They had also not removed anything from the shop.

Testimony of Ms Anna Buda E

[9] The daughter of the deceased, Ms Anna Buda, testified that at about 20:40 on 20 May 2000 she was in their house, which was next to the shop, with her mother and younger sister. Her brother was in the shop with their father. They heard the sliding door of the shop bang and they thought that their brother was being given a hiding by the deceased, who 'liked' to give them a hiding. As she was going out of the kitchen door, she heard a loud 'bang' from the shop. When she was F outside the house and had turned the corner, she saw the deceased struggling with a man. The person with whom the deceased was fighting, fired a shot which wounded the deceased. She ran towards them and she shouted 'Mama, it's father'. The robber then fired a further shot, which also wounded the deceased. She observed that the deceased was G commencing to lose his strength. Another person was standing about 5 metres away. He also had a firearm in his possession. He had a black and white Adidas bag with him, he was wearing a lumber jacket and his pants were cream white in colour. The person fighting with the deceased was wearing a black woolen hat, but it did not cover his face. This H person then ran away and fired some warning shots. The hat fell off. She handed the hat to the police. The second person also fired two shots to scare her and her brother away. She then turned to her father who could not, at that stage, speak. She saw the face of the man involved in the struggle with her father for about three seconds. She had not seen him before. She identified him in court as accused 4. She I did not, at the time of the incident, look for any specific facial feature. An Apollo light was on. Under cross-examination she was questioned on this since she had said in her statement to the police that she had not seen him well and would not be able to identify the two men. She nevertheless testified that she J

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could not forget his face and that what she said in Court was, to her mind, what counted. It was A put to her that it was not accused 4. She remained adamant that it was him. She could not identify the other robber. The neighbours came out, but the robbers ran away over a soccer field and towards some bushes. There is a river in the vicinity of the bush. Members of the community chased them. She went to the shop afterwards. Nothing was taken. She saw a mark where a bullet had struck. There were two safes: one in the B shop and one in the house. She is related to accused 1 and 2 - they are her cousins. They often visited the deceased. They never worked at the shop.

Testimony of Mr Riba C

[10] A...