S v Mnyandlu

• Jurisdiction: South Africa
• Judge: Jafta AJP, Locke J, Norman AJ
• Judgment Date: 26 September 2002
• Docket Number: 199/2002
• Court: Transkei High Court
• Hearing Date: 30 August 2002
• Citation: 2002 JDR 0793 (TkH)

Jafta AJP et Locke J:

[1] On 21 December 1992 Mrs Hazel Thozama Majokweni celebrated her birthday at house number 39 Tungula Street, Ikwezi Extension, Umtata. To celebrate the day, she had a party with her friends. None of them knew that tragedy was about to strike that night. The party commenced at about 18h00 and amongst guests present were Mr and Mrs Vilakazi. The couple had arrived at the party in their VW Caravelle Combi which was parked on the street just outside the premises. Late in the night between 23H00 and 24H00 Mr and Mrs Vilakazi left the party. They were walked to their vehicle by the host, Mrs Majokweni. As Mrs Vilakazi was to drive, she and Mrs Majokweni remained on the right side of the vehicle whilst Mr Vilakazi turned round towards the passenger door. Whilst the two women were still conversing before the couple climbed into the vehicle a lone gunman emerged from the darkness. The gunman emerged from the opposite side

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and advanced towards the two women. He had a balaclava hat pulled down and covering his face. He fired several shots at them. Both women were struck by some of the shots. Mrs Vilakazi was fatally injured and died on the scene. Mrs Majokweni was also seriously injured but fortunately she survived the attack. She was taken to a local hospital but later, she was transferred to a hospital in Durban from whence she was further transferred to another hospital in East London. She was unable to identify their assailant nor did anybody recognise who it was.

[2] A period of about six months elapsed whilst the police investigations continued. Eventually the police had information which led to the arrest of the appellant. The appellant was Mrs Majokweni's son-in-law and at the time of the commission of the offences he was living in East London. As his wife was working in Umtata she stayed with her mother and would visit her husband over weekends. During the week-end preceding the fateful Monday on which the party was held, the appellant had spent some time in Umtata with his wife and mother-in-law. However he did not attend the party. He left early during the day after informing his wife that he was going back to East London.

[3] During the trial the appellant was charged with murder of Mrs Vilakazi, attempted murder of Mrs Majokweni as well as unlawful possession of a firearm and ammunition. He pleaded not guilty to all charges and he was legally represented by an attorney at the trial. As nobody had identified the assailant during the attack, the State was unable to lead direct evidence implicating the appellant in the commission of the offences. A number of witnesses were called by the prosecution but their evidence was mainly circumstantial. Evidence which primarily linked the appellant to the offences was his possession of the fire-arm

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which was later connected by means of ballistic examination to the shooting that took place near Mrs Majokweni's house on 21 December 1992 and also the testimony of Mthuthuzeli Ngozwana who claimed that the appellant confided to committing the offences. The appellant also testified in his defence and called witnesses to support his version. He raised an alibi and denied having been involved in the attack.

[4] After a careful analysis and evaluation of the evidence led, the Court a quo accepted the evidence of State witnesses and rejected the appellant's version. As the only issues in dispute during the entire trial were the identity of the assailant and the appellant's possession of the murder weapon, after accepting the relevant evidence by State witnesses the trial Court convicted the appellant on all charges. He was then sentenced to 25 years imprisonment for murder, 10 years imprisonment for attempted murder, 12 months imprisonment for possession of a firearm without licence and 12 months imprisonment for unlawful possession of ammunition. However the sentences for attempted murder and possession of a firearm without licence were made to run concurrently with the sentence for murder. Lastly the sentence for unlawful possession of ammunition was ordered to run concurrently with the sentence the appellant was already serving at the time of the trial.

[5] With the leave of the Court a quo the appellant lodged an appeal to this Court against conviction only. The judgment of the trial court is challenged on the basis of the following paraphrased grounds:

5.1

The trial Judge erred in convicting the appellant of murder because the State

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failed to prove that he intended to kill the deceased;

5.2

The learned Judge erred in accepting the evidence of Pepengweni regarding the appellant's possession of the "murder weapon" and rejecting the appellant's and Zici's version;

5.3

The learned Judge erred in admitting the evidence of the pointing-out of the "murder weapon " by the appellant without proof that such pointing-out was freely and voluntarily made;

5.4

The learned Judge erred in finding that the cartridges which were sent for ballistic examination and were linked to the "murder weapon" were collected from the scene of the shooting because the State has failed to lead evidence regarding their collection and safekeeping before they were dispatched for examination.

Mens rea

[6] We shall now consider each of those grounds seriatim. Firstly, if regard is had to the testimony of Mrs Majokweni on what occurred at the scene at the time of the shooting, there can be no doubt that the person who fired the gunshots intended to kill his victims. He fired several shots at them with a lethal weapon and from a short distance from where they were. As a result the two women were seriously injured. In the circumstances it can hardly be argued that he did not intend to kill them. If he did not harbour a direct intention, he must at least have foreseen that death could ensue from the shooting but that notwithstanding carried

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out his attack upon the women who were next to each other as they were conversing. Therefore there is no evidence supporting the theory that the assailant did not intend to kill the deceased. It might be that he did not plan to kill her but when he decided to fire the shots he certainly intended to kill both of them. However Mrs Majokweni miraculously retained her life. Nonetheless the conduct of the assailant clearly demonstrates that he intended to kill. Consequently there is no merit on this ground.

Accepting Pepengweni's evidence

[7] The learned Judge subjected the evidence led to a careful analysis and evaluation before making credibility and other factual findings. However before considering such findings it is essential to briefly set out the relevant portion of the evidence in issue. Ntsikelelo Pepengweni (Pepengweni) testified that on 18 June, presumably in 1993, the accused arrived at his house at Ngcora Irrigation Scheme. At the time Pepengweni was together with his wife and brother. They shared drinks of intoxicating liquor and at one stage the accused asked to see Pepengweni in private. They then went into Pepengweni's bedroom where the accused produced a 9mm pistol firearm and asked Pepengweni to keep it for him. The latter took...