S v Mshubi and nother
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | D Dosio J |
| Judgment Date | 10 February 2022 |
| Court | South Gauteng High Court, Johannesburg |
| Hearing Date | 08 February 2022 |
| Docket Number | SS69/2022 |
Dosio J:
INTRODUCTION:
The accused are arraigned on six counts. The counts are as follows, count 1 is a count of murder read with the provisions of s51(1) of the Criminal Law Amendment Act 105 of 1997 ('Act 105 of 1997'). Count 2 is a charge of housebreaking with the intention to commit robbery and kidnapping. Count 3 is a charge of robbery. Count 4 is a charge of kidnapping. Count 5 is a charge of attempted extortion and count 6 is a charge of defeating the ends of justice.
In respect of count one the State alleges that on 22 April 2021 at 0234 Phumla Mqashi, Lenasia South, the accused killed Naadira Vanker. In respect to count two, the State alleges that on the same date, the accused broke into the house of the deceased at number 424 Grosvenor Street, Flat number 4, Lenasia South, with the intent to commit the crime of robbery and kidnapping. In respect to count three the State alleges that on the same date, the accused assaulted the deceased and then with force and violence took from her a motor vehicle, a laptop bag with documents, a hand bag with her contents, as well as the deceased's cellular phone. In respect to count four, the State alleges that the accused deprived the deceased of her freedom of movement by means of force and transported her to 0234 Phumla Mqashi in Lenasia South. In respect to count 5, the State alleges that on the same date the accused induced and threatened Mohammed Genner by demanding money from him and uttering the words "or someone will die".
Prior to the accused pleading, the court apprised both accused of the provisions of the minimum prescribed sentence of life imprisonment in respect to count 1. Both accused understood. The court also apprised the accused of their right to have an assessor as count 1, is a charge of murder. Both accused elected to proceed without an assessor.
Accused 1 is represented by Advocate Milubi. Accused 2 is represented by Advocate Monare. The State is represented by Advocate Le Roux. The accused understood all six counts. Accused 1 pleaded not guilty to count 1 and 5 and pleaded guilty to counts 2, 3, 4 and 6. Accused 2 pleaded not guilty to all 6 counts. Advocate Milubi made formal admissions in respect to counts 2, 3, 4, and 6. Advocate Monare made no plea explanation in respect to all 6 counts.
The formal admissions in respect to count 2, 3, 4 and 6 were read out by Advocate Milubi. They are as follows:
Dosio J
That the accused has made these admissions freely and voluntarily in his sound and sober senses.
Count 2
That on 22 April 2021, and at or near 424 Grosvenor Street, Flat no 4, Lenasia South and within the magisterial district of Johannesburg Central, he, together with accused 2, unlawfully and intentionally opened the dining room window of the premises and entered the abovementioned residence of the deceased with the intention to commit the crimes of robbery and kidnapping. He admitted that they had no permission to do so, and knew at the time what he was busy doing was wrongful.
Count 3
That on the same date and place referred to in count 2 above, he was with accused 2 inside the flat of the deceased, when he grabbed the deceased in order to overpower her, thereby unlawfully and intentionally assaulting her. They tied her hands together to disable her. Accused 2 pushed a piece of cloth in her mouth to prevent her from screaming. They then carried her to her car outside, which is the vehicle referred to in Exhibit C before court. They put her on the back seat of her car, and drove away with the deceased to his place of residence, at No 234 Phumla Mqashi, Lenasia South. They also took the deceased' cell phone with them. Apart from the cell phone, Exhibit 1 (the laptop bag with the content), Exhibit 2 (the bag containing stationary), Exhibit 3 (the DVD's and notebook), Exhibit 4 (the deceased' handbag) and Exhibit 5 (the bag with the word Singapore printed on it), were also removed by them from the motor vehicle belonging to the deceased. He admitted that Exhibits 1 to 5 were later found inside his house by the police, and that it was taken with force and violence from the deceased, without her permission, and as a result that she was robbed of these items, as well as her motor vehicle. He abandoned the motor vehicle later that same morning in Ennerdale. He admitted that by doing so, he had the intention to permanently deprive the deceased of the motor vehicle, her cell phone, and Exhibits 1 to 5. He knew at the time what he was doing was wrongful, and that he was busy committing the crime of robbery.
Count 4
He admitted that he, together with accused 2, unlawfully and intentionally deprived the deceased of her freedom of movement by means of force, by overpowering her in her home, at the address referred to above, and tying her up as described above, and then transported her to the address referred to in count 1, and kept her there captive against her will, thereby committing the crime of kidnapping. He knew at the time what he was doing was wrongful, and he had no permission to do what he did.
Dosio J
Count 6
He admitted that on 22 April 2021, and at his place of residence, he and accused 2 decided to bury the body of the deceased in his back yard, in order to hide the deceased's body, so that it could not be found, and by doing so thereby unlawfully and intentionally defeating or obstructing the course of justice. He admitted that the result of this act was that the deceased was already in an advanced state of decomposition when she was found, which had the direct result that her cause of death could not be determined. He knew throughout these events that what he was doing was wrongful, and that he was busy committing the crimes listed in counts 2, 3, 4 and 6.
Accused 1 added that he was working as a security guard at the block of flats situated at No. 424 Grosvenor Street and that the deceased and her husband made certain complaints against him which resulted in him losing his job. He had no further income and this made him angry and vengeful towards the deceased and her husband.
As regards accused1's plea of guilty in respect to count 2, I am convinced that accused 1 admits all the elements of the offence of housebreaking with intent to commit robbery and kidnapping. In respect to count 3, I am convinced that accused 1 admits all the elements for the crime robbery in that he assaulted the deceased and with force robbed her of her motor vehicle and cellular phone with the intention of permanently depriving her of her possessions. In respect to count 4, I am convinced that accused 1 deprived the deceased of her freedom of movement and that he admits all the elements for the crime of kidnapping. In respect to count 6, I am convinced that by concealing the body of the deceased, accused 1 admits all the elements of the defeating the ends of justice.
The court is therefore required to determine the guilt of accused 1 in respect to the murder charge on count 1 as well as the attempted extortion charge on count 5 as well as all 6 counts arraigned against accused 2.
At the inception of the trial formal admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the "Criminal Procedure Act") were handed in by agreement and marked as exhibit A. The contents of exhibit A are:
Exhibit B - The photo album marked as exhibit B which states that on 26 April 2021 Sgt G Ndzendevu, an official draughtsperson and photographer in the South African Police Service, attended to the crime scene at No. 424 Grosvener Street, Lenasia South in her official capacity. The said crime scene was subsequently photographed
Dosio J
by her as per the attached photo album (photos 1 – 21) together with the key thereto. That exhibit B is a correct reflection of the condition of the flat on 26 April 2021.
Exhibit C – that on 28 April 2021 W/O JR Nkoatse, an official draughtsperson, photographer and forensic fieldworker in the South African Police Service, attended to the crime scene at No. 234 Phumla Mqashi Squater Camp, Lenasia South in his official capacity. The said crime scene was subsequently investigated and photographed by him as per the attached photo album (photos 1 – 64) together with the key thereto. That exhibit C is a correct reflection of the crime scene and the investigation that followed on the scene on the above mentioned date.
Exhibit D – That on 22 April 2021 Sgt Thabethe an official draughtsperson and photographer in the South African Police Service, attended to a scene next to No 27 Nephrite Street, Ext 5 Ennerdale, in his official capacity. The said scene was subsequently photographed by him as per the attached photo album (photos 1 – 10) together with the key thereto. That exhibit D is a correct reflection of the scene where the abandoned vehicle of the deceased which was found on the above mentioned date.
Exhibit E – The Post Mortem Report. That the person in Count 1 is the deceased referred to in the post mortem report DR 582/2021 Exhibit E, namely Naadira Vanker. That on 28 April 2021 Dr PJ Schutte performed a post mortem on the deceased's body, and correctly recorded his findings on the prescribed form GW 7/15, Exhibit E referred to above. That the cause of death is reflected as "Could not be Determined". That the deceased sustained no further injuries which contributed to the cause of death from the moment when her body was discovered at the crime scene at No 234 Phumla Mqashi Squater Camp and transported to the mortuary in Sebokeng, Vereeniging on 28 April 2021.
Additional exhibits were handed in, namely:
Exhibit F, which is the notice of rights of accused 2.
Exhibit G, which is the cell register and occurrence book in respect to accused 2.
Exhibit H, which is the pro-forma document in respect to...
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