S v Myeni

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TV Ratshibvumo AJ
• Judgment Date: 28 June 2021
• Docket Number: CC 01/2020
• Citation: 2021 JDR 1470 (MN)

Ratshibvumo AJ:

[1].

The charges.

The accused stood trial on four criminal charges. In count 1, the State alleged that on the night between 26 and 27 October 2018 and at Davel, in the district of Ermelo, the accused did unlawfully and intentionally kill Vusimuzi Mannuel Khumalo. Count 2 is a charge of robbery with aggravating circumstances perpetrated against the same victim in count 1 wherein he was robbed of his cell phone and motor vehicle. It was alleged that the date and place where this crime was committed as the same as in count 1. Count 3 is a charge of possession of unlicensed firearm (a 9 mm Parabellum Lorcin with serial no. L077739) in contravention of section 3 of Act 60 of 2000. It was alleged that this crime was committed during the period 23 October 2018 to 23 November 2018 at Davel in Ermelo or at Jozini. Count 4 is a charge of possession of an unknown quantity of live ammunition in contravention of section 90 of Act 60 of 2000. This charge was also alleged to have been committed on the same date and place as in count 3.

[2].

The accused were legally represented throughout the trial. Mr. Muthivhithivhi appeared for accused no. 1 whereas Mr. Phethoe appeared for accused no. 2. Adv Poodhun appeared for the State. He indicated that in case of conviction, sentences prescribed in terms of sec 51 (1) and 51(2) of Act 105 of 1997 would be sought in respect of a charge in count 1 and the charges in counts 2 and 3 respectively. It was also averred that in committing these crimes, the accused acted in furtherance of common purpose.

2021 JDR 1470 p3

Ratshibvumo AJ

[3].

The plea.

All the accused pleaded Not Guilty and gave no plea explanation except for accused no. 1 who added that he was only found in possession of a stolen motor vehicle.

[4].

Background (Common cause facts)

Facts of this case are largely undisputed. The dispute is on what to make out of them: Whether the accused are guilty because of the doctrine of recent possession and/or inferential evidence.

[5].

This is a tale about a man who was shot and silenced by a gunshot in the early hours of 27 October 2018 in Davel. His name was Vusimuzi Mannuel Khumalo (the deceased). His body, now useless to those who took life from it, was dumped in the bushes by the side of the road near Spioenkop farm. His belongings were not dumped with his body, for they took them with. These were a motor vehicle, an Opel Corsa bakkie and a Huaei 9 android cell phone with IMEI no. 86996203150282 (the deceased's handset). IMEI (International Mobile Equipment Identity) is a unique number allocated to each handset device which is also described as a cell phone finger print in that there is no device with similar identification number.

[6].

The deceased's belongings were not silenced with their owner. They continued their lifespan giving a voice to their voiceless owner whose body laid motionless in the bushes, waiting to be discovered by those who valued his life. Those with the skill to hear such voices asked, "Is that not the voice of the deceased?" Indeed it was his voice as given to him by his gadget – the android cell phone. The screams were silently calling those with special ears to hear. And they were heard some 350 kilometres away from where the body of the deceased was dumped – in Jozini in Kwazulu-Natal.

2021 JDR 1470 p4

Ratshibvumo AJ

[7].

Once these voices could be heard, the experts were in haste to locate the gadgets before they too could be silenced for good like their owner who with each hour passing, his body was quickly getting decomposed before those who saw the world in him could give him a dignified funeral. In Jozini, and on 23 November 2018, the deceased's motor vehicle was found being driven by a man who had no driver's license named Thembelani Myeni – accused no. 1. Inside the deceased's motor vehicle was a firearm described in count no. 3. He also had no license for it. When confronted with questions on where he got the deceased's motor vehicle, he immediately pointed to a man named, Wonder Mabika – accused no. 2. Accused no. 1 was then requested to call accused no. 2 who arrived unaware that accused no. 1 was already under arrest. Upon his arrival, accused no. 2 was in possession of the deceased's cell phone android, the one that had called them from Davel in Mpumalanga in the first place.

[8].

Accused no. 1 had been driving the deceased's motor vehicle from 27 October 2018 (the night the he was killed) to the date he was found driving it in the town of Jozini in the company of his girlfriend. Cell phone records provided from Vodacom which were accepted by both the accused as true and correct, reflect that accused no. 1's SIM card with cell phone number 076 834 4515 had been using the deceased's cell phone from 27 October 2018 (the night the deceased was killed). Accused no. 2's jersey was found about 15 meters away from where the deceased's body was discovered in the bushes. Given the several days it was exposed to the sun and rain, no DNA could be detected from it by the forensic experts.

[9].

All of the evidence reflected above was presented by the Investigating officer, Sgt Sipho Ndlovu who also presented the Vodacom cell phone records that were admitted as evidence by the court with the defence' consent. Other than his evidence, other State witnesses did not take the case

2021 JDR 1470 p5

Ratshibvumo AJ

any far in that their evidence is not in dispute and does not help the court in determining if any of the accused are guilty of any of the 4 charges levelled against them.

[10].

For reasons that would become apparent later in this judgment, it is necessary to reflect on a small piece of the evidence presented by Delisile Promise Mthethwa (Mthethwa), the deceased's lover. She was the last person of the State witnesses to have seen the deceased alive. When the deceased left her at his home around 01h00 on 27 October 2018, he told her he was going to meet Zama, a friend of his from Springs who was visiting the area for the funeral.

[11].

Again, the second last person to have seen the deceased alive would be his friend, Bongani Patrick Mnisi (Mnisi). According to Mnisi, he was seated with the deceased and other friends around 23h00 on 26 October 2018 at Monate Park when the deceased received a phone call from Mthethwa who was visiting him at home. When the deceased left driving his Opel Corsa, he promised to be back soon, but he never came back.

[12].

Accused no. 1's version:

He testified that he needed a small bakkie to help in his small business in which he sells dagga. He communicated this to accused no. 2 whom he had known since 2016 and who is his friend. Accused no. 2 promised to help him get a bakkie. They set a date of 26 October as a day on which they would hike to Mpumalanga to meet the person who would sell accused no. 1 a bakkie. He was told the purchase price would be R40 000. He had with him R25 000 which was for a deposit. They left Jozini where they lived at 16h00 and hitchhiked until Ermelo and they proceeded further to Davel. At all these times, accused no. 2 was communicating with a person whom he

2021 JDR 1470 p6

Ratshibvumo AJ

alleged was the seller of the motor vehicle whom he identified as Khumalo. He kept on giving him feed back to the effect that Khumalo would come and meet them.

[13].

From Ermelo they hitchhiked to Bethal where they waited for Khumalo who never arrived. Accused no. 2 informed him that Khumalo said he was still drinking in Ermelo. Around 23h00 after he told accused no. 2 that he was tired of waiting. Accused no. 2 told him they should rather go to Ermelo which they did. Khumalo indicated to them through accused no. 2 that they should wait for him at Total garage. Accused no. 2 had also cautioned him not to talk as a buyer, but to rather pretend that he (accused no. 2) was the buyer, to avoid the price going high.

[14].

Khumalo arrived at Total garage driving an Opel Corsa around 03h00 on 27 October 2018. When shown the post mortem photographs of the deceased, he confirmed that this was the Khumalo he met at the garage that night. They introduced themselves to each other where after the deceased informed him that he had already talked to accused no. 2. He gave the R25 000 cash to accused no. 2 who left to go talk to the deceased away from him. The deceased then told him he was happy to receive the deposit of R25 000 and that he would hand over the motor vehicle and hold on to the registration papers which he would hand over once the balance of R15 000 was handed over to him. He undertook to bring R15 000 on the 15th, the 16th or the 17th of November 2018.

[15].

The three of them got into the deceased's motor vehicle driven by accused no. 2 with the intention to drop the deceased at his place of residence. Once at Davel, accused no. 2 told him to get out and wait for him at a tavern named The Lodge so that he can proceed to the deceased's home, which he did. Moments later, accused no. 2 came back and picked him at

2021 JDR 1470 p7

Ratshibvumo AJ

The Lodge and they drove back to Jozini together. He noticed that the...