S v Shangase

• Jurisdiction: South Africa
• Judge: Ntlama AJ
• Judgment Date: 09 April 2019
• Docket Number: CCD33/16
• Court: KwaZulu-Natal Division, Durban
• Hearing Date: 18 July 2017
• Citation: 2019 JDR 0742 (KZD)

Ntlama AJ:

The three accused appeared before this Court on charges firstly robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977 (CPA) read with relevant provisions of section 51 schedule 2 of the Criminal Law Amendment Act 105 of 1997 (Amendment Act). Secondly, murder read with section 51(1) of schedule 2 of the Amendment Act.

The State alleged in respect of count 1 that on or about 27 April 2015 and at or near LB5 Sibisi Road, KwaMashu in the district of Ntuzuma the accused had unlawfully and intentionally assaulted Ntombifikile Dube, Celiwe Mkhonza, Nokuthula Mkhonza and Xolani Mnguni, and by intentionally using force and violence to induce submission of the aforesaid persons, took and stole from them certain property, to wit cellular phones, a laptop and electronic equipment, their property or in their lawful possession, and thus robbed them of the same.

The State further alleged in respect of count 2 in that on or about 27 April 2015 and at or near LB5 Sibisi Road, KwaMashu in the district of Ntuzuma the accused unlawfully and intentionally killed Xolani Mnguni, an adult male.

All the three accused pleaded not guilty to the charges in line

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with the provisions of section 115 of the CPA and chose to exercise their rights to remain silent in accordance with section 35(1)(a) of the Constitution of the Republic of South Africa 1996. Different legal representatives represented them; Mr ZULU for accused 1, Mr DLAMINI for accused 2 and Mr MARIMUTHU for accused 3.

The representatives also confirmed the plea that it was in accordance with the instructions they received. I am also satisfied that they understand the impact of the application of the Minimum Sentences Act regarding the charges they are faced with.

The State represented by Ms MSHOLOLO submitted admissions in terms of section 220 of the CPA marked as Exhibit A which were amended without prejudice to the accused in terms of section 86 of the CPA and were supported by the medical legal report and marked as Exhibit B, photo album of the scene marked Exhibit C. There are further exhibits forming part of this record that will be referred to in this judgment.

I am making onto the State case. The State called its first witness Sergeant Mbongeni Nene who testified that he is employed at the SAPS for 16 years stationed at Ntuzuma's detective branch. He was assigned as the investigating officer in this matter. On 27 April 2015 he was on duty at Ntuzuma Police Station when he received a report from the Community Service Unit that someone had been murdered at section LB5 Sibisi Road, KwaMashu.

He immediately headed to the scene and upon his arrival he found a number of bystanders and upon introducing himself he sought

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witnesses. He met Ms Ntombifikile Dube who was visiting the deceased at LB section. Dube resides at section D1258 Mkhambathi Road. She confirmed that the deceased had been shot and she pointed him out to Sergeant Nene. He was dead in his room which was his permanent residence.

Sergeant Nene confirmed that upon entering the room he found a dead male facing down in a pool of blood, he realised the deceased had a gunshot wound to the neck and also found that the things were upside down in the room. Upon investigation closer to the body he found a cartridge and bullet head in close proximity to the body.

He also met two ladies who he described as the sisters of the deceased; one Ms Celiwe Mkhonza and one Ms Nokuthula Mkhonza. They reside on the same premises but in an adjacent building. They also told him their rooms were ransacked and their cell phones and other items were taken. Sergeant Nene noticed that their rooms had been ransacked like the deceased's room.

He then organised for the Durban Local Criminal Record Centre to take photos of the crime scene and for the collection of the bullet head. One Constable Mpanza and Constable Mtolo arrived from the record centre. Constable Mpanza took the spent cartridge and bullet head. He further confirmed that one Ms Nokuphila Mvelase moved the deceased's body to the medical legal lab.

Sergeant Nene also testified that upon his arrival at the scene, although it was at night, there was sufficient lighting with electric lights inside and outside the scene. As far as he was concerned the lighting

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was sufficient at the scene to the extent that he did not have to use a torch.

Sergeant Nene then identified various aspects of the crime scene from the photo album that was admitted into evidence and marked C which was admitted by the accused in terms of section 220 admissions of the CPA.

Thereafter he then went on to testify that upon the case being allocated to him he was the person who arrested the accused.

On 31 July 2015 he was at work conducting a suspect raid when he received a tipoff from an informer that certain suspects were arrested on another matter at lnanda Police Station. The informer told him that these suspects were involved in the murder of Xolani Mnguni. He took his team and proceeded to lnanda Police Station where he worked with Crime Intelligence Unit. Upon arriving at lnanda South African Police Service Station he found five or more suspects and various investigating officers dealing with the various dockets. He introduced himself to the suspects and indicated that he was investigating the murder and robbery at LB section.

He testified that he told all the suspects he would be interviewing them and asked them to participate in an identification parade to be arranged for 2 August 2015 and that they could have their legal representative present. He further testified that the suspects were detained and in the process of being interviewed by other investigating officers the suspects were not detained in respect of the matter he was dealing with.

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He confirmed that an ID parade was conducted on 2 August 2015 and those identified at the ID parade were then indicted on this charge. The ID parade was held at the lnanda Police Station and one Sergeant Ndlovu from KwaMashu SAPS conducted it in his absence.

He formally charged the accused in the late afternoon of 2 August 2015 at the lnanda SAPS cells after they were identified. He introduced himself and told them of the charges they were facing and advised them of their section 35 rights as envisaged in the 1996 Constitution. Whilst he had also the section 35 rights in his pocketbook he chose to read the same from the SAP14(A) form when he was putting the charges to the accused. He read the rights individually to each accused in the holding place at the police station.

He confirmed he dealt with accused 1 first and after the preliminary introductions of each other, he told him of the charges he was facing and read him his rights including that of his rights to bail. Accused 1 was then asked to sign the SAP14(A) form which he did. The accused's rights were explained to him in English and translated into isiZulu. The accused understood his rights hence he signed the SAP14(A) form which was also signed by Sergeant Nene. The accused was also given a copy of the form. The form was admitted into evidence as Exhibit D. He went on to testify that he followed the same procedure with accused 2 and 3 and their SAP14(A) forms were admitted into evidence as Exhibits D1 and D2.

He then went on to testify that he had taken the warning statements of all three accused on 2 August 2015 and did so by

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following the pro-forma forms. The responses of the accused were recorded on the forms as they were being provided. This was done in the late afternoon on 2 August 2015. The accused were appraised of their rights and understood what was being asked of them. All three warning statements were admitted into evidence as Exhibits E, F and G respectively. He confirmed that whilst the accused were charged in this matter on 2 August 2015 he had no idea how it is that they came to be at the said lnanda Police Station on that day nor was he present when they were brought to the police station. Others were investigating the accused on the docket numbers and he had no knowledge of the dockets or outcome of those cases. He concluded his evidence-in-chief by confirming that he had no knowledge if any of the stolen goods were recovered or reclaimed.

Under cross-examination by accused 1's representative this witness held firm to his version of the events as they transpired, he was questioned repeatedly on the scene of the incident and to the signing of the SAP14(A) form and the warning statements. It was put to him that he did not explain the accused his rights, which was denied and that it was suspicious that all SAP14(A) forms were signed at 3:30. He stood firmly by his version as detailed in the evidence-in-chief. He denied being part of or knowing about the alleged assault of the accused at any stage and confirmed that he only arrested the accused after the ID parade which he was not part of.

Under cross-examination by the representatives of accused 2 and 3 little emanated that differed from his evidence-in-chief, he stood

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firmly by his version as to how matters transpired once the accused were charged. He continued to confirm that the rights were read to the accused and that the responses on the warning statements were recorded as they were conveyed to him. He was adamant that he was not at the ID parade nor did he speak to Sergeant Ndlovu. The ID parade was conducted in a fair manner and apart from dropping the witnesses off at the said ID parade, he was not involved at all.

Overall Sergeant Nene was a reliable and credible witness. He was forthright about what he found at the scene and the manner in which he conducted his investigation. Although the defence tried hard to find flaws in the manner in which he did things, no impropriety...