S v Vilakazi

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TV Ratshibvumo AJ
• Judgment Date: 24 May 2021
• Docket Number: CC 31/2020

Ratshibvumo AJ:

[1].

The charge.

The accused stood trial on a charge of murder. The State alleged that on 01 February 2018 and at Amersfoot, the accused did unlawfully and intentionally kill Thabiso Vincent Yende.

[2].

The accused were legally represented throughout the trial by Mr. Cillers, an attorney. Adv Poodhun appeared for the State. Adv Poodhun indicated that in case of conviction, a sentence prescribed in terms of sec 51 (1) of Act 105 of 1997, would be sought. It was also averred that in committing the crime they faced, the accused acted in furtherance of common purpose.

[3].

The plea.

All the accused pleaded Not Guilty. A plea explanation was made in terms of which all the accused denied having committed the crime of murder. They admitted having chased the deceased in order to bring him back to the taxi rank at Amersfoot where he had fled from and that in the process of apprehending him, he got injured, which injury led to his death. They however denied having inflicted the said injury or having acted in furtherance of common purpose to kill him.

[4].

The post-mortem findings, the cause of death, the fact that the body of the deceased sustained no further injuries from the place it was found until the time the post-mortem was conducted, together with the photo albums

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were admitted by the accused. These were accepted as evidence and marked as Exhibit X.

[5].

Issues for determination

The public transport or taxi industry as it's generally referred to in South Africa, can be a lucrative business. This is one industry that is usually considered as being 100% Black owned. Unfortunately, its successes are often marred by the violence that installs and dethrones its managers and directors. For an industry that is supposed to be thriving, contributing positively to the economy of the country and giving back to the poor, this is a lamentable and sad situation.

[6].

Like a shadow that stalks its owner wherever he treads, so it was that Amersfoot taxi rank (the taxi rank) was visited by this shadow of death when violence erupted on 01 February 2018 between Amersfoot Taxi Association (ATA) and Thuthukani Taxi Association (TTA). The dispute was over the route between Amersfoot and Johannesburg which TTA, an association to which all the accused were affiliated, believed it had the exclusive right over its usage. Members of ATA believed they also had a right to share this route.

[7].

The dispute came to a confrontation when Mr. Ngobese, a member of ATA dropped a group of young men outside the taxi rank. This group was perceived by the accused and other members of TTA inside the taxi rank as the invaders who were there to help ATA to claim their right over this route by force. Stones were thrown by the two groups at each other until the invaders retreated into Amersfoot town. The accused and other members of the TTA gave chase in a motor vehicle, a Chevrolet light delivery van (a bakkie) and managed to apprehend the deceased whom they brought back to the taxi rank. In the process of apprehending him one of those who apprehended him stabbed him on the right thigh causing him to bleed

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profusely. He succumbed to his death moments after arriving at the taxi rank from this wound. All the accused persons claim that they did not witness the stabbing of the deceased.

[8].

The court is called to determine from the evidence presented the following:

a)

Who inflicted the injury on the deceased?

b)

Can the stabbing of the deceased be attributed to those who were part of the chase and the apprehension of the deceased even when they may not have personally inflicted the injury that caused his death? In other words, can they be said to have acted in furtherance of common purpose with the person who stabbed the deceased?

[9].

Summary of facts:

Nine witnesses testified in this trial, four for the State, whereas the accused were the sole witnesses who testified in their defence.

Case for the State:

[10].

Thabiso Friday Ngobese: He is a taxi driver affiliated to ATA. He testified that on 01 February 2018 around 13h15, he arrived at the taxi rank carrying 15 passengers who wanted him to transport them to Volksrust Prison. He took them to the taxi rank where he handed them over to a certain Bishop, who was to further take them to their destination. While still there, they were then approached by taxi drivers from TTA who started making noise throwing his passengers with stones, prompting his passengers to also

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throw the stones back. These drivers were also carrying sticks and knobkerries.

[11].

He knew all the five accused prior to this date as he worked with them. They were all part of the group that attacked his passengers. The accused were armed as follows. Accused no. 5 had a stick. Accused no. 4 had a knobkerrie. He only saw accused no. 3 throwing stones at his passengers. He did not see if he was armed or not. Accused no. 2 was not armed. Accused no. 1 was armed with a knife. His passengers ran away and the accused together with their companions gave chase. Moments later, members of TTA then gave chase in two motor vehicles: a white Toyota Corolla and a silver grey Chevrolet bakkie. Accused no. 2 was driving the bakkie which was carrying all the accused.

[12].

He drove behind observing the chase and parked his motor vehicle at a garage and got into another one driven by Mthokozisi. The two of them drove behind observing further. The bakkie then hit one of his passengers who is now the deceased from its front right as he was crossing the street, and he fell to the ground. The bakkie did not stop as they proceeded to chase others from the group of his passengers while the deceased remained lying down on the side of the road. The others managed to outrun the accused. The bakkie was then driven back on reverse whilst carrying all the accused and it drove over the deceased's legs. At that stage the deceased was lying on the grass on the side of the road. When the bakkie's driver's door was opened, he realised that it was accused no. 3 who was driving this time around.

[13].

Accused no. 1 then approached the deceased and stabbed him on his thigh before the rest of the accused loaded him into the loading bay of the bakkie and took him to the taxi rank. At that stage the deceased was still alive. At the taxi rank, accused no. 1 is the one who pulled the deceased

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from the bakkie to the ground by his legs causing his head to hit the ground. Accused no. 1 shouted saying 'here is that wild animal, we brought it back.' He then jumped and trampled on the deceased's body while other drivers joined in assaulting him through kicking and hitting him with clenched fists. They only stopped when one of the taxi owners reprimanded them saying they should respect to the police.

[14].

Under cross examination he further testified that accused no. 1 hit the deceased with a panga on its flat side while at the taxi rank. He further testified that while there, the accused and other members of the TTA also hit the deceased with sticks and knobkerries.

[15].

Lesetsa Fortune Mvelase: In 2018, he was 20 years old was doing grade 11 together with the deceased. On 01 February 2018, he was one of the passengers that alighted from a taxi outside the taxi rank in the company of the deceased who like him, was coming from the school. According to him, Mr. Friday Ngobese (Ngobese) was a passenger with him in that taxi and he was not driving it. He testified that he was in that taxi because the deceased had asked him to accompany him to the bank near the taxi rank as he wanted to withdraw some cash. When they got to the outside of the taxi rank, the taxi stopped and the passengers alighted. It then proceeded to the taxi rank. He and the deceased then took a walk to the bank – First National Bank.

[16].

In less than five minutes, a group of about six to seven men emerged carrying stones and sticks. He also heard them say "are these the people you say you trust?" These men hurled stones at them. In return, they also threw the stones back at them. Shortly thereafter, he saw a white Toyota Corolla emerging from behind. At the same time, a silver grey Chevrolet bakkie also emerged from the front carrying a group of men. He warned the deceased

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that the cars were after them. This he did before running across the street. The deceased ran straight along the road while he ran to where he hid under a tree. It was while he lied there that he observed the bakkie following the deceased.

[17].

He observed the bakkie knock down the deceased and stopped a short distance thereafter. The occupants thereof got out and chased Metzi, Peakos and another person whose name the witness could not remember, but they could not catch them. Those were the people who alighted with him from the taxi outside the taxi rank. After being hit, the deceased sat down as it appeared as if his leg was twisted. For he tried to run away but could only move to the side of the road on the grass. When these men came back from the chase, they got back into a bakkie which then reversed back to where the deceased was, driving over him.

[18].

They then got out and assaulted the deceased with sticks and by kicking him as he lied on the ground. They then loaded the deceased on the loading bay of the bakkie and drove with him to the taxi rank. He did not follow them to the taxi rank as it was a distance away. When the bakkie drove over the deceased, accused no. 3 was driving it. He is not certain as to who the driver was when it knocked him down earlier. From where he was, he could not see if the deceased was injured when he was taken away.

[19].

Under cross examination, he testified that all the...