S v Zwayi

• Jurisdiction: South Africa
• Judge: Ebrahim AJ
• Judgment Date: 02 September 1997
• Counsel: S A Collett for the accussed M P Z Sotenjwa for the State
• Citation: 1997 (2) SACR 772 (Ck)
• Court: Ciskei High Court

Ebrahim AJ:

In the indictment the accused, Thembeli Sylvester Zwayi, has been arraigned on 11 counts, namely two counts of murder, four counts of kidnapping, four counts of robbery and one count of attempted robbery. At the commencement of the trial counts 10 and 11, being that of murder and robbery respectively, were withdrawn by the State. J

Ebrahim AJ

A The accused pleaded not guilty to the remaining charges and elected in terms of s 115 of the Criminal Procedure Act 51 of 1977 not to disclose the basis of his defence and put the State to the proof of the allegations against him.

The State's case

B The State called five witnesses, four being the complainants in counts 2, 3, 4, 5, 6, 8, and 9. In addition to those counts their testimony also relates to counts 1 and 7. The following is a summary of their evidence.

Count 1: Three of the aforesaid witnesses, namely Cyril Desmond Helfrich, Madoda Mike Nkanti and Gideon Mali, testified that on 16 March 1994 and near Masingahta Junction they witnessed the accused shooting the driver of a C kombi. At the time that the shooting occurred these witnesses, who had been kidnapped and were being kept prisoner by the accused, were seated on the rear seat of a Cressida motor vehicle driven by him. They say that when the accused shot the driver he said, 'Did you see that, it was a good shot - I shot him in the neck.' The D accused has not disputed that the victim was Leslie Mogridge and that he had died as a result of being shot but denies that he shot the deceased. Upon being shot the victim slumped over the steering wheel of the kombi which came to a halt in the middle of the road. The vehicle with the victim slumped over the steering wheel was left there E and the accused then drove away from the scene with the witnesses still captive in the motor car. When the shooting occurred the witness Donker was imprisoned in the boot of the Cressida.

Gregory Andrew Nel testified that on 16 March 1994 at approximately 14:00 he was travelling from Dimbaza F towards King William's Town when a red Cressida motor car passed his vehicle. He noticed five people in the Cressida of whom one was a 'white' man who was sitting in the middle of the rear seat. Outside King William's Town, just before the brickfield, he noticed the same Cressida racing towards him. He also noticed a Husky vehicle standing in the middle of the road and thought that something must have happened. He approached the vehicle and G saw a 'white' man slumped over the steering wheel. He stopped his own vehicle and went to the driver's side where he observed that the man was bleeding from a bullet wound in the neck. He applied his handkerchief to the wound to stop the bleeding until the ambulance arrived. The person was then taken to hospital and he drove the Husky motor vehicle to the police station. He says further that he noticed that the driver of the Cressida appeared to H be a tallish person.

Counts 2 and 3: The evidence of Madoda Mike Nkanti is that on 16 March 1994 and near Debenek he was driving a Ford Courier bakkie when he observed a red Cressida driving behind him and its headlights being switched on I and off repeatedly. Thinking it was the police he pulled to one side and stopped. A man appeared on the left hand side of his vehicle and asked to borrow a jack. Another man appeared on the right hand side with a firearm in his hand and told the witness that he was borrowing his car. He pointed the firearm at the witness, took the keys of the car and forced the witness to alight from the vehicle. The witness was taken to the Cressida and had to get in and sit J on the rear seat of the

Ebrahim AJ

vehicle. The person with the firearm returned to the Cressida and drove off with them while one of the accomplices A drove the Ford Courier bakkie. The witness says he had an opportunity to observe the man with the gun and was able to look at him properly. He was certain he would not forget this man and later identified the accused as being this person. He says further that he was with his captors from about 11:00 to 17:00 on the day of these events. B

He also testified that after his captors had been driving around for quite some time they encountered a Canter truck with a GC registration. The accused indicated to the driver to stop and after the driver had complied the accused forced him to alight by pointing his firearm at him. This person was forced to get into the Cressida and to sit on the C rear seat. The accused then drove this truck and one of the other members of the gang drove the Cressida.

Under cross-examination he stated that he was seated behind the accused in the Cressida but had looked at his face properly when he was robbed of his vehicle and when he committed the other robberies. He observed that the face D of the accused was longer than that of his accomplices. He was asked why he had made two statements to the police and whether, at the time that he made the second statement, he knew the names of the witness Helfrich and why the man with the gun was referred to in the statement as the accused Thembeli Zwayi. He explained that he was E asked by the police to make the second statement and they had provided Helfrich's name. Also he had heard the accused's name being mentioned by one of the accomplices on the day of the robbery.

It emerged further during cross-examination that he had identified the accused from a series of photographs which were mounted on a card that was hanging in an office of the Zwelitsha Murder and Robbery Unit. One of the F policemen had possibly said that the person pointed out by the witness was Thembeli Zwayi. Mrs Collett, who appeared for the accused, showed him a chart with 25 photographs on it (exh 'B'), and he confirmed that it was similar to the one he had seen at the police station. The one on which the photograph of the accused appeared had G fewer photographs on it though, possibly eight. He was also questioned on whether he had attended an identification parade and confirmed that he had done so and that he had pointed out the accused. It was put to him that on both occasions the police had suggested who the person was, but he denied this.

Counts 4, 5 and 6: Cyril Desmond Helfrich and Gideon Mali both testified in respect of these counts. Their evidence H is that on 16 March 1994 the witness Helfrich was driving a Mitsubishi LDV truck and that Gideon Mali was in the truck with him. They were driving back from Fort Beaufort to East London when a red Cressida motor car passed their vehicle and slowed down in front of them. It appeared to the witness that the driver was signalling to I them that something was wrong with the lights of their vehicle. Helfrich became suspicious and accelerated past the Cressida. A short distance further the Cressida passed his vehicle again and when it was in front the driver extended his arm out of the vehicle with a weapon in his hand. The witness thereupon slowed down and stopped. The Cressida reversed, came to a halt in front of this truck, and J

Ebrahim AJ

A a number of people alighted from the Cressida. They surrounded his vehicle and one of them opened the door and pulled him out of the driver's seat. The person with the firearm pushed him between the two vehicles and took the money which he, Helfrich, had in his breast pocket. A pocket knife which was in his trouser pocket was taken by one of the other men. They found additional money in his trouser pocket and also took this. He was then forced B to climb into the boot of the Cressida and all the while the person with the firearm was overseeing this. Thereafter the Cressida drove off with the witness imprisoned in the boot of the car.

After the Cressida had been driving around for a long time it stopped and Helfrich managed to open the boot from C inside and jumped out. His kidnappers were standing there and he told them that they could shoot him but he was not getting back into the boot of the car. His captors relented and allowed him to sit inside the car on the rear seat between the witness Mali and someone else, whom he later found out was not a member of the gang who had kidnapped him and the witness Mali.

D He testified that his captors thereafter drove around for quite a while until they came across a five ton truck which they forced to a halt. The driver of the truck was ordered into the boot of the Cressida and they drove off accompanied by the truck which was driven by one of the kidnappers. They again drove to various places and in the E vicinity of Dimbaza and the King William's Town road they went to a village. On their return from there the truck became stuck in a pool of mud. He and the others were forced to push the truck out but did not succeed immediately. During the course of this he was pushed into the mud and man-handled. Eventually the person with the F gun handed the gun over to an accomplice and went off in the Cressida to fetch stones which were then placed under the wheels of the truck. Eventually they managed to free the truck. They were made to get back into the Cressida and they then drove to King William's Town. There Helfrich, Mali and the witness Nkanti, were able to overpower the driver and escape. The witness Donker, who was in the boot of the car, managed to escape at the G same time. They then reported to the King William's Town Police what had happened to them.

The witness Gideon Mali, in his evidence, corroborated that these events had occurred and said that he was forced to get into the Cressida and had to sit on the rear seat. He confirms that one of the accomplices drove the truck H belonging to the witness Helfrich at the time when they left the scene with both vehicles.

Both these witnesses state that they feared the individual with the firearm and that he continually pointed the firearm I at them and ordered everyone around...