1

IN THE HIGH COURT

(BISHO)

CASE NO.: C C 9 7 / 2 0 0 3

DATE: 3 NOVEMBER 2 0 0 3

In the mat ter be tween : 5

THE STATE

versus

SEBENZILE QONGQO

JUDGMENT 10

EBRAHIM J

The accused Sebenzile Qongqo has been charged w i t h one count

of robbery ; one count of a t tempted murder; one count of murder ; t w o

coun ts of the con t raven t ion of sect ion 2 of the Arms and Ammun i t i on

A c t , 75 of 1 9 6 9 , namely tha t he had a f i rearm in his possession w i thou t 1 5

a l icence to possess same; t w o coun ts of the cont ravent ion of sect ion 36

of the aforesaid A rms and Ammun i t i on A c t , 75 of 1969 , namely that he

w a s in possession of ammun i t ion whi le not lawfu l ly in possession of a

f i rearm capable of f i r ing the said ammun i t i on ; t w o counts of the

con t raven t ion of sect ion 35(1 )(a) of the aforesaid A rms and Ammun i t i on 20

A c t , 75 of 1 9 6 9 , namely tha t he suppl ied another person w i t h a f i rearm

w i t h o u t being a dealer l icensed to do so; and t w o counts of the

con t raven t ion of sect ion 35( 1 )(b) of the aforesaid A rms and Ammun i t i on

A c t , 75 of 1 9 6 9 , namely tha t he supplied ammuni t ion to a person

w i t h o u t such person produc ing a l icence or permi t or author izat ion to 25

possess a f i rearm capable of f i r ing such ammun i t i on .

The accused pleaded not gui l ty to the aforesaid charges and

2

e iected, in terms of the provis ions of sect ion 115(1) of the Criminal

Procedure Ac t , 51 of 1 9 7 7 , not to disclose the basis of his defence to

any of the charges. The accused 's elect ion was conveyed to the Court

by Mr Gabelana, w h o appears for h im, and thereupon conf i rmed by the

accused. 5

The f irst w i tness to test i fy for the State was Thembelan i Neville

Gxakwe . The fo l low ing is a summary of his ev idence: On 28 Ju ly 2 0 0 2

be tween 1 0 to 11 pm he was on his w a y to a fr iend in Mdantsane . In

his possession was a 9 m m Star Parabellum f i rearm w i t h serial number

2 0 8 0 9 8 2 . The f i rearm was in a holster wh i ch was tucked into the f ront 1 0

of his t rousers . He stated tha t he had a l icence to possess the f i rearm.

Near NU 5A, Mdantsane, he met the accused w h o m he knew. Af ter

greet ing each other the accused spoke to him about money for beer. He

to ld the accused tha t he did not have any. He was on cru tches and the

accused then pushed him and he fell to the g round . Whi le he w a s lying 1 5

on the ground the accused grabbed his f i rearm and ran of f . A t that

stage Phiwe Vuso appeared and he told him w h a t had happened and

asked Phiwe to chase after the accused. Phiwe did so, but was unable

to ca tch the accused and came back. The w i tness then heard shots

being f ired in the v ic in i ty of a school and told Phiwe to invest igate. Phiwe 20

left and returned a little later. The w i tness then not iced tha t Ph iwe 's

hand was b leeding. The fo l l ow ing day the w i tness repor ted the incident

to the pol ice. He stated fur ther that the f i rearm had thus far not been

returned to h im. Asked about his relat ionship w i t h the accused he said

tha t he had k n o w n the accused f rom his boyhood days. The accused 25

also stayed in the same area as he d id . A l though it was dark at the area

where the inc ident occurred there was suf f ic ient l ight for him still to see.

They had not been far f rom a tail py lon wh i ch had a cluster of electr ic

l ights on it. He and the accused had been alone and had walked for

about 8 paces and ta lked before the accused pushed him over.

Cross-examined by Mr Gabelana the w i tness , Thembelan i Gxakwe ,

stated that Phiwe Vuso had only arrived on the scene after the accused 5

had robbed him and had not seen the accused robbing h im. The accused

w a s lying if he claimed tha t he had not robbed h im. It w a s also untrue

tha t he gave the f i rearm to Phiwe Vuso . He denied tha t he had sold the

f i rearm to Phiwe Vuso . He denied fur ther that he was falsely impl icat ing

the accused and said that the accused 's claim tha t the incident never 10

happened, was unt rue.

In reply to quest ions f rom the Court , this w i tness s tated that prior

to the incident he and the accused had been on good terms and the

accused used to visi t h im. The accused was aware tha t he owned a

f i rearm. He though t that the accused may have seen the f i rearm in his 1 5

safe w h e n he opened it. But, he had never s h o w n the f i rearm to the

accused.

Phiwe Vuso test i f ied tha t on 28 Ju ly 2 0 0 2 at about 1 0 pm he was

on his w a y to 791 NU 5A, Mdantsane . He saw the w i tness , Thembelani

G x a k w e , coming t o w a r d s him and the accused wa lk ing in the opposi te 20

d i rec t ion. The accused approached Thembelani G x a k w e and the latter

fell d o w n . He did not k n o w w h y Gxakwe had fa l len. But he then saw

the accused bending over Gxakwe and though t that he was going to help

Gxakwe to get up. Instead the accused s t ra ightened up and ran away .

The w i tness w e n t to Mr Gxakwe and spoke to him and then chased after 25

the accused. However , as he could no longer see the accused he w e n t

to the accused 's home. There he spoke to the accused 's brother . He

4

then heard gunshots and wen t to invest igate. He saw a person shoot ing

and though t that the person was f ir ing into the air. When he spoke to

the indiv idual , he recognised the person 's voice as that of the accused,

but as it was dark he could not see his face. He spoke to the accused

and told him to hand over the f i rearm. The accused responded by tel l ing 5

him to go back or he wou ld shoot h im. Four shots were f ired by the

accused of wh i ch the th i rd s t ruck the w i tness on the middle f inger of his

r ight hand. He sustained an open w o u n d , but the injury was not

ser ious. On the w a y back to the accused 's home the police arrived and

he reported the incident to t h e m . A f te r at tending hospital for t rea tment 10

he returned home.

T w o days later he w e n t to the accused and spoke to h im. The

accused said tha t he had heard that he had shot the w i tness , but claimed

that he had not done so, but only f ired into the air. The accused said

tha t he wou ld bring the f i rearm to h im, but never did so. He stated that 15 .

he had k n o w n the accused since ch i ldhood and tha t they stayed in the

same area. The nearest l ights to the place where the incident occurred

were those tha t were mounted on a tall py lon .

It emerged dur ing cross-examinat ion that Mr Gxakwe was his

uncle. He was aware tha t Mr Gxakwe o w n e d a f i rearm and had seen it 20

w h e n he opened his safe. He denied the accused 's claim that he had

s h o w n the accused the f i rearm at a shebeen. He also denied that he

had told him tha t he obta ined the f i rearm f rom G x a k w e . He denied

fur ther that he had to ld the accused tha t he bought it f rom Gxakwe and

w a s pro tect ing the latter. He also denied tha t he ever asked the 25

accused to keep the f i rearm as there were tsots is nearby. He refuted

the claim that he was falsely impl icat ing the accused in the robbery . He

insisted that the accused had fired shots at him and that a bullet had

struck h im. He rei terated that he had met the accused t w o days later

and that the accused had claimed that he had f ired into the air.

In response to the Cour t ' s quest ions he said tha t he had met the

accused at a shebeen a f ew t imes and spoken to h im. Prior to the 5

incidents he and the accused had been on f r iendly terms. The accused

had not to ld him where he obta ined the f i rearm when he claimed tha t he

had f ired shots into the air. The accused appeared to be shocked w h e n

he showed him the injury to his f inger.

Xolisile Mandara test i f ied tha t he was an inspector in the South 10

Af r ican Police Services and was a t tached to the Criminal Invest igat ing

Service at Mdantsane. He had been a detec t ive for the past 9 years.

On Saturday, 3 Augus t 2 0 0 2 , at about 9 :15 am he received a radio

report of a shoot ing tha t had occurred the prev ious evening. As a result

of this he proceeded to 9 4 6 8 NU 3, Mdan tsane . There he not iced drops 15

of blood in the street . Next to the b loodsta ins he found four empty

cartr idge cases wh i ch were about a metre apart as wel l as t w o bullet

heads. He took possession of these and returned to the NU 1 Police

Stat ion where he recorded these i tems in the SAP 13 Exhibits Register

under the reference no. 5 7 7 / 2 0 0 2 and handed the i tems to the exh ib i t ' s 20

clerk.

Cross-examinat ion of th is w i tness did not reveal any th ing of

s igni f icance.

Mthethele l i Shushwana test i f ied tha t on Friday, 2 Augus t 2 0 0 2 , at

about 9 pm he was on his w a y to an in i t iat ion ceremony. He met the 25

deceased, Unathi Dick, w h o accompan ied h im. The w i tness then w e n t

into a house to buy l iquor whi le the deceased cont inued wa lk ing . When

6

he came out of the house the deceased was about 48 paces away .

Three young men approached the deceased f rom the f ront and took his

lumber jacket f rom him and shot h im. Three shots were fired before the

deceased fell d o w n . He stated that he wou ld be able to recognise the

person w h o shot the deceased. He stated fur ther that t w o shots were 5

fired in his d i rect ion, forc ing him to take cover in the grass. The

assailants had then ran of f .

During cross-examinat ion he admi t ted that he had been drunk that

even ing. He and a f r iend had drunk t w o litres of Paarl Perle w ine . He

had lain on his back w h e n he took cover in the grass. The person w h o 10

shot the deceased had w o r n a hat wh ich was pulled d o w n to his eyes.

In reply to quest ions f rom the Court the w i tness stated that he had

never been asked to point out the person w h o had shot the deceased.

He had also not been asked to point out the other t w o men. He had not

prov ided the police w i t h a descr ip t ion of the three men. Prior to the 15

incident he had not seen any of the men before. There were no street

l ights in the v ic in i ty where the shoot ing occur red .

The State then tendered in ev idence, in te rms of sect ion 21 2(4) of

the Criminal Procedure A c t , 51 of 1 9 7 7 , an af f idavi t a t tested to by

Captain J Ras, wh i ch is EXHIBIT "A" . There was no object ion to the 20

admission of this af f idavi t f rom the de fence , nor were the con ten ts

thereof or the conc lus ions reached placed in d ispute.

In te rms of the same provis ions an af f idav i t f rom Dr D T John and

a report on a medico- legal pos t -mor tem examinat ion that he conduc ted

on the body of the deceased was tendered in evidence and is EXHIBIT 25

" B " . Here, t oo , there were no object ions f rom the defence to its

admission and the f ind ings and conclus ions conta ined in the report were

7

accepted.

Sabeio Nobangule was then called to test i fy . The State requested

that the provis ions of sect ion 2 0 4 of the aforesaid Criminal Procedure

Ac t be conveyed to the w i tness as his replies to quest ions could

incr iminate him in regard to cont ravent ions of sect ion 2 and 36 of the 5

Arms and Ammun i t i on Ac t , 75 of 1 9 6 9 . The Court thereupon conveyed

the provis ions of sect ion 2 0 4 to the w i tness and he conf i rmed that he

understood same.

His tes t imony was to the ef fect that on 4 Augus t 2 0 0 2 at about

9 :30 am he had met w i t h the accused, w h o m he knew and requested the 10

accused to supply him w i th a f i rearm. He wan ted the f i rearm for self-

p ro tec t ion . He stated that he felt threatened as he had been told that

individuals w i th w h o m he had fought were looking for h im. The accused

had indicated to him that he had a f i rearm, but that it was pledged to a

fr iend f rom w h o m he had bor rowed R60-00 . The w i tness had then 15

w i t h d r a w n R60-00 f rom an automat ic teller machine, (an ATM) and they

wen t to the accused 's fr iend to retr ieve the f i rearm wh ich the accused

had handed to this person. The f i rearm was a Norinco Star f i rearm and

had one live round of ammuni t ion in its magazine. He was unable n o w

to recall the calibre of the f i rearm and had not bothered to look at the 20

serial number.

On 1 5 Augus t 2 0 0 2 be tween 4 am to 5 am he was te lephoned by

a member of the Serious Vio lent Crimes Unit and told to bring the f i rearm

to the pol ice. A t about 7 am he w e n t to the unit and handed the

f i rearm, w i t h the one round of ammun i t ion , to a pol iceman and made a 25

s ta tement . On his arrival at the unit he saw the accused whose

f ingerpr ints were being taken .

8

He ident i f ied the s tatement s h o w n to him by Mr Kruqer as the one

wh i ch he had made to the pol ice. in the s ta tement the f i rearm was

described as a black 9 mm shor t f i rearm and its serial no. was recorded

as 2 0 8 0 9 8 2 .

During cross-examinat ion the w i tness conf i rmed tha t he was not 5

a l icensed f i rearm's dealer. He stated tha t he w a s an a t to rney and was

employed by the f i rm Dambuza Nqandi Incorpora ted. He was aware that

it was illegal to purchase a f i rearm on the street . The individuals w i t h

w h o m he had fough t were f rom the cr iminal underwor ld and posed a

threat to h im. He admi t ted that he had not received any direct threats 10

to his life f rom these indiv iduals. The accused, and not accused 's

f r iend, had handed the f i rearm over to h im. Even t hough he gave the

accused R60-00 he did not consider tha t he was buy ing the f i rearm. He

then stated tha t the accused had fe tched the f i rearm f rom his f r iend. He

denied that he had obtained the f i rearm f rom someone else. 1 5

Quest ioned by the Court he conceded tha t it was logical to

conclude that he had bought the f i rearm f rom the accused. He could

not explain w h y he had resorted to buy ing a f i rearm un lawfu l l y , except

to say that he was ove rwhe lmed by t hough ts of his chi ld and feared for

his l ife. He had kept the f i rearm w i th him at Bu t te rwor th and no-one had 20

access to it. He did not use the f i rearm at all. The police had

contac ted him a f ew weeks after he go t the f i rearm f rom the accused.

The next w i tness was Da l iwonga T o t w a n a . In his case, too , Mr

Kruqer requested tha t he be in formed of the provis ions of sect ion 204 of

the Criminal Procedure Ac t . This was done and the w i tness conf i rmed 25

tha t he unders tood the prov is ions.

He test i f ied tha t on Sunday, 12 A u g u s t 2 0 0 2 , at about 2 :30 pm

9

the accused approached him at his place of emp loyment , Savuka General

Dealers. The accused was a cus tomer and had asked him if he wan ted

to buy a f i rearm for R300 -00 . He told the accused tha t he did not have

R 3 0 0 - 0 0 and the accused then reduced the price to R200 -00 and then

to a R100 -00 . As he had a R110 -00 w i t h him he gave the accused the 5

R1 1 0 -00 and purchased the f i rearm. It was a 9mm Norinco and had f ive

rounds of ammuni t ion in it. He did not look at the serial no. He took the

f i rearm home and placed it under the mat t ress of the bed in his bedroom.

On 15 Augus t 2 0 0 2 at about 4 : 3 0 pm a pol iceman named

Nokombo t i arr ived and accompany ing him was the accused. Another 10

po l iceman Esben was also w i t h and they to ld him they were looking for

the f i rearm. He showed them where the f i rearm w a s and they took

possession of it as wel l as the f ive rounds of ammun i t ion . During the

per iod that he had the f i rearm he had not used it.

Cross-examinat ion of th is w i tness was brief. He stated that he 1 5

had k n o w n the accused for over a year, but they were not good f r iends.

He denied the accused 's claim that he had shown the accused the

f i rearm when they were dr ink ing. He rei terated that the accused had

sold the f i rearm to h im.

Ross Peter Sont laba test i f ied tha t he was an inspector in the South 20

A f r i can Police Services and was the exh ib i t ' s clerk at NU 1 Police

S ta t ion . On 5 Augus t 2 0 0 2 he examined the SAP 1 3 Exhibits Register to

establ ish if any exhibi ts had been handed in whi le he was not on du ty .

He establ ished that t w o bullet heads and four empty car t r idges had been

handed in by Inspector Mandara . These were received by Inspector Toba 25

and placed in the safe in the charge o f f i ce . The relevant reference

number was SAP 1 3 / 5 7 7 / 2 0 0 2 . He then placed these exhib i ts in the

10

exhibi t safe. On 1 6 Augus t 2 0 0 2 the exhibi ts were fe tched by Inspector

Esben of the Serious Vio lent Crime Unit.

This w i tness was not cross-examined by the defence.

A t this stage of the trial the defence made certain admissions in

terms of sect ion 2 2 0 of the Criminal Procedure A c t , 51 of 1 9 7 7 . These 5

were reduced to wr i t ing and handed in and is EXHIBIT "C" . The

admissions were duly recorded and conf i rmed that the deceased was

Unathi Dick, and that he had died f rom injuries wh i ch he had sustained

on 2 Augus t 2 0 0 2 . Further that apart f rom those injuries he had not

sustained any other injuries unti l Dr John per formed the pos t -mor tem 10

examinat ion on 6 Augus t 2 0 0 2 . It was admi t ted that Dr John ' s

observat ions and f indings as set out in the pos t -mor tem report , EXHIBIT

" B " , were correct . It was admi t ted fur ther that the f indings and

conclus ions in the bal l ist ic 's report , EXHIBIT " A " , were correct .

Moreover , the 9 m m Parabelium Star f i rearm w i th serial no. 2 0 8 0 9 8 2 , 15

referred to in paragraph 3.1 of EXHIBIT " A " , was the f i rearm wh ich

Detect ive Inspector B E Esben had recovered f rom the w i tness Sabelo

Nobangule on 13 Augus t 2 0 0 2 . Finally, it was admi t ted that the

cartr idge cases referred to in paragraph 3.3 of EXHIBIT "A" had been

recovered by Detect ive Inspector X Mandara at the scene where the 20

deceased Unathi Dick had been found w i th gunshot w o u n d s on 2 Augus t

2 0 0 2 .

The State case was then c losed.

Thereafter the defence also closed its case w i t h o u t tender ing any

evidence. 25

Both Mr Kruger and Mr Gabelana addressed the Court on the

meri ts. I shall not recount their submiss ions. Suff ice to say Mr Kruger

1 I

sought a conv ic t ion on each of the counts in the ind ic tment . Mr

Gabelana on the other hand conceded tha t the State had proved the guil t

of the accused beyond a reasonable doub t in respect of counts 4 to 1 1 .

Whi ie not conceding the same in respect of counts 1 and 2, he made no

submiss ions to the cont rary , but left it to the Court to determine whe the r 5

or not the guilt of the accused had been proved beyond a reasonable

doub t . In respect of count 3, however , Mr Gabelana submi t ted that the

evidence did not establish the accused 's guilt and he shou ld , there fore ,

be acqui t ted on the charge of murder.

I tu rn to an evaluat ion of the ev idence. It is sel f -evident that the 10

only vers ion of events is tha t wh i ch the State has presented since the

defence elected not to tender any evidence in answer there to . I am ful ly

cogn isant of the fact tha t the accused bears no onus at all in prov ing his

innocence. It is for the State to prove his gui l t beyond a reasonable

d o u b t . The crucial quest ion, there fore , is whe ther the evidence reaches 1 5

tha t necessary s tandard.

In respect of count 1 ; there is the evidence of the compla inant ,

Thembelan i Neville G x a k w e , that the accused is the individual w h o

robbed him of his 9 m m Star Parabel ium f i rearm w i th serial no. 2 0 8 0 9 8 2

on the n ight of 28 July 2 0 0 2 . During cross-examinat ion it was put to 20

Mr G x a k w e tha t the accused had not robbed him and tha t he was falsely

impl icat ing the accused. It w a s put to him fur ther that he had actual ly

sold the f i rearm to the w i tness Phiwe Vuso and had not been robbed by

anyone . In other w o r d s tha t the robbery never occur red . The

tes t imony of Phiwe Vuso did not provide any suppor t for the accused 's 25

a l legat ions. Instead his ev idence cor roborated Mr G x a k w e ' s claim tha t

the accused was the person w h o had robbed h im. A l t hough Phiwe

12

Vuso never c laimed that he saw the accused robbing Thembelani

Gxakwe he placed the accused on the scene. In addi t ion, he

corroborated certain other aspects of Thembelani Gxakwe ' s vers ion.

These are tha t G x a k w e had fallen to the g round ; and that the accused

had run away after f i rst bending over Gxakwe . He also conf i rmed that 5

he then spoke to Gxakwe and chased after the accused. Further, both

he and Gxakwe test i f ied that shots were f ired thereaf ter . While Gxakwe

was not able to say w h o had done so, it is clear f rom the evidence of

Phiwe Vuso tha t it was the accused and that one of the shots had struck

V L S O ' S f inger. Phiwe Vuso test i f ied fur ther that he had spoken to the 10

accused a f ew days later about the events of tha t even ing . The accused

then admi t ted to him that he had fired shots , but said he had not f ired at

Phiwe Vuso , but into the air. The accused also under took to bring the

f irearm to him but had not done so.

Both Gxakwe and Vuso were credible and honest w i tnesses and their 1 5

tes t imony was reliable. As the accused elected not to test i fy their

evidence s tands uncon t rad ic ted . There is no th ing w h i c h indicates that

either of t hem have sought to falsely impl icate the accused in regard to

the robbery and the surrounding events . I accept their versions as the

t ru th . The ev idence establ ishes beyond a reasonable doubt that the 20

accused robbed Gxakwe of his f i rearm and six rounds o f ammuni t ion as

averred in the ind ic tment .

The posi t ion in respect of count 2 is similar. The only evidence

before the Court of w h a t t ranspired w h e n Phiwe Vuso was shot , is his

o w n tes t imony . Here, t oo , the accused elected not to place his vers ion 25

before the Cour t . Consequent ly the Sta te 's version stands

uncont rad ic ted . As I have stated Phiwe Vuso w a s a credible and honest

13

w i tness and his tes t imony was reliable. I f ind that he has to ld the t ru th

in respect of the shoot ing . The ev idence establ ishes that w h e n he to ld

the accused to hand over the f i rearm the accused had threatened to

shoot him if he did not move back. Immediate ly thereaf ter the accused

f ired four shots and the third st ruck the middie f inger of his r ight hand, 5

7'he cn ly reasonable inference to be d rawn f rom the accused 's

conduc t is that he had the .ntent icn of shoot ing Phiwe Vuso in order to

kill h im. Fortunately the accused did not succeed in doing so. I am

satisf ied that the evidence establ ishes beyond a reasonable doubt that

the accused is gui l ty therefore of a t tempted murder, 10

I tu rn n o w to counts 4 to 1 1 . I shall in due course return to count

3 wh i ch is the charge of murder . Mr Gabelana has conceded , and

r ight ly so, that the evidence adduced by the State establ ishes the guilt

of the accused in respect of each of these counts . Since the evidence

establ ished that the accused un lawfu l l y d ispossessed Thembelan i 15

G x a k w e of the 9 m m Star Parabelium pistol and six rounds of ammun i t ion

it fo l l ows that his possession thereo f was clearly un law fu l . The

evidence also establ ished tha t the robbery occurred on 28 Ju ly 2 0 0 2 .

Further on 5 Augus t 2 0 0 2 tha t he had sold the f i rearm and one round of

ammun i t ion to Sabelo Nobangule . Sabelo Nobangule was initially 20

re luctant to concede tha t he had bough t the f i rearm f rom the accused.

He c la imed instead that the accused had s imply handed it to him after he

had requested the accused to supply him w i th a f i rearm. Ul t imate ly ,

howeve r , he admi t ted tha t he had purchased the f i rearm and tha t it had

not been handed to him by the accused w i t h o u t him having to pay for it. 25

Sabelo Nobangule 's tes t imony is also uncont rad ic ted as the accused

elected not to tes t i fy . Despite Nobangu le 's c lumsy ef for ts in t ry ing to

14

just i fy his o w n cr iminal conduc t in un lawfu l l y purchasing the f i rearm

there is no doub t tha t the accused sold the f i rearm w i th one round of

ammuni t ion in it to h im. The ind ic tment alleges that there were t w o

rounds of ammun i t i on , but the evidence proves that it was only one

round. Whatever cr i t ic isms I may have of Sabelo Nobangule as a

wi tness there is no doub t that he u l t imate ly told the t ru th w h e n he

admi t ted that he purchased the f i rearm. There is no doubt either that

the accused recovered the f irearm f rom the person to w h o m he had

pledged it for R60 -00 and thereby retook possession of the f i rearm and

ammuni t ion before sell ing it to Nobangule.

I am sat isf ied therefore that the State has proved the guil t of the

accused beyond a reasonable doubt in respect of counts 4 , 5, 6 and 7.

In respect of coun ts 8, 9, 10 and 11 the Sta te 's case rests on the

evidence of Da l iwonga T o t w a n a . His tes t imony is also uncon t rad ic ted .

He was fo r th r igh t in his tes t imony f rom the outset . It is clear that he

purchased the 9 m m Norinco pistol w i t h f ive rounds of ammuni t ion f rom

the accused on 12 A u g u s t 2 0 0 2 . I am sat isf ied that he has to ld the

t ru th and I accept his tes t imony . The evidence establ ishes beyond a

reasonable doub t t ha t the accused commi t t ed the of fences in coun ts

8, 9, 10 and 1 1 .

I turn n o w to coun t 3, namely the charge of murder . Here the

State case is dependent on the tes t imony of Mthethele l i Shushwana and

the results of forensic tests conduc ted on four empty 9 m m cart r idge

cases found at the scene of the cr ime. In addi t ion thereto the State

case is also dependen t on the inference being d r a w n tha t the accused

was in possession of the 9 m m Star Parabel lum pistol f rom wh i ch the four

9 m m cart r idge cases had been f i red. This is the f i rearm w h i c h the

15

accused had taken f rom Thembelan i Gxakwe when he robbed him and

wh i ch he later sold to Sabelo Nobangule.

There are t w o problem areas in the evidence adduced by the State.

First ly, Mthethele l i Shushwana , w h o claimed that he could ident i fy who

had shot the deceased, Unathi Dick, did not test i fy that it was the 5

accused w h o had done so. He did not even say that the accused was

one of the three persons w h o had accosted the deceased. Secondly ,

the ev idence does not establ ish, either direct ly or by in ference, tha t the

accused was in possession of the f i rearm on 2 Augus t 2 0 0 2 w h e n the

shoot ing occur red. The evidence of Sabelo Nobangule revealed that the 1 0

accused had pledged the f i rearm to someone else and had then fe tched

it f r o m this person upon payment of R60-00 before handing it to

Nobangule . In v iew of this evidence it cannot be said that, the only

reasonable inference to be d r a w n f rom the accused 's possession of the

f i rearm on 28 July 2 0 0 2 and then again on 5. Augus t 2 0 0 2 is tha t he 15

was in possession thereof for the entire period be tween these dates and

thus also on 2 Augus t 2 0 0 2 w h e n the deceased was ki l led. The

inference that it was in the possession of someone else on 2 Augus t

2 0 0 2 canno t reasonably be exc luded , since on the ev idence of the

Sta te 's o w n w i tness , namely Sabelo Nobangule, the accused had to 20

recover the f i rearm f rom the person to w h o m it had been p ledged. In

other w o r d s , the evidence does not permi t the inference to be d r a w n , as

the only reasonable one, that the accused had possession of th is f i rearm

t h r o u g h o u t the entire period f r om 28 July 2 0 0 2 unti l 5 A u g u s t 2 0 0 2 .

Since the State has failed to prove the accused was in possession of this 25

f i rearm on 2 Augus t 2 0 0 2 and tha t he is the individual w h o murdered the

deceased, Unathi Dick, the accused is ent i t led therefore to be acqu i t ted

16

25

on this charge.

In the result , the State has proved beyond a reasonable doub t that

the accused commi t ted each of the of fences in counts 1 , 2, 4 , 5, 6, 7,

8, 9, 10 and 1 1 . Accord ing ly the accused is found gui l ty of the

fo l l ow ing : 5

1. In respect of count 1 of the robbery of Thembelani Neville

Gxakwe .

2. In respect of count 2 of the a t tempted murder of Phiwe Vuso .

3. In respect of count 4 , of a cont ravent ion of sect ion 2 of the Arms

and Ammun i t i on A c t , 75 of 1 9 6 9 . 10

4 . In respect of count 5, of a cont ravent ion of sect ion 36 of the

Arms and Ammun i t i on A c t , 75 of 1 9 6 9 .

5. In respect of count 6, of a cont ravent ion of sect ion 35(1 )(a) of the

Arms and Ammun i t i on A c t , 75 of 1969 .

6. In respect of count 7, of a cont ravent ion of sect ion 35(1 )(b) of the 15

Arms and Ammun i t i on Ac t , 75 of 1969 .

7. In respect of count 8, of a cont ravent ion of sect ion 2 of the Arms

and Ammun i t i on A c t , 75 of 1969 .

8. In respect of count 9, of a cont ravent ion of sect ion 36 of the

Arms and Ammun i t i on A c t , 75 of 1969 . 20

9. in respect of count 10, of a cont ravent ion of sect ion 35(1 )(a) of

the Arms and Ammun i t i on A c t , 75 of 1969 .

1 0. In respect of count 1 1 , of a cont ravent ion of sect ion 35(1 )(b) of

the Arms and Ammun i t i on Ac t , 75 of 1 9 6 9 .

17

Y EBRA-HIM

JUDGE, BISHO, HIGH COURT

In respect of count 3, namely the of fence of murder, the accused

is found not gui l ty and d ischarged.