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REX v SHAKES NKULULEKO SHALAMBA DLAMINI AND OTHERS [2001] SZHC 4 (10 September 2001)

Common purpose

THE HIGH COURT OF SWAZILAND

CRIM. CASE NO. 49/99

In the matter between

REX

And

SHAKES NKULULEKO SHALAMBA DLAMINI
JETHRO BOY SIMELANE
THOMAS S’DUMO DLADLA
VINCENT MDUDUZI DLAMINI

Coram S.B. MAPHALALA – J
For the Crown MR. Z. MAGAGULA
For the Defence MR. K. VILAKATI (Accused No 1 and 3)
MR. SIMELANE (Accused No. 2 and 4)

JUDGEMENT
(10/09/2001)

The four accused are charged as follows:
Count 1 - Murder

The accused persons are guilty of murder, in that upon or about 25^th September 1997, and at or near Big-Bend Barclays Bank area in the Lubombo region the said accused persons each or all of them acting in common purpose did wrongfully and intentionally kill Fritz Koch.

Count 2 Conspiracy to Commit Robbery

The accused persons are guilty of Contravening Section 181 (5) of the Criminal Procedure and Evidence Act 67/1938. In that on diverse dates in the months of August and September 1997, and at various places more particularly; Manzini Trade Fair in the Manzini Region, Kaphunga area in the Shiselweni region, Hlatikulu area in the Shiselweni region and Tambuti estate in Lubombo region, the said accused persons, each or all of them acting in common purpose, did conspire to procure the commission of and or commit Robbery on Fritz Koch.

Count 3 Attempted Robbery

The accused persons are guilty of attempted robbery. In that upon or about 25^th September 1997, and at or near Big-Bend Barclays bank in the Lubombo region, the said accused persons, each or all of them acting in common purpose, did unlawfully assault Fritz Koch and by intentionally using force and violence to induce submission by Fritz Koch, attempt to take and steal from him certain property to wit: the sum ofE100, 000-00, his property or in his lawful possession, and did thereby commit the crime of attempted robbery.

It will be proved that the said robbery was accompanied by aggravating circumstances in that:

The cause of death according to the Government Pathologist Dr. Reddy, who conducted the post mortem examination, was “haemorrhage as a result of fire arm injury over the neck”

Accused no. 1 and 2 are defended by Mr. Vilakati; and accused no.3 and 4 are defended by Mr. Simelane. Initially the crown was represented by Ms Susan Nderi who left the country and then Mr. Magagula took over on behalf of the crown to the conclusion of the case. All four accused persons pleaded not guilty to the charges preferred against them.

At the commencement of trial an affidavit by one Sergeant Goodwin Motsepe of the Ballistic Unit of the Forensic Science Laboratory in Pretoria South Africa was entered by consent as exhibit “B”. He deposed in his affidavit that he received two exhibits from the Royal Swaziland Police, viz one 7.65mm star model pistol and one fired 7.65mm calibre and upon examining and testing these he concluded as follows:

“The cartridge case mentioned in 3.2 was fired in the firearm mentioned in 3.1”

The crown called a total of twelve witnesses. At the close of the crown evidence all four accused persons gave sworn testimony being led by their attorney’s in-chief.

Evidence was led before court to the effect that the deceased who was one of the Managers at Tambuti Estate in charge of the payroll for the employees of the estate proceeded to Barclays Bank, Big Bend branch on the 25^th September 1997 to collect the payroll for the estates employees. He was driving a Toyota Corolla registration no. SD 379 AS at about 9.00am. The payroll was approximately E100, 000-00. As he left the bank to go back to his employment he was attacked by unknown men who shot him and he died thereafter. The post mortem report was handed by consent and there is no dispute as to how the deceased died and what caused the death. There is further no dispute as to who was the deceased. The question the court has to answer is who was responsible for his death. The answer to this question lies in the evidence led before court.

Now I proceed to give an outline of the evidence presented before court.

THE EVIDENCE OF THE CROWN

The crown called PW1 Dr. T.P. Nunn of the Ubombo Ranches Hospital who deposed that he examined the deceased prior to his death. The deceased had driven himself to the hospital and indicated to him that he had been shot. The deceased died while undergoing treatment. He could see that the deceased was critically injured in his neck. The deceased was carrying a briefcase.

PW2 R.Z. Matsenjwa was called and he told the court that he was an Administrative Manager at Tambuti Estate where the deceased was employed prior to his death. On the 25^th September 1997, the deceased had gone to collect the payroll at Barclays Bank, Big Bend. Later that day he was summoned to Ubombo Ranches Hospital where he found the deceased dead reportedly from a gunshot wound to the neck. He received from the employees of the hospital the cash box containing the payroll money which was all intact. This witness was quizzed briefly by Mr. Simelane for accused no. 2 and 4.

The crown then called its third witness Henry Mandla Cele (PW3) who told the court that he was employed as a night watchman by the Swaziland Provident Fund. He told the court that he was at home when he saw through the door two men who were running and were coming from a bush nearby. When he was next to them he asked them why they were running and they did not give him an answer. These men appeared to have been running for a long time and he suspected them. He then chased after them and raised an alarm. He saw the one in front was wearing a denim cap and a denim shirt. He was also wearing black and white takkies. The one behind was wearing a white T-shirt with brown colour in the chest. He was also wearing a brown pair of trousers. He was wearing light brown shoes. The one in front was tall and was dark in complexion, and the one behind was shorter and light in complexion. He was also thickset. As he was about to catch them the one behind cried out trying to alert the one in front. That is when the one in front produced a gun and fred in the air. He saw that he was carrying a gun although he could not say what type of a gun it was. He then turned back. The two fleeing men proceeded to the game reserve and disappeared from his sight. As he was turning back he met the police who asked him about these two men. He told them what he had just seen. He together with the police proceeded to search for these men and later abandoned the search and went back.

In cross-examination of this witness by Mr. Vilakati it emerged that this witness was later called by the police to an identification parade where he failed to identify any suspect and also told the court that he did not know if accused no.1 and 3 were in the group in the identification parade.

The crown then called PW4 Hezekial Masuku. He told the court that on the 25^th September 1997, he was on his way to the bus rank near Big Bend when he heard a gunshot. He saw a white Toyota vehicle spinning outside the bank. Two young men ran towards the vehicle but the driver of the Toyota drove off at great speed to the Ubombo Ranches Clinic. The two men took the road to Barclays Bank quarters and were then out of his sight. He observed that one of the two young men was taller than the other and was wearing jeans, and was carrying what looked like a pistol.

The crown then called PW5 Lucky Sihlongonyane who was introduced as an accomplice witness in this case. He gave a lengthy account on how a plot was hatched to rob money at Tambuti Estate. He told the court that in July 1997, he was unemployed but he would help his friend who runs a Kombi as a driver. This friend was Sabelo Dlamini who was also called as an accomplice witness ( PW6). He told the court that he first knew Sabelo Dlamini when they used to work together for a certain firm known as Sunshine Sugar, which is situated in Matsapha. He knew accused no. 4 Mduduzi Dlamini who he deposed was his cousin and they used to stay together at Hlatikhulu. Accused no. 4 in 1997 was a Police officer stationed at Kaphunga Police station. He also knew accused no. 1 Shakes Dlamini who used to come to the Kombi and is a friend to Sabelo Dlamini the owner of the Kombi.

PW5 told the court that Sabelo Dlamini told him that there was a story which involves money and he said they should wait for Mduduzi Dlamini (accused no. 4) who will explain more about the money. Eventually accused no. 4 came and explained to them what this matter was about. He told them that there was money at Tambuti and that they should go down to Tambuti to commit a robbery and accused no. 1 Shakes knew more about this plan. From that time preparations were made towards the achievement of the plan. He told the court that at that point in time he was with Sabelo, accused no.1 and accused no.4 in the preparations. He told the court that they had a number of meetings. Accused no. 1 was the one who came up with the plan to rob the Tambuti Estate. In their discussions there arose the need to have a gun and it was decided that accused no. 4 who is a police officer could help in procuring a gun.

He told the court that the robbery was to be carried out on the 25^th September 1997. He told the court one Tom Dladla (accused no. 3) was introduced to the scheme by accused no. 1 as the days were nearing accused no. 4 (Mduduzi) told them that he had secured a gun from a certain teacher. In the afternoon after they had knocked off work accused no. 4 phoned them and told them that they should proceed to Kaphunga and then go and collect the gun from the teacher. They then went to Bethany to look for the teacher. They found the teacher at his ‘s home and they stopped in their motor vehicle, as the road was bad going to the teacher home. They then proceeded on foot. They left Sabelo in the car and he proceeded with accused no. 4 to the teacher’s place. After some time the teacher came out and spoke to accused no.4. The teacher gave them the gun.

PW5 identified a pistol and magazine, which was before court as similar to the one they obtained from the teacher at Bethany.

From the teacher’s place they proceeded to accused no. 4 home at Kaphunga where accused no. 4 produced a hand grenade and explained to them how it was used. Accused no. 4 told them that the hand grenade was going to be used in the plan if people pursued them after they had committed the robbery they were to throw it at the ground. Accused no. 4 went further to show them how a hand grenade was used. On that day the pistol and the hand grenade remained with accused no. 4 at his home at Kaphunga. On the following day they phone accused no. 1 (Shakes) that they has secured a pistol and a hand grenade. Accused no. 1 told them that he would join them the following day. Accused no. 1 came in the afternoon of the following day and he was in the company of accused no. 3 Tom Dladla who was also recruited into the team. The reason he had recruited accused no. 3 was because accused no. 1 did not trust them in the field as they were not strong enough for the job at hand. They then proceeded to accused no. 4’s place at Kaphunga to finalize the preparations. As it was the last remaining day before the 25^th September 1997. On that occasion it was himself, Sabelo Dlamini, accused no. 1 and accused no. 4. There they were further taught on the use of the gun and the hand grenade.

On the 24^th September 1997, they went to a certain traditional healer known as Machine at Siphofaneni. It was himself, Sabelo Dlamini, accused no. 1 and accused no. 3 who went to the inyanga. The reason they went to the inyanga was to get strength and courage. Accused no. 1 knew the inyanga. The inyanga gave them medicine to use. At some point in the planning of the robbery they met one Boy Simelane who works for Tambuti estates who knew how much money was at stake. After some discussions with him it was agreed that he could provide the company’s uniforms to be used as disguise in the commission of the offence.

This witness told the court that one of the plans devised to execute the robbery was that he was to use Sabelo Dlamini’s car the BDX 476 NW and they will pretend that they have robbed of the motor vehicle and report that to the police. In the meantime that very car would be used in the robbery. The second plan was to steal a motor vehicle to be used in the commission of the robbery. The third plan was to use Sabelo Dlamini’s motor vehicle and then rob the deceased his motor vehicle and later abandon it and get into Sabelo’s car as a getaway car.

The witness further related at length how during the preparations they went to Tambuti to survey the area on a number of occasions. The final plan which was adopted was that they were to go to the bank where the white man was and when he came out of the bank they were to attack him and take him with his car. Along the way they would dump him and then dump his car and then take theirs as a getaway car.

On the 25^th September 1997, they proceeded to Big Bend. It was himself, accused no.1, Sabelo Dlamini and Accused no. 3. They were armed with the pistol and the hand grenade. When they proceeded to Big-Bend accuse no. 1 was in possession of the pistol and he (PW5) was in possession of the hand grenade. The plan was that he was to use the hand grenade if the people chased them and the gun was to be used to scare the deceased. Accused no. 1 was going to use the pistol. Sabelo Dlamini was going to drop him (PW5), accused no.1 and accused no. 3. Accused no. 3 was to go with accused no. 1 and when accused no. 1 points the deceased with the gun, accused no. 3 would then take the money. PW5’s task was to throw the hand grenade if the people were pursuing them. Sabelo Dlamini was to wait for them at a certain point where the rest of the group would meet him after they had taken the deceased’s motor vehicle. At that point they would abandon the deceased’s motor vehicle and jump into Sabelo Dlamini’s motor vehicle. Accused no. 1 would be driving the deceased’s motor vehicle and according to the plan the deceased would be in the vehicle with them. But later on they decided to abandon this part of the plan and decided that they would take the money from the deceased and get in his car and go with his car and then along the way they would find Sabelo Dlamini in his car and jump into it and leave the white man’s car. Their plan was to attack the deceased the moment he comes out of the bank.

PW5 told the court the firearm which was carried by accused no. 1 as they proceeded to Big-Bend on the 25^th September 1997 was the very same firearm they got from the teacher at Bethany. He told the court that they were expecting a heist of about E80, 000-00 and all of them were to be beneficiaries although it has not been discussed how they were to share the loot.

PW5, however, did not proceed all the way to Big-Bend, as he had to turn back to Manzini to collect the school children. The rest of the group proceeded on their mission to Big-Bend and he boarded a bus back to Manzini. The plan was that they were to meet at the Trade Fair after the plan had been executed. There it was to be decided how the loot was to be shared. At about 2.00pm Sabelo came to the Trade Fair and told him that he had left the others at Big-Bend where they fled into the forest. Sabelo Dlamini then telephoned accused no. 4 at Kaphunga informing him on what had transpired. They then left to their homes after they had collected the school children. The following day they met at the Trade Fair where they picked up the pre-school children. Sabelo Dlamini asked him if he had watched the news on television and he replied that he had not. He told him that they said a white man had been shot at Big-Bend at the bank. After receiving this information he went to buy The Times of Swaziland newspaper and the headlines were on the front page about the shooting of a white man at Big-Bend. For two days they did not see the other people except that they would communicate by telephone with accused no. 4 who also enquired about the others. On the third day accused no. 1 appeared and met them at the Trade Fair. Accuse no. 1 told them that he was tired and wanted to sleep and would tell them later what happened at Big-Bend. He went to sleep at PW5 house at Logoba. PW5 told the court that later accused no. 1 told him together with Sabelo Dlamini that what happened in Big-Bend was that he tried to stop the deceased while he was in his motor vehicle, but the deceased did not stop and accidentally he shot at him.

After that accused no. 1 returned to Nhlangano and Sabelo Dlamini and himself continued with the business. They would call accused no. 4 by telephone and he would advise them not to panic. Later on a certain Oupa Nkambule came to his house at Logoba to collect the hand grenade, which had been left there by accused no. 1 before he left for Nhlangano. Oupa had been sent by accused no. 1.

PW5 deposed further that at some point after their return from Big-Bend he was involved in a car accident where he was told there was a firearm in the motor vehicle which he was driving. This firearm was taken by a certain Simo Shongwe on the instruction of accused no. 1. This Simo Shongwe was related to accused no. 4.

He was then arrested in connection with this case. He was released together with Sabelo Dlamini after they have been in custody for two weeks.

This is about the extent to PW5’s testimony. He was cross-examined at great length by both counsel representing the accused persons.

The crown then called PW6 Sabelo Dlamini who was also introduced as an accomplice witness by the crown. He was introduced in terms of Section 234 of the Criminal Procedure and Evidence Act No. 67/1938. He also knows the accused persons and was part of the group described by PW5 in planning the robbery on the deceased. He narrated at great length the part he played and that played by the accused persons. He told the court that he owned three motor vehicles and used them in his business to ferry pre-school children around Manzini and he was assisted by PW5 who drove the yellow Toyota Cressida. They used to work together with PW5 at Sunshine Company in Matsapha. He told the court that accused no. 4 approached him and said he wanted to see him after work and then they met. They then went to Hlatikulu where accused no. 4 told him that they were going to collect a firearm from a certain Simo. There was a certain deal they had to carry out and he was still going to explain to them. He was with PW5 when they went to Hlatikulu. This was the first time they were talking about the deal. He told the court that he had been discussing with accused no. 1 about getting some money. PW6 explained in similar language how he together with accused no. 1, and accused no. 4 and PW5 went to Bethany to procure a firearm for the teacher. He also described in similar fashion how accused no. 2 (Boy Simelane) was also involved in the plan to rob Tambuti Estate as the “inside man” whose role was to feed them information concerning the set up at Tambuti Estate. He told the court that one of the plans hatched was that they were to attack the deceased in the office when he was preparing the wages for the company’s employees. Accused no. 2 was to provide companies uniforms to be used as disguise.

PW6 also described in similar terms the three plans which were hatched to achieve their objectives and how they finally adopted the plan they would take the briefcase that had the money and his keys to the car he was using. PW6 further described as PW5 did how accused no. 3 (Tom) was introduced into the scheme by accused no. 1 who stated that he was introducing him to strengthened the group for the mission. He described as PW5 did that in the plan it was agreed that accused no. 1 was to carry the gun. Accused no. 3 (Tom) and accused no. 1 were going to attack the white man when he steps out and accused no. 1 would be holding the gun pointing it at the white man. PW5 (Lucky) was given the duty by accused no. 4 (Mduduzi) to use a hand grenade to disperse the people after they had taken the money, as the people would think it was a bomb. Accused no. 4 showed them how the grenade was used. He further described as PW5 did how together with accused no. 1 went to an inyanga so they could get something and also find out if their mission would be a success and also to get a portion called “sihlati” used for good luck. The inyanga gave them a portion of “muti” to use.

PW6 told the Court that accused no. 1 told them that he could not find bullets for the firearm and he indicated that he had seen PW6’s father who had a gun similar to the one they were to use in the robbery. Accused no. 1 suggested that they approach PW6’s father about the bullets. They drove to his father’s home where accused no. 1 asked for the live rounds, as there was something from a prophet, which he wanted to fulfil. His father did not have a problem since he knew that they were from the Zionist sect.

He further described in similar terms the events on the day of the robbery from the time they left Manzini to Big-Bend. He also told the court along the way at an area called Ngculwini he decided that PW5 should turn back after he realised that they would be back late and the pre-school children would encounter some problems. He told the court that round about 12.00pm the deceased arrived in the very car that they had been told about. They agreed that when the deceased arrived PW6 would take the road leading to Big-Bend and would then turn at a bridge. When he made this turn from the bridge and got to the yard of the bank he found people. He went to the spot they had agreed to meet but did not see them neither did he see the deceased motor vehicle. He waited for them for 30 minutes but they never appeared and he then returned to Manzini thinking that they had taken a different route.

At the Trade Fair he met PW5 who asked as to how did the plan go and he explained what has happened. He told the court that as he was watching the 7.00 O’clock news on television a report was made that there were some people who had shot a white man at Big-Bend, who was working for Tambuti Estate. He told the court that after four days accused no. 1 and accused no. 2 re-surfaced where accused no. 1 explained what had happened. He explained that at the scene it was necessary that they should wait until the deceased got into the car so that the car would not give them a problem when starting because of the immobiliser. He explained that when the deceased came out accused no. 1 pointed the firearm at the deceased but the deceased continued to get into his car and closed the door. He started the engine and that is when accused no. 1 fired a warning shot at the window. At that point he noticed that even after the warning shot the deceased continued and drove off in a rough manner and disappeared next to some houses. They then decided to run away and they were being chased by some security guards. He fired a warning shot to discourage the pursuing security guards. They then went to accused no. 2’s place to seek refugee. PW6 again explained in similar terms as PW5 the incident at the bus rank where PW5 was involved in a car accident and the firearm belonging to Simo was in the motor vehicle.

PW6 was arrested by the police in 1998 and was kept in police custody for two weeks.

This is essentially the evidence of PW6. He was cross-examined extensively by both counsel.

The crown then called PW7 Jabulane David Bhembe who featured prominently in the evidence of PW5 and PW6 as the teacher who gave them a firearm in Bethany at the request of accused no. 4.

The crown then called PW8 Simo Danford Shongwe. This witness is the brother-in-law to accused no. 4. In March 1996, he had a firearm that when he went to South Africa he gave it to PW7 for safekeeping. In mid April 1997, accused no. 4 called to inquire from him the whereabouts of the pistol and he directed him to PW7. In October of 1997 he was in Swaziland on leave and he was travelling with accused no. 4 in a vehicle driven by one Elmon Dlamini, which was in convoy with a motor vehicle which was driven by PW5 . That motor vehicle was involved in an accident.

This witness when he was cross-examined by Mr. Simelane testified that he was in possession of the firearm on the 25^th September 1997 suggesting that his firearm was not the one used in the commission of the robbery.

The crown then called PW9 Mabandla Evart Dlamini. He is the father of PW6 (Sabelo Dlamini) and he told the court that he knows accused no. 1 who he brought up as his son. In September 1997, accused no. 1 and PW6 (Sabelo) arrived at his home and borrowed 5 live rounds of 7.65mm ammunition. He was reluctant to give them these ammunition until he was reassured that they were not going to get into any mischief. He told the court that accused no. 1 told him that he needed the bullets to fulfil a prophecy.

The crown then called PW10 Moses Lukhele. He told the court that sometime in October 1997, he met accused no. 1 at Nhlangano bus rank and requested a firearm from the accused. The accused informed him that one was not immediately available but he should contact the accused in due course. In November 1997, he went to accused no. 1 again and found that he had a 7.65mm pistol with a magazine. He convinced the accused to sell him the firearm, which the accused did for E300-00. They tested the firearm in the Nhlangano forest and found it serviceable. On the 9^th April 1998, the police in the company of accused no. 1 came and collected the firearm. This witness identified the firearm before court as the one which was sold to him by accused no. 1.

At this stage the crown called the evidence of PW11 Detective Sergeant R. Vilakati of Big-Bend police station. He told the court that on the 25^th September 1997, he received a report concerning a shooting at the Barclays Bank area. He went with colleagues to investigate. They tried to follow the direction the two young men took but could not find them. He returned to the scene outside the bank where he found the cartridge of a 7.65 bullet. He then took the cartridge as an exhibit.

The crown then called its last witness, PW12 1094 Supt. Khethokwakhe Ndlangamandla of the Regional Headquarters in Manzini who was investigating officer in this case. He related in great detail how he went up about conducting his investigations from the time he was detailed to investigate the matter up to the time he arrested the accused persons before court. He told the court that all the accused persons were arrested in the month of April 1998. He interrogated accused no. 1 subsequent to his arrest and after due cautioned accused no. 1 led him to Moses Muzi Lukhele (PW10) from whom a 7.65mm pistol was recovered. The accused also directed him to Mabandla Dlamini where he collected 2 live rounds of 7,65mm. He confirmed the story given by Sabelo Dlamini (PW6) and his father Mabandla. Accused no. 1 came in the company of PW6 sometime back and requested rounds of ammunition from him. The witness went further to tell the court that on the 16^th April 1998 he collected an empty cartridge of 7.65mm round from Big-Bend police station and together with the firearm recovered from PW10. He sent these two exhibits to South Africa for comparison and analysis. He went further to relate how the various accused persons were arrested.

The crown then closed its case and the accused gave sworn testimonies in their defence being led by their attorneys.

THE EVIDENCE OF THE DEFENCE

The evidence given by each accused persons in chief is simply that they do not know anything about the charges before them. They related where each was when the crime was committed at Big-Bend. They deny any involvement in the commission of these offences and stated that the evidence presented by the accomplice witness PW5 and PW6 was not true in that they were never involved in any scheme to rob the white man at Big-Bend on the 25^th September 1997.

All in all the accused persons deny any involvement in the commission of the offences. The two accomplice witnesses were actuated by their own ulterior motives in testifying against them.

At this stage the court entertained submissions from counsel. I have reviewed the evidence in its totality and have also considered the submissions made by counsel at the close of evidence. First of all I shall attempt to deal with the point raised by Mr. Simelane for accused no. 2 and 4 that there is a duplication of charges before court. These relate to count 2 that of conspiracy to commit robbery and count 3 that of attempted robbery. Mr. Simelane argued that it was not competent for the crown to charge the accused person in the manner it did as this violated Section 181 of the Criminal Procedure and Evidence Act No. 67/1938 (as amended). He directed the court attention to a number of decided cases touching on the subject. (see R vs Njenje and others 1966 (1) S.A. 369, S vs Khoza En’n Ander 1973 (4) S.A. 23) that once the conspiracy is put into effect it is not competent to charge the accused of the conspiracy but to charge him of the main charge itself.

On the strength of the above authorities I am inclined to agree with Mr. Simelane that count 2 that of conspiracy to commit robbery would be tantamount to a duplication of charges in view of count 3 that of attempted robbery.

Here we have credible evidence of the two witnesses PW5 and PW6 who were introduced as accomplice witnesses. Before adopting their evidence I have cautioned myself in terms of the dicta in the case of S v Mpompotshe and another 1958 (4) S.A. 471 where it was held that as corroboration was required, that it had to be corroboration implicating the accused persons and not merely corroboration in a material respect or respects. Although their evidence in some respects contradicts each other but in my view such contradiction do not go to the material aspects of their evidence. They described a number of events pertaining to this case in similar language adding credibility to their testimony.

PW5 told the court that it was him, PW6, accused no. 1 and accused no. 4 who made plans to rob money from Tambuti. Accused no. 2 being the inside man. He told the court that they had various meetings at the Trade Fair as well as Kaphunga in furtherance of their plans. PW6 also gave a similar account on the participation of these accused persons. PW5 told the court that what his role was and in my view he did not try to exonerate himself or try to down play his role in the whole saga. He was not able to get to the scene because he had other matters to attend to in Manzini as the group was proceeding to Big-Bend for the robbery. He told the court that he was present when accused no. 4 acquired a firearm from David Bhembe (the teacher). Also PW6 confirmed this evidence in similar language as to how they went to Bhembe to collect the firearm. Looking at this evidence against the bare denials of the accused persons, one wonders how PW5 would know so much about the accused persons. For instance, how would he had known that accused no. 4 obtained a firearm from David Bhembe if he was not privy to some discussions relating to the firearm. The evidence of the accused persons suggests that they knew PW5 slightly. Accused no. 3 told the court that he saw PW5 at the bus rank in Manzini yet PW5 told the court that he knew accused no. 3 very well from Nhlangano. This shows the cogency of PW5’s evidence. None of the accused person has suggested any grudge or ill feeling “vis a vis” PW5. Accused no. 1 merely denied involvement in the commission of the offence and did not tell the court how PW5 would know that his brother was employed at Tambuti. He does not tell the court how PW5 would know that he resided in the St. Phillips area. The answer to this is clear that PW5 was present when accused no. 1 visited Tambuti to speak to accused no. 2 about the robbery. It is my view that the evidence of PW5 is both congent and credible.

Also the evidence of PW6. He told the court about his involvement in the conspiracy to commit the robbery. His evidence in every material respect corroborates the evidence of PW5. What is important in his evidence is how accused no. 1 together with himself went to PW6’s father Mabandla Dlamini to procure ammunition for a 7.65mm pistol. This evidence is confirmed by his father who also gave evidence in this case. He went on to relate how he proceeded together with accused no. 1, and accused no. 3 and PW5 proceeded to Big-Bend on the day of the robbery. He also told the court as PW5 did that along the way PW5 had to turn back to Manzini to attend to some business in Manzini. PW6 told the court that at Big-Bend he dropped the two next to the bank but when he went to the spot where they were to meet the two did not show up. He turned back to Manzini and he saw accused no. 1 some days later. Accused no. 1 explained to him what had happened at Big-Bend. Accused no. 1 told him that they were unable to commit the robbery and that the white man was shot. After the robbery had failed they ran away and hid at accused no. 2’s homestead. PW6 told the court that the firearm, which was used in the commission of the offence, was given to accused no. 1 to destroy on the instructions of accused no. 4. The firearm next re-surfaced from Moses Lukhele after the arrest of accused no. 1. Lukhele told the court that he acquired the firearm from accused n. 1. It is too much of a coincidence that two independent witnesses to whom no connection has been made would link the firearm to the same person. It has not been established that PW6 and Lukhele knew each other or that had discussed about the firearm.

It is my view that the firearm that was produced by Moses Lukhele is the same firearm, which he obtained from, accused no. 1 which firearm was acquired from the teacher Bhembe. The firearm had been left by Simo with Bhembe for safekeeping.

In conclusion I find that the accused persons before court are guilty of these offences on the basis of the doctrine of common purpose. They were acting in common purpose and each is liable for the action of others. Accused no. 4 although he was not at Big-Bend on the 25^th September 1997, he knew what was going to happen there. He obtained the firearm and the hand grenade. He trained the others on the use of these weapons using his expertise as a police officer. This also applied to accused no. 2 who was the “inside man”. In this instance the accused may be found liable on the dicta in the Court of Appeal Case No. 25/99 Patrick Wonderboy Ngwenya vs The King where Browde JA had this to say:

In casu it is, as I have said, clear beyond reasonable doubt, indeed from the mouth of the appellant himself, that Mdluli’s use of the revolver was not only predictable but that it was intended by both accused to rob the deceased at gun point. In the same case Van der Heever JA cited R v Ndhlangisa 1946 AD 1101 in which Davis, A.J.A. remarked:

“If a number of persons go, for the purpose of robbery, to a shop, armed with revolvers, then each must (my italics) anticipate that a revolver would naturally be used and the shopkeeper be shot.”

Van de Heever J.A. then went on to say:

“In the circumstances the inference seems to me inescapable that appellant must have foreseen the possibility – even the probability – of Phillip using the revolver if any person, whose premises they entered for the purpose of stealing or robbery, showed unexpected reluctance to part with his money or tried to impede their escape; that he was reckless whether or not this forseen possibility materialised. Consequently appellant was rightly convicted of murder.”

The evidence before me is abundantly clear that the accused persons together with PW5 and PW6 had a common goal to rob the deceased on the 25^th September 1997, and each played his part in furtherance of that goal.

All in all in the totality of the evidence adduced before me I rule that the accused persons are guilty as follows:

S.B. MAPHALALA

JUDGE