Rex v Ndzinisa (409/2015) [2021] SZHC 06 (10 February 2021);

  IN THE HIGH COURT OF ESWATINI

JUDGMENT

HELD IN MBABANE                                                          CASE NO. 409/2015

In the matter between:

REX

Versus

NKOSINATHI C. NDZINISA                                          First Accused

NKOSINATHI NTJALINTJALI                                    Second Accused

BHEKITHEMBA B. NDZINISA                                    Third Accused

SANELE SIBUSISO TSABEDZE                                  Fourth Accused

 

Neutral Citation: Rex v Nkosinathi C. Ndzinisa [409/2015] [2021] SZHC 06 (10     February 2021)

Coram:             LANGWENYA J

Heard:    27 February 2019; 28 February 2019; 27 May 2019; 28 May     2019; 3 June 2019; 4 June 2019; 9 October 2019; 14 October     2019; 15 October 2019; 9 December 2019; 10 February 2020;     11 February 2020; 18 February 2020; 20 February 2020; 24     February 2020; 26 February 2020; 28 February 2020; 13 March    2020; 7 July 2020; 26 August 2020; 17 November 2020.

Delivered:   10 February 2021

Summary:   Criminal Procedure-accused charged with robbery, attempted     murder, housebreaking with intent to steal and theft-accused     pleaded not guilty-pointing out-accused cautioned and their     rights explained before pointing out-evidence of accomplice-    court has warned itself about dangers of convicting on the basis    of accomplice evidence-accomplice found to have been truthful     and his evidence corroborated by evidence independent of the     evidence of the accomplice-accused convicted as charged-    accused 1 acquitted and discharged on charge of escaping from    lawful custody-the second accused was acquitted and      discharged on count 34 and count 35 because no evidence was     led by the Crown in this regard.

JUDGMENT

Introduction

[1] At the commencement of trial, the Court was informed by the Crown that  the charges against the third accused were being withdrawn because he has  died. Supporting documents to that effect were presented in Court.

[2] The Crown also applied to withdraw charges against the fourth accused who  was now an accomplice witness. Ms. N. Ndlangamandla who represented  the fourth accused confirmed the withdrawal of charges that the fourth  accused was now an accomplice witness.

[3] The Crown withdrew the first count where the first and the third accused  were charged with the murder of Sandile Sibandze.  

[4] The trial proceeded against the first and the second accused.

The Charges

Charges: Contravention of the Arms & Ammunition Act

[5] The first and second accused persons were indicted before me on nineteen  (19) and seventeen (17) counts of robbery respectively; as well as four (4)  and five (5) counts of the contravention of the arms and ammunition Act,  1964 respectively. The first accused further faced two (2) counts of  housebreaking with intent to steal and theft; two counts of attempted murder  as well as one count of escaping from lawful custody.

[6] In count 2 and count 3 the accused persons were indicted before me for  contravening Section 11(1) read with Section 11(8) of the Arms and  Ammunition Act 24/1964 as amended, in that on 25 September 2014 and at  Central Filling Station, in the district of Manzini they found in unlawful  possession of a parabellum 9mm pistol and an astra 9mm pistol in count 1  and count 2 respectively.

[7] In Count 4 and count 5 the accused are alleged to have contravened section  11(2) read with section 11(8) (c) of the Arms and Ammunition Act 24/1964  as amended, in that on 25 September 2014 and at or near Central Filling  station in the district of Manzini they were found in unlawful possession of  33 live rounds of ammunition and 209 live rounds of ammunition for count 4  and count 5 respectively.

[8] In count 6, the second accused was indicted for contravening section 11(2)  read with section 11(8)(c) of the Arms and Ammunition Act 24/1964 as  amended, in that on 9 September 2014 and at or near Mobeni in the district  of Manzini the accused was found in unlawful possession of 2 live rounds of  ammunition.

[9] Notably, although accused 1 and2 are co-charged for counts 2,3,4 and5, the  Crown has not alleged the doctrine of common purpose.

Robbery Charges

[10] The various counts of robbery were allegedly committed between the  months of February, July, August and September 2014 along the  Manzini/Mbabane corridor and specifically at Nhlambeni eZulwini,  Malkerns, Phondo eNgculwini, Lugaganeni, Rest Camp, Mahlangatsha and  at Mbabane, Fonteyn areas.

[11] It was alleged in terms of count 7 and count 8 that the accused persons, on  24 September 2014 had forced Ibrahim Variyava and Amina Variyava into  submission by threatening to shoot them and that they stole from Ibrahim  Variyava an amount of E38 770-00 in count 7; and that they stole a silver  ring, 2 sliver earrings, 1 silver necklace, 1 bracelet and cash in US dollars  amounting to E2 230-00 in count 8. The Crown alleged that the accused  acted in furtherance of a common purpose.

[12] The offences in count 9 and count 10 are alleged to have been committed by  the accused persons on 25 August 2014 at eZulwini where the accused,  acting in furtherance of a common purpose forced Jabulane Simelane into  submission by threatening to shoot him and took from him a sum of  E600,00; Astra pistol valued at E3 900; blackberry cell phone valued at E1  900; Samsung S4 cellphone valued at E6 900; Nokia C7 cellphone valued at  E4 500. On count 10 the accused forced Sifiso Simelane into submission by  threatening to shoot him and took from him a black blackberry cellphone  210 valued at E3 500; Acer laptop valued at E4 000; and a sum of E100.

[13] It was alleged by the Crown in terms of count 11 and count 12 that on 27  July 2014 and at eNgculwini, the first accused person, forced Masiko  Dlamini into submission by threatening to shoot him and took from him a  9mm parabellum pistol valued at E15 000; Samsung galaxy tab valued at E6  000; 70 live rounds of ammunition valued at E11 000; a sum of E5 000; red  wine valued at E150. In count 11 the first accused is alleged to have forced  Hlobsile Mngometulu into submission by threatening to shoot her and took  from her a Samsung tablet cellphone valued at E5 000; Samsung S5  cellphone valued at E8 900 and a sum of E100.

[14] In respect of count 13 it was alleged that on 21 August 2014 the first and the  second accused forced Gugulethu Dlamini into submission threatening to  shoot her and took from her a Samsung cellphone valued at E899 and a sum  of E2 065.

[15] In respect of count 14, the Crown alleges that on 19 August 2014 and at  Malkerns, accused 1 forced Donatus Nkonotja Zwane into submission by  threatening to shoot him and took from him a Lenovo laptop valued at E12  500 and a Samsung galaxy note 3 valued at E7 410.

[16] On 19 September 2014 the second accused is alleged to have forced into  submission Rian Carby by threatening to shoot him and took from him a  HTC cellphone valued at E3 000 and bronze half boots valued at E800. This  charge is reflected as count 15 in the indictment.

[17] In respect of count 16 the second accused is alleged to have forced into  submission Marcel Smith by threatening to shoot him and took from him a  VW Passat motor vehicle valued at E380 000; a sum of E12 000; 2 iphones  valued at E20 000;  and a Nokia cellphone valued at E3 000.

[18] It was alleged in respect of count 17 and count 18 that accused 1 and 2, at  Lugaganeni area forced Kiddy Mahlalela into submission by threatening to  shoot her in respect of count 17 and took from her a LG G2 cellphone valued  at E6 500; navy blue Nokia C3 valued at E2 400 and a sum of E600. With  regard to count 18 it is alleged that accused 1 and 2, at Lugaganeni area  forced Archie Morale into submission by threatening to shoot him and took  from him a Nokia 1100 cellphone valued at E300. In respect of count 19  both accused persons are alleged to have forced Fikile Fihla into submission  by threatening to shoot her and took from her a Hisense cellphone valued at  E1 800 and cash amounting to E1 400. Regarding count 20 accused 1 and 2  at Lugaganeni area forced Ncami Kunene into submission by threatening to  shoot her and took from her a Nokia Lumia 610 cellphone valued at E500;  Samsung galaxy S111 mini cellphone valued at E2 500 and cash amounting  to E80.

[19] Count 21 and count 22 are alleged to have been committed at Rest Camp on  22 September 2014 where Gugu Mahlindza and Mpilo Zwane were forced  into submission by accused 1 and 2 through threats of being shot with a  firearm before they were robbed of their property. Gugu Mahlindza was  allegedly robbed of a sum of E8 200; 5 bottles of wine valued at E3 000 and  Sunbird perfume valued at E150. Mpilo Zwane was allegedly robbed of  Beckham perfume valued at E450; karimo bag valued at E300 and a Nike  bag valued at E300.

[20] It was alleged in respect of count 23 and count 24 that accused 1 and 2 at  eNgculwini, Ntabamhloshana area and on 6 September 2014 the accused  forced Nolwazi Dlamini into submission by threatening to shoot her with a  firearm and took from her a Netsurfer tablet cellphone valued at E2 000; a  sum of E600; and a telephone handset valued at E200. Concerning count 24,  the accused persons forced into submission Dumile Vanessa Dlamini by  threatening to shoot her with a firearm and took from her a MTN Stapper  cellphone valued at E500 and a sum of E550.

[21] The first accused is alleged to have on 15 August 2014, at Fonteyn forced  Gugu Maphalala into submission by threatening to shoot her with a firearm  and took from her a proline computer valued at E3 500; Samsung notebook  laptop valued at E3 000; iphone valued at E5 000; Nokia cellphone valued at  E700; Kiddies laptop valued at E300; a sum of E700 and food valued at  E200. Count 25

[22] The first accused is alleged to have, on 22 July 2014, at eZulwini forced  Mduduzi Dlamini into submission by threatening to shoot him with a  firearm and took from him a Nokia Lumia cellphone valued at E7 800; Asha  303 cellphone valued at E1 500; Sony Erickson cellphone valued at E3 000  and a pair of size 8 Nike tekkies valued at E800. This is count 30

[23] Accused 1 is alleged to have, on 7 February 2014 and at Mahlanya area  forced Lindelwe Treasure Mabuza into submission by threatening her with  violence and in the process took from her a list of electronic gadgets,  personal effects and clothes as listed in count 33 of the indictment.

Housebreaking and Theft charges

[24] The first accused is charged with three counts of housebreaking and theft.  The offences are alleged to have been committed at Waterford and at  eZulwini. He is alleged to have stolen electrical appliances, cash and  personal effects of Banele Dlamini at Waterford on 11 July 2014. The  property alleged to have been stolen is: Sony laptop; Compaq laptop; E1700  cash; black bag; cellphone chargers; ipad; a pair of khakhi pants; a bag; a  wallet; a cable; ipad charger; international passport; card wallet; Hong Kong  dollars of 120; Czech Republic Korans. This is reflected in count 26 of the  indictment.

[25] The first accused is further alleged to have broken into a house belonging to  Lindokuhle Dlamini at eZulwini on 16 May 2014. He is alleged to have  stolen an Emachines laptop; Toshiba laptop; Gigabyte laptop; Nokia E63  cellphone; E440 cash; Hallmark wrist watch andTomato wrist watch. This is  reflected as count 27.

[26]  In count 32 the first accused is alleged to have committed the offence of  housebreaking and theft on 2 July 2014 at Nhlambeni area. The property  alleged to have been stolen is: a blackberry curve cellphone valued at E3  000; Samsung galaxy S4 cellphone valued at E3 000; a decoder Xplitor  valued at E 2 000 and an ipad valued at E8 000. The property in count 32  belongs to Nikiwe Nxumalo.

 

Escaping from lawful custody

[27] On count 29, accused 1 is charged with contravening section 43(1) of the  Criminal Procedure and Evidence Act, 1938 it being alleged that on 29  September 2014 and at Matsapha police station whilst the accused was in the  lawful care of a police officer 3401 Detective Sergeant Themba Dlamini, the  accused wrongfully and unlawfully escaped from custody.

Plea

[28] The accused persons pleaded not guilty to the charges.

The Case for the Crown

[29] The Crown led the evidence PW1 Sanele Sibusiso Tsabedze (Tsabedze) who  was introduced as an accomplice witness. He related before Court how, on  divers occasions he was hired by the first accused to take him to different  locations between Mbabane, Manzini, eMangwaneni to name a few.  Tsabedze testified that he was employed as a driver of trucks by day and  moonlighted as a taxi driver by night. His evidence was with regard to  robbery that was committed at eNgculwini. Tsabedze testified that the first  accused is his home-boy; and that in July 2014 and at about 10pm at the  request of the first accused, he transported him from Manzini to Sidvokodvo.   Accused 1 paid Tsabedze E200 as taxi fare. Accused was carrying a bag  which he asked to put in the car boot when he boarded the taxi. At  Sidvokokdvo, the first accused alighted from the taxi and went to ka Tembe  shopping complex. On return, he asked Tsabedze to drive him to Nhlambeni  It was while they were en route  Nhlambeni that the first accused ordered  Tsabedze to stop in the middle of the road and said he was waiting for  someone to join him on the trip to Nhlambeni. It was while the car had  stopped that the police came and requested them to alight from the car. They  both alighted from the vehicle. It was dark outside. It was while the police  were conducting a body search on Tsabedze that the first accused  disappeared into the night and left his bag in the boot of PW1’s motor  vehicle.

[30] The police took Tsabedze to the police station at Sidvokodvo; they searched  the motor vehicle and first accused’s bag. In the bag they retrieved a tablet, a  play station and clothes. When questioned about the bag and its contents,  Tsabedze explained that it belonged to the first accused. At the instruction of  the police, Tsabedze called the first accused, his phone rang unanswered.  When Tsabedze again called the first accused on the following day, he gave  them a run-around and misled them that he was aboard a bus en-route to  Siteki. When he was called later on that day by Tsabedze who was with the  police at Siteki, the first accused switched off his phone. Except to argue that  there was bad blood between himself and PW1, the first accused did not  dispute the evidence testified to by Tsabedze.

[31] The police returned to Sidvokodvo police station with Tsabedze and locked  him up. The police later took Tsabedze to his homestead at Maliyaduma to  collect his medication. He was kept in custody but was subsequently  released.

[32] Nikiwe Nxumalo was called as PW17 and testified that she lives in  Nhlambeni. Her evidence was in connection with count 32. On 2 July 2014  and before she went to bed, she secured her house by locking her doors and  shutting windows of her house. She switched the lights off and went to bed.  She was woken by a light that had been switched on at the passage and she  saw a tall thin figure peeping through her bedroom door. She raised an alarm  and fled out of her bedroom to the cottage outside. She woke her children  and the gardener. When they all came back to the house, they found all the  lights were turned on and the door in the passage was broken and the  window at the lounge area was open. The intruders entered through the  window and took a decoder, cellphones and an Apple ipad. She later  identified her Apple ipad (serial number 01232800243) at Sidvokodvo  police station. She typed her password into the ipad and was able to access  her documents. Nikiwe identified the ipad in Court. The first accused denied  breaking into Nikiwe’s house and stealing her property. Nikiwe did not see  the intruder who stole her property and could not identify him. It is notable  that Nikiwe’s ipad was found in the bag that was said to belong to the first  accused when the police searched it after arresting PW1. It is notable also  that the first accused was with PW1 and at the Nhlambeni area when the  police asked to search the car. The accused has not disputed that he fled the  scene when the police asked to search the car in which he was travelling at  Nhlambeni area on the night in question. The accused has also not disputed  that the bag and its contents belonged to him.

[33] The evidence of PW38-5387 Detective Constable Nhlanhla Makhanya is  relevant to the evidence given by PW1. PW38 was stationed at Sidvokodvo  police station in 2014 in the Criminal Investigation Department (CID). On 2  July 2014 he was assigned a case involving a housebreaking with intent to  steal and theft case which allegedly took place at Nhlambeni. The  complainant was Nikiwe Nxumalo. She reported that her house had been  broken into in the early morning hours of 2 July 2014 while she was asleep  inside. She told the police that a black Samsung galaxy; blackberry  cellphone and an iphone black and grey in colour and an Apple ipad were  taken by the intruder(s). It was PW38’s evidence that in the evening of 3  July 2014 he and 6750 Constable Sabelo Dlamini patrolled at Nhlambeni  and while doing so, they came across a motor vehicle to wit: a Jetta,  registration No. HHP 005NW parked adjacent to the road next to a bush.  They stopped and went to investigate. He knocked on the driver’s window  several times before the driver opened the door. After officer Makhanya had  introduced himself to the driver of the stationary vehicle, the driver told him  that his name is Sanele Tsabedze from Maliyaduma.

[34] It was when he requested the driver to alight from the vehicle and questioned  Tsabedze why he was at Nhlambeni at that time of the night if his home was  at Maliyaduma. Officer Makhanya suddenly heard a loud bang from the left  side of the motor vehicle at the back seat. It was a male person getting off  the vehicle and fleeing the place into the bushes and into the night. PW1  informed the police that the person fleeing the place was Nkosinathi  Ndzinisa, the first accused herein. Tsabedze told the police that the first  accused was his friend. Tsabedze told the police he had been hired by the  first accused to collect him from Nhlambeni. The police searched the vehicle  and found a bag which contained a bushknife, crow bar, screwdriver, clothes  of a male person, an Apple ipad whose description fitted that given by  Nikiwe. The serial number of the Apple ipad was 01232800243. Tsabedze  told the police the property inside the bag belonged to the first accused.

[35] Tsabedze was questioned at the police station and locked up. Officer  Makhanya’s evidence corroborates that of Tsabedze regarding the run  around that the first accused gave them when he was called by Tsabedze.  The docket regarding this matter was later transferred to Manzini regional  headquarters after the first accused was arrested. In Court officer Makhanya  identified the Apple ipad that was retrieved from the bag said to belong to  the first accused.

[36] In August 2014 the first accused again hired Tsabedze’s taxi and asked to be  transported from Malkerns. Tsabedze informed the first accused that the  police were looking for him and that he should report at Sidvokodvo police  station. The first accused never told PW1 why he eluded the police from the  night he fled from them in July 2014.

[37] When Tsabedze fetched the first accused from Malkerns, the first accused  was carrying a black bag. The time was after 12 midnight when he fetched  the first accused from Malkerns. Tsabedze drove the first accused to  Mpolonjeni, Mbabane.

[38] On another day in August 2014, PW1 received a call from an unknown  person who asked to be taken to Malkerns. When he arrived at Malkerns to  collect the unknown passenger, he found him in the company of the first  accused. They asked to be dropped off at Malkerns where there are horses  and stables. They requested PW1 to wait for them. The time was around  11pm. PW1 went to fill up the car and returned to the spot where he waited  for the first accused and the unknown passenger. The time was past midnight  when he received a phone call from the unknown passenger asking him to  find them at Bethany. At Bethany, Tsabedze found the passengers he had  initially dropped at Malkerns in the company of three other people who were  unknown to him. They all boarded his taxi. The first accused sat on the front  passenger seat.

[39] On a different date, in August 2014, PW1 was once again called by the first  accused and asked to fetch him from eNtabamhloshana. The time was about  12 midnight when Tsabedze drove to Ntabamhloshana to fetch the first  accused. The first accused was found at a bus stop at Ntabamhloshana. On  this night, PW1 was driving a truck. The first accused asked PW1 to  accompany him on foot to a place around Ntabamhloshana as he explained  that the place he was going to was inaccessible by motor vehicle. PW1  testified that the first accused said that he needed PW1 to help him carry  certain things from a certain homestead which was not far from the bus stop.

[40] They went to a certain homestead where the first accused opened the door  and got inside the house. PW1 says he heard noise coming from inside the  house and got inside to enquire. Inside the house, PW1 found the first  accused standing next to the bedroom door and carrying a firearm that was  silver in colour. The firearm was shining in the dark. PW1 heard the first  accused shouting and asking the occupants to give him live ammunition.  PW1 saw a woman taking live ammunition and money from a box and gave  it to the first accused. PW1 and the first accused subsequently left the  homestead. The first accused took a bag from the lounge when they left the  homestead.

[41] It was the evidence of PW1 that he realized when they were inside the house  that the occupants of the house were being robbed by the first accused. He  stated that the first accused pointed the man who was inside the bedroom  with a firearm when he demanded to be given the live ammunition. PW1 did  not see the contents of the bag that was taken by the first accused from the  lounge of the house in which a man and a woman was robbed at  Ntabamhloshana.

[42] When the first accused and PW1 reached the bus stop where they left the  truck they found that the truck had developed mechanical problems. When  the truck was fixed, PW1 and the first accused travelled to Manzini where  the first accused was dropped off at Mangwaneni in Manzini. The first  accused paid E200 for taxi fare and E500 for the delay he had caused PW1.  When the first accused was dropped off at Mangwaneni, the time was  between 1am and 2am.

[43] The first accused denied involvement in the robbery referred to in count 11,  12 and 27 and stated that Tsabedze implicated him in the said offences  because there was bad blood between them which goes far back into their  childhood as herd boys at Maliyaduma. The first accused also said he does  not see eye to eye with PW1 because he was once suspected by PW1’s  family of having broken into a shop belonging to PW1’s mother at  Maliyaduma. It is not clear to me how the first accused could, on various  occasions hire and use the taxi service of PW1 if they were sworn enemies.  The first accused has not taken the Court into his confidence in this regard.

[44] The Court heard that PW11-Masiko Mduduzi Dlamini and PW12-Hlobsile  Fortunate Mngomezulu were robbed of their properties while asleep at their  home at eNgculwini, Ntabamhloshana. PW11 and PW12 are husband and  wife. They told the Court that in the night of 27 July 2014 while they were  asleep in their home, they were rudely awoken by intruders who demanded  to be given money. Masiko Dlamini testified that when he woke, he found  the intruders in his bedroom and they shone a light in his eyes. When he  looked at where he had put his firearm before retiring to bed, he noticed it  was no longer there. He was ordered to face down and not move as doing so  would result in him being shot. He obliged. The intruders demanded to be  given money and live ammunition. He told the intruders that money and  ammunition was in the safe. The intruders ordered Hlobsile Mngomezulu to  give them the money and the live ammunitions from the safe. Hlobsile did as  she was ordered. The total amount of cash taken was E5 000.  Masiko  Dlamini testified that his firearm was a 9mm parabellum chrome silver in  colour with a black handle, serial number 403539 and had one magazine. He  produced a license for the firearm. He also testified that in addition to the  firearm, ammunition, cash; a Samsung S5 was also taken by the robbers.

[45] Masiko Dlamini and Hlobsile Mngomezulu testified that prior to retiring to  bed they had locked the doors in their house. It was their evidence that the  robbers gained entry by breaking a sliding door-a main entrance into the  house. They testified that there was light inside their bedroom from what  appeared to be a torch carried by the robbers. According to the evidence of  5606 Constable Thembinkosi Dlamini, Masiko Dlamini positively identified  the second accused as one of his assailants during an identification parade  conducted at Matsapha police station in September 2014. Hlobsile testified  that a sum of E100 and coins were taken from her handbag; and two tablets  and a Samsung cellphone S5 belonging to her husband was taken by the  intruders. She told the Court that she was threatened with violence if she did  not do as ordered by the intruders.

 

Evidence relating to Count 7 & 8

[46] PW19 and PW9 Amina Variyana and Ibrahim Variyana are husband and  wife. In 2014 they lived at Mahlangatsha, Mankayane Sibovu where they  operated a grocery shop business. On 24 September 2014, PW10 went to  Manzini to buy stock for the business and left his wife to run the shop.  PW10 returned with the stock and the couple closed their business at around  630pm and went home. They used the truck to go home. PW10 was driving  the truck while PW9 and their three children were passengers therein. When  they got to the gate of their house, PW10 alighted from the truck to open the  gate. No sooner had he arrived at the gate than he was accosted by a male  stranger who pointed a firearm at him. The male stranger was in the  company of another male person. They demanded to be given money. PW10  pleaded with them to spare his life and go to his house with him. He gave  them money which was in his pockets there and then. One of the men drove  the truck from the gate into PW10’s yard.

[47] It is PW9’s evidence that she and the children also got to the house after the  truck was parked outside by one of the intruders. The intruders ransacked the  house and took cash, jewellery and cellphones among other things. PW9  identified accused 2 as one of the people who robbed them. She testified that  she was frog-marched by one of the intruders to different locations within  the house searching for money. The intruders made off with cash in local  currency as well as in US Dollars. According to PW9, the intruders  remained inside the house for at least two hours. Inside the house the lights  were on and the TV light was on. The intruders asked them to turn the TV  on so that the children could watch it and not make noise. While she went  from room to room looking for and identifying money in the house, one of  the intruders kept watch over PW10 who sat on the bed with the robber  standing behind him and carrying a firearm.

[48] Inside the house, the robbers turned the lights on and ordered PW10 to sit on  the bed. The robber took shoe laces and tied PW10’s hands at the back while  the other robber took PW9 to another room where he was looking for more  money. The other intruder stood behind PW10 holding a firearm. The other  man took cash from the wardrobe and put it in his pockets. They also took  cellphones and before they left they admonished them not to call the police  and that if they did, they would kill them.

[49] PW10 testified that the intruders made off with E40 000 as well as R10 000.  The robbers further took an undisclosed amount of US Dollars. The Court  heard that one of the accused persons’ carried a firearm which was silver in  colour while the other one carried a black firearm.

[50] After the intruders left, the couple called PW9’s brother and informed him of  the robbery and he then reported the matter to the police at Mankayane  police station. The police came and recorded statements. Later, they were  called by police at Mankayane where PW9 identified her jewellery which  was recovered by the police.

[51] During cross examination PW10 stated that the first accused is the intruder  who stood behind him holding a firearm when his house was being  ransacked for money. PW10 testified that he later identified both accused at  Matsapha police station when an identification parade was conducted. PW  39 5606 Constable Thembinkosi Dlamini, the police officer responsible for  conducting the identification parade at Matsapha police station confirmed in  his evidence in Court that both accused persons were identified by the  couple as their assailants when they were allegedly robbed in their house in  2014.

[52] The defence of both accused persons was a bare denial.

Evidence of Count 9 and 10

[53] PW 18 Jabulani Albert Simelane and PW19 Sifiso Njabuliso Simelane are  father and son. In 2014 they lived at EZulwini, ka Mvubu eMvana. PW18  testified that on the night of 25 August 2014 he was asleep in his bedroom  alone as his wife was at work. He slept with the lights on. It was at around  2am when he heard a loud noise of a window being broken in his bedroom.  He was shocked and jumped out of bed and tried to rush to the door but was  met by a man who was holding a firearm. The intruder got inside the house  through the broken window. He pointed PW18 with the firearm which was  silver in colour and ordered him not to move. PW18 obliged. The intruder  came next to the door where PW18 stood and demanded to be given a safe  for money. PW18 told him he did not have one. The intruder assaulted  PW18 on the head with a butt of the firearm he was carrying. PW18 bled  from the head as a result of the assault. The first intruder was soon joined by  another male person who gained entry through the broken window.

[54] PW18 was ordered by the first intruder not to move when he stood next to  the door. The second intruder carried a rod that looked like a crow-bar. The  second intruder took PW18’s T-shirt and wiped the blood that came from his  head. While that was happening, the first male person to enter the house was  ransacking the drawers in PW18’s bedroom where he retrieved PW18’s  licensed firearm and live ammunition. The firearm is an Astra with serial  number S1654 and 200 live rounds of ammunition. In PW18’s bedroom the  intruders further took a Blackberry cellphone, a Samsung S4 cellphone as  well as a Nokia cellphone as well as E600 cash.

[55] PW18 and the two intruders then left his bedroom and went to PW19’s  bedroom. When they entered Sifiso’s bedroom one of the intruders said if he  (referring to Sifiso) so much as shows his face he will shoot him. The  intruders ransacked Sifiso’s bedroom while he slept and covered his face.  They took Sifiso’s cellphone and laptop.

[56] The intruder who carried a firearm jumped out of the house through Sifiso’s  bedroom window only to return and inform his associate in crime that the  security guard manning the place had escaped. The security guard was hired  by PW18. The intruders spent about thirty minutes inside the house before  they left. Police were notified and they came and recorded statements. PW18  identified accused 2 as one of the intruders who entered his house and was  not carrying a firearm but had a rod that looked like a crow bar. PW18  testified that he also identified the second accused person at Matsapha police  station during an identification parade.

[57] He was called later by the police where he identified his firearm and 90 live  ammunition. The witness identified the Astra firearm in Court as his; he also  identified the 90 live ammunitions before Court and stated it belonged to  him.

[58] PW18 testified that he was traumatized and pained by the conduct of the  intruders who robbed him of his property. He lamented the fact that the  robbers were young people who had no respect for someone his age-as he  was old enough to be a parent of the intruders.

[59] The evidence of PW19-Sifiso Njabuliso Simelane corroborates the evidence  of PW18. PW19 testified that the intruders took 3 cellphones (blackberry  ZTO and a blackberry 9790) and a wallet which had cash amounting to E100  and his cards next to his bed. They also took an Acer laptop which was  under a continental pillow in his room.

[60] PW19 did not see the intruders. He however heard one say to him should he  show his face he will have his brains blown off with a firearm. At the time  he had covered his face with a blanket as he lay on his bed. The intruder  spent less than ten minutes in PW19’s room. He did not recover any of his  property that was taken by the intruders. He did not see the intruders and  could not identify them. PW19 was not cross examined by both accused  persons.

Evidence concerning count 14

[61] The Crown called the evidence of PW16 Donatus Zwane and that of PW14  Gugu Treasure Zwane; the two witnesses are husband and wife. They  testified that their home is at Malkerns. In the year 2014 while they were  asleep at night, they woke to a loud bang of their bedroom door being kicked  open and immediately thereafter they heard a gunshot ring out. Gugu fled  into the rest room and locked herself there while Donatus remained on the  bed.

[62] Donatus saw two men enter his bedroom and they shone a torch light in his  face and one of the intruders demanded to be given money. Donatus pleaded  with the intruders not to kill him. The intruders took cellphones, Lenovo  computer and a Samsung notebook.

[63] The intruders gained entry through breaking the main door. When the couple  retired to bed, the lights on the outside of the house were on while the lights  inside the house were turned off. The doors were securely locked. When the  couple was woken by the loud noise of the bedroom door being kicked,  PW16 observed that the light in the passage was now on.

[64] The matter was reported to the police. The couple did not recover what was  stolen from them.

[65] The ballistic expert’s report reflects that the empty cartridge that was found  at Zwane’s home matched one of the firearms that were subsequently  pointed out by the accused persons.

Evidence of Count 15

[66] Ryan Norman Canby was called as PW7 and testified that on the morning of  19 September 2014 and at about 3am he was at his home in Malkerns when  he heard the sound of glass breaking at the front door of his house. He woke  and went to investigate after he had woken his wife and told her he thought  someone was breaking into their house. He found two men breaking the  glass door and tried to stop them by throwing a chair at them. They shot at  PW7 but missed and he retreated to his bedroom where he used his  cellphone to call his boss who lived close to PW7’s home and reported the  incident. PW7 then threw his phone in the wardrobe and left it on.

[67] PW7’s boss reported the matter to the police and they came to the scene.  PW7’s boss arrived driving his vehicle and shone the lights at the back of  PW7’s house. The intruders fled the scene into the woods.

[68] The second accused is one of the intruders who came inside the house  wearing Rian’s boots- bearing trademark-Bronx, and size 9.  PW7 had left  the boots outside the door when he retired to bed. The intruders took PW7’s  HTC Desire cellphone and a small amount of money. Only the boots were  recovered. Ryan identified the second accused as one of his assailants. He  testified that he also identified the second accused during the identification  parade organized by the police at Matsapha police station.

[69] The first accused did not cross examine PW7. During cross examination by  the second accused PW7 stated that he was seeing the second accused for the  third time during the trial. He stated that the first time he saw accused 2 was  the night he robbed him and was wearing the boots. It was put to PW7 that  the second accused had also met with him at KaMthunyelelwa bar at  Fairview; this was denied by PW7. While PW7 admitted that he went to  KaMthunyelelwa from time to time, he denied knowing the second accused.  When the second accused denied robbing PW7, he insisted that he was  robbed by the second accused. During cross examination it was put to PW7  that the boots belonged to accused 2 and were bought from South Africa by  his father. This was denied by PW7 who insisted the boots belonged to him.  Curiously, the second accused did not call his father to buttress his version.

[70] PW4 is Matewu Hedzane and a resident of Moneni in Manzini. He is a  retired member of the community police at Moneni. He knows the second  accused as a resident of Moneni. The second accused stayed in a one-room  house alone at Moneni. On the night of 25 September 2014, PW4 was at his  home and asleep when he was woken by police who asked him to come with  them to second accused person’s house. The police told PW4 that the second  accused had asked that he be present at his house. On arrival at second  accused’s house he found him standing at the doorway of his house. The  door of the house was unlocked. The second accused led the way and  entered inside and was followed by the police and PW4.

[71] Inside the house, the second accused requested PW4 to remove a pillow  which was on the bed and there-were two rounds of ammunition. The police  took the two rounds of ammunition. The second accused also pointed out a  pair of brownish boots from under his bed; these too were taken by the  police. The second accused further retrieved a small amount of dagga which  was in a plastic bag from the roof. The second accused appeared to be alright  when he was pointing out the items to the police and before PW4.

Evidence relating to count 16

[72] In the year 2014 PW22 Marcel Leon Smith was a resident in Malkerns  opposite Phondo next to Brookside Lodge. In August 2014 and at about 3am  he was asleep and was woken by someone shining a torch in his face and  also pointing a firearm at him. There were three intruders in his bedroom  and one of them held a silver gun which he pointed at PW22. The intruders  demanded to be given money and they took E1 000 from PW22’s wallet;  they also took cash from PW22’s wife’s handbag and E6 000 cash which  was in the wardrobe. They also took 2 Apple cellphones and 1 Nokia  cellphone. The intruders further demanded to be given car keys of a VW  Passat sedan, metallic paint Registration No. USD 867 AM and the romote  gate key. They took a VW Passat sedan. The intruders ordered PW22 and his  wife to remain in their bedroom until they (intruders) had gone.

[73] After a while PW22 and his wife went outside his house and found his  security guard’s hands and feet tied and in his mouth stuffed with a cloth.  They untied him and called the police who came and recorded statements.  The motor vehicle was subsequently found abandoned at Bethany. He was  subsequently called to identify his assailants at Matsapha police station. He  identified the first accused as one of the intruders who robbed him of his  property in August 2014. This was confirmed by the officer who carried out  the identification parade in Matsapha in the year 2014.

[74] Entry into his property was gained by the intruders through jumping a wall,  immobilizing the security guard and breaking a window in the lounge. They  gained entry into the house through the window they broke in the lounge.

Evidence regarding robbery counts 17, 18, 19 and 20

Count 17

[75] PW26 Kiddy Mahlalela testified that in 2014 she lived at Lugaganeni,  Manzini with her children-Archie Morale, Fikile Fihla and Ncami Kunene as  well as her grandchild- Tshepo Morale in a double storey house. The house  also has an outside cottage.

[76] During the night of 17 September 2014 she was at home and asleep when  she was woken by a loud bang which sounded three times. It was during the  second bang that she jumped out of bed, shouted and attempted to shut and  lock her bedroom door. When she held on to the bedroom door knob, the  door was kicked open by two men. PW26 jumped back to bed and covered  herself with blankets. She again open the bed cover and threw her cellphone  at the intruders. On the dressing table there were car keys and another  cellphone. She was ordered by one of the intruders to take her handbag and  give them cash. It was while she was shaking her handbag that she saw her  son Archie Morale; she told him to leave because the intruders were armed  with firearms and Archie left. The intruders took E600. They enquired who  else was in the house and PW26 told them some of her children were  upstairs. She was frog marched to her children’s bedrooms by the intruders.  PW26 instructed her children to give the intruders anything they asked for  and not resist or fight back. Fikile gave the intruders E1 200 which was  money she had been given by PW26 on the previous day. Ncami was  assaulted by the intruders with the butt of a firearm when they found her on  the phone and they asked who she was calling.

[77] PW26 was carrying her grandson and was with her two daughters (Fikile  and Ncami) when they forced them to go to the cottage. One of the intruders  used foul language at her by saying don’t play games with us, whore. At the  cottage they found no one as Archie-who slept there had left to ask for help.  Inside the cottage, the intruders took cigarettes and a cellphone. The fact that  Archie was not forced into submission by violent means because he was not  present in the cottage when the robbers came means he was not robbed. This  may, however be a crime of theft as the intruders made off with cigarettes  and a cellphone from the cottage.

[78] When PW26 and her children (Ncami and Fikile) were ordered back into the  house, the intruders opened the car which was parked outside and called  PW26 to give them cash from the car, and she did.

[79] After the intruders left, PW26 heard gunshots coming from the direction  they took. Police were called and they came and recorded statements.

[80] The intruders gained entry into the house by breaking the kitchen door. They  were carrying two firearms, one black in colour and the other was silver in  colour. When they got inside PW26’s house, the intruders turned on the  lights in the kitchen and in PW26’s bedroom. PW26 testified that the  robbery incident traumatized her so much so she still undergoes counseling.  She did not see the faces of the intruders. This witness was not cross  examined by the accused persons.

[81] PW23 Ncami Portia Kunene’s evidence corroborates that of PW26. When  she heard the noise of a bang of the door, she quickly called 999 and  reported to the police that there was a break in in her house. It was while she  was talking over the phone that her mother (PW26) came into her bedroom  in the company of two men who led the way. The men hit her with a butt of  the firearm on her hand and her cellphone fell to the floor and broke into two  parts. The intruders took two of PW23’s cellphones a Nokia 610 and a  Samsung S3mini which was being charged on the dressing table; they also  took E80 from PW23’s handbag. On their way out to the cottage, the  intruders went to the kitchen and opened the fridge and took 2 castle lite  beer.

[82] After some time they were called by the police and asked to attend an  identification parade at Matsapha police station. She identified the second  accused as one of her assailants.

[83] During cross examination of PW23 by the second accused, this witness  denied that police first brought the accused persons to her home and  informed her that they were the people who had committed the robbery at  her home. This was denied by PW23.

Count 21 and 22-evidence

[84] Pw5 Gugu Mahlindza gave evidence in connection with count 21 while  PW21 Mphilo Phila Zwane gave evidence in connection with count 22.

[85] PW5 testified that in 2014 she resided with PW21 at Rest Camp past Moneni  in Manzini at a Maziya homestead. On the night of 22 September 2014 and  at about 1250 hours PW5 heard noise and a door opening. Mphilo came  outside PW5’s bedroom and told her to open her bedroom door as he was in  the company of two armed men. PW5 opened the door and one of the  intruders came inside her bedroom and told her they were looking for  money. Pw5 gave them E300 which was in her purse. One of the intruders  stated that they will search for the money and if they find more without PW5  giving it to them, they will shoot and kill both PW5 and PW21. They started  searching and found money hidden in a drawer of the headboard totaling E5  300; they also took money from a safe that was hidden in the wardrobe  totaling E5 800.

[86] They further took bottles of wine which were in the kitchen; sunbird  perfume 5ml and a backpack-Karima brand among others.

[87] The robbers gained entry through forcing open the main door which had  been locked prior to the occupants retiring to bed. PW5 identified the second  accused as one of the people who robbed her. It was her evidence that her  attackers locked both herself, Mphilo and Nokulunga Ntimane in the  bathroom before they left the scene. They managed to unlock the bathroom  door and called the police.

[88] At a later date, the police called and asked them to come and identify certain  things which had been found by the police. Mphilo went to the police station  and identified some of the property that had been stolen from PW5’s house.

[89] When the intruders came into her house, they were carrying firearms-one  firearm was black and the other was silver in colour.

[90] PW21’s evidence corroborates the evidence of PW5 in material respects. He  testified that he was asleep in the night of 22 September 2014 and had turned  off the light in his bedroom. He woke to find two men who had put on the  light in his room and demanded to be given money. The men asked who else  was in the house and PW21 told them he was with PW5. The intruders told  them that if they called police they would shoot them. The intruders took  wine from the kitchen as well as cash from PW5’s bedroom and a navy blue  backpack Garmer brand. He identified his perfume-Sunbird perfume and  Beckham perfume at the police station. The perfumes were later recovered  from the first accused’s rented flat at Mvutshini.

[91] At Matsapha police station he identified the intruder who carried a black gun  as he was the vocal one. The one who carried a silver firearm ordered PW21  not to look at him. PW21 identified the second accused as one of his  assailants. During cross examination, PW21 stated that he was able to  identify the second accused because he looked at him when he was talking.  The second accused stated that he could not have pointed at PW21 with a  firearm because he does not know how to use a firearm. That Mphilo Zwane  identified the second accused as one of his assailants is confirmed by the  evidence of the police officer who was responsible for conducting the  identification parade at Matsapha police station.

Count 24

[92] The Crown led the evidence of PW6 Dumile Dlamini. She testified that on  the night of 6 August 2014 she was at home at eNgculwini at Thulani  Dlamini’s home. She was with her sister Nolwazi Dlamini and the time was  about 11pm when she heard a loud noise at her mother’s bedroom of a  window being broken. PW6, her baby and her sister were in their bedroom  when they were suddenly accosted by one male intruder who lifted PW6’s  pillow and took her cellphone which had been put there by the witness. The  cellphone was charging and a heater was on. The intruder then summoned  his accomplices and three people came into her room.

[93] PW6 identified the second accused and described him as dark in  complexion- as one of her assailants. She testified that the second accused  was carrying a firearm which was shiny; he took it and placed it on the bed  with one live round of ammunition. He stated that this was a real gun and  not a toy gun. The intruders took PW6’s cellphone-MTN Stepper with MTN  logo at the back with serial number 356858051535145. She referred to a  statement she made to the police on 7 September 2014. The witness showed  the court the phone and the serial number on the phone corresponds with the  evidence of the witness. They took E500 cash from the handbag of PW6 as  well as a cellphone belonging to Nikiwe Dlamini. They ransacked the house  looking for more money but did not find it.

[94] They tied hands and feet of PW6 and of Nikiwe with belts and neckties and  immobilized them. They also put the baby’s underwear in Nikiwe’s mouth  and left the scene. PW6 and Nikiwe later freed themselves and went to  report the matter to a neighbour’s home; police were called and statements  were recorded.

[95] While they were being robbed the lights inside the house were on because  they had not retired to bed for the night at the time they were attacked.

[96] PW6 subsequently identified her cellphone at Manzini police regional  headquarters; she was carrying the cellphone box when she went to identify  it at the police regional headquarters.

[97] PW34 is Bongani Matasatasa Dube testified that he knows the second  accused and referred to him as Maguzumbela. PW34 resides in Mahwalala,  Mbabane. In the year 2014 he visited his brother at Moneni, Manzini and  saw the second accused moving around Moneni. The second accused  requested that PW34 gives him E200 so he could give his girlfriend bus fare.  PW34 gave accused 2 a sum of E100. The second accused gave PW34 a  MTN touch screen cellphone bearing MTN logo at the back in exchange for  the E100. The second accused promised to take the cellphone back when he  brought the E100 that had been given him by PW34.

[98] PW34 took the phone and kept it in a wardrobe at his home until police  came to his home and enquired about a cellphone he had received from the  second accused. He gave the police the phone and they recorded a statement  and left.

[99] During cross examination, the second accused did not deny that he gave  PW34 a cellphone; he stated that the cellphone PW34 gave to the police was  not the one he received from him. The second accused stated that he gave  PW34 a Nokia C1 cellphone black in colour and it had a crack. This was  vehemently denied by PW34. PW34 stated during cross examination that  when the police took the phone they recorded its serial number.

Count 25

[100] PW24 is Gugu Maphalala and a complainant in the alleged robbery in count  25. She testified that in 2014 she lived with her help and her child at Fonteyn  next to Magwinya’s homestead. On the night of 15 August 2014 she locked  and secured her door before she went to sleep. During the night she woke up  to find two male intruders inside her house. One of the intruders shone a  light on PW24’s face while the other one carried a crow bar. They demanded  to be given money; Pw24 gave them E720 which was inside her handbag.  They also took electronic gadgets namely: a Proline black computer which  had a crack at the corner, a black notepad with a maroon strip, a child’s  notepad with the child’s name Ncenge Maphalala and with stickers outside,  a Samsung notepad and a child’s phone. The intruders also took food from  the fridge.

[101] The intruders ordered PW25 and her help to lie on the bed and cover  themselves with blankets. They were able to call the police after their  assailants had left the scene; they used the phone belonging to the help.

[102] In the morning the police called and asked PW24 to come to the police  station where she identified all but the Samsung notepad and the iphone at  the police station. The witness further identified the items in Court. She told  the court that she was able to identify her laptop by inserting her password  and accessed her documents.

Count 26 Housebreaking with intent to steal and theft

[103] PW2 is Banele Dlamini; he gave evidence in connection with count 26. In  the year 2014 he was employed at Waterford and lived at Waterford park,  Mbabane. On 11 July 2014 he was in his house asleep when he woke up in  the morning and found his house in shambles and some of his property  taken. He arrived home and locked the door, sat on the bed but eventually  fell asleep because he was tired. There was a semi open window in his house  through which the TV cable passed from outside to inside the house. When  he woke up, he found that window wide open and the house in shambles.

[104] A lot of items were stolen from his house including clothes, etharnet cables,  laptops, bags, wallet with money. The cash that was stolen and was shown to  Court by the witness included: E1 700; 120 Hong Kong Dollars; 12 US  Dollars; 200 Czech Republic Kronas; 20 Duwafun (currency from the  Phillipines). The witness also showed the court a black bag which had a side  bag as well as a black bag with silver colour patches or dots as some of the  items that were stolen from his house in July 2014. It was his evidence that  he had not given anyone permission to remove his property from his house.

[105] It was the evidence of PW2 that he got the foreign currencies from his  travels and when he studied in the United States of America in the year  2012.

[106] When he discovered that his property had been stolen, he reported the matter  to the police. In October 2014, the police called and told him to report to  Manzini regional police headquarters where he identified his bags and cash  in foreign currency.

[107] During cross examination, PW2 testified that police had told him that some  of his property was found at Mvutjini.

Count 27

[108] Lindokuhle Nosipho Dlamini led evidence pertaining count 27. He testified  that he resided at eZulwini, Enshakabili in the year 2014. On 16 May 2014  his house was broken into and 3 laptops (Lenovo, Toshiba and E-machine  brands), Nokia E63 cellphone and cash amounting to E4 000, a hallmark  watch white in colour and a wrist watch- Tomato brand were stolen. Entry  was gained through a window that was broken by the intruders and they  exited through a sliding door. The door was locked prior to entry by  intruders. The matter was reported to the police.

[109] The discovery that his house had been broken into was made in the morning  at around 5am. In September 2014 he was called by the police to come and  see if exhibits they had did not include property taken from his house in May  2014. At the police station he identified the two wrist watches the rest of the  property was not at the police station.

[110] The wrist watches were subsequently found at the rented flat of the first  accused at Mvutshini.

 

Arrest of the first accused

[111] PW 35 Tshepo Comfort Dlamini testified that he is a taxi driver; that on 25  September 2014 at about 2pm he was at Mahhala shopping complex chatting  with his friend when he saw a crowd apprehending someone. He and his  friend got close to the action and saw that the people arresting the person  were police officers in mufty. The police apprehended the first accused.  Police searched the first accused and found an amount of E18 644 in his  person. They put the cash on the ground and counted it in the presence of the  first accused. The money was of South African Rand and of Emalangeni  notes.

[112] During cross examination, the first accused stated that when he heard the  police conversing among themselves, he thought he was being robbed.  According to PW35, the police stated that they had been trailing the first  accused from Manzini while the crowd asked where the first accused had got  so much money. It was also put to PW35 that the police assaulted the first  accused when they arrested him; this was denied by PW35. PW35 testified  that the police arrested the first accused, took money from him and then took  him to a motor vehicle they were using. It was put to PW35 further that he  had been chosen by police to testify by telling lies and protect the police;  this was also denied by the witness.

Count 30 robbery Accused 1

[113] PW3 Mdudzi Dlamini led evidence in connection with a robbery in count  30. He testified that one early morning (430am) in July 2014 he was asleep  at his house at eZulwini, Nshakabili when he woke to find a male intruder in  his bedroom. He was frightened and asked who the intruder was; in response  he was insulted with foul language. The intruder demanded money and PW3  told him there was none but that he could take whatever else he pleased.  This he said because he was frightened and scared. The intruder told PW3  that he had taken the cellphones already. He then locked him inside his  bedroom and left. Before the intruder left, he was heard talking to someone  who was outside and reporting that PW3 had no money. The response from  the person outside the house said PW3 must be shot because he must have  money as it was month end and he had been paid.

[114] The house was lit at the time as the intruder had turned the light on when he  got into PW3’s bedroom.

[115] The intruder who came into PW3’s bedroom was carrying a crow bar and  something that looked like a pipe or a firearm. The intruder took two  cellphones belonging to PW3 and one cellphone belonging to PW3’s child.  They also took a pair of white Nike sneakers which had black stripes and are  size 8. The sneakers belonged to PW3. He reported the matter to the police.  He later identified his sneakers at Manzini police regional headquarters as  his. The rest of the stolen property was never recovered. The witness  identified the sneakers in Court.

[116] During cross examination, PW3 was only asked questions about whether or  not he could identify any of his assailants. His response was in the negative.

Count 33

[117] PW13-Sipho Mabuza and PW8-Lindelwa Treasure Motsa-Mabuza are  husband and wife and they gave evidence in connection with count 33. PW8  was at home at Mahlanya on the night of 7 February 2014 at about 3am  when two male intruders entered her bedroom. She woke and saw one of the  men take two of her cellphones next to her headboard. The intruder who  took her cellphones then came next to her bed and warned PW8 to do  everything they asked her to. He told her that they had restrained her  children (boys) already and were monitoring them. They said they were  looking for cash and admonished her not to play smart as doing so will result  in her being hurt. PW8 says she told the intruders there was no money in her  bedroom but there was a sum of E2 000 in a bedroom upstairs. She was frog  marched to different parts of the house and she gave them cash totaling E2  900.

[118] In the bedroom upstairs, PW8 was pushed aside by the intruders and they  took a laptop which was on a sofa as well as two cellphones which were on a  coffee table-the cellphones were new. They took E2 000 which was in the  wardrobe. They opened drawers and found an iphone and a tablet which they  took. PW8 was further told to take them to the lounge where they asked for a  safe and whether PW13 had a firearm. When she said they had no money  safe, the intruder became violent. They showed her a sharp metal which was  carried by one of them. She was told by the intruder who carried the sharp  metal that lentfo le iyi jwayele ingati ngitakugwaza kanye ufe-this iron rod is  accustomed to being used to kill people, I will stab you with it and you will  die. PW8 stated that when she heard the threats she was so frightened, she  knelt and soiled herself. One of the intruders said ekse iyachama lenja-this  dog is urinating. At the time PW8 was urinating on herself. PW8 told them  to go to the study room where there was an amount of E500 and that there  was also cash in the rooms downstairs, she was scared she would be killed in  the room upstairs.

[119] The intruders then told her they would leave her in bed as they were still  going to ‘work’ in the other homes nearby. PW8 also showed the intruders  an exercise book next to the TV which contained E400-they took the money.  They then led her to her bedroom where she was ordered to cover herself  with a blanket and lie in bed. It was after a long time that she moved out of  bed and she was assaulted with an iron rod on the head and was asked sitsite  lala kuphi? Sewuyaphi nyalo? –‘where did we say you should sleep? Where  are you going now?’After that assault, she remained in bed until it was  morning and she heard her children flush the toilet. Her children told her no  one kept watch over them during the night. It was when she asked to use her  children’s phones to call PW13 that the family realized their phones were  stolen. She finally used her help’s phone to call the police. The police came  and she reported the incident. A lot of electronic gadgets and personal  effects of PW8 and those belonging to PW13 were stolen by the intruders.

[120] PW8 cannot identify her assailants but did see that the other intruder carried  a bush knife. Entry was gained into the house by pushing a small glass door  and pulling the key from the main door and using it to open door.

[121] She later went to identify some of the property that was stolen at her home at  the Manzini regional headquarters in the company of her husband. She and  her husband identified four pairs of shoes belonging to her husband-black  nike sneakers, white grand-pre sneakers, half boots, brown in colour and  brown grasshopper shoes.

[122] PW13 confirmed the evidence of PW8 in material respects. He was not  present when his wife was robbed of their property. He was away at work in  Nhlangano. He returned home after getting the report and found that his  laptop, polo shoes, Adidas grand prix pair of sneakers size 9, sneakers black  adidas size 9, grasshopper shoes, khakhi shoes size 9, Jeep brown shoes size  9, brown Jeep jacket, alcohol Johnnie Walker and Jameson alcoholic drinks  were missing too. His tablet, was also missing. He later identified the white  grand prix adidas pair of sneakers and the grasshopper shoes as well as the  Jeep half boots at the police regional headquarters in Manzini.

Evidence relating to Count 36 & Count 37- Attempted Murder

[123] PW28 is Sifiso Mzileni. He worked as a taxi driver in the evening hours in  Mbabane in the year 2014. On the night of 16 August 2014 he was hired by  a man who was short in stature while parked at Picaddily and he asked to be  taken to Mahwalala kaMasuku. The customer told PW28 to stop and take  someone he was travelling with at Engen Filling station. The passenger who  boarded the taxi at Engen Filling station was tall and he was also carrying a  bag. He charged the customers E50 and they paid him. The man of short  stature was carrying a backpack. When PW28 enquired from him where they  were going with bags at night, the response he got was that they were from  work and they stayed at a Bar until late.

[124] At the traffic circle at Hilltop he was stopped by police who were patrolling  the area. The police asked him to produce his driver’s licence and then  ordered all of them to alight so they could search the car. His two passengers  complained and asked why they were being asked to alight from the motor  vehicle. No sooner had PW28 alighted from the vehicle than he heard the  sound of gunfire from one of his passengers directed to the police. PW28  was shocked. The police took cover on the ground and the passengers fled  into the night. The police questioned him and drove his taxi to the police  station. He was later given his car and was not charged.

[125] PW31 6457 Constable Siza Magongo and PW32 4521 Constable  Ntombenhle Fakudze are complainants in the attempted murder charges  reflected as count 36 and count 37.

[126] On 15 August 2014 PW31 Constable Magongo was on night duty from  10pm until 6am in Mbabane. He was patrolling and doing side-checks  around Mbabane with Constable Fakudze when they received a message  from 999 about a robbery at Fonteyn. They delayed getting to Fonteyn  because they were far when they got the message from 999. When they  finally arrived at Gugu Maphalala’s home they found that their colleagues  from the rapid response department were at the scene already. The  complainant showed them where the intruders had gained entry and the  items that were taken by the intruders. Gugu Maphalala related to the police  that the robbers took a Proline laptop black in colour, a purse, a Samsung  notebook, food from the fridge and cellphones.

[127] Officer Magongo and officer Fakudze left the other officers at the scene and  went to patrol roads to see if the culprits could not be found. They were  patrolling at Hilltop when they stopped a maroon sedan with registration  number ASD 184AS which was coming from the direction of Mbabane  towards Hilltop. PW28 was the driver of the vehicle. Inside the vehicle there  were two passengers. One passenger sat on the front passenger seat next to  the driver while the other one sat at the back seat behind the front passenger  seat. Constable Fakudze requested all the occupants of the vehicle to alight  so they could search the car. Officer Magongo was a few metres away from  the stationery vehicle when officer Fakudze was talking to the driver and  requesting the occupants of the car to alight so the car could be searched.  Officer Magongo got close to the car and opened the door of the front  passenger seat of the car and asked the passenger to alight. The passenger  did not resist. It was when they had alighted from the car that the passenger  at the backseat came out brandishing a shiny firearm and ordered the  passenger who had been sitting on front seat to give way as he wanted to kill  the dog. These words were directed to officer Magongo. While officer  Magongo was still shocked at what was happening, he saw the passenger  with a firearm point the firearm at him; Magongo took cover and a gunshot  rang out. Magongo returned fire. The two passengers fled and crossed the  main road to Mhlambanyatsi through the homesteads.

[128] When the young man pulled the trigger, officer Magongo was on the front  passenger door while officer Fakudze was on the driver’s side. When the  young man pulled the trigger, Magongo fled to the driver’s side where he  took cover at the same place and time as officer Fakudze.

[129] The driver of the vehicle did not flee the scene. When questioned, the driver  explained that he was hired by the two passengers and that the bags that  were in the car belonged to the passengers. It is officer Magongo’s evidence  that some of the property that was found in the car belonged to Gugu  Maphalala the complainant in the robbery incident at Fonteyn. They found  food, Proline computer; e-play children’s computer, purse and Samsung  notebook. They also found a crow-bar and bags which contained clothes.  They informed the CID who took over the investigation of the matter.

[130] In court, officer Magongo identified exhibit 4- Proline computer; 2 cables  for laptops-exhibits 5 and 6; white e-play children’s computer-exhibit 7;  black purse-exhibit 8; Samsung notepad black in colour-exhibit 9.

[131] Officer Magongo identified the first accused as one of his assailants.

[132] During cross examination officer Magongo stated that he saw the first  accused on the day of the incident. It was put to officer Magongo that the  charge of attempted murder is misplaced as he did not suffer any injuries and  was not examined by a doctor. Officer Magongo stated that the fact that the  first accused aimed the firearm at them is enough to show he meant to harm  them.

[133] The evidence of PW32 4521 Constable Ntombenhle Fakudze corroborates  the evidence of officer Magongo in material respects concerning their patrol,  their attendance to the scene of crime at Fonteyn and their patrol and  stopping the taxi at Hilltop; and the fact that they came under fire from the  occupants of the taxi they had stopped. She confirms also that there were  items found in the taxi that were suspected to have been stolen from  Fonteyn. She also referred to exhibit 10-being a brown bag and that inside  the bag was jewellery; the jewellery-exhibit 11 and a badge with inscriptions  ‘stop wrong’-exhibit 9.

[134] Constable Fakudze testified that when she stopped the taxi and the occupants  of the car had been asked to alight so the police could search the car, she  first talked to the driver and then opened the rear passenger door behind the  driver. The passenger who sat at the back seat quickly alighted from the  vehicle. Officer Fakudze said she ran to the side where officer Magongo was  to try and assist in arresting the passenger who was fleeing. She saw the  passenger who had come out of the back seat cocking a silver pistol and she  took cover on the front part of the motor vehicle and she crawled around the  motor vehicle. She heard a sound of gunfire and the suspects fled the scene  and only the taxi driver remained. Officer Fakudze identified the first  accused is her assailant. Officer Magongo and officer Fakudze testified that  they were able to identify the first accused as one of their assailants because  visibility was not bad at the time they came under attack.

[135] PW 36 is 3889 Inspector Duduzile Khayiyane. He attended to the scene of  crime of the attempted murder of officer Magongo and officer Fakudze at  Hilltop traffic circle. He testified that he searched inside the motor vehicle- the Mazda Familia with registration ASD 184AS where he found certain  items that were taken to the police station and handed over to the recording  officer. Inspector Khayiyane was with PW37 4233 Constable Bongani  Emmanuel Zwane when they attended to the scene of crime at Hilltop.  Officer Zwane testified that he inspected the scene of crime outside the  motor vehicle and on the left hand side, outside the passenger seat, he found  two empty cartridges at a distance of about a metre from the sedan. He also  found another cartridge on the right hand side of the motor vehicle in the  middle of the road near a white line of the Mahwalala/Mbabane road by the  traffic circle. He collected the empty cartridges and wrapped same with a  tissue paper and took them to the police station. At the police station he put  the empty cartridges in two seal bags. The cartridges he retrieved from the  middle of the Mahwalala/Mbabane road was put in a seal bag marked  SWAG 035515 while the other empty cartridge was put in a seal bag that  was marked SWAG 035516. Officer Zwane handed the seal bags to officer  Sandile Choncho who was attached to the scenes of crime department at the  time.

[136] PW40 3905 Detective Sergeant Sandile Choncho received the cartridges in  sealed bags from officer Zwane and transmitted them to the police  headquarters where they were received by  7077 Sergeant Lindi Mbukwane  who signed register acknowledging receipt of same. According to officer  Choncho, in seal bag marked SWAG 035515 there were two spent cartridges  while in SWAG 035516 there was one spent cartridge. He received the said  sealed bags on 10 October 2014 and handed them over to the police  headquarters on 12 December 2014. On 31 December 2014 officer Choncho  received a ballistic report from the police headquarters; he photocopied same  and gave the original report to the investigating officer in the matter. The  investigating officer is 3401 Sergeant Themba Dlamini. He also gave the  investigating officer the three (3) empty cartridges which were now in one  seal bag and marked SWAG 055110. Officer Choncho then handed in Court  the three empty cartridges in seal bag SWAG 055110 for RCCI 4578/2014  case which was an attempted murder case.

[137] PW39 5606 Constable Thembinkosi Dlamini is the officer responsible for  the conduct of the identification parade at Matsapha police station. He  testified that on 27 September 2014 he was assigned by the case  administrator in Manzini to conduct an identification parade of the four  accused persons stated in the indictment.

[138] Regarding the first and the second accused persons, their identification was  positive. Before he conducted the identification parade, he met with the  accused persons and introduced himself to the accused. He explained the  reasons for the ID parade. The accused were encouraged to come to inform  their attorneys, if they had legal representation- to come with them to the ID  parade. PW39 secured people who resembled the accused persons (Fillers).  The accused stated that they did not have legal representatives and asked  that the ID parade continue. He got 21 people who acted as fillers from the  correctional facility. He used one filler for one ID parade but should not use  the same filler on the next accused person. Ntshalintshali had 7 fillers and he  was the 8th person; they wore the same outfit which was blue two piece  overall. He asked Ntjalintjali if he was alright with people that had been put  as fillers and his response was in the affirmative.

[139] He had twelve (12) witnesses who came to identify accused persons. The ID  parade was conducted in a house or room which has a glass partition that is  tinted so that the accused cannot see through the glass while the witness can  see the accused he is identifying. There is a speaker and microphone in the  other room. The speaker enables one to communicate. In the room where the  accused and fillers are there is an officer who takes photographs and in the  room where the witnesses are there is parade coordinating everything that  has to do with the witnesses.

[140] He had police officers helping him-7363 Constable Tsabedze who looked  after witnesses and 6183 Constable Gina. A witness who had been to the  room to identify the accused did not return to the room with witnesses who  were yet to identify the accused.

[141] PW39 asked each of the accused to choose where they wanted to stand and  told each one of them they have a right to change positions. He told  Ntjalintjali so when witness Fikile Fihla came in as a first witness through  the officer who escorted witnesses. PW39 could not leave ID room once the  parade got underway. Eight people have numbers attached to them. Fihla  pointed at accused Ntjalintjali who stood below number 3 and 2182  Detective Inspector Magagula took photographs of Ntjalintjali Nkosinathi.

[142] After the first witness left, Ntjalintjali elected not to change his position  under number 3. The second witness was Ncami Kunene who also identified  Ntjalintjali under number 3-a photo was taken. Ntjalintjali then changed his  position to be under number 2 when the third witness Sizwe Dlamini came  to made identification. Sizwe failed to identify anyone. The fourth witness  was Siza Masango he also failed to identify anyone. Ntjalintjali still did not  change the position under number 2. The fifth witness Ntombenhle Fakudze  also failed to identify the accused. Masiko Dlamini pointed Ntjalintjali who  now stood under number 5 and a photo was taken. The second accused then  changed his position to number 7 when the seventh witness Mphilo Zwane  came in. Mphilo identified Ntjalintjali under number 7 positively. The  second accused then changed position to number 6 and he was positively  identified by Ibrahim Variyana who was the 8th witness to make an  identification. The second accused changed position to number 7 and  Nokulunga Tibane identified the accused under number 7. The accused  elected not to change his position when Rian Canby identified him positively  under number 7; Marcel Smith (and his wife) also identified the second  accused positively under number 7 and photos were taken.

[143] Nine witnesses positively identified the second accused and the other  witnesses failed to identify him. The identification was considered positive  as there were witnesses who positively identified the accused.

[144] Next was the identification of the first accused. The procedure was also  explained to the first accused. He was positively identified by Mphilo Zwane  and by Amina Variyana and by Ibrahim Variyana and by Phumlani Mamba.  Marcel Smith and his wife failed to identify the first accused positively.

[145] PW41 Futhi Thwala is an independent witness who was present at Mvutshini  when the first accused, in the company of police officers went to his rented  room and pointed out certain items to the police. The police found a lot of  personal effects as well as household items in accused’s room as well as  cash. They took cash from a pocket of a brown blazer and another sum of  money from a purse as well as coins which was on a tray. There were Rand  and Meticash (Mozambique currency). There was jewellery, bracelets  earrings, perfume and watches among other things. She saw a wrist watch  bearing a Tomato brand black in colour; there was also a Hallmark wrist  watch white in colour. She also saw a Beckham perfume and a Sunbird  perfume; backpacks-Dakina (1) and a black backpack, white sneakers nike  size 8 with a blue stripe. She was present when the police searched the  accused person’s house. The witness identified the first accused as the  person who rented a house next to hers at Mvutshini when the police arrived  to conduct a search.

[146] During cross examination, the first accused stated that he was a small  business person; this was denied by PW41. It was also put to PW41 that the  backpack belonged to his brother and the witness said she had no comment. [147] During cross examination the first accused denied that backpacks were  found in his rented room. PW41 stated that the things referred to herein were  found in first accused’s rented room.

[148] PW42 is 3401 Detective Assistant Inspector Themba Dlamini. He  investigated the case of attempted murder involving the police officers at  Hilltop. On 16 August 2014 Ernest Magongo reported a case of attempted  murder. On 22 August, 2014 PW42 received the docket about the matter and  found 3 empty cartridges/bullet heads in the docket. These were transmitted  to the scenes of crime officers. Officer Choncho gave him the ballistic report  from expert and the empty cartridges found at the scene of crime in seal bag  SWAG 055110. He read ballistic report and found that it was positive. He  kept empty cartridges and put report in docket. Witness handed to court  SWAG 055110 and it was marked exhibit 9.

[149] PW 25 Gugu Dlamini testified that on the night of 21 August 2014 she was  asleep at her house in Malkerns when she was woken by intruders who  shone a torch light on her face. She tried to turn on her bedside lamp but one  of the intruders wrestled the bedside lamp from her. PW25 says she wrestled  with one of the intruders and then heard her help shouting from another  room raising an alarm. It is her evidence that the intruders demanded to be  given money. She gave them her handbag and when he found no money in  it, a fight ensued. The intruder then found cash amounting to E2065 in  another red bag. When PW25 fought with one of the intruders, she was  assaulted with a firearm below the jaw and below her breast and at the back.  It was while she wrestled with the intruder and he hit her with the firearm  and it discharged and the shot hit the roof and PW25 realised she was  assaulted with a firearm.  The intruder took her cellphone which was next to  her bed and gave it to his accomplice. Before the intruders left, they locked  PW25 and her help in a rest room.

[150] PW25 testified that prior to retiring to bed they had locked the door. Entry  was gained through breaking the burglar bar and door at the kitchen. It was  her evidence that the incident traumatised her so much she had to relocate  from her premises and stay at a hotel for some time. She testified that the  injuries inflicted on her by the intruders took long to heal.

[151] PW 25 identified the first accused as one of the intruders and her assailant.  She told the court she was able to identify the first accused because she  switched on the light when they came to her bedroom. She tried to negotiate  with her assailant when he demanded to be given money by saying he should  come the following day to collect the money. PW25 did not identify the first  accused as her assailant during the identification parade held at Matsapha  police station because she said she was shocked, angry and hurt at the time.  During the identification parade, she stated there were many other people  who were traumatized and crying. She identified the first accused as her  assailant from the dock in court. During cross examination, the first accused  put it to her that it was not him who robbed her but his brother who is since  deceased. PW25 insisted that it was the first accused who robbed and  assaulted her on that fateful night.

[152] PW44 is 5374 Detective Constable Dumsile Dlamini and a scenes of crime  officer in the alleged robbery case involving Gugulethu Dlamini. She  testified that she arrived at Gugulethu Dlamini’s house at eMagomini,  Malkerns at babe Msibi’s houses where Gugulethu was a tenant. On arrival  at the scene, they introduced themselves and were informed by the  complainant that she was robbed by two men at night. She was informed by  the complainant that the intruders fired a shot which ricocheted to the ceiling  of her flat. They searched for the empty cartridge and did not find it. The  police found and took other empty cartridges that were found at the scene  and as well as fingerprints for forensic examination.

[153] It was two days’ later that PW44 returned to the scene at Gugulethu’s flat  and found the cartridge at the ceiling after it was unearthed by people who  were renovating her flat. PW44 took the cartridge and put in seal bag  marked RSPSFL 00840 and transmitted it to the police regional  headquarters, Manzini. From the regional headquarters in Manzini the empty  cartridge was transmitted to the police headquarters, Mbabane where  ballistic tests were carried out. At the police regional headquarters, the  exhibit was given to PW44 3400 Detective Sergeant Patrick Bheki Dlamini.  PW 46 testified that he received the said empty cartridge from Constable  Dumsile Dlamini on 21 August 2014 in  a sealed plastic bag marked  RSPSFL 00840 RCCI 841/2014 and stored it in a safe place under lock and  key. On 19 September 2014, Constable Dumsile Dlamini received another  report of robbery at Phola Park at Rian Canby’s house. She went to  investigate with 4191 Sergeant Maseko. At Canby’s home they found his  wife and child. They introduced themselves and explained their mission.  They were shown a place there a gunshot was fired. At the lounge on the  floor there was blood and the house had been ransacked. The shots were  fired on the wall and there were three holes on the wall as a result. Constable  Dumsile took photos at the scene and searched for the empty cartridge which  she found under a sofa. She put in in a seal bag and transmitted same to the  Manzini regional headquarters. The seal bag was marked SWAG 040961  and the case was for RCCI 841/2014 and case 739/2014. Constable Dumsile  was also informed that the robbers also took Rian Canby’s safety boots. She  then explained to Court the contents of exhibit P-a photo album she  compiled after her investigation of the robbery cases in Malkerns.

[154] During cross examination officer Dumsile explained that the bullet that fired  at Gugulethu Dlamini’s house was lodged in the roof after it penetrated a  tile. She explained that Gugulethu’s house was still under construction. She  found the cartridge in the roof. It was during cross examination that officer  Dumsile explained that the blood seen in the lounge of Rian’s lounge  belonged to Rian. Rian was injured by the robbers when he was assaulted by  the intruders with a ladder and chair which they found inside his house. The  blood was tested and returned a positive result for Rian’s blood. Rian was  injured on face, forehead and on his hand.

[155] Officer Dumsile told the court further that she took SWAG 040961 and  handed same to 3400 Detective Sergeant Bheki Dlamini at regional  headquarters-RSPSFL 00840 was also taken to regional headquarters and  handed to the same officer. PW46 3400 Detective Sergeant Patrick Bheki  Dlamini confirmed receiving the said exhibits which he then transmitted to  police headquarters for ballistic examination.

[156] PW43 is 2182 Detective Inspector Sipho Magagula and a scenes of crime  officer. On 25 September 2014 he was on duty at Manzini regional  headquarters when he received a call to attend a crime scene at a place next  to Manzini Central school at about 1400hours. On arrival at the scene he  found officer Junior Dlamini and members of the public and two accused  persons who are before court. He was introduced to the accused persons by  Mr Junior Dlamini. The suspects were handcuffed. They were cautioned in  terms of the Judges’ rule before they led the police  to a bush that was close  to Manzini Central School where they pointed out a stone under which was a  black plastic bag. He took photos of the scene. After the plastic bag was  retrieved, the police opened it and inside were two firearms and ammunition.  One of the firearms was silver in colour and the other was black in colour.  Both firearms had magazines and each was loaded with 15 live rounds of  ammunition. Inside the plastic bag were three loose live rounds of  ammunition. The total number of rounds of ammunition found was 33. He  photographed the scene and items recovered. The two accused persons were  assisting each other when they pointed out the stone under which the  firearms and ammunition was found. They did so freely and voluntarily after  due caution.

[157] On the same day, he travelled to Mahwalala/ Mpolonjeni, Mbabane where,  after they were cautioned in terms of the Judges’ rules the accused led the  police to another site where they pointed out a black plastic bag that was  buried under a rock. When police opened the bag, they found a number of  live ammunition in containers for ammunition, a holster and a magazine.  There were about 200 live rounds of ammunition which were contained in  three cases of ammunition. The accused pointed out the plastic bag freely  and voluntarily after they had been cautioned by the police in terms of the  Judges’ rules.

[158] PW 43 then left the scene after he had taken photos. He was driving his car  and returned to Manzini. On 27 September 2014 he attended to the  identification parade at Matsapha police. Present at the ID parade was the  parade commander and other police officers. He took photographs during the  ID parade. He explained to Court the photographs he took during the ID  parade. The witness handed into court the albums he compiled from the  different scenes of crime and of the ID parade.

[159] During cross examination both accused persons denied ever pointing out  anything at the scenes of crime referred to by the witness. PW 43 insisted  they did. The accused pointed out that in court only 97 live rounds of  ammunition were presented and not about 200. PW43 stated that he was a  scenes of crime officer and that exhibits are not under his control. The first  accused stated that the police were looking for his brother Bhekithemba and  not himself; PW43 insisted that the police were with the two accused  persons before Court and it was the two accused persons before court who  pointed out the exhibits which he then photographed. The second accused  stated that he was pressured through assault and being tubed by police to  participate in the pointing out; this was denied by PW43.

[160] PW45 is 4081 Detective Assistant Superintendent Vusi Robert Junior  Dlamini. He is the chief investigator of this case. On 25 September 2014  different robbery cases were reported in the Manzini and Mbabane corridor.  On 25 September 2014 he received information that one of the suspects in  the robbery cases was at Moneni. He went to Moneni in the company of  Assistant Superintendent Kunene and 3791 Detective Sergeant Gamedze and  other police officers. They found the suspect who is the second accused and  introduced themselves to him and explained their mission. The second  accused resisted arrest but was subdued by the police. After he was  handcuffed, the police conducted a body search on him and cash in the  amount of E4 692.40 was found in his pocket. PW45 recorded the currency  serial numbers in his note book. There were E200 notes and E10 currency.  There were no coins found in the pocket of the second accused.

[161] The second accused was cautioned in terms of Judges rules that the police  were investigating multiple counts of robbery, murder, attempted murder  amongst others and that he was not obliged to say anything but that if he said  something, it could be used in evidence against him in court. They went with  the second accused to Matsapha, Mahhala shopping complex and they were  in mufti. The first accused was at Mahhala shopping complex. As soon as  the first accused saw the police, he fled but was caught by members of the  public who were baying for his blood. The police took the first accused to  the police car and introduced themselves and explained their mission to him;  they also cautioned him in terms of the Judges’ rules. They searched the first  accused and found an amount of E18 644 in his pocket. He recorded the  serial numbers of the notes in his notebook. There were also E2 00 coins.

[162] After due caution, the first and the second accused led the police to a bush  next to the Manzini Central School and or Filling Station. The police  enlisted the help of an independent witness-Sanele Dlamini and a scenes of  crime officer Mr Magagula. The accused persons led the police to a place  with thick vegetation where they pointed out two firearms which were  wrapped in a black plastic bag. Each firearm was loaded with 15 live rounds  of ammunition. There were 3 9mm bullets which were outside the firearms.  One of the bullets was special in that it was a 9mm and silver in colour with  a blue head. The first firearm is silver and black in colour with serial number  403539 and belongs to Masiko Dlamini. The second firearm is black in  colour and bears serial number S1654 and belongs to Jabulani Simelane of  eZulwini. The special bullet belongs to Jabulani Simelane’s firearm.

[163] The two accused persons further led the police to Mpholonjeni/Mahwalala in  Mbabane where they pointed out a SPAR white plastic bag with 73 bullets  or 9mm rounds of ammunition. The ammunition was inside the plastic bag  but in their containers. There was another container of ammunition which  had 90 bullets in a black plastic bag. There were also 46 rounds of live  ammunition wrapped inside the plastic bag. There was a black gun holder or  poach and a brown magazine holder and a magazine. The black poach and  magazine holder and brown holder belong to Masiko Dlamini. In total there  were 209 rounds of ammunition found and belonging to Jabulani Simelane.  The scenes of crime officer took photographs. The accused were cautioned  before they led the police to the place where they pointed out exhibits in this  case. The pointing out in Mpholonjeni/Mahwalala was carried out in the  presence of an independent witness-Philemon Msimango.

[164] At about 1700 hours, he received information and went to the rented flat of  the first accused. The enlisted the help of an independent witness Futhi  Thwala at Mvutshini and of Themba Mazibuko. At first accused’s rented flat  was his girlfriend and police introduced themselves and asked for  permission to search the house of the first accused. In one of the tables they  found a white air freshner plastic container and inside were coins amounting  to E152 as well as R200 and R20 notes he recorded serial number of notes in  his notebook. There was also money found in the pocket of a blazer of the  first accused; in a grey purse and in drawers of the first accused’s cupboard  was cash in foreign currency. Next to the bed was a collection of jewellery-a  pair of earings which were silver and pink in colour it belonged to Amina  Variyana. There was also a necklace silver with pink crystals and a gold  bracelet and a ring. Beckham and Sunbird perfumes were found next to the  bed where jewellery was.

[165] Also, 1 Dakino bag, 1 Quicksilver bag belonging to Banele Dlamini was  found in first accused’s house. Two wrist watches-one bearing Tomato  brand and the other bearing a Hallmark brand were found and they belong to  Lindokuhle Dlamini of eZulwini. Also, a pair of white Nike sneakers size 8  belonging to Mduduzi Dlamini of ezulwini were found in the house of the  first accused. All the items were seized and Inspector Magagula was called  and took them away in a van. The items referred to herein were those that  were identified otherwise there were many other things that were not  identified but were taken from the first accused’s house (see breakdown of  things detained by police)

[166] At about 1745 hours of the same day, the second accused was cautioned and  he went to Moneni with him there was an independent witness Hedzane.  They conducted a search in 2nd accused’s house and found a pair of brown  boots bearing a Bronx trademark belonging to Rian Canby. They also found  two live rounds of ammunition which were concealed between a mattress  and a base of a bed. The accused did not have a permit to possess the live  rounds of ammunition. There was a small amount of dagga found next to the  bed.

[167] On 29 September 2014 he cautioned the second accused and informed him  he was investigating robbery at eNgculwini where Dumsile Dlamini and her  sister Nolwazi Dlamini were robbed. He located Bongani Dube who gave  him a black MTN cellphone with STAPPER inscription. Its serial number  corresponded with the serial number given by Dumsile Dlamini  356858051535145. Dube recorded a statement and police seized the phone.  On 30 September 2014, Dumsile Dlamini positively identified the cellphone  as hers.

[168] Banele Dlamini of Waterford positively identified the Dikane and  Quicksilver bags as his; he also identified Hong Kong Dollar (20) with serial  number LR048509 as his.

[169] The accomplice witness Sanele Tsabedze handed himself over to the police  and when he was interviewed it was discovered there was another case  reported at Sidvokodvo police station where various electronic gadgets were  stolen-Apple ipad black and silver in colour was recovered by police  Sidvokodvo. The suspect who escaped was the first accused. On 30  September 2014, Nikiwe Nxumalo positively identified an Apple ipad as  hers. Also Amina Variyana identified some jewellery that was found at first  accused’s house in Mvutjini.

[170] There was also an investigation of a robbery that took place at Fonteyn  where Gugu Maphalala was robbed of her property including a children’s  lap top, a Proline lap top and a small lap top black in colour. Gugu  Maphalala’s laptop was released to her as, at the time the suspects had not  been found. He got information that the suspects in the robbery at Fonteyn  were intercepted at Hilltop but eluded the police leaving their clothes  behind. He instructed the scenes of crime officers in Mbabane to package the  items and clothes belonging to the suspects for DNA testing. The results of  the DNA test were positive in connecting the first accused with the clothes  that were found at the taxi that was stopped by the police at Hilltop.

[171] PW45 further applied to have the firearms pointed out by the accused  persons and the empty cartridges found at Hilltop at the scene of the  attempted murder charges. He collected the dockets where a 9mm firearm  was used. These included the dockets from Malkerns where the  complainants were Gugulethu Dlamini, Rian Canby and Donatus Nkonotja  Zwane. According to the ballistic reports received, all the cases referred to  herein were linked by the results to the firearms and empty cartridges that  were pointed out by the accused persons.

[172] PW45 then charged the accused with robbery and attempted murder.

[173] PW45 handed in Court the documents where he had recorded the serial  numbers of the notes he had taken from both accused persons. He also  handed in court the exhibits recovered; this was after the exhibits were  labeled accordingly.

[174] During cross examination, both accused persons denied that they freely and  voluntarily led the police and pointed out the firearms and ammunition in  Manzini next to the filling station and in Mbabane, Mpholonjeni/Mahwalala  areas. The first accused stated that he could not have gone to point out  anything to the police in Manzini because he was crying when he was being  taken there. They both stated that the money they were found in possession  of were proceeds of their small businesses. The response from PW45 was  that the accused led the police to the said sites freely and voluntarily and that  they pointed out the area where the exhibits were and the police retrieved  same because the accused persons were handcuffed for security reasons.

[175] It is still unclear why it was not put to the independent witnesses that the  accused were business people; it is unclear why the first accused did not put  the aspect that he was crying when they got to the forest as he thought police  were going to kill him. The evidence from the independent witnesses is that  the accused persons were not assaulted nor were they forced to do what they  did on that day. All the independent witnesses who accompanied the police  where the pointing out was to be carried out testified that the accused  persons looked ok when they assisted each other to identify the spots where  the exhibits were eventually retrieved.

[176] It is the case for the first accused that the police were not looking for him but  Bhekithemba his brother. PW45’s answer is that the first accused gave them  information about Bhekithemba and that from that information, they got the  distinct impression that the accused persons were working in concert. This,  PW45 testified was done freely and voluntarily by the first accused.

[177] It was also the case for the first accused that the amount found in his  possession did not tally with the amount robbed the Variyanas so he could  not have possibly carried out that criminal act at Mahlangatsha. PW45’s  response was that it could be that some of the money had been used already  by the accused.

[178] The second accused stated during cross examination of PW45 that he  informed the police that he had given one of his phones-a Nokia C1 to  Bongani Dube. PW45 stated that the police retrieved a MTN Stepplar phone  which had been robbed Dumile Dlamini. The second accused stated that he  ran a market stall at Moneni, that is where he made the money that the police  found him in possession of. This was denied by PW45. PW45 denied further  that the accused persons were shown to the complainants from Lugaganeni,  and to Jabulani and Sifiso Simelane before the identification parade was  conducted. This was denied by the witness.

[179] The ballistic expert-PW33 Inspector Harry Vusi Madonsela that he received  and tested a 9mm parabellum calibre semi- automatic pistol bearing serial  number 403539 and found it to be serviceable. He tested another firearm-a  9mm parabellum Astra automatic firearm with serial number S1654 model  100 which had one magazine and found it to be serviceable. It was his  evidence that he also received thirty-three 9x19 cartridges and visually  examined them and found them to have all the components of a cartridge.  PW33 conducted tests and found the said cartridges to be live ammunition.  He also received fired cartridges from cases from Malkerns[1]. He determined  that the cartridges were fired from the firearm with serial number 403539.  PW33 determined further that the same firearm-serial number 403539 was  used in the commission of offences at Hilltop (attempted murder).

[180] The ballistic expert ascertained from the firearm register that the two  firearms referred to herein were registered in the names of Mduduzi Masiko  Dlamini (serial number 403539) and Jabulani Simelane (serial number  S1654).

 

The Defence Case

[181] The first accused testified that he was arrested by the police kaMahhala in  Matsapha. Before he was arrested, he fled from the people who came after  him because they had not introduced themselves as police officers. He saw  some people tracking him and was carrying a firearm. When it tried to cross  the road, other people came in front of him and were carrying guns and they  pointed the guns at him. He lay on the ground and pleaded with the people  not to kill him but should take the money. One of the people said of the first  accused-it is not Bhekithemba, it is his brother. They then asked the first  accused where Bhekithemba was and he denied knowledge of his  whereabouts. The people were of a violent streak when they dealt with the  first accused. They kicked the first accused while he lay on the ground. The  first accused says he did not believe the people were police officers as they  were not wearing the police uniform. He however saw a police officer he  knew among the group of people who were now assaulting him.

[182] The first accused then informed the police where he had left Bhekithemba.  When the police enquired about where he had got so much cash, he told  them these were proceeds from his business where he braiis meat. He says  he was then bungled into a motor vehicle and he sat the back in the middle  of police officers. Along the way, he was threatened with death by police  officers. The vehicle went to Manzini where he was made to alight and go to  a bush. At the time he was crying because he thought the police would kill  him. He met up with a person who was handcuffed and was wearing dirty  clothes. He was forced to tell an independent person that he was there to  point out something. He did not but continued to cry. He was forced into the  bush with the other person who was handcuffed and made to point at a rock  so they could take a photo, he refused to do so. The police dug next to the  rock and took out a black plastic bag which contained two guns-one black  and the other silver in colour. The first accused testified that as he was  hysterical, he did not see what was happening. I pause here to observe that  this evidence is contradictory and self-defeating. On the one hand, the first  accused saw the police retrieve a plastic bag with firearms and on the other  hand, he was so distraught and did not see what was happening. In my view,  the chronology of events, absent the crying part-fits in with the evidence led  by the Crown witnesses namely, PW45, the independent witness taken from  the filling station as well as the evidence of the scenes of crime officer  Magagula. It is telling also that none of the Crown witnesses saw the first  accused crying when the pointing out was carried out in Manzini. The first  accused also did not put it to the Crown witnesses that he was in tears at the  time. This evidence, in my view has all the hallmarks of an afterthought and  I reject it as such.

[183] The first accused also did not put it to the independent witness (Msimangu)  that he was aggressive towards him. The first accused testified that at  Mpholonjeni/Mahwalala inside a bush he saw police officers digging next to  a rock and retrieving a black plastic bag and a white SPAR plastic bag. The  first accused says he was taken aback by the retrieval of the bags and did not  know what they contained. He did see the contents when the bags were  opened namely containers of ammunition. In cross examining PW45, the  first accused stated that he did not know the contents of the bag found at  Mpholonjeni. He also intimated that he could not have pointed out any  exhibits at Mpholonjeni as there are no photos showing him doing so. He  alleged further that in the absence of fingerprints connecting him with the  firearms and the ammunition, it cannot be said he knew anything about the  firearms and the ammunition. The Crown witnesses were unmoved and  insisted that the first accused pointed out the exhibits in Manzini and at  Mpholonjeni. It has not been shown what motive all the Crown witnesses  would have in ‘falsely’ implicating him. The first accused has not disputed  that he was warned in terms of the Judges’ rules before the pointing out was  carried out. From the evidence presented before Court, the police knew  firearms and live ammunition were stolen with the aid of violence from  Masiko Dlamini and from Jabulani Simelane. There is no evidence the  police had prior knowledge where the said firearms and ammunition were  kept after the complainants were robbed of same. That part of the puzzle was  completed by the accused when they pointed out the said exhibits to the  police. It is also not the case of the accused persons that the police planted  the said evidence!

[184] The first accused testified also that the police went to his rented flat at  Mvutjini and took his personal effects and said it was ill gotten gain when in  fact he had receipts for the property taken by police. He further stated that  the police undertook to return his property after he had told them he bought  same using money from his business. I must state that this version was not  put to the Crown witnesses. The Court therefore does not know what the  response of Crown witnesses would have been.

[185] The first accused told the court that at the police regional headquarters,  Manzini he was tortured by way of being tubed and suffocated. He says he  told the police he is not a criminal. On a subsequent day, after Bhekithemba  had been arrested, the first accused, Bhekithemba and the police went to  Bhekithemba’s rented flat where a lot of property belonging to Bhekithemba  was taken.

The Case for the Second Accused

[186] The second accused was arrested on 25 September 2014 at Moneni while he  was strolling with his girlfriend. He says he met a number of men travelling  in different vehicles. They stopped and parked their cars and insulted him  and his girlfriend. They ordered the second accused not to move or they will  shoot him. The second accused says he was confused and did not know if the  men wanted to rob him. One of the men knocked him and he fell to the  ground; he put his foot on the second accused’s neck. The other men body  searched the second accused. He says he asked the men to spare his life and  take the cash. One of the men said they are police officers. That both  accused say they thought they were being robbed and begged the police not  to kill them but take the money is not lost to me. It is strange that even  though the accused persons were arrested at different places, they made  similar utterances when they were arrested.

[187] It is notable also that the second accused did not confront the Crown  witnesses about the insults they allegedly hurled at him when he was  arrested. The accused says he was assaulted and injured and the police  refused his mother permission to see him. It is surprising that the second  accused did not call his mother and his girlfriend to support his version, nor  did he give reasons why his mother or his girlfriend was not called.

[188] After his arrest, the accused led the police to kaMahhala where he said he  was due to meet with Bhekithemba.

[189] At kaMahhala the second accused says he saw police come with a different  person with whom they all drove to Manzini police regional headquarters,  waited for Bhekithemba Ndzinisa and were taken to a quantum where they  were paraded before complainants in the offences charged.

[190] Police took cash and cellphones belonging to the second accused. He told  police that he had given one of his phones-a Nokia C1- to Bheki Matasatasa  Dube from Mbabane. He went to Mbabane and Dube gave them a different  phone and not the one he had given him earlier. It was accused person 2 that  he had lent Dube the phone. The problem with this version is it was not put  to Dube. Dube told the court that he gave the second accused E100 after he  had asked for money to give his girlfriend bus fare. It was Dube’s evidence  that accused 2 undertook to pay back the E100 and take his phone then. This  version was not disputed by the second accused.

[191] The second accused disputed that he freely and voluntarily went to Manzini  next to the Filling station and to Mpholonjeni/Mahwalala to point out what  turned out to be firearms and ammunition. He admits seeing police dig up a  place next to a rock and retrieving a black plastic bag which contained one  firearm which was silver in colour and another firearm which was black in  colour. He admits seeing police retrieve plastic bags which contained live  rounds of ammunition kept in its containers.

[192] He was later taken to his rented flat at Mobeni where police, in the company  of Hedzane searched his house and took his Bronx brown boots, a plastic  bag with crushed dagga. It is his evidence that police came to his rented  room with two live rounds of ammunition and planted it there. The police  placed the live rounds of ammunition in his mattress and said they will say  these were found in accused’s house.

[193] Later he says he was taken to Lugaganeni where he was paraded to the  witnesses in another case of robbery. He was later taken to Matsapha police  station where an identification parade was conducted.

Conclusion

[194] There is incontrovertible evidence that the offences charged took place and  both accused persons are identified as the participants in the possession of  firearms and rounds of ammunition without a license; various counts of  robbery; housebreaking with intent to steal and theft and attempted murder  of two police officers. The accomplice witness fingers the first accused in  robbery that was committed at eNgculwini and in various areas around  Malkerns. The Court is acutely aware of the danger of convicting on the  evidence of an accomplice witness but in this case there is every guarantee  that the evidence of the accomplice is correct and that the denial of being  involved is completely false.

[195] Both accused persons deny any involvement in the commission of crimes  charged. In fact their evidence is that they are not criminals as they made  money from running small scale businesses. I find this evidence to be a  fanciful bag of lies. Evidence before court shows that until the accused were  arrested sometime in September 2014, they were acting like desperados by  terrorizing and robbing people of their property at night time.

[196] The accomplice witness was apparently truthful and his account was  confirmed not only by the evidence relating to the vehicle used in the  commission of the offence at Nhlambeni and the fact that the first accused  escaped into the night when police asked to search the motor vehicle in  which he was a passenger with Sanele Tsabedze-the accomplice. The first  accused did not deny he fled the scene at that time; he also did not deny that  he subsequently gave Sanele Tsabedze the run-a-round and said he was at  Siteki and later switched off his phone when he heard the police and Sanele  Tsabedze were there looking for him. Surely if the first accused had nothing  to hide, he would have availed himself to the police instead of fleeing from  them leaving the accomplice in the lurch.

[197] There is no indication from the evidence led in court that when the robbery  was committed by the accused persons in various places, that they wore  masks or that they hid their faces with anything. It has also been established  in most of the robbery charges that the events of the robberies did not take  place in a split second. Most of the complainants saw and identified the  accused persons; they testified that the accused carried guns and or other  deadly weapons; the accused stood next to the witnesses when they were  robbing them and there was mostly enough light in the rooms when the  witnesses were robbed.

[198] Where the accused were not positively identified by the witnesses, they were  linked to the crimes through ballistic evidence.

[199] The accused persons were also found in possession of property stolen during  the robberies and housebreaking and theft cases that took place in 2014. The  accused did not give a satisfactory explanation how they came to be in  possession of property that was taken from their owners by violent means.  The law is settled that the recent possession of stolen property when taken in  context and with other evidence may assist the Court to make a finding of  guilt[2]. This is called the doctrine of recent possession.

[200] The first accused is connected to the crimes of attempted murder involving  police at Hilltop by ballistic evidence. Firing at police officers who were  only doing their job when they stopped the taxi that the first accused was  travelling in was not only reckless but also showed an intention to inflict  death on the officers. It is not necessary that the officers should have been  injured in order for the charge of attempted murder to stick. What is  necessary is to prove the intention to kill. From the nature of the weapon  used and the firing aimed at the police by the first accused, I am satisfied  that he intended to murder officer Fakudze and officer Magongo.

Escaping from lawful custody

[201] The Crown has conceded, correctly in my view that no evidence was led to  prove commission of the offence in count 29.

Charges about contravention of the Arms and Ammunition Act, 1964

[202] The investigating officer testified that after both accused persons were  arrested, they were informed of their rights and cautioned in terms of the  Judges’ rules and they freely and voluntarily led the police, in the company  of independent witnesses to a place in Manzini and in Mbabane where they  freely and voluntarily pointed out the spots where the arms and ammunition  were found. The cumulative weight of the evidence by the police officers  and that of independent witnesses points in my view, overwhelmingly to the  accused persons’ guilt on the counts pertaining to the contravention of the  arms and ammunition Act.

[203] On a totality of evidence before me I return the following verdicts:

[204] Count 2: Contravention of section 11(1) read with section 11(8)(a) of the  Arms and Ammunition Act. Accused 1 and Accused 2 are guilty

[205] Count 3: Contravention of section 11(1) read with section 11(8)(a) of the  Arms and Ammunition Act. Accused 1 and Accused 2 are guilty.

[206] Count 4: Contravention of section 11(2) read with section 11(8)(c) of the  Arms and Ammunition Act. Accused 1 and Accused 2 are guilty.

[207] Count 5: Contravention of section 11(2) read with section 11(8)(c) of the  Arms and Ammunition Act. Accused 1 and Accused 2 are guilty.

[208] Count 6: Contravention of section 11(2) read with section 11(8)(c) of the  Arms and Ammunition Act. Accused 2 is guilty.

[209] Count 7: robbery at Mahlangatsha. Accused 1 and accused 2 are guilty

[210] Count 8: robbery at Mahlangatsha. Accused 1 and accused 2 are guilty

[211] Count 9: robbery eZulwini (Jabulani Simelane) Accused 1 and 2 are guilty

[212] Count 10: robbery eZulwini (Sifiso Simelane) accused 1 and 2 are guilty.

[213] Count 11: robbery eNgculwini (Masiko Simelane) accused 1 is guilty

[214] Count 12: robbery eNgculwini (Hlobsile Mngomezulu) accused 1 is guilty

[215] Count 13: robbery Malkerns (Gugulethu Dlamini) accused 1 and accused 2  guilty

[216] Count 14: robbery Malkerns (Donatus Nkonotja Zwane) accused 1 guilty

[217] Count 15: robbery Malkerns (Rian Canby) accused 2 guilty

[218] Count 16: robbery Malkerns (Marcel Smith) accused 2 guilty

[219] Count 17: robbery Lugaganeni accused 1 and accused 2 guilty

[220] Count 18: robbery Lugaganeni accused 1 and accused 2 acquitted and  discharged.

[222] Count 19: robbery Lugaganeni accused 1 and accused 2 guilty

[223] Count 20: robbery Lugaganeni accused 1 and accused 2 guilty.

[224] Count 21 robbery Rest Camp accused 1 and accused 2 are guilty.

[225] Count 22: robbery Rest Camp accused 1 and accused 2 guilty

[226] Count 23: robbery eNgculwini accused 1 and accused 2 guilty

[227] Count 24: robbery eNgculwini accused 1 and accused 2 guilty.

[228] Count 25: robbery Fonteyn accused 1 guilty

[229] Count 26: Housebreaking with intent to steal and theft accused 1 is guilty

[230] Count 27: Housebreaking with intent to steal and theft accused 1 guilty

[231] Count 29: Escaping from lawful custody accused 1 is acquitted and  discharged

[232] Count 30: robbery accused 1 guilty.

[233] Count 32: Housebreaking with intent to steal and theft accused 1 guilty

[234] Count 33: robbery accused 1 guilty

[235] Count 34: robbery accused 2 acquitted and discharged

[236] Count 35: robbery accused 2 acquitted and discharged.

[237] Count 36: attempted murder accused 1 guilty

[238] Count 37: attempted murder accused 1 guilty.

 

 

____________________

M. S. LANGWENYA

JUDGE OF THE HIGH COURT

 

For the Crown:                               Mr. K. Mngomezulu

For Accused 1:                               In Person

For Accused 2:                               In Person

 

 

 

 

[1] Rian Canby; Gugulethu Dlamini, Marcel Leon Smith and Donatus Nkonotja Zwane.

[2] R v Ntokozo Dlamini & Another High Court Case No. 92/1999.