[2]
Both accused pleaded not guilty and in their Plea explanations
indicated that they were not at the scene as they were sleeping at
the time.

[3]
The State handed in by agreement the State's Pre-Trial Memorandum;
the reply thereto by both accused; the amended reply by both
accused; a document titled "Confession in terms of s 217 of the
Criminal Procedure Act¹"
made before the Magistrate Shakala by Accused 2; the report on the
medico legal post-mortem examination; an affidavit in terms of s 212
(4) of the Criminal Procedure Act¹;
certificate of Post Mortem; and the record of the proceedings in the
Magistrate's Court

[4]
Initially the identity, the post - mortem findings and the fact that
the deceased did not sustain any further injuries were placed in
dispute by accused 1 but during the trial it became apparent that
these issues were no longer in dispute.

[5]
The State called the following witnesses: the doctor who conducted
the post-mortem examination; an eye witness, Robert Simasiku, his
neighbour,

Doreen
Nkando, a former police officer, Constable Kwenani who was living in
the same street where the incident took place, Detective Sergeant
Coetzee who compiled the photo plan; Det. Sgnt Antonius Gabriel; and
Det. Sgnt Veldskoen.

[6]
A short summary of their evidence is as follow: On 27 February 2006,
at around 4H00, the deceased, Samuel Johannes, died of a single stab
wound at House no 765, Choto, Katima Mulilo. This, from the
description of all the witnesses, is a shack with no fence and the
yard extends directly onto the road. It was dark at the time but the
yard was illuminated by a street light directly across the road. One
single globe was on inside the house. Robert Simasiku was the only
witness who saw the deceased and two assailants close to the door of
the house. All the other witnesses were informed by Robert what
transpired and they made some of their own observations.

[7]
Robert was woken by a noise outside the house and he got up to
investigate. He opened the door and saw three persons close
together, two of them facing him and another with his back to him
about 2.5 meters from the door. The two assailants ran away and he
recognised accused 1. He has seen him before in town and he heard
from people that his name was Karipi. He saw his back and the side
of his face. He also saw the clothes he was wearing. The other
assailant he did not recognise but observed the clothes he was
wearing. The deceased entered the room and fell down. He went to
wake the neighbours and the Police were called. He immediately
informed the neighbours what happened and told them that he
recognised accused 1.

[8]
The neighbours came to the scene to witness what has happened. Two
of those witnesses informed the Court what they observed at the
scene where the crime was committed and what they were informed by
Robert. One of the neighbours was a constable who was not on duty at
the time. He called the detective who was on duty.

[9]
The Detective who was on duty at the time attended the scene and
decided to fetch the other members of the criminal investigation
unit. They arrived at the scene; interviewed Robert; and did a
preliminary investigation of the scene in and around the house which
included taking photographs. They, on the strength of the
information that accused 1 was at the scene, ascertained that
accused 2 was seen in his company. They arrested both accused the
next day. Accused 2 made an oral statement to Det. Sgnt Veldskoen
and a "confession'
to
the magistrate.

[10]
At the end of the state's case both defendants applied for their
discharge and submitted that there was no evidence placed before the
Court upon which a reasonable Court, acting carefully, would
convict. The State opposed the application.

[11]
Both counsel furnished the court with a number of authorities for
which the Court is indebted. The Supreme court in S v TEEK 2009 (1)
NR 127 (SC)

cited
with approval the decision of S V NAKALE 2006 (2) NR 455 (HC). In
this

judgment
Muller J at page 464 D - J after considering various authorities

comes
to the following conclusion clearly setting out the approach that
should

be
followed by this Court:

"Having
considered the aforementioned, it seems to me that the reasoning of
Du Toit AJ in S v Phuravhatha is the closest to the approach that
should be followed. Du Toit AJ held that the possibility that an
accused may supplement the State case is only one factor and
similarly the interests of the accused are also a factor to be
considered. I suggest that the possibility of an accused
supplementing the State case is not a factor, but a consideration.
There are also other considerations, such as the interests of the
accused. In order to evaluate these considerations, certain factors
should be taken into account. I shall shortly refer to some of the
factors which may assist the Court in its consideration whether the
possibility exists that an accused may supplement the State
evidence. When evaluating the reasonable possibility that an accused
may supplement the State evidence as a factor according to Du Toit
AJ's judgment in S v Phuravhatha and Others and supported in this
Court by Mtambanengwe J in S v Paulus and 12 Others (supra) and
which I call a consideration, I believe the Court should consider
the following factors to come to a decision in respect of this
consideration:

(a)
the type of offence(s) allegedly committed;

(b)
if there is more than one accused and there is evidence by the State
supporting an allegation of common purpose;

(c)
presumptions of law;

(d)
reliance on an alibi;

(e)
the manner in which the accused cross-examined State witnesses and
statements made to them;

(f)
allegations or admissions made during pleading.

There
may be other factors and it is not possible to provide a numerus
clausus thereof"

[12]
The Court therefore would therefore apply the above guidelines when
considering the facts of this case.

[13]
Counsel for the defence argued that the identification by Robert was
unreliable and his evidence as a single witness was so poor that no
reasonable Court would convict on this evidence.

[14]
Robert testified that he opened the door and stood in the doorway.
He saw three persons but could not identify any of the persons. His
explanation was that he could not see what was happening in front of
the door because it was dark. He could only identify accused 1 in
the light of the streetlamp when he was running away. He only saw
his back; the side of his face; that he was a light complexioned
short person; the clothes he was wearing, and the tattoos on both
his hands. This is how he identified the accused. The other
assailant ran into the dark and he saw his length and clothes only.
All of this took seconds. Doreen, Const. Kwenani, Det. Sgnt. Gabriel
and Det. Sngt. Veldskoen all confirmed that there was enough light
coming from the street lamp that was situated directly opposite the
road and from the one globe inside the house which according to
Robert was on at the time, to see what was happening in front of the
house. Doreen testified that Robert informed her that he ran after
the assailant into the road and then recognised him. Det. Sgnt.
Coetzee took a photograph of a point where he heard Robert say that
that was the point where the deceased was stabbed. Det. Sgnt.
Gabriel testified that Robert informed him that he was standing at
the door and he observed a struggle and identified the deceased when
he ran away; and Det Sgnt. Veldskoen was adamant that

Robert
informed them that night that he identified accused 1 outside the
door and he saw the struggle and accused 1 stabbing the deceased.

[15]
Apart from the fact that this witness was a single witness to the
events that occurred outside the house his evidence also embodies
the identification of accused 1. This Court should therefore apply
caution when considering his

evidence.
In S v MTHETWA 1972 (3) SA 766 (A) at 768A-C: the following is

stated
in respect of identification evidence:

'Because
of the fallibility of human observation, evidence of
identification
is approached by the Courts with some caution. It
is not enough for the
identifying witness to be honest: the
reliability of his observation must
also be tested. This depends
on various factors, such as lighting,
visibility, and eyesight;
the proximity of the witness; his opportunity for
observation,
both as to time and situation; the extent of his prior
knowledge
of the accused; the mobility of the scene;
corroboration;
suggestibility; the accused's face, voice, build,
gait, and dress; the result
of identification parades, if any;
and, of course, the evidence by or on
behalf of the accused. The
list is not exhaustive. These factors, or such of
them as are
applicable in a particular case, are not individually decisive,
but
must be weighed one against the other, in the light of the totality
of
the evidence, and the probabilities '

(Also
see S v KAVANDIJI 1993 NR 352 (HC); S v NDIKWETEPO AND OTHERS

1992
NR 232 (HC); and S v NANGO 2006 (1) NR 141 (HC))

[16]
According to this witness this incident took seconds and he was also
had to deal with the deceased that entered the house with a knife in
his chest. The assailants were fleeing and only the side profile and
back of accused 1 was visible. It is a mystery how he could see the
tattoos on both the hands when all he could see was the side of his
face and his back. When cross-examined on his prior knowledge of the
accused 1, he indicated that he never spoke to him. He further did
not testify how often he saw accused 1 and the distances from which
he observed him. Of bigger concern is the different reports given of
what he said that evening and the fact that it is clear from the
evidence of the other witnesses that if, he did see the assailants
in front of the door, he should have been able to see their faces. I
cannot but agree with counsel for the defence that this witness's
evidence was poor.

[17]
When applying the caution that is required, the Court cannot only
rely on this witness's evidence in respect of the identification and
must turn to evidence which would corroborate it. I pause here to
mention that the evidence of Robert that: he woke up and found two
assailants fleeing the scene; and that the deceased was already
stabbed with a knife when they fled the scene; was not disputed and
could at this stage be accepted.

[18]
The police testified that both accused wore clothing that fit the
description given by Robert. The Police officers testified that
accused 1 was wearing a short khaki shorts and navy sneakers and
accused 2, a long black trouser and white falcon sandals at the time
they arrested them which clothes fit the description given by
Robert. These items were never shown to Robert to confirm whether it
resembles the clothes he saw at the time. No reliance can be placed
on the assessment of the police officers as they were only given a
description of the clothes. Of importance is the fact that: the
identification of accused 1; and the description of the clothes worn
by the second assailant given by Robert, enabled the investigating
officer to identify accused 2 who made an oral statement and a
"confession".

[19]
Robert's description of the shoes worn by the assailants
corresponded, according to the police, with footprints found at the
scene and later with the shoes both accused had on when they were
arrested.

[20]
Doreen testified that she saw some footprints indicating that there
were struggle marks at the right hand corner of the house. Det. Sgnt
Coetzee said he found struggle marks in a 2 x 2m span around the
front door. Det. Sgnt Gabriel said it was about 4t 5 m from the door
and Det. Sgnt Veldskoen said he observed foot prints and struggle
marks two steps just in front of the door. Constable Kwenani,
Doreen, and at least one other person, accompanied Robert into the
house to see. By the time the police arrived there were already 6 to
10 people in the yard or in the vicinity of the yard. Det. Sgnt
Coetzee testified that he could not take photographs of the
footprints as the area has already been tempered with whereas Det.
Sngt Gabriel said the photos were taken but it could not be
developed. Det. Sgnt Veldskoen testified that he was not able to
preserve the shoeprint because it was early in the morning. He saw
the size shoe accused 1 was wearing and concluded that it was the
same size and type of shoeprint that he saw.

[21]
The investigation of the scene was not thorough; no sketch plan was

given
to the Court to indicate relevant distances between various points
and no

reliance
could be placed on the estimates given by the witnesses as each

differed;
the evidence of the police officers in respect of the location of
the

footprints
differ and no photograph was presented to indicate that they indeed

saw
the footprints, given the fact that there were already so many
people in the

area.
In S v
IMENE 2007 (2) NR 770 (HC) at
772 E-F Damaseb JP, referred to

the
matter of Jacob Reinold v The State HC case No CA 69/2003
(unreported)

delivered
on 28/10/2003), where Silungwe J said:

It
is trite law that footprints may provide circumstantial evidence of
identity. In S v Mkhabela 1984 (1) SA 556 (A), the Appellate
Division remarked at 563B (per Corbett JA, as he then was, with
Joubert JA, and Cillie JA concurring) that cases that deal with
footprints, such as R v

Modesane
1932 TPD 165; R v Nkele 1933 TPD 36; R v Mabie 1934 OPD

34;
and F R v Louw 1946 OPD 80, merely lay down that evidence of
footprints is admissible but that the court must be cautious in
relying upon it, especially where it is the only evidence against
the accused; and that the cogency of such evidence must depend on
all the circumstances of the case.

[22]
The evidence in this instance is not convincing. No reasonable
court, acting cautiously would rely on this evidence as
corroboration for the identification.

[23]
The statement and "confession"
made
by accused 2 becomes crucial to determine the outcome of the
application for discharge in terms of section 174 as it forms part
of the evidentiary material before Court.

[24]
According to Det. Sgnt Veldskoek accused 2 made an oral admissions
to him in the presence of his guardian (accused 2 was a minor at the
time) to the effect that he only took a cell phone from the deceased
and that it was accused 1 that stabbed the deceased. It is trite law
that the extra-curial
statement
would only be admissible against the maker thereof. Counsel for
accused 2 put it to the witness that he will dispute making an oral
statement. Until this happens this forms evidence before this Court.
In the reply to the pre-trial question whether accused 2 will
dispute that the admissibility and contents of his oral statement;
accused 2 first admitted and in his amended reply disputed it.
Furthermore, accused 2 in his "confession"
indicated
that he made a statement to Det. Sgnt. Veldskoen. This admission
contains an important admission that it was the deceased whose cell
phone was taken. The credibility of Det. Sgnt. Veldskoen in respect
of this evidence plays a limited role at this stage and this
evidence should therefore be evaluated at the end of the state's
case.

[25]
Counsel for the accused submitted that the State did not prove the
offence of robbery and that the words of the deceased should not be
admissible as it amounts to hearsay. Without elaborating on this
issue at this stage, I can only indicate that the words of the
deceased are not admissible as it does not amount to a dying
declaration. The admission of accused 2 to Det. Sgnt

Veldskoen,
however, given the further admissions contained in the "confession"
could
support a conviction of robbery.

[26]
It was common cause between counsel for the state and counsel for
the

defence
that the "confession"
was
not a confession as it does not amount to an

unequivocal
admission of guilt. I am in full agreement with this submission.

The
following is an extract from the "confession":

"It
was on 26 February 2006 it was night. It was in Choto. I was with
Karipi Sibongu. We were sitted (sic) inside Choto Inn; Karipi was
outside. Karipi came in and asked me to escort him. As we were
walking he said we should make a turn into another street and later
into one residential premise. As we were approaching the door of the
house there was a man knocking on the door. Before the man saw us
Karipi told me to grab the cell phone from the man who was knocking
on the door. I grabbed the cell phone from the mans (sic) waist and
I ran away. Karipi followed me and found me at the house of his
girlfriend.30 (thirty) minutes later. Upon his arrival he told me
that his knife was lost it fell down. He did not tell me where it
fell. He asked me for the cell phone. I gave him and he got it. He
removed the s card and hide it somewhere. He asked me to escort him
first to Choto to change his clothes because the people had seen him
where I had left him. We first went to Choto where Karipi changed
his

clothes,
the jacket he had on. The following morning when we woke

up
we came to the shopping center where Karipi sold the cell phone."

[27]
Counsel for the defence indicated that the date is not the same as
the date on which the deceased was stabbed i.e in the early morning
hours of 27 February 2006. Counsel for the State argued that the
concept of night may include the early morning hours. I am more
inclined to agree with the State. Night generally include the hours
of darkness. The extra-curial
admissions,
at this stage, forms part of the evidentiary material and together
with the testimony of Robert is sufficient to put accused 2 on his
defence.

[28]
The consideration for accused 1 is different in that, as I already
mentioned that the extra-curial
admissions
made by 2 is not admissible against him; but it is an indication
that there exist a reasonable possibility that accused two might
implicate him in both the murder and the robbery. This is a
consideration in applying this Court's discretion whether to grant a
discharge. It however is not the only consideration. A further
consideration applied by the Court is the fact that common purpose
is alleged by his co-accused in his "confession".
Furthermore,
from the reply to the pre-trial memoranda, it is evident that
accused 2 never disputed that he was in the company of accused 1
during the early hours of the morning whereas accused 1 disputed
this. This contradiction lies at the heart of the alibi of accused 1
and 2. For these reasons this Court considers it premature to
discharge accused 1.

[29]
In the premises

The
application for the discharge of both the accused is dismissed in
respect of both counts.

Tommasi
J

1Act
51 of 1977

9