S v Mthethwa (CC03/2014) [2017] ZAWCHC 28 (16 March 2017)

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[2017] ZAWCHC 28
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S v Mthethwa (CC03/2014) [2017] ZAWCHC 28 (16 March 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
In the High Court of South Africa
(Western Cape Division, Cape Town)
CASE:  CC 03/2014
In the matter between:
THE STATE
And
ZWELETHU HAROLD JOSEPH
MTHETHWA                                                     ACCUSED
JUDGMENT DELIVERED ON 16 MARCH 2017
GOLIATH,
DJP
:
Introduction
[1] On 14 April 2013 the CCTV cameras
located at the Stockyard business premises in Ravenscraig Road,
Woodstock was a silent witness
to a vicious attack on the deceased,
Nokuphila Moudy Kumalo. The deceased was attacked by a person kicking
and stomping her body
repeatedly with a booted foot. The accused, Mr
Zwelethu Harold Joseph Mthethwa, was arraigned before court on a
charge of murder.
The accused pleaded not guilty to the charge. He
admitted that he is the registered owner of a motor vehicle Porsche
911 Carrera
2 S Coupe with registration number […] WP.
[2]
The visuals on the video footage depict the following:
[1]
At around 02:47.01
a dark coloured sedan car arrives in Ravenscraig Road and parks next
to the kerb. A male figure gets out and
purposefully strides across
to the opposite side of the road, disappearing on the left side of
the screen. From 02:47.11 until
02:47.34 neither the assailant(s) nor
the victim can be seen and this ends with the victim stumbling on
screen and falling down.
It is not recorded what happened in those ±
23 seconds off-screen. From 02:47.39 until about 02:52.19 the footage
shows
repetitive, apparently very forceful stomping and kicking of
the victim, mainly centred to the trunk area of the victim. Slaps and

fist blows to the (mostly off-screen) head area are also recorded.
The main perpetrator of these actions appear to be a male, with
a
smaller, apparently female, person adding a few kicks to the head
area of the victim.  At 02:47.39 there is a depiction
of the
male perpetrator delivering a powerful stomping action to the right
side of the trunk of the victim. From 02:48 onwards
the victim
appears motionless apart from when the body is jostled by repetitive
stomping and kicking actions.
[3] On Sunday 14 April 2013 at
approximately 03:50
Constable Asanda
Shasha
responded
to a complaint about a body found along the road. On his arrival at
the scene, a security guard made a report to him.
On further
investigation he observed the body of a female lying on her back
alongside the road. Her body was fully clothed and
she had injuries
on her face. He did not observe any blood on her clothes. An
ambulance was dispatched and Captain Arendse was
contacted. He
cordoned off the area and a photographer, Warrant Officer Maneli,
arrived at the scene. The photos of the crime scene
are depicted in
exhibit D.
[4]
Mr Morgan Ndava
testified
that in the early hours of the morning, between 2am and 4am he was on
duty, with a colleague, as night shift security
at the Industrial
Tollgate Building, Ravenscraig Road, Woodstock. He and his colleague
were sitting inside the guard room when
they heard funny noises
resembling people fighting with each other. Both of them exited the
guard room and went to stand at the
gate inside the Tollgate building
to ascertain what was happening. He saw a black vehicle parked
opposite the Stockyard Building
in Ravenscraig Road. He wrote down
the registration number of the vehicle as “9112” but he
could not remember whether
the last two digits were MP or WP. He then
observed a black man coming from the top of the road towards the
black car. The man
opened the car door, started the engine and left.
He reported the incident to his supervisor called Freddy.
[5] He does not know the whereabouts
of his colleague who was on duty with him. The last time he saw him
was on this particular
shift. He explained that his colleague was not
a permanent member of the security staff.  He confirmed that the
investigating
officer consulted with him the same morning on 14 April
2013 before he left work. During cross-examination Ndava stated that
contrary
to his statement he did not describe the vehicle as a
Porsche, but identified it as a black vehicle.
[6]
Mr Khangelani Freddy Miya
testified that he worked for
Daleglen Properties as Head of Security. He confirmed that the
Stockyard and Tollgate buildings belong
to Daleglen Properties. He
confirmed that Morgan Ndava worked as a security guard at Daleglen
Properties and he was his supervisor.
Further, he confirmed
that in the guard room there is an occurrence book for the purpose of
recording everything that happens inside
the yard or premises.
[7]
All security officers are required to record suspicious activity in
the occurrence book. On 14 April 2013, in the early hours
of the
morning he was telephonically contacted by Morgan Ndava. Ndava
informed him of a suspicious noise emanating outside near
the
Stockyard building as well as a black car parked in Ravenscraig Road.
He instructed Ndava to record the registration number
of the vehicle.
[8]
The next morning on his arrival at work he observed a covered body
outside the Tollgate premises. He also observed that there
were
security and police officers at the scene. He approached Ndava who
explained to him what he had observed. Ndava then handed
him a piece
of paper with a registration number written on it. He handed this
piece of paper over to the police. He testified that
the security
guard that was on duty with Ndava was a part time reliever and not in
permanent employment. The security guard was
no longer in the employ
of Daleglen Properties and he could not remember his full details.
[9]
Warrant Officer David John Miles
works for the South African
Police Service attached to the Woodstock Detective branch. He was
briefly involved in this matter. He
was on standby duty for the
weekend of 14 April 2013, but he was also involved in another murder
investigation. He testified that
Captain Arendse informed him that
there is footage that needed to be secured relating to a murder
investigation. He approached
Freddy to enquire about who the person
in charge was in order to gain access to the footage. He was advised
by Freddy that Maureen
De Wet is the only person who has access to
the footage. He confirmed that Freddy handed over a piece of paper
containing details
of the motor vehicle in question. According to
Miles, the paper referred to a Black Porsche registration number […]
WP/MP.
He confirmed that he handed over the piece of paper to Warrant
Officer Smith. During cross-examination he stated that he never
recorded the details of the piece of paper in the police docket or
his pocket diary. He conceded that the piece of paper should
have
been retained.
[10]
Maureen De Wet
is the
Building Supervisor at Tollgate which is owned by Daleglen
Properties. She has exclusive control of all video footage captured

by the cameras at Tollgate and Stockyard. The Tollgate video recorder
is located in her office. She is the only person who has
the key to
the office and holds the password to access the system. At Stockyard,
the recorder is locked in a cabinet and she also
controls access to
this system. A report was made to her about an incident at Tollgate
and the matter was reported to the South
African Police Service.
Constable Basson contacted her and requested permission to download
the footage.
[11]
She identified the premises and location of the cameras.
[2]
She granted Basson
access to the computer to enable him to download the footage.
According to her, the cameras were fully operational
during April
2013. She explained that Nathan Bearman was the person responsible
for the installation and maintenance of the CCTV
systems at Tollgate
and Stockyard.
[12]
Randall Robert Basson
is a
Constable in the South African Police Service stationed at the
Provincial Command Centre in Cape Town. He is a video analyst.
His
duties entail the downloading of surveillance footage of crime scenes
and the capturing of still images for identification.
He
testified that he was contacted on 18 April 2013 by the investigating
officer, Warrant Officer Smith, and directed to
attend a crime scene
at the Tollgate and Stockyard buildings in Woodstock to download
footage of a murder incident. Maureen De
Wet granted him access to
the system. At the time, he had no knowledge of the merits of the
case. He viewed the surveillance footage
as pointed out to him by
Maureen De Wet. He recorded the starting and ending time of the
incident from two o’clock to four
o’clock in the morning.
[13] He testified that there is more
than one method to download material.  In this instance he used
a single USB flash drive
to download the footage from both Tollgate
and Stockyard.  He went back to his office and copied the
information from the
flash drive to CD. The first CD copy was his
master copy, handed in as exhibit 2, which was created on 18 April
2013. He also made
working copies for further investigation. The
master copy CD was sealed in a forensic bag and handed in at the SAP
13 for safekeeping
on 22 April 2013. Subsequently, the master copy
was booked out and handed to Warrant Officer Smith.
[14]
He followed standard police training procedures when he downloaded
the footage. He is also aware of guidelines endorsed by
Business
Against Crime
[3]
and to the best of
his abilities complied with those guidelines. He expressed the view
that the footage was downloaded in a forensically
acceptable manner.
[15]
He also made photos of still images after downloading footage from
the working copy.
[4]
He explained the
procedure followed, namely he paused the image, captured it, and then
printed it. He confirmed that the footage
depicted on the master copy
is the same footage he viewed at the time of downloading. He
confirmed that he never changed, altered,
deleted or added anything
to the footage.
[16] Constable Basson was recalled
regarding a cloned copy of the video footage. On 12 February 2016 he
went to the home of defence
expert, Mr Atkinson to make a clone of
the master CD. A DVD duplicator was used to make an exact copy of the
master copy. He established
that on the cloned version the creation
date of the footage depicted 23 April 2014. He compared the footage
on the cloned version
with his video files and observed that the
footage was the same.
[17] He checked the footage on his
computer which still indicated 18 April 2013 as the date of creation.
He then proceeded to copy
the footage onto a flash drive, and the
date remained the same. However, when he copied it to a CD the date
changed. He then realized
that the date is only amended when
transferred from flash drive to CD. He does not have an explanation
for this phenomenon. However,
he confirmed that the sealed master
disc remains intact.  The change of date did not change or
affect the footage at all.
The date of 18 April 2013 is still on the
video files. All video folders correspond with this date.
Consequently the master copy,
working copies and the original footage
remain the same. All the images also remain the same.
[18]
Nathan David Bearman
is
the co-owner of Eagle Technology. The company specializes in video
surveillance systems. He is responsible for the day to day
business
such as the design, implementation and upgrade of systems. He has
fourteen years’ experience in the trade and was
involved in the
installation of systems at National Key Points, the South African
Police Service and Parastatals. He has extensive
experience in the
supply and installation of video surveillance.
[19] Bearman installed the
surveillance systems at the Tollgate and Stockyard buildings. He
explained how the systems were installed
and how they operate. Both
systems are stand-alone systems which consist of cameras at the
premises as well as a recording system
in a secured location. Neither
of the recording systems is connected to a network which raises the
security features. He further
went on to explain the systems security
features. The first level of security is the physical security at
both locations in secure
areas with limited access. The next level is
password security needed to log onto the system. It also features a
time date stamp
which shows when footage was created. The final layer
of security is the creation of the video footage and the storage
thereof.
The systems do not have a watermark. A watermark is where a
piece of digital information is added to the video footage to
strengthen
the security features. The digital information is encoded
with the still image or video clip. A watermark can be added during a

live recording or be added for backup of existing footage to preserve
and identify the footage. He explained that only the machine
can
write the footage onto the hard drive. You cannot copy a new video
onto the hard drive. Once the footage is on the hard drive
it remains
there and cannot be manipulated or tampered with.
[20] He further explained that one
cannot cut and replace sections of the footage, nor can one delete
sections and record over it.
He also attended to the maintenance of
the systems when needed. He had not received any reports of problems
with these two systems.
He explained that a camera is an
optical reflection of the world and whatever it is facing, that is
recorded. Any footage can be
played back. The fact that the manager
could play back the footage shows that the recording system was fully
operational.
[21]
Warrant Officer Zimmerman
,
a
forensic analyst at the
South African Police Service
was
requested to perform an authenticity inspection on the DVD’s.
On 12 June 2015 he received three sealed evidence bags containing

three DVD’s. He examined the exhibits through a process that
requires skill in computer science technology and specific analytical

techniques. He conceded that the quality of the footage was not good,
and therefore image enhancement was not possible. He confirmed
that
notwithstanding the brief jumping on the footage of the Tollgate
camera, the integrity of the footage remains intact. He attributes

the jump in the Tollgate footage to time delays in the motion
detection or motion sensitivity. According to him, the brief jumping

of the images could also indicate a missing file in the Tollgate
footage. However, the Stockyard footage was consistent in all

respects.
[22]
He explained that the visual inspection involved an examination of
inconsistencies of time or date, the flow of the pixels,
the sudden
appearance or disappearance of people or objects, or missing frames.
He also considered lighting of the footage such
as the sudden
appearance of ambient light or darkness. He examined focal points in
the video such as people, cars, animals and
the shadows of objects to
assess whether it matches the reality of the background. He would
also consider the movement of objects
in relation to the actual flow
of the video necessitating a frame by frame assessment. He stated
that he could not locate any objects
or clips that were inconsistent
with the rest of the footage. He concluded that the footage of all
three DVD’s; to be authentic,
consistent and free of any
editing or manipulation.
[5]
[23]
The defence called
Mr Timothy Patrick
Sheridon Atkinson
to testify as an
expert regarding the authenticity of the CCTV footage downloaded at
Tollgate and Stockyard.
He holds a BSc degree in electrical
engineering.
He expressed the view that electronic
evidence is inherently unreliable, if not actually dangerous. Such
evidence can easily be
changed or altered.
[24] He was handed three or four discs
relating to this case, viewed the footage and made copies of same. He
criticized the technical
analysis of Warrant Officer Zimmerman and
reiterated the importance of retaining the original recording on the
hard drive. In the
absence of the original recording or primary
recording, any subsequent downloads cannot be verified as authentic.
He also criticized
the manner in which the footage was downloaded by
Basson and highlighted the risks associated with the reliability of
the footage.
He avers that Basson did not comply with proper
standards in securing the footage.
[25] Atkinson illustrated how footage
and still images can be manipulated by using certain formats and
programmes. He disputed the
reliability of the Tollgate footage due
to the jump in sequence when the two security guards appeared at the
Tollgate driveway
gate. He disagrees with Zimmerman’s theory
that the reason for the jump could be motion sensitivity or motion
detection.
He appears to align himself with the missing file theory
in explaining the inconsistency. He conceded that the Stockyard
camera
footage is consistent and continuous. However, he could not
clearly indicate how an inconsistency in the Tollgate footage
impacted
on the Stockyard footage.
[26] Atkinson continued to highlight
potential problems and risks associated with the handing of
electronic evidence. He did not
identify any significant problems and
therefore conceded that he is not in a position to find that anything
was added to the footage.
He conceded that he did not conduct an
authenticity test of the footage because he was requested to deal
with the content.
[27]
Atkinson gave a demonstration to the court regarding the scene of the
footage, and his perception as to what had transpired
on screen.
[6]
He refers to “the walking man”
and “the kicking man” in the footage, and expressed the
view that it is not
necessarily the same person. He also stated that
an incident could have happened off screen which could have triggered
the death
of the deceased. He saw the kicker entering the screen
running at considerable speed and speculated as to the reason why. He
regards
it as far-fetched to conclude that the kicker was responsible
for the victim being pushed on screen. He averred that objectively

seen, the victim was being attacked off-screen. He stated that there
is a lack of continuity as to what happens on screen, off
screen and
the later return of the driver to the vehicle. He concluded that
there is no evidence that the kicker and the driver
is the same
person. He illustrated the phenomenon of
commotio
cordis
[7]
by way of a video presentation. He
also testified with regard to a Google Earth map which he used to
indicate the precise location
of Ravenscraig and Upper Ravenscraig
roads.
[28]
Ruhaan Steynfaardt
is a sales executive at Porsche Summer
Greens since 2010. He testified that they are the only Porsche
dealership in Cape Town.
On 25 April 2013 Warrant Officer Smith
attended to their business premises and enquired from him whether he
could identify a certain
Porsche motor vehicle with registration
number […]. He did not initially recall the number but later
remembered that he
had sold a Porsche vehicle bearing registration
number […] WP to a certain Mr Mthethwa. He informed the police
accordingly.
[29]
He viewed certain video footage which was shown to him by the police.
He confirmed that he viewed both still images and video
footage of
the vehicle. He testified that he could identify certain elements of
the vehicle. He identified the model and make of
the vehicle as well
as the colour of the wheels on the footage. He recognized the vehicle
as the one he had sold to the accused.
He elaborated on specific
distinct features of the vehicle such as the taillights, rounded
headlights, and the coupe shape at the
back. He stated that the
vehicle has a very distinguished silhouette and that its shape is
iconic. The shape of the vehicle is
unique and never changed over the
years. He stated that Porsche customize the wheels of the vehicles
and orders them from Germany
according to a customer’s personal
choice. According to him, he only sold one black Porsche Carrera
Sport in Cape Town which
was ordered by Mr Mthethwa.
[30]
Certain documentary information relating to the vehicle was requested
by the police during their visit but he refused to provide
it to them
because of the privilege and confidentiality which existed between
customer and dealer. However, all documentary information
concerning
the Porsche was provided to the police after they presented a
warrant. During cross-examination, he revealed that the
accused
purchased the vehicle on 17 December 2012. He confirmed that the
colour of the vehicle was basalt black and that it was
the only
vehicle sold with black wheels in Cape Town at the time.
[31]
Mr Steynfaardt was recalled as a witness regarding his version as to
what transpired at Porsche during the police visit. A
version of his
colleague Mr Heathcock was put to him. However, Mr Heathcock was
never called as a defence witness.
[32]
Mr Carel Lourens Wessels
is
the Chief Technology Officer at Tracker in Gauteng. He testified that
tracker technology is approximately nineteen years old.
The tracker
process or vehicle telematics solution makes use of a global
positioning system (GPS) used worldwide. The telematics
system is a
live system and records the location of a vehicle at all times. The
GPS satellites have a CGM clock embedded in the
satellites which
determines the location of a vehicle in three dimensions, namely
latitude, longitude and altitude. The GPS receiver
also calculates
the speed of the vehicle. The GPS receiver needs to be logged to at
least two or three satellites to determine
the location of a vehicle
accurately. The system is very accurate and operates as a continuous
system.
[33] There are strict security
protocols in place for tracker and data cannot be tampered with on
the network. The information received
from vehicles comes through a
private protective network. The software used does not allow time and
location data to be changed.
Access to the information can be
obtained by means of a VIN number, vehicle registration number or
customer identification number.
Tracker trip reports are compiled
once all the information is interpreted. The detailed trip log report
represents all transactions
received from the vehicle and records the
location of the vehicle as well as the status. The status refers to
whether the ignition
is on or off and whether the vehicle stops or
moves. The trip log report formats details of a route followed and
the status. He
explained that they will overlay this information on a
map data set, to make it easier to interpret the information. He
confirmed
that the VIN number of the accused’s vehicle
reflected on their database. The account was active at the time,
reflecting
a Porsche vehicle fitted with a skytrax tracking system.
He expressed the opinion that the tracker system is within two and
a
half metres accurate when it locates a vehicle, but this is merely a
statistical calculation.
[34]
Jane
Eleanor Morrison
is
an Investigation and Compliance Investigator with Tracker. Her duties
at Tracker entail internal investigations, as well as assisting
the
police and other investigative units where Tracker fitted vehicles
are involved. She confirmed that a section 205 subpoena
was served on
Tracker requiring information about a certain vehicle which was
active on their system. She accessed the system using
the VIN number
to call up information relating to the vehicle of Mr Mthethwa. She
compiled a detailed trip log report and mapping
which were handed in
as exhibits.
[8]
She explained that
mapping is basically the trip log placed on a map. She testified in
detail about how she compiled the report
and analysed the data in the
exhibits. She concluded that the vehicle in question was in
Ravenscraig Road, Woodstock on the morning
of 14 April 2013 from
02:48 until 02:55.47.
[35]
Kenneth David Speed
is a Captain in the South African
Police Service attached to the organized crime component of the
Directorate for Priority Crime
Investigation, also known as the
“Hawks”. He has 17 years’ service of which 14 years
have been in specialized
investigation units. In the last 10 years he
has been utilizing GPS devices in his investigations, in conjunction
with the analysis
of telephone “call data”. He was called
as a witness to assist with co-ordinates that were presented as
evidence by
the Tracker specialist as compiled in the tracker trip
logs. The first investigation he had to do was to take the
co-ordinates
provided by Tracker and drive the route using those
co-ordinates to see where the vehicle ended up. The second issue
related to
an allegation made by the defence that there were two
streets, having the same name, in close proximity to the crime scene.
He
was unable to determine the precise route followed using the
co-ordinates, since the trip log report does not contain information

pertaining to the direction the vehicle was travelling when the
“waypoints” were recorded. A waypoint is a reference

point or a set of co-ordinates determined by the GPS device that
precisely identifies a location. He therefore expressed the view
that
it would be extremely difficult to speculate on a specific route
since there could be various routes between locations.
[36]
With regard to the second investigation he went to the scene of the
crime where certain key points were pointed out to him.
Warrant
Officer Smith indicated the location where the body was found, as
well as two CCTV cameras relevant to the proceedings.
He explained
that he took a hand held GPS device and plotted out the position of
the three locations called “waypoints”.
He recorded the
positions of the specific locations. The purpose of the exercise was
to get the GPS co-ordinates of the location
of the body and the two
cameras, and compare those GPS co-ordinates to the car. He selected
the most relevant waypoints on the
tracker trip log to the location
of the accused’s motor vehicle.  He obtained co-ordinates
for the three positions and
measured the distance between those
co-ordinates and those provided by the tracker trip log. He measured
the distances between
those co-ordinates that he plotted and the five
co-ordinates provided by the tracker trip report to determine the
distances between
those waypoints.  He then used the GPS to
calculate the distance between those co-ordinates. Consequently the
street name
is of no consequence, since his focus is purely on the
co-ordinates, its location, and the distance between them.
He
concluded that the vehicle, allegedly belonging to the accused, was
in close proximity to the CCTV cameras and the location of
the body
in Ravenscraig Road during the course of the offence.
[9]
He conceded that
the GPS device is not always accurate, but he was able to determine
the precise location of the vehicle at any
time.
[37]
Dr Nicholas Tam
is a postdoctoral research fellow at the Sport
Science Institute and has a BSc in Physiology and Human Movement
Studies as well
as an Honours, Masters and PhD in Exercise Science
obtained at the University of Cape Town.
[38]
He testified that the concept of gait is a study of human locomotion,
which includes running and walking. Gait patterns are
very specific
to someone’s locomotion. His brief was to access the
anthropometric and gait related similarities between the
perpetrator
and the accused to determine if there is any congruence between the
two. He was provided with closed circuit television
footage of the
murder scene of 14 April 2013, as well as CCTV footage captured of
the accused when he appeared at the Cape Town
Magistrate’s
Court on 25 November 2013. The crime scene footage was not of a very
high quality. He testified that he conducted
a gait and
anthropometric analysis to determine whether the accused and the
perpetrator present with any similarities.  His
key findings
were as follows: He explained the nature of the anthropometric
analysis with reference to stature, posture and handedness.
He
concluded that the height of both the subjects was found not to be
different. He indicated that the height of the perpetrator
fall
within the range of 1750mm and 1950mm, which falls within the range
of the known height of the accused.
[39]
He found a distinguishing factor of the perpetrator to be that of
forward head posture (FHP). It is a common recognizable type
of poor
head posture. The accused exhibits similar FHP. Alongside a FHP,
similarities are also found in the manner both of them
enter the same
make of vehicle. The CCTV footage of both “
document
the dominant use of the left hand whilst using a mobile phone whilst
assuming the same arm (upper arm remain close to the
torso) and the
distinct forward head posture
.”
[10]
[40]
With regard to the gait analysis he observed that both the accused
and the perpetrator present with a compass-like gait pattern.
He
found that the gait speed of the perpetrator walking away from the
motor vehicle was faster than the gait speed of the perpetrator

walking back to the motor vehicle. However, the accused’s gait
speed when walking on the street outside the Cape Town Magistrate’s

Court was similar to that of the perpetrator’s speed while
walking towards the car. Both subjects present with similar step

lengths and their step frequency is also similar to the similar gait
speeds. He therefore concluded that the accused and the perpetrator

share certain similarities. However, based on the poor quality of the
CCTV footage he is not in a position to include or exclude
the
accused.
[41]
Warrant
Officer Themba Ntobelo
is
in the employ of the South African Police Service since 2012. He
performs duties as an official photographer, draughtsman, video

operator and forensic examiner since February 2010. He was requested
by Warrant Officer Smith to conduct a forensic examination
in regard
to a Black Porsche 911 Carrera Z S confiscated from Mr Mthethwa. He
was also requested to investigate possible DNA evidence
and obtain
finger prints from the door handles. He testified that he
photographed the vehicle and thereafter proceeded with his
forensic
examination.  He removed the mats inside the vehicle and took it
to the laboratory for further examination. He did
not examine or
investigate the pedals of the vehicle for possible DNA.  He
confirmed that he was not asked to focus on specific
aspects of the
vehicle but rather to process the whole of the vehicle.  He did
not find any DNA evidence emanating from his
forensic
examination.
[11]
[42]
Miss Gulam Petersen
is a sex worker operating in the Woodstock
area. She knew the deceased to be a sex worker.  She testified
that she initially
saw the face of the accused in a newspaper article
posted on the Sweat Office notice board. She then recalled that she
had previously
seen him in the Woodstock area looking for a specific
girl. At the time he was driving a black Porsche. She reported her
observations
to the Sweat Office and was advised to report the matter
to the police. She confirmed that she was shown the CCTV footage on
two
occasions by the police. She subsequently only identified the
accused the second time that she viewed the footage.
[43]
Dr
Linda Liebenberg
is
a forensic pathologist, who conducted a post-mortem examination on
the body of the deceased and compiled the post-mortem report.
[12]
She also viewed the
video footage sometime after compiling said report. She accordingly
testified in respect of her post-mortem
findings as well as her
observations from the footage.
[13]
Her main findings
are that the cause of death was due to a massive laceration of the
liver. She confirmed that the body presented
with various blunt force
injuries to her face as depicted on the photographs. The body also
had various rib fractures and abrasions.
She expressed the view that
the fluid depicted in the background of the photos, as depicted in
exhibit B, resembles vomitus.
[44]
She testified that the deceased suffered severe blunt force injury to
the trunk, with the most remarkable and apparently most
fatal injury
being that the liver was virtually torn in half through both lobes.
The effect of this laceration was significant
internal blood loss,
reflected in 400ml of free blood in the abdomen and pallor of the
organs. The deceased suffered crack fractures
of the ribs 3-5 on the
right anterior chest and of the 8
th
rib cartilage of the
right costal margin. These injuries would also be consistent with the
stomping and kicking of the body as seen
in the footage.
[45]
There were also blunt force injuries to the face of the deceased,
consistent with the fist blows / slaps and kicks apparently
delivered
to the head area. There were relatively minor skin abrasions to the
anterior and posterior trunk and right elbow of the
deceased. The
deceased suffered a total liver injury, consistent with the stomping
actions seen in the footage.
[46]
Dr Liebenberg testified that the victim may also have developed
cardiac arrest due to “
commotio
cordis
‘’
caused
by blunt force to the anterior chest wall. Commotio cordis or cardiac
concussion is described as “
sudden
death due to a non-penetrating chest wall impact in the absence of
injury to the ribs, sternum and heart
”
.
[14]
She stated that the marked lack of
defensive type injuries to the upper limbs are in keeping with the
apparently motionless victim
during most of the attack. Also, the
marked paucity of visible bruises to the trunk of the deceased when
compared to the multiple
blunt force impacts seen in the footage,
raises the probably that she died very soon during the attack, with
cardiac arrest resulting
in the lack of formation of bruises.
[47]
During cross-examination Dr Liebenberg expressed the view that the
deceased was still alive at the time of falling to the ground.
She
stated that the deceased was dying of the liver injury and something
intervened to hasten the death. She explained to the court
that there
were many medical reasons that could result in hastened death. She
mentioned that stopping of the heart could lead to
the death of the
victim, or stopping of blood circulation could also have hastened the
death. Dr Liebenberg was extensively cross-examined
by the defence as
to whether the deceased could have developed cardiac arrest due to
“
commotio cordis”.
She conceded that such an
investigation is the speciality of a cardiologist.
[48]
Warrant Officer Warren Stephen Smith
is a member of the South
African Police Service with 22 years of service. He took over from
Warrant Officer Miles as investigating
officer. He received the
docket on 16 April 2013. Miles reported to him that he had consulted
Freddy and received a note written
by Morgan Ndava reflecting a
vehicle’s details and a registration number. Miles handed the
note to him. The note reflected
the vehicle as a black Porsche with
registration number […] WP or MP. He checked on the eNatis
system whether he could trace
the vehicle to no avail. This occurred
in the presence of Miles with whom he shares an office. He confirmed
that he recorded the
note in his diary and obtained a statement from
Freddy. He did not file the paper in the docket but threw it away. He
did however
record the information in his diary on 18 April 2013. He
conceded that he should have retained the paper but considered it as
of
no evidentiary value at the time. He firmly believed that the
paper had no evidential value until a statement has been obtained.
He
subsequently obtained a statement from Morgan Ndava.
[49]
An entry was made in the docket regarding possible CCTV footage. He
proceeded with his investigation regarding possible footage
at the
Tollgate Building. He initially contacted Freddy who referred him to
Maureen De Wet. He made arrangements with Constable
Basson to contact
De Wet to facilitate the downloading of the footage. Basson duly
attended to same and downloaded the footage
on his laptop on 18 April
2013. Basson also made working copies of the footage. In total there
were three discs which were handed
in at the SAP 13. The quality of
the footage was not good and he subsequently established from
Zimmerman that the images on his
laptop could not be enhanced.
[50]
On 23 April 2013 he collected the sealed master disc from the SAP 13
for safekeeping. He testified that the disc was always
safely secured
in the docket which was locked in his draw until such time that the
matter was ready for trial. At some stage he
was requested to take
the footage to the Plattekloof Forensic Laboratory for an
authenticity test. Warrant Officer Zimmerman compiled
a report to
this effect.
[51]
Having received information regarding the vehicle he attended to
Porsche Summer Greens for further investigation. He consulted
Ruhaan
Steynfaardt who viewed the footage and identified the vehicle as one
he had sold to a certain Mr Zwelethu Mthethwa. He obtained
a
statement from Steynfaardt on 25 April 2013 and 25 August 2013. A
warrant of arrest for Mr Mthethwa was authorized. Mr Mthethwa
was out
of the country at the time and he was subsequently arrested at the
airport on his return to South Africa on 5 May 2013.
He also
conducted a search at the residence of Mr Mthethwa on the day of his
arrest. Nothing of significance was found at his residence.
The
Porsche vehicle in question was confiscated for further examination.
The forensic examination found no incriminating
evidence inside
or outside the vehicle.
[52]
He obtained a section 205 subpoena to obtain further information of
the vehicle. It was established that the vehicle was fitted
with a
tracker and he facilitated the necessary procedures to obtain a
Tracker report. The tracker evidence placed the vehicle
in
Ravenscraig Road at the time of the incident. He also obtained cell
phone records of Mr Mthethwa which did not take the matter
further.
On 11 March 2014 he arranged viewing of the footage with Dr
Liebenberg and elicited her comments.
[53]
He further explained various aspects of his investigation regarding
potential witnesses or suspects. Morgan Ndava who appears
on the
Tollgate footage, was questioned the very same morning of the
incident. The other security guard visible in the footage
had moved
and was untraceable. Miss Gulam Petersen was consulted more than a
year after the incident. She viewed the footage on
two occasions and
subsequently identified the accused as a person frequenting the Sea
Point area.  He could not trace the
identity of the other
persons in the footage namely the unknown male who passed the gate
and the female accomplice in the footage.
[54]
He was advised by the Prosecutor to obtain evidence from a gait
expert to assist in the investigation. He applied for a section
252A
operation which was duly authorized. However, the police did not get
the opportunity to actually record the accused. They
then settled to
use video footage which was obtained from two other premises as
control samples. Eventually the services of Dr
Nicholas Tam were
obtained to prepare a gait expert report.
[55]
The State closed its case and the defence brought an application for
the discharge of the accused in terms of the provisions
of
section
174
of the
Criminal Procedure Act, 51 of 1977
. The application was
refused since the court was of the view that the defence had a case
to answer. Mr Mthethwa elected not to
testify and the defence called
6 witnesses.
[15]
[56]
Mr Wouter De Swardt
is a former police officer with sixteen
years’ service, who continued his career at Fox Forensics as a
private investigator.
He was consulted by the defence and provided
with all relevant documents concerning the case. He specifically
testified about the
CCTV footage and the procedure followed in
downloading and the protection of same.
[57]
He testified that in this particular case he would have followed a
different protocol to download the footage. Firstly, he
would have
confiscated the hard drive, removed it and taken it to a laboratory
to make a master copy as well as working copies.
He would have
confiscated both the hard drives at the Tollgate and Stockyard
Building. He would have started downloading footage
an hour before
the incident. This process should involve downloading the whole
incident and recording the time of the incident.
One should also
investigate how many cameras are involved and record their positions
in relation to the scene that you are investigating.
He would
have downloaded the footage on all the cameras. He would replay the
copies of the footage to ensure it is correctly downloaded.
All the
evidence, such as the hard drive, memory stick and CD’s should
have been sealed in an evidence bag and handed in
at the SAP 13. He
referred the court to Guidelines
[16]
followed in the United Kingdom which
are currently in use by the Metropolitan Police, London and other
major police forces worldwide.
He conceded that there are no
guidelines in place in South Africa in this regard. He also
criticised the manner in which Smith
destroyed the paper containing
details of the vehicle. He stated that the paper remains evidence and
it should have been tagged
and bagged. Evidence should also not be
kept at an office.
[58]
During cross examination he conceded that it was a simple crime scene
depicted on the footage which was adequately recorded
by the police
with regard to the timing of the incident. He conceded that the UK
model does not consider the hard drive a vital
component for
downloading footage. Furthermore, the manner in which Basson
downloaded the footage does not necessarily impact on
the
authenticity of the footage. Additionally he conceded that the fact
that the original footage was retained by Smith does not
necessarily
mean that the footage had been tampered with. He also agreed that
there was nothing wrong in Smith’s approach
during the
investigation when he would first show the footage to witnesses in
order to determine whether the vehicle or person
is identifiable. He
stated that he could not assist the court as to the authenticity of
the video footage in this matter.
[59]
Mr Jan Francis Pretorius
is a chartered accountant who
previously dealt in second hand Porsches. During the years he kept
contact with the brand and was
called to testify about his knowledge
of Porsche vehicles. He was shown video footage pertaining to the
case as well as still photographs
and a power point presentation he
believed was provided by the State. He viewed the footage of the
crime scene. He identified the
vehicle as a Porsche 911 dark in
colour with dark coloured wheels. He could not determine the colour
of the wheels and found nothing
specific or unique to the vehicle. He
could not identify the specific design of the wheel and tyre profile.
He confirmed that a
buyer can spec his vehicle to his specific needs.
He expressed the view that the footage was of such poor quality that
he could
not identify specific features of the vehicle.
[60]
Ms Petronella van der
Westhuizen
is a former
Lieutenant Colonel in the South African Police Service. She has 21
years’ experience in crime scene investigation.
She is
currently the owner of Crime Scenes Solutions which specialise in
crime scene decontamination. Her main area of expertise
is
fingerprint and facial recognition. She is not an expert in DNA
transfer. She testified in general as to procedure followed
to
examine a crime scene.
[17]
She stated that she had observed a
laceration and marks on the face of the deceased. She also noted that
the assailant made physical
contact with the victim. In her view,
forensic examination of shoes and clothing is also important. She
would accordingly have
expected DNA evidence in this matter.
She conceded that it is not easy to remove DNA, but possible. The
washing of a motor
vehicle would also dilute a sample to such an
extent that it would no longer be viable for analysis. She conceded
that the time
lapse between the incident and forensic investigation
can result in degradation of DNA material.
[61]
Mr Alwyn Landman
is employed as a risk manager at Shimmy Beach
Club at the V&A Waterfront. He knows Mr Mthethwa as a client at
another venue,
The Grand in Granger Bay. On occasion he would drive
Mr Mthethwa‘s convertible vehicle when he had consumed too much
alcohol.
He would then drive him to his residence in Devil’s
Peak. When he moved over to Shimmy’s, he saw Mr Mthethwa as a
patron
on a few occasions. According to his knowledge, Mr Mthethwa
was living in Devil’s Peak and he was driving a black Porsche

with registration number 911 Z at the time. He never drove the
Porsche. In early 2013 when Mr Mthethwa had too much to drink he
saw
Sheldon, a person employed at Shimmy’s, drive the Porsche.
During cross-examination he conceded that he cannot assist
the court
as to the identity of the driver at the time of the murder of the
deceased.
[62]
Professor Tuviah Zabow
,
an experienced psychiatrist testified that he had seen Mr Mthethwa on
9 November 2016 for a psychiatric consultation. The consultation
was
conducted in order to assess Mr Mthethwa’s lack of recall
pattern for the period of time of the alleged offence, as he
reported
that he could not remember anything relating to his actions or
movements at the time of the attack. He was assessed by
interview and
psychiatric examination.
[18]
He has not had previous psychiatric
management, assessment or counselling. The focus of the assessment
was on his emotional and
cognitive functioning, and the possible
contributing facts, as well as the nature of his inability to
remember the events of the
night.
[63]
He found him to be of average intelligence with no cognitive defects.
In particular, his memory function is intact.  There
is no
amnesia, but due to his consistent lack of ability to provide any
additional information, recall remains absent. On evaluation
of his
overall function, accounts and behaviour there is no indication of
pathology or any sort of basis for this. Automatism is
not present
nor any personality characteristics such as aggression, paranoia or
antisocial behaviour. Alcohol can affect his motor
abilities as well
as his cognitive or planning abilities; hence alcohol could be
contributory to his blank period.  As a result
of his inability
to recall, no exculpatory account is possible.
[64]
During cross-examination Dr Zabow conceded that his opinion and
inferences drawn is solely based on what was told by Mr Mthethwa.
He
conceded that if someone says he cannot remember, it is not possible
to determine whether that version is truthful. Alcohol
consumption
could be a possible reason for memory loss. Although he consumed
alcohol there has never been an account of aggression
hence he
concluded that Mr Mthethwa would be acting out of character if he had
acted aggressively. He conceded that the fact that
someone is unable
to recall does not mean he was not involved. He also conceded that he
did not obtain any collateral information
to determine the extent of
alcohol consumption and lack of recall. He concluded that there is no
sign of mental illness, no memory
disorder, no mental defect and no
personality disorder. He found no pathological reason for the lack of
recall. This concluded
the evidence on behalf of the defence.
[65]
It is trite that the State must prove its case beyond reasonable
doubt against the accused.
[19]
Proof beyond reasonable doubt does not
mean proof beyond the shadow of a doubt.
[20]
Our law does not require that a Court
should only act on absolute certainty, but rather on justifiable and
reasonable convictions
founded upon just and reasonable grounds.
[21]
[66]
Evidence must be evaluated holistically and all evidence should be
assessed in its totality.
[22]
The Court must consider inherent
strengths and weaknesses in the evidence, and consider the merits,
demerits and probabilities.
[23]
In
S
v Trainor
[24]
,
the Court stated the following:
“
A conspectus of all the
evidence is required. Evidence that is reliable should be weighed
alongside such evidence as may be found
to be false. Independently
verifiable evidence, if any, should be weighed to see if it supports
any evidence tendered. In considering
whether evidence is reliable,
the quality of the evidence must of necessity be evaluated, as must
corroborative evidence, if any.
Evidence, of course, must be
evaluated against the
onus
on any particular issue or
in respect of the case in its entirety. The compartmentalised and
fragmented approach of the magistrate
is illogical and wrong.”
[67]
The evidence against the accused is primarily based on circumstantial
evidence. In
R v Blom
[25]
Watermeyer, JA referred to the two
cardinal rules of logic which govern the use of circumstantial
evidence in a criminal trial.
The first rule is that “
the
inference sought to be drawn must be consistent with all proved
facts. If it is not, then the inference cannot be drawn; secondly,

the proved facts should be such that they exclude every reasonable
inference from them save the one to be drawn”.
[68]
Circumstantial evidence needs to be considered in its totality in
order to apply the two cardinal rules of logic formulated
in
R
v Blom
(supra). In
R
v De Villiers
[26]
the Court held that:
“
The Court must not take each
circumstance separately and give the accused the benefit of any
reasonable doubt as to the inference
to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of them
together, and it is only after
it has done so that the accused is
entitled to the benefit of any reasonable doubt which it may have as
to whether the inference
of guilt is the only inference which can
reasonably be drawn.”
[69]
In
S v Reddy and Others
(supra) the Court said the following
regarding the assessment of circumstantial evidence:
“
In assessing circumstantial
evidence one needs to be careful not to approach such evidence upon a
piece-meal basis and to subject
each individual piece of evidence to
a consideration of whether it excludes the reasonable possibility
that the explanation given
by an accused is true. The evidence needs
to be considered in its totality. It is only then that one can apply
the oft-quoted dictum
in
R
v Blom
1939 AD 188
at 202-3, where reference is made to two cardinal rules of logic
which cannot be ignored.”
[27]
[70]
With the advancement of technology, closed circuit television (CCTV)
cameras in public places are now a worldwide feature.
As a result the
production of electronic evidence in the form of CCTV footage has
progressively become an important source of evidence
in criminal
proceedings. As a silent observer, CCTV footage can play an
invaluable role in collecting evidence in search for truth
in
criminal trials. It has the ability to accurately capture, in an
objective and independent manner, evidence in a case which
can
effectively established the guilt or innocence of an accused.
[71]
In
S v Mpumlo and Others
[28]
it was stated that a video recording
“
is real evidence, as
distinct from documentary evidence, and, provided it is relevant, it
may be produced as admissible evidence,
subject of course to any
dispute that may arise either as to its authenticity or the
interpretation thereof
”
.
This approach was confirmed by the Supreme Court of Appeal in
S
v Mdlongwa.
[29]
[72]
The departure point in terms of possible incriminating evidence
against the accused in this matter is the CCTV footage. From
the
outset of the trial the defence therefore launched an attack, on
firstly, the admissibility of this evidence, and secondly,
the
reliability and credibility of the evidence that emanated from the
footage. A trial within a trial was therefore held to determine
the
authenticity of the footage. It became evident during the proceedings
that the defence attacked the method used to download
the footage,
the manner in which it was secured and preserved, and the absence of
the hard drive. It was therefore contended that
the video footage was
not original. In
S v
Ramgobin and Others
[30]
the Court held that for video tape
recordings to be admissible the State had to prove beyond reasonable
doubt that the recording
is original, that they relate to the
incident in question and that no interference with the recording had
taken place.
[73]
Nathan Bearman installed the cameras and explained that both systems
are stand-alone systems. The cameras recorded and functioned

properly, and the footage was recorded from the recording system to
the hard drive. The footage remains on the hard drive and cannot
be
manipulated or tampered with.  De Wet received a report and as a
result viewed the footage. She gave Basson access to the
relevant
footage by using her unique password. Basson viewed the footage and
downloaded what was captured on the CCTV cameras.
Both De Wet and
Basson confirmed that what they saw on the hard drive is what they
were shown in court. Smith was clear in his
evidence that he “
tagged
and bagged
” the exhibit which was only opened in court in
the presence of the defence when the footage was given to Zimmerman
to conduct
an authenticity test. Zimmerman was the only expert that
testified on the authenticity question.
[74]
The attempt by the defence to challenge the authenticity of the
footage was still born since the defence never briefed an expert
to
determine authenticity.  Atkinson testified that he did not
conduct an authenticity test and was merely briefed to focus
on risks
and content. The evidence of Atkinson regarding potential problems
and risks associated with the handling of electronic
evidence were
mere speculation. The central theme of the attack of the defence is
the fact that the hard drive was not secured
and therefore there was
a real possibility that the footage was tampered with. Much emphasis
was placed on the preservation of
the hard drive but the defence
witness, Mr De Swart, conceded that the hard drive is not essential
in preserving the footage. There
was not even a suggestion that one
of the State witnesses tampered with or altered the footage.
[75]
In
S v Mdlongwa
[31]
the footage was also downloaded from
the hard drive. However, there was no suggestion by the SCA that the
method by which the footage
was downloaded compromised the
originality and authenticity of the footage.  The court further
held that it need not be established
that the original footage was
used because the purpose of introducing the video footage into
evidence was to identify the scene
and to identify the
perpetrators.
[32]
[76]
Zimmerman made a number of concessions but remained convinced in his
expert opinion that the footage is authentic.  The
fact that
Basson kept the master copy for a few days before it was handed into
the SAP 13 and that it was then securely kept by
Smith, may be
criticized but it clearly did not impact on its authenticity. The
infamous jump in the Tollgate footage was adequately
explained and is
not crucial in determining authenticity. In any event the
all-important Stockyard footage depicting the murder
scene remained
intact.  In
S v
Nieuwoudt
[33]
part of a sound recording was deleted,
yet the Court found that the authenticity of the tape was proved.
[77]
In these circumstances, this Court is satisfied that the defence had
failed to show that the footage had been altered, deleted,

manipulated or tampered with in any way. For these reasons, the
footage is found to be authentic and exhibit 2 is conclusively

accepted as evidence.
[78]
In South Africa there are no clear technical guidelines with regard
to the authentication of video evidence such as CCTV footage.
In the
UK, best practices were adopted in respect of digital evidence
including the creation of audit trials to authenticate it.

Notwithstanding the recommended best practice, the rule of evidence
in UK remains that digital evidence should not be inadmissible
solely
because it does not conform to specific technological requirements.
The UK still considers the layman’s approach as
a valid mode of
authentication.
[34]
The authentication technology merely
increases the evidential weight of a digital image. I agree with this
approach.  I am
of the view that evidence should not necessarily
be inadmissible merely because it does not conform to technological
requirements.
In
Director of
Public Prosecutions v Kirwan,
[35]
the Court held that:
“
There may have been a point
in time when CCTV footage was so new and so unusual that some element
of explanation as to what was
involved was required. However, that
day is well past. CCTV cameras are now ubiquitous. Almost every
investigation of any significance
by the gardaí involves
accessing CCTV footage and footage is now played during a very large
number of trials. The footage
that is generated by the cameras is
real evidence. Ordinarily no evidence is required as to how a
CCTV
camera operates and how the
footage is generated any more than evidence is required as to how a
traditional camera operates or for
that matter how the internal
combustion engine operates. The Court has no hesitation in rejecting
this ground of appeal.”
[79]
In
R v Nikolovski
[36]
the Canadian Supreme Court of Appeal
acknowledged the importance and usefulness of videotapes in criminal
trials and held that:
“
Once it is established that
a videotape has not been altered or changed, and that it depicts the
scene of a crime, then it becomes
admissible and relevant evidence.
Not only is the tape (or photograph) real evidence in the sense that
that term has been used
in earlier cases, but it is to a certain
extent, testimonial evidence as well. […] It may indeed be a
silent, trustworthy,
unemotional, unbiased and accurate witness who
has complete and instant recall of events. […] The weight to
be accorded
that evidence can be assessed from a viewing of the
videotape.”
[37]
[80]
The degree of clarity and quality of the CCTV footage is not perfect
but the visuals show the attack on the deceased in detail.
Ndava was
on duty at the time of the incident and is clearly visible on the
Tollgate footage where he stood in front of the driveway
gate with
his colleague. This is the jumping section of the Tollgate footage
where the two security guards appeared to have surfaced
out of the
blue. However, the Stockyard footage shows the moment when the two
security guards appear at the Tollgate driveway gate.
The security
guards looked outside the gate onto Ravenscraig Road where the
vehicle had parked. It is evident that they could clearly
see a
vehicle from their vantage point and the footage supports Ndava’s
version that they went to the gate to investigate
noises outside.
However, the exact location of the attack was obscured from their
view. Something happened which attracted them
to the gate to
investigate. Ndava explained that he heard a noise resembling people
fighting. This evidence is clearly not fabricated
because their
actions on the footage are corroboration for his version that
something suspicious had happened which prompted them
to investigate
and move towards the gate. Considering the fact that something
alerted them, it is highly likely that the security
on duty would
have recorded the incident.
[81]
The defence took issue with the details that were written on a piece
of paper by Ndava. It is so that there were discrepancies
in the
State case as to what precisely was recorded on the paper, more
particularly the description of the vehicle. The piece of
paper was
received by Smith before he viewed the footage. He then proceeded to
use this information to check on the eNatis system.
Thereafter he
went to Porsche to enquire about the registration number as provided
by Ndava. It would be completely illogical for
an investigating
officer to interrogate Porsche based on a fabricated piece of paper.
I am therefore satisfied that the information
written on the piece of
paper resulted in the Porsche visit. It must also be borne in mind
that Smith and Miles speculated that
the vehicle resembled a Porsche
after initially viewing the footage.
[82]
Ruhaan Steynfaardt identified the vehicle as one he had personally
sold to Mr Mthethwa. He was extensively cross-examined on
the
identification of the vehicle. He was even recalled by the defence to
scrutinize his testimony further. He was an excellent
witness who
withstood the most intense scrutiny. He exhibited extensive knowledge
of specific features of the Porsche brand in
all its facets. He
displayed exceptional knowledge of all the various Porsche models,
past and present. He confidently explained
how he identified the
vehicle and linked it to his former client. The defence witness
Pretorius also identified the vehicle seen
in the footage as a
Porsche 911 and corroborates Steynfaardt in this regard. The court
has no hesitation to accept Steynfaardt’s
version as credible
and honest.
[83]
Once the vehicle was positively identified by Steynfaardt the focus
shifted to another independent source, namely the Tracker
which was
fitted to the vehicle. The detailed tracker trip log report reflects
that the ignition of the vehicle was switched on
at 02:34:10 in
Vredehoek. The vehicle then followed a route heading towards
Woodstock. At 02:49:55 the ignition of the vehicle
was switched off
in Ravenscraig Road. The total period that the vehicle was stationary
in Ravenscraig Road was approximately 6
minutes.  The incident
on the footage occurred in a period of approximately 6 minutes. The
court is mindful of the fact that
the tracker time was not
synchronized with the Stockyard and Tollgate cameras.
[84]
At 02:55:47 the ignition was switched on and the vehicle departed
from Ravenscraig Road, arriving back in Vredehoek at 03:03:06
when
the ignition was switched off. The odometer reading on departure from
Vredehoek was 4742 and on arrival in Ravenscraig Road
the reading was
4746. On its departure from Ravenscraig Road the reading was 4746,
arriving back in Vredehoek with a reading of
4750. The distance
travelling in each direction is 4km.
[85]
The defence admitted the tracker records to be very accurate both in
terms of positioning and time. It was not in dispute that
the tracker
records relate to a Porsche vehicle which is owned by the accused.
Having made these concessions the defence questioned
the exact
location of Ravenscraig Road and alluded to the existence of another
Ravenscraig Road, later referred to as Upper Ravenscraig
Road. This
dispute was dealt with decisively by Captain Speed. He conceded that
his device is not perfect, but his method of confirming
the tracker
location in Ravenscraig Road where the Stockyard cameras were
functioning and where the body was found could not seriously
be
challenged. His method was entirely focused on location and not
street names. He was an excellent witness who showed great insight

and experience in GPS technology. Speed corroborated the tracker
evidence and found beyond reasonable doubt that the vehicle in

question was in the vicinity of Ravenscraig Road at the time of the
attack on the deceased. The defence expert Mr Roux
[38]
did not significantly alter the
location of the vehicle. The tracker evidence clearly established
that it was the motor vehicle
sold by Steynfaardt to Mr Mthethwa that
was present at the time of the incident, left the scene in
Ravenscraig Road and returned
to Vredehoek. Furthermore, considering
the fact that the vehicle was stationary in Ravenscraig Road for
approximately the same
period of time as the recorded time captured
by the CCTV footage, the evidence incontrovertibly establishes that
the vehicle in
question is that of the accused.
[86]
It was contended by the defence that the driver and the kicker was
not the same person. The hypothesis is mainly based on the
fact that
the driver first disappeared off-screen and thereafter we see the
attack executed by the kicker. Then, when the attack
was concluded
the kicker disappeared off-screen.  It was at this stage that
the two security guards came to the gate and observed
the vehicle.
[87]
The footage introduced the kicker as he ran onto the screen.
According to the defence, he was clearly in fear of someone or

running away from someone. There was no one in sight chasing the
kicker. The kicker stopped on screen, turns around and immediately

launched the attack on screen. The kicker was clearly not pursued by
anyone and in no danger at all, otherwise the alleged danger
would
have manifested itself on screen whilst the kicker was launching the
attack. In the face of real or imminent danger one would
reasonably
have expected the kicker to abandon the scene. Instead he had the
courage and tenacity to launch a vicious attack on
the deceased. The
defence’s hypothesis that the kicker was running from danger is
far-fetched since the kicker transformed
into the aggressor on
screen.
[88]
It is significant that the driver and the kicker never appeared on
screen at the same time. Furthermore, it is only when the
driver
appears on the scene, that we see the attack and only after he
arrived at the scene that the security guards heard the noise
in the
street. Similarly it was only after the attack was concluded, that we
see the driver depart from the scene. It was not disputed,
and the
footage clearly shows that there is only one driver who arrived at
the scene, and the same driver departed from the scene.
Furthermore,
a visual examination of the footage shows the top garment of both
driver and kicker is lighter than the bottom garment.
There is
also a marked resemblance in the silhouette and height of the kicker
and the driver. Dr Tam was conservative in his assessment
of
similarities between the perpetrator and the accused and conceded
that he could not include nor exclude the accused. He identified

three specific similarities, which in my view is not insignificant,
namely the height, compass-like gait and forward head posture.
[89]
A crucial time during the attack occurred at approximately 02:52. The
footage shows that there is clearly a continuation of
the attack off
screen. The aggressive limbs of the kicker was partially within range
of the camera and can be seen popping intermittently
on screen. The
body of the deceased can be seen moving during this phase of the
attack. The kicker aggressively continues with
the attack until the
security guards approach the Tollgate gates to investigate. What is
significant is that after the two security
guards arrived the kicker
immediately terminated the attack. Barely a few seconds later the
driver emerges from the direction of
the deceased’s body and
walks to the vehicle. I have no hesitation to conclude that the
kicker was disturbed by the security
guards which resulted in the
termination of the attack. The kicker displayed a great degree of
anger towards the victim during
the attack. The manner in which the
driver initially stopped in the middle of the street, and walked
purposefully across the street
was the demeanour of an angry person.
The conduct of the kicker and the driver is therefore congruent in
this regard.
[90]
The unknown woman in the footage joined the kicker by executing light
blows to the victim, searched the victim, and also interacted
with
the driver of the vehicle before he left the scene. The woman clearly
aligned herself with the conduct of the kicker, and
thereafter
approached the driver and engaged with him. It is highly improbable
that the driver was completely isolated and oblivious
to the attack,
taking into account that he walked to his vehicle barely a few
seconds after the attack was terminated. He walked
calmly back to his
vehicle and must have been fully aware of the body lying on the
pavement, as he crossed the body to get to his
vehicle.
[91]
During the entire duration of the footage that was downloaded
(approximately 2 hours) there were in total 6 persons visible
on the
footage. The two security guards can safely be ruled out as possible
perpetrators, as well as the male person that walked
down Ravenscraig
Road minutes before the attack. The remaining actors left are the
unknown female, the deceased and the driver/kicker.
The footage was
downloaded up until the police arrived and even further thereafter
and nowhere did any other person feature. The
attempt by Atkinson to
show that there were also other people off-screen is therefore not
convincing. I am satisfied that there
were no other
dramatis
personae
on the scene. This
hypothesis proposed by Atkinson is highly improbable and
far-fetched.  In
S v
Sauls and Others
[39]
“
it has been said more than
once that the exercise of caution must not be allowed to displace the
exercise of common sense
”
.
An analysis of the footage based on common sense and logic justify,
as the only reasonable inference, that the driver and kicker
was the
same person.
[92]
The DNA evidence does not take the matter any further since no DNA
was found at the scene linking the accused to the crime.
The vehicle
was examined approximately 21 days after the incident and the defence
witness conceded that degrading of evidence could
have occurred
during this period. Gulam Petersen also did not take the matter any
further since no weight could be attached to
her belated inadequate
identification of the accused.
[93]
Dr Liebenberg confirmed that the injuries sustained by the deceased
are compatible with everything that happened on screen.
The defence
introduced the phenomena of
commotio
cordis
or cardiac
concussion which can be described in medical terms as “
a
primary arrhythmic event that occurs when the mechanical energy
generated by a blow is confined to a small area of the precordium
and
profoundly alters the electrical stability of the myocardium,
resulting in ventricular fibrillation
.”
[40]
Academic literature “
often
associates commotio cordis with competitive sport, but the dangers
implicit in such blows can extend into many other life

activities
.”
[41]
[94]
The defence did not produce any expert medical evidence to justify
this hypothesis but merely attempted to get Dr Liebenberg
to concede
to this possibility.  A striking feature of
commotio cordis
is the fact that it is generally a light to moderate blow by blunt
force which activates this phenomenon. It is usually unforeseeable,

accidental and not caused by severe force. Dr Liebenberg did not
exclude the possibility that the victim may have developed cardiac

arrest due to
commotio cordis,
but this concession remains
consistent with the blunt force applied to the body. The defence
attempted to show that such fatal
blow was inflicted off-screen, but
failed to justify this conclusion by expert evidence. It is clear
from the footage that the
kicker was the aggressor and it is highly
improbable that any other person inflicted those injuries that led to
the death of the
deceased.
[95]
Dr Liebenberg testified that
commotio cordis
is not a
post-mortem finding since it is not a macroscopic diagnosis. She
stands by her macroscopic postmortem findings and conceded
that a
blunt force injury to the chest wall could have stopped the heart.
However, her evidence is clear that the deceased
was dying of a liver
injury, then something else happened which hastened the death. Dr
Liebenberg stated that there must have been
cardiac circulation for
blood to be pushed through the liver, consequently the liver injury
occurred first, then the cardiac event.
According to Liebenberg, the
liver injury was compatible with the blunt force trauma visible in
the footage, therefore the intervening
event must have happened on
screen. The court is satisfied with the evidence of Dr Liebenberg in
all respects and her conclusion
as to the cause of death.
[96]
The accused did not testify in his defence and called Dr Zabow to
justify his decision not to testify, citing his apparent
lack of
recall. Zabow assessed the accused more than three years after the
incident. It is trite that a court is not bound by expert
evidence.
The cogency of the expert’s evidence must ultimately be
assessed in the context of the factual matrix of the case.
It is for
the court to assess the inferential force or weight of all the
evidence before it. Dr Zabow conceded that his psychiatric
opinion is
largely informed by facts related to him by Mr Mthethwa. The general
rule is that an expert witness may not base his
opinions on
statements made by a person not called as a witness. The only
exception is where the expert refers to textbooks.
[42]
[97]
In
R v Abbey
[43]
the Court held that a psychiatric
opinion and its basis are not admissible as proof of the truth or its
content. The reliance on
the facts related to by the subject of
evaluation is a weakness of psychiatric evidence alluded to in
Singh
v Parkfield Group Plc
[44]
where the following was stated:
“
It is common sense and both
the psychiatrists before me agree, that particularly in matters of
psychiatry the accuracy and honesty
of the patient is all important.
Clearly in this case, my own
assessment of the plaintiff is, therefore crucial.”
[98]
The weight attached to the testimony of the psychiatric expert
witness is inextricably linked to the reliability of the subject
in
question. Where the subject is discredited the evidence of the expert
witness who had relied on what he was told by the subject
would be of
no value. Dr Zabow could not justify any psychiatric basis for the
lack of recall. More particularly, in view of Zabow’s
evidence
that there is no pathological reason for the lack of recall, an
assessment of the account of the accused is crucial. In
R
v Möhr
,
[45]
the Court held that:
“
[…] where a question of
the state of mind of an accused person is in issue, it is not easy
for a Court to come to a conclusion
favourable to the accused as to
his state of mind unless he has himself given evidence on the
subject.”
[99]
In
S v Shivute
it
was noted that “[t]he accused failure to testify stripped the
opinion evidence of the expert witness of almost all relevance
and
weight.”
[46]
In these circumstances the court is
constrained in accepting the opinion of the expert witness.
[47]
Consequently the accused’s
silence and the inability of the court to determine the truthfulness
of his account render Zabow’s
evidence of no value.
[100]
Defence witness Landman could not provide any details as to who drove
the vehicle of the accused on 14 April 2013. Landman
was belatedly
called after the close of the defence case to present evidence not
connected to the case, and to support Zabow’s
evidence on lack
of recall. The vehicle was not near the clubs that Landman referred
to in order to support a possible alternate
driver arrangement. He
did not take the defence case any further.
[101]
The accused elected not to testify. All the State’s evidence,
cumulatively, established that the vehicle of the accused
was at the
scene of the crime beyond reasonable doubt.  In
S
v Chabalala
[48]
(supra), the Court quoted with
approval what was pointed out in
S
v Mthetwa:
[49]
“
Where, however, there is
direct
prima facie
evidence
implicating the accused in the commission of the offence, his failure
to give evidence, whatever his reason may be for
such failure, in
general
ipso facto
tends
to strengthen the State case, because there is then nothing to
gainsay it, and therefore less reason for doubting its credibility
or
reliability”.
[102]
In
S v Francis
,
[50]
the Court stated:
“
While an accused person’s
failure to testify may in appropriate circumstances be a factor in
deciding whether his guilt has
been proved beyond all reasonable
doubt, this is only so where the State has
prima
facie
discharged the
onus
upon it.”
[103]
In
Osman and Another v
Attorney-General, Transvaal
,
[51]
the Court held that:
“
Once the prosecution has
produced evidence sufficient to establish a
prima
facie
case, an accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution
of its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution’s
case may be
sufficient to prove the elements of the offence. The fact that the
accused has to make such an election is not a breach
of the right to
silence.”
[52]
[104]
The legal position is eloquently summarized in
S
v Boesak
:
[53]
“
The fact that an accused
person is under no obligation to testify does not mean that there are
no consequences attaching to a decision
to remain silent during the
trial. If there is evidence calling for an answer, and an accused
person chooses to remain silent in
the face of such evidence, a court
may well be entitled to conclude that the evidence is sufficient in
the absence of an explanation
to prove the guilt of the accused.
Whether such a conclusion is justified will depend on the weight of
the evidence.”
[105]
At the time of his arrest the accused indicated in his warning
statement that he will “speak in court”.
[54]
However when the opportunity presented
itself, he failed to do so. The accused was not prepared to take the
court into his confidence
to explain the circumstances which led to
his vehicle’s presence in Ravenscraig Road at the time of the
attack. The accused
elected not to give an account of his movements
on the morning in question, or to relate to the court any
circumstances to justify
an inference that someone else was driving
his vehicle at the time of the incident. He was not prepared to
furnish an account of
how someone else could possibly have obtained
possession of his vehicle.
[106]
He was at a Tavern in Gugulethu the evening before the incident and
his vehicle eventually ended up at his residence in Vredehoek,
where
it remained for one hour and nine minutes. The accused elected not to
subject himself to cross-examination to clarify whether
he did in
fact return home after his visit at the Corner Lounge in Gugulethu.
The accused could easily have explained his movements
at the Corner
Lounge. He could have clarified whether he was alone or in the
company of others, where he had parked his vehicle
and who had
possession of his keys. If alcohol played any role he could have
testified as to whether at any stage he was deprived
of his vehicle,
whether it was driven by someone else, whether it was returned to him
by someone else, or whether the vehicle was
under his control at all
times. The accused could also have explained his social habits and
alcohol usage at the time to corroborate
Landman’s version,
that when he had too much to drink someone else would drive his
vehicle and which was conveyed to Dr Zabow.
One would reasonably have
expected the accused to have taken exceptional measures to assist the
police and court in determining
his movements at the time of the
attack on the deceased. As a result of his failure to testify there
is accordingly no evidence
as to the whereabouts of the accused at
the relevant time.
[107]
The lack of recall does not justify a decision not to testify. Even
if he cannot recall events surrounding the period of the
incident, he
could have assisted the court to explain various instances of memory
relapses, how it manifests itself, how he discovered
it, managed it
and when it started. In doing so he could have corroborated Zabow’s
version. Significantly the memory relapse
was never disclosed to the
police at the time of arrest, nor did the accused seek professional
intervention until late during the
trial proceedings. The court is
bound to draw a negative inference from the manner in which this
evidence was introduced belatedly
after the closure of the defence
case. The only reasonable inference to be drawn is that the accused’s
version conveyed to
Zabow is untruthful and fabricated. The accused’s
version of lack of recall is therefore rejected.
[108]
There are consequences and risks associated with an election not to
testify. The CCTV footage and Tracker report is of great
evidential
value in the case and establishes a strong prima facie case against
the accused. There is direct evidence implicating
the presence of the
accused’s vehicle at the scene, as well as the presence of a
male with similar features as the accused.
The prosecution’s
case is strengthened when such evidence is uncontroverted due to the
failure of the accused to testify.
[109]
The court made its own assessment of the CCTV footage and concludes
that the similarities between the assailant and the accused
are
remarkable. Considering the similarities between the two, on the
probabilities, the only reasonable inference to draw is that
the
accused was the driver of his vehicle at the time of the incident.
The court is satisfied that the footage is a true reflection
of the
events which led to the death of the deceased. The CCTV footage is
unimpeachable. The court is satisfied that the accused
was the person
who drove his Porsche vehicle from Gugulethu to Woodstock, where he
briefly stopped at two places, firstly in Milnerton,
and then in
Vredehoek where Landman stated he lived. There the vehicle was
stationery for one hour and nine minutes before departing
to
Ravenscraig Road.
[110]
The court is convinced that the driver of the vehicle walked
purposefully on a mission and executed his mission by launching
this
attack on the deceased. The version that the kicker and the driver
are different persons is rejected. The conduct of the unknown
female
accomplice, who participated in the attack and thereafter engaged the
driver, justifies the inference that she acted as
an accomplice to
both the kicker and the driver. The cumulative effect of all proven
facts, including the accused’s failure
to testify must lead to
the inference of guilt being the only reasonable one. The court is
accordingly satisfied that the State
has proved the guilt of the
accused beyond reasonable doubt.
[111]
The accused executed a vicious attack on the deceased. In
S
v Dlodlo
[55]
the following was stated:
“
The subjective state of mind
of an accused person at the time of the infliction of a fatal injury
is not ordinarily capable of direct
proof, and can normally only be
inferred from all the circumstances leading up to and surrounding the
infliction of that injury.
Where, however, the accused person’s
subjective state of mind at the relevant time is sought to be proved
by inference, the
inference sought to be drawn must be consistent
with all the proved facts, and the proved facts should be such that
they exclude
every other reasonable inference save the one sought to
be drawn”.
[112]
In
Director of Public
Prosecutions, Gauteng v Pistorius
[56]
it was stated as follows:
“
[…] a person’s
intention in the form of
dolus
eventualis
arises if the
perpetrator foresees the risk of death occurring, but nevertheless
continues to act appreciating that death might
well occur, therefore
‘gambling’ as it were with the life of the person against
whom the act is directed. It therefore
consists of two parts: (1)
foresight of the possibility of death occurring, and (2)
reconciliation with that foreseen possibility.”
[113]
In
S v Humphreys
[57]
,
the Court stated that “
like
any other fact, subjective foresight can be proved by inference
”
and to constitute prove beyond
reasonable doubt that inference is the only one, which can reasonably
be drawn.
[114]
The silent witness observed a continuous horrific attack on the
victim who was lying motionless during most of the attack.
The victim
was a petite young lady weighing merely 46kg. There was no resistance
and the accused could have terminated the attack
at any time. Yet,
the visuals clearly show that the accused continued to aggressively
inflict excessive blunt force trauma to a
lifeless body. The
intermittent pauses between the phases of the attack and the
attacker’s handling of the body create a
strong suspicion that
the accused had the direct intention to kill the victim. However, the
court is mindful that intention must
not be inferred by hindsight
after the fact of death.
[115]
The court is satisfied beyond reasonable doubt that the only
inference to be drawn from the established facts is that the
accused
subjectively foresaw, as a consequence of his conduct that the death
of the deceased would ensue. The accused continued
with the violent
act, and clearly reconciled himself with this possibility.
[116]
The accused is accordingly found guilty of murder with intent in the
form of
dolus eventualis.
________________________________
DEPUTY
JUDGE PRESIDENT GOLIATH
[1]
As described in the testimony of Dr
Liebenberg.
[2]
Photos and sketch plan (with key
plan) of crime scene compiled by Constable N.O. Mahlombe
–
exhibit D. Also identified at
inspection in loco held on 27 August 2015 – see exhibit T and
exhibit T1.
[3]
Recommended CCTV Industry
Guidelines Third Edition
(February
2013).
[4]
Photo-Album
complied
by Constable Basson
–
exhibit
Y.
[5]
212 Statement made by Justin
Edward Zimmerman
–
exhibit
O.
[6]
Bundle containing documents and
disc
–
exhibit 4.
[7]
To be expanded on further below.
[8]
Detailed Trip Log pages 1-28
compiled by J.E. Morrison
–
exhibit
AA;
Detailed Trip Log pages
1-8 including Snail Trail Mapping complied by J.E. Morrison
–
exhibit BB.
[9]
Affidavit by Captain Speed dated
12 February 2016
containing
photo album
–
exhibit
LL;
Affidavit by Captain
Speed dated 29 March 2016
–
exhibit
PP;
Affidavit by Captain
Speed dated 26 April 2016
–
exhibit
QQ.
[10]
Forensic Gait Analysis Woodstock
CAS 365/4/13 compiled by Dr Nicholas Tam
–
exhibit
RR.
[11]
Affidavit and photo album compiled
by Warrant Officer Themba Ntobela
–
exhibit
TT.
[12]
Post-Mortem Report compiled by Dr
Linda Liebenberg
–
exhibit
E.
[13]
Medical Report compiled by Dr
Linda Liebenberg
–
exhibit
X.
[14]
Link M
Mechanically
induced sudden death in chest wall impact (commotio cordis)
Progress
in Biophysics & Molecular Biology 82 (2003) 175-186 at 175.
[15]
The testimony of Mr Atkinson was
discussed above.
[16]
Cohen N & MacLennan-Brown K
Retrieval of Video Evidence
and Production of Working Copies from Digital CCTV Systems v2.0
(Publication No. 66/08)
Home Office Scientific Development Branch.
[17]
Opinion: State vs Z. Mthetwa: Cape
Town compiled by P van der Westhuizen
–
exhibit
BBB.
[18]
Psychiatric Report by Professor
Tuviah Zabow
–
exhibit
DDD.
[19]
S v Van As
1991
(2) SACR 74
(W) at 82D.
[20]
Miller v Minister of Pensions
[1947] 2 All ER 372
at
373.
[21]
S v Reddy and Others
1996
(2) SACR 1
(A) at 9D-E;
S v
Ntsele
1998 (2) SACR 178
(SCA) at 182D-E.
[22]
S v Mbuli
2003
(1) SACR 97
(SCA) para 57;
S
v Van der Meyden
1999 (2)
SA 79
(W) at 82A;
S v
Hadebe and others
1998 (1)
SACR 422
(SCA) at 426E-H.
[23]
See
S
v Chabalala
2003 (1) SACR
134
(SCA) para 15.
[24]
2003 (1) SACR 35
(SCA) para 9.
[25]
1939 AD 188
at 202-203.
[26]
1944 AD 493
at 508-509.
[27]
Reddy
n
21 at 8C-E. Also see
Naude
& another v S
[2011] 2
All SA 517
(SCA) para 37;
S
v Cwele and Another
2013
(1) SACR 478
(SCA) para 19.
[28]
1986 (3) SA 485
(E) at 490H-I.
[29]
2010 (2) SACR 419
(SCA) para 22. See
also
S v Baleka and Others
(1)
1986 (4) SA 192
(T) at
197C.
[30]
1986 (4) SA 117
(N) at 135F-H.
[31]
2010 (2) SACR 419 (SCA)
[32]
Ibid
para
24.
[33]
1990 (4) SA 217 (A).
[34]
Lim F
CCTV
footage as evidence
(17
October 2014) AccraLaw - Point of Law.
[35]
[2015] IECA 228
para 38.
[36]
[1996] 3 SCR 1197
[37]
Ibid
paras
28-29.
[38]
Affidavit by Shaun Peter Roux
–
exhibit MM.
[39]
1981 (3) SA 172
(A) at 180G.
[40]
Maron B.J. & Mark Estes N.A.
Medical Progress-
Commotio Cordis
The
New England Journal of Medicine (March 11, 2010) 917-927 at 917.
[41]
Maron B.J. et al
Clinical
Profile and Spectrum of Commotio Cordis
JAMA
(March 6, 2002) Vol 287 No. 9 1142-1146 at 1142. See also
Medical
Progress-
Commotio
Cordis
n 40 at 918; Geddes
L.A. & Roeder R.A.
Evolution
of our knowledge of sudden death due to commotion cordis
The
American Journal of Emergency Medicine (2005) 23 67-75 at 67
[42]
Schwikkard PJ & Van der Merwe SE
Principles of Evidence
3
rd
ed (2009) Wetton: Juta at 100.
[43]
[1982] 2 S.C.R. 24
at 43-45.
[44]
(1996) PIQR Q 110.
[45]
1944 TPD 105
at 108.
[46]
1991 (1) SACR 656
(NM) at 661H. See
also
S v Mngomezulu
1972 (1) SA 797
(A) at 798F-H.
[47]
Ibid.
[48]
Chabalala
n
23 para 20.
[49]
1972 (3) SA 766
(A) at 769D.
[50]
1991 (1) SACR 198
(A) at 203H-I.
[51]
1998 (4) SA 1224 (CC).
[52]
Also see
S
v Thebus and Another
[2003] ZACC 12
;
2003
(2) SACR 319
(CC) paras 58-59.
[53]
[2000] ZACC 25
;
2001 (1) SA 912
(CC) para 24.
[54]
Warning statement by Zwelethu
Harold Joseph Mthethwa
–
exhibit
KK.
[55]
1966 (2) SA 401
(A) at 405G-H.
[56]
2016 (2) SA 317
(SCA) para 26.
[57]
2013 (2) SACR 1
(SCA) para 13.