S v Mahlangu and Others (0025/10) [2011] ZAGPJHC 226 (1 August 2011)

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[2011] ZAGPJHC 226
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S v Mahlangu and Others (0025/10) [2011] ZAGPJHC 226 (1 August 2011)

NOT REPORTABLE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
:0025/10
DATE
:01/08/2011
In the matter between
THE STATE
and
MAHLANGU T AND
OTHERS
.....................................................
Accused
J U D G M E N T
SATCHWELL J
:This is the judgment in the matter of the State v
Thokozani Mahlangu, Meshack Seluma and Jeffrey Sello.
INTRODUCTION
On 18 May 2009 Patricia Kauitsane went to work. She was employed as
a domestic worker at 14 Magaliesburg Street, van Riebeek Avenue,

Kempton Park. On that day and at that place intruders gained entry.
She was bludgeoned to death by a golf club attack to her
head and
body. The house was ransacked and numerous items were stolen.
Arising therefrom these three accused Messrs Mahalangu, Seluma and
Sello are charged with her murder, robbery and unlawful possession
of
a firearm and ammunition.
This has been a lengthy trial. There have been a number of
trials-within-a-trial. Judgments have been handed down but reasons

for such judgments now needs to be given.
SUMMARY OF EVIDENCE
In the course of trial evidence has been led by the state, some
direct evidence, some circumstantial evidence. What one of course

must remember is that circumstantial evidence is no less cogent than
direct evidence. As was pointed out in
The South African law of
evidence
by
Zeffertt
,
Paizes
and
Skeen
at page 94:
"Circumstantial evidence may be the more convincing form of
evidence. Circumstantial identification by fingerprint will,
for
instance, tend to be more reliable than the direct evidence of a
witness who identifies the accused as the person he or she
saw but
obviously there are cases in which the inference will be less
compelling and direct evidence more trustworthy. It is therefore

impossible to lay down any general rule in this regard."
This passage from Zeffertt was quoted in the judgment of the Supreme
Court of Appeal in
State v Mnasa and another
delivered in
September 2003 and also more recently in
State v Musingadi and
others
2005 (1) SACR 395
(SCA).
There are seven items of evidence which I find to be relevant in
this trial.
Firstly accused 1 Mr Mahlangu worked at the premises becoming the
scene of the crime. His brother Mr Piet Mahlangu had brought
him
there to join him in certain building work which was taking place,
and in fact I understand from a statement made by accused
1 to the
police that he had previously worked for the owner of the property in
a factory. On the day of the murder the building
work was not being
carried out. It was a Monday. Cement was not available. The owner
of the property had informed accused 1's
brother Mr Piet Mahlangu
that they would not be required to work at those premises on that
day. Mr Piet Mahlangu gave evidence
that he had sent this
message through a friend to his brother accused 1. In short
accused 1 knew these premises, knew
the lady who was in charge
of the house as a domestic worker during the daytime, and knew that
on the day in question his brother
Mr Piet Mahlangu would not be
there.
Secondly the following day, i.e. the day after the murder accused 1
denies that he was at the premises but the evidence of
the owner of
the property, and his brother, was that he was present. I do not
know if this piece of evidence takes the matter
any further.
Thirdly accused 1 and accused 2 were arrested on 21 July.
Hidden inside the mattress on which they were both sleeping was
found
a firearm which firearm was identified as stolen from the scene where
the robbery had taken place and where Patricia Kauitsane
had
been murdered.
Fourthly accused 2 was arrested on 20 October. Shortly
thereafter he made a statement to the South African Police, which
has
been identified in this court as EXHIBIT T. It constitutes a
confession to at the very least the robbery. Thereafter accused 2

pointed out a safe EXHIBIT G, which had been buried deep in the
ground far away from Kempton Park, which safe has been
identified
as perhaps being the one which was stolen from the scene
of the murder and robbery.
Fifthly accused 3 was also arrested on 20 October. Shortly
thereafter he made a statement EXHIBIT E, placing himself on
the
scene. In his statement it is clear that it is the scene of the
robbery. I need to determine whether or not that statement
places
him at and within the murder.
Sixthly, accused 2 was arrested on 21 October. At the time of
his arrest he was found in possession of a watch which was
stolen at
the time of the robbery.
Seventh, thereafter accused 1 made two different confessions to
different police officers, one of which was made in the course
of a
pointing out.
As can be seen these are not really seven discreet pieces of
evidence but in fact ten, and will be dealt with as such. But I
have
identified them at this stage as seven pieces of evidence because
they conveniently locate in relation to each of the accused.
In dealing with each item of evidence and the inferences to be drawn
therefrom, two important principles must be borne in mind.
The first
is rather trite, which is that the court must examine all the
evidence. A court does not look at the evidence implicating
the
accused in isolation to determine whether there is proof beyond
reasonable doubt, and so too it does not look at the exculpatory

evidence in isolation to determine whether it is reasonably possible
that it might be true. As was stated in
R v Hlongwane
1959
(3) SA 337
(A) the correct approach is to consider all evidence "in
the light of the totality of the evidence of the case". The

second principle which this court must bear in mind in assessing all
the evidence is the approach to be taken to inferences to
be drawn.
Inferences are not to be mere speculation but are to be based on
fact. Even though one is not always considering circumstantial

evidence nevertheless I find extremely useful the test laid out in
R
v Blom
1939 (A) in following two rules of logic in the approach
to inferences. The first rule is that the inference sought to be
drawn
must be consistent with all proven facts. The second rule is
that the proven facts must be such that they exclude every other
reasonable inference.
It is important to note that save in the trials-within-a-trial
concerning pointings-out and confessions none of the accused gave

evidence in the main trial. The consequence of that failure to give
evidence has been fully explained to them both by their advocates
and
by myself. Those consequences were set out by the Constitutional
Court in
State v Busak
[2000] ZACC 25
;
2001 (1) SACR 1
at paragraph 24 where
the court stated:
"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."
Other judgments have followed thereafter and expanded on this
approach, including
State v Tshabalala
2003 (1) SACR 134
(SCA)
where was said the following that after facing the accused with
direct and credible evidence:
"There can be no acceptable explanation for him not arising to
the challenge ... to have remained silent in the face of the
evidence
was damning. He thereby left the
prima facie
case to speak
for itself. One is bound to conclude that the totality of the
evidence taken in conjunction with his silence excluded
any
reasonable doubt his guilt."
In the present case I have indicated in the summary of the evidence
the nature of the evidence which stands against each of the
accused.
There are two confessions made by accused 1 which I have found
to be admissible in evidence. There is one confession by
accused 2
which I have found to be admissible in evidence. There is a
confession by accused 3 which I have found to
be admissible in
evidence. I need not stress that nothing which is said in any
confession by one accused is admissible in evidence
against another
accused.
THE SCENE : ROBBERY AND MURDER
Mr Keith Coetzee gave evidence that he is the owner of the house
where these events took place on 18 May 2009.
Mr Coetzee described how he was called home to discover that his
house had been ransacked as he describes and as are set out in
the
photographs being EXHIBITS E11 to 21. Mr Coetzee confirmed that the
body of Mrs Patricia Kauitsane was found lying in
the central
passage through the house, and as is recorded on EXHIBITS E6 to 10.
Also contained in the set of photographs was a photograph of a
remote control apparatus left lying, and some keys. For which

purpose they could be used I do not know. There was no evidence as
to whether or not any doors or windows were forced.
I was, however, informed by each of the accused in their statements,
namely EXHIBITS P, R, S and T that access was given to them
to the
house by Mrs Patricia Kauitsane. There was no forced entry,
because Patricia Kauitsane knew at least one of the
persons who
were attempting to gain access.
To return to the scene of the murder, the photographs to which I
have referred showing the body of Mrs Patricia Kauitsane
reveal
a great deal of blood on her body and on the floor about her body.
Mr Piet Mahlangu gave evidence that the day
after the
murder he was involved in cleaning up the passage. He stated for
instance "I remember we removed the skirting inside
the house
and there were bloodstains", and he testified that we painted
the wall because it was dirty. He spoke in the plural
because he
said that the person who was assisting him in this work the day after
the murder was his brother, accused 1 Thokozani
Mahlangu. Mr
Coetzee confirmed the presence of Thokozani Mahlangu the day after
the murder. At least twice in cross-examination
it was put to
witnesses on behalf of accused 1 that he was not present at this
house on the day after the murder. But at
the end of the day he did
not give evidence. Any merit that that cross-examination might have
had falls away and I accept that
he was present the day after the
murder. However, as I have already indicated I do not know where
this takes one.
Accused 1 worked at these premises. The evidence of Mr Coetzee
was that accused 1 worked with his brother Piet
on a building-on
project to the house and that accused 1 was Piet Mahlangu's
main helper. This was the evidence of Mr Piet Mahlangu
as
well. Mr Piet Mahlangu described how he himself has a
remote control to enable him to gain access to the property
but if
for instance he was late for any reason then the maid who worked in
this house would open up for the other builders/workers.
There were
five builders altogether, one being Mr Piet Mahlangu, one being the
accused.
From this evidence it is absolutely clear that it was customary and
acceptable for accused 1 to gain access to the house
through the
services of the domestic worker Mrs Patricia Kauitsane.
Accused 1 did not have a remote control but Mrs
Kauitsane would
give him and his co-workers access to the premises if his brother
Piet was not there.
The day of the murder was unusual. On that day Mr Piet Mahlangu
and the other workers were not there. Mr Coetzee
gave evidence
that there was insufficient cement for that day and he had phoned
Peter or Piet Mahlangu to say that he did not have
stock and so they
should not come on Monday the 18
th
. Mr Mahlangu confirmed
that he was given this information. He said Mr Coetzee phoned him on
the Sunday and accordingly he informed
his brother Thokozani not to
come to work on the Monday. He did not speak to accused 1 but
phoned his friend Bucksy and asked
him to tell accused 1.
The result is that on the evidence available to me accused 1
apparently was informed that his brother and the other builders
would
not be at the premises on the day in question. Mr Coetzee would not
be at these premises. This was a day when the person
at this house
would be Mrs Kauitsane.
Accused 1 therefore knew that the premises would have no person
other than Mrs Kauitsane and this was a house with certain
valuables
therein.
THE FIREARM
Mr Coetzee gave evidence that a number of items were stolen from his
house on 18 May 2009. It included a safe which was kept
in the wall
of the bedroom, contained in such safe were spare keys, cash,
jewellery, letters, watches, Kruger Rand and a 9 millimetre
Taurus
Parabellum. Mr Coetzee gave evidence that he had, as I understood
his evidence, purchased this firearm when he was 21 years
old. He
had a hunting rifle which was silver, and he liked the way which that
firearm looked. In an attempt to achieve the same
appearance on his
hand weapon he had worked on this weapon and he said "polished
the barrel in such a way that it became unique".
The handgrip
was wooden and this he had sanded. The end result was that the
barrel was silver in colour and the wooden handgrip,
instead of a
normally dull finish now had a nicer shine.
Mr Coetzee said that his weapon was therefore unique and he was able
to identify it. This he did on 28 October 2009,
several
months after the robbery when he went to the South African Police to
do so.
Warrant Officer Skosana gave evidence that in July 2009, acting on
information received, he arrested accused 1 and accused 2.

They were in a shack and eventually after searching underneath and
inside the mattress on which they were sleeping, a 9 millimetre

pistol was found.
According to Warrant Officer Skosana, as also Warrant Officer de
Beer, on examination and etching of this firearm it was apparent
that
the serial number to this firearm had been removed. It was therefore
at that time not possible to identify the firearm.
However, subsequently Warrant Officer de Beer confirmed that he was
present when Mr Coetzee the complainant identified this firearm
as
his own.
There is no doubt that this firearm which was recovered is the
property of Mr Coetzee. There is no doubt that this is the firearm

which was stolen in the course of the robbery. Accordingly either
accused 1 or 2, or accused 1 and 2 are linked with the
robbery
which took place in May 2009. That link was established, although at
that stage unknown to the South African Police as
at 20 July 2009
when they were apprehended with the firearm in the mattress.
Clearly possession of the firearm by any person at that stage on 20
July was unlawful. Any person in possession of the firearm
would
have known that such possession was unlawful because such person
could not be in possession of a license for that firearm
and they
would have seen that the number had been removed. Furthermore the
firearm was hidden.
The only question is the extent to which possession of that firearm
is linked with accused 1 or accused 2 or both.
THE SAFE
Accused 2 was arrested on 20 October 2009. I have accepted and
allowed to be led into evidence the fact that accused 2
led the
South African Police to the finding of the safe. That decision was
the result of a lengthy trial-within-a-trial and I
now hand down the
reasons for my decision.
TRIAL-WITHIN-A-TRIAL – EXHIBIT G – THE SAFE
INTRODUCTION
The state has wanted to lead evidence of the circumstances under
which a safe stolen from the Coetzee home came to be recovered.
The
safe was found buried in ground surrounding the home of accused 2,
hundreds of kilometres away.
The defence has challenged the admissibility of the finding of this
safe. In respect of accused 2 the challenge was that
his rights
were not read out to him and such pointing out was preceded by a
lengthy interrogation. Accused 3 has challenged
the
admissibility on the grounds that his rights were not explained to
him and that he did not point out anything.
In the course of the trial-within-a-trial certain new objections
were raised. Insofar as accused 2 was concerned it was
said,
under cross-examination it was put to the policeman that he had been
assaulted but then it was stated that he was not instructed
to do
anything or that the assault was for any purpose, and finally it was
said that he pointed out nothing.
THE STATE CASE
In brief the state case to discharge the onus which rests upon the
state relied upon the evidence of the investigating officer

Inspector Dikiso, Warrant Officer Mthembu and Warrant Officer
Makura.
The accused were arrested on 21 July. Interrogation or questioning
took place as a result of which accused 2 made a statement
to a
police officer Potgieter. Constitutional rights recorded in EXHIBIT
N were read out to accused 2 who was thereafter
taken to court
on the 23
rd
.
At court on the 28
th
the accused was represented by a
Legal Aid attorney. He was then taken from Kempton Park to
Kwa-Mhlanga, and it was there,
so goes the evidence, that accused 2
pointed out the place where the safe was to found. The photographs
were taken of the
place and of the digging operation which resulted
in the excavation and revelation of the safe. These were EXHIBITS J
and K.
The excavation of the safe was carried out by Warrant
Officers Dikiso, Makura and both accused 2 and 3.
At this stage it emerged from the police evidence that there was
absolutely no evidence concerning accused 3 and there was
no
averment by the SAP that accused 3 had pointed out the safe.
Accordingly this trial-within-a-trial thereafter continued
and only
involved accused 2.
The evidence of the South African Police was that accused 2
(and accused 3) had been continuously advised of their rights

"all the time", namely at the time of arrest (per EXHIBIT
N), at court, at Kwa-Mhlanga and at the house.
The version of accused 2 and 3 was that accused 2 was
instructed to point to the ground in the sense of raising his arm and

extending his finger for purposes of photography only. It was
averred that he did not disclose or reveal or identify anything.
It was the version of accused 2 that he was not advised of his
rights, that he does not speak Zulu and accused 3 had
also said
that he was not advised of his rights and he speaks isiPedi.
There was another version at some stage put that accused 2 was
not actually in court on the day in question. This became
irrelevant
and was abandoned.
LEGAL REPRESENTATION
Insofar as the advisement of rights is concerned it seems to me that
it was fairly meaningless. To continually advise the accused
that he
was advised of his right to legal representation. What we have in
the present situation is that no legal representative
was actually
provided. The evidence from EXHIBIT K is that a legal representative
was available in court but this of course is
not someone appointed by
the accused. Inspector Dikiso took the view that he had informed the
accused that they were going to
take this trip immediately after the
court appearance and they were going off to Kwa-Mhlanga and that the
lawyers should have discovered
this jaunt. As one examines
EXHIBIT L, the occurrence book and M the cell register one sees
that within seconds or minutes
of the court appearance the accused
were off to do a pointing-out in Kwa-Mhlanga without any lawyers.
Inspector Dikiso advised the court that it was his view that after
the appearance in court the lawyers should have come down to
the
cells and found out about this pointing-out expedition to
Kwa-Mhlanga, and accordingly he concluded that the lawyers had
"failed
to do their duty". This is nonsense. The
departure for Kwa-Mhlanga was immediate. It took place without
allowing the accused
any opportunity to consult with a lawyer. It
was a journey outside the jurisdiction of the court to another
province. It is difficult
to see why the inspector thinks that it
was the responsibility of the accused to tell the lawyers that the
accused were being removed
for a pointing-out and it was not the
responsibility of Inspector Dikiso.
Of course there is a constitutional right to legal representation.
The purpose of this right is to enable any suspect, whether
an
arrested person, to be given advice and to protect their rights. The
protection is against incautious or ignorant self-incrimination.
I
am satisfied that in the present case that advice and protection was
denied to them. In particular it was denied to accused 2
who is
really the subject matter of this trial-within-a-trial.
Inspector Dikiso must have known that there was a lawyer in court
when the case was postponed. The case was postponed for further

investigation and the accused were apparently represented.
I had no difficulty therefore in concluding that the "pointing-out"
which took place was contrary to the constitutional
rights to legal
representation of the accused.
However, two questions arise. The first is whether or not such
pointing-out would be admissible in terms of Section 35 of the

constitution and the second is whether or not there are any
implications for such pointing out by reason of the fact that that

which was pointed out was real evidence.
REAL EVIDENCE
:
That which was pointed out was a steel safe. In this particular
case it was a very damaged steel safe. It had clearly been damaged

in order to enable certain persons to gain access to it, who were
unable to utilise normal mechanisms so to do.
The safe was buried underground. A hole had been dug. It had been
placed in the ground and the soil shovelled back thereupon.
I have already indicated that the constitutional purpose for
ensuring that there is a right to legal representation to suspects

and accused persons is to protect them against self-incrimination,
where such self-incrimination is made inadvisedly out of ignorance
or
against one's will.
The difference of course in relation to the steel safe is that the
object exists whether or not the accused opened his mouth.
It does
not require the opening of the mouth of the accused or any act of
self-incrimination for the safe to exist. The only
question for this
court to decide is whether the pointing-out which led to the real
evidence is an act of self-incrimination.
THE VERSION OF THE ACCUSED
The accused's own version may be roughly summarised as follows. He
was assaulted but he was not instructed to do anything. Secondly
he
was not asked to point anything out. Thirdly he did not point out
anything. Fourthly Inspector Dikiso told him that the community
had
told the police that the safe was buried under a tree.
Accordingly the version of the accused is that there was no pointing
out. The version of the accused is that the South African
Police and
its investigation amongst members of the community means that the
safe was found irrespective of the pointing-out which
the South
African Police claimed took place but which accused 2 said did
not take place.
On the accused's version alone the finding of the safe and the
manner in which, and the place where it was found must be admissible.

On the accused's version this safe was found on 28 October, buried
under a tree in the garden of the home of accused 2.
LEGAL REPRESENTATION CONTINUED
Accused 2 denies that he had knowledge of any pointing-out.
I have no doubt that accused 2 did indeed point out the place
where the safe had been buried. Firstly if Inspector Dikiso
knew
where the safe was he did not need accused 2 to come with him
all the way to Kwa-Mhlanga. If Inspector Dikiso knew exactly
where
on the premises the safe was to be excavated he could have set off
without the accused. Thirdly there has been no attempt
to lead
evidence as to what the accused said at the time of the pointing-out.
It would of course be inadmissible but the showing
of the safe is
admissible.
The question is whether or not this is unconstitutionally obtained
evidence and what should be done with it.
When one has regard to Section 35(5) of the constitution one sees
that a court has a discretion to admit into evidence
unconstitutionally
obtained evidence taking into account the fairness
of the trial and the administration of justice.
I have already said that the rights of accused 2 were violated
because he did not have legal advice with regard to the pointing-out.

There is prejudice arising therefrom. There is prejudice that no
one is available to advise him to keep his mouth shut. There
is no
one who can advise him not to reveal anything. There is no one who
can advise him not to disclose the knowledge which he
has.
Of course all this presupposes that there is prejudice only to the
guilty and certainly not to the innocent. The innocent have
nothing
to hide. A lawyer adds value to ensure the silence of and to protect
someone who is guilty and has something to hide.
When one must consider the criterion relevant to Section 35(5) of
the constitution, one must have regard to fairness. One the
one hand
the question is what is fair to the accused and the answer to me is
that on the other hand it is not unfair or abhorrent
that a guilty or
knowledgeable person should reveal their knowledge.
Again with regard to Section 35(5) of the constitution, when one
takes into account the criterion of the administration of justice,

one is mindful that on the evidence before me, the information which
is available and which led the South African Police to the
finding of
the safe. It does not emerge from circumstances which our courts
have said are abhorrent in a civilised society. On
the evidence of
the accused himself torture did not result in the finding of the
safe. To the extent that it is alleged, even
though it has nothing
to do with the pointing out, the South African Police have denied
same. Furthermore, and again on the evidence
and version of the
accused this pointing-out does not emerge as a result of duress, and
the reason why one has regard to these
factors such as duress and
torture is not only because such actions are abhorrent in a civilised
society but because anything which
results therefrom is necessarily
unreliable or possibly untrue.
In the present case what has been revealed as a result of this
expedition to Kwa-Mhlanga is the real evidence which I have already

referred to, and real evidence is to be distinguished from for
example the oral evidence or verbal evidence coming from the mouth
of
a suspect. Real evidence exists no matter what is said by a suspect.
Having regard to the issues of fairness and administration of
justice I must consider not only the position of the accused but
also
the interests of the victim and also the community at large. These
are considerations to which the Constitutional Court has
committed
itself, not least in
Key v Attorney General Cape Provincial
Division
[1996] ZACC 25
;
1996 (4) SA 187
(CC) and in
Sheik v Minister of
Justice and Constitutional Development
2004 (1) SACR 105
(CC).
In both those cases the court discussed the question of fairness,
pointed out that there is a tension very often between
the rights of
a suspect and the rights of the community at large, and that one must
not elevate fairness to a suspect or an accused
in such a manner that
the community at large loses faith in the criminal justice process.
CONCLUSION
Accused 2's version was that he pointed out absolutely nothing.
He did nothing of assistance to the South African Police.
They did
not need him because they already knew that the safe was buried on
his property. Notwithstanding this version I am satisfied
that he
not only pointed out the safe but identified and revealed exactly
where and how the safe would be excavated.
Insofar as the accused's version that he was not advised of any
rights and that he does not speak Zulu, I have no doubt that he
does
speak Zulu. It has been made clear to me in this court that he
speaks Zulu. Inspector Dikiso has made it clear that
he was
able to communicate with the accused. In any event according to the
accused he did not need to be advised of any rights
because he did
nothing without such rights.
If of course the accused 2 had not pointed out the safe in the
grounds of accused 2's home then the only manner in which
the
safe could have been found was to perhaps bring in metal detectors,
dogs and dig for 40 days and 40 nights in order to search
the entire
premises. After all it was there to be found. However, on the
state's version dramatic steps such as utilising a bulldozer
and
bringing in an entire platoon of South African Infantry was not
required. Dikiso and Makura and the accused were sufficient
to dig
up the safe. One hole only needed to be dug and it was in the right
place.
Accordingly on the state's version it could only have been the
accused who pointed out the placement of the safe.
On the accused's version, since he pointed out nothing, the
pointing-out could not have been as the result of any duress or
anything
else.
It was for these reasons that I made an order that it was to be
admitted into evidence that accused 2 directed the South
African
Police to his home, pointed out to them a spot in the ground where a
safe had been buried, which resulted in revelation
of the safe. It
was to be admitted into evidence that all this had been done to the
South African Police. It was to be admitted
into evidence that the
safe had been hidden and concealed in the ground next to the home of
accused 2.
SAFE – EXHIBIT G CONTINUED
The evidence before me was that the metal or steel safe which was
found buried in the ground or adjacent to the home of accused 2

had been destroyed. The evidence of Mr Coetzee was that the keypad
to the safe had been removed. Accordingly he could not test
the
keypad to see if it was his safe. At most he could say that it was
"the same time" and "similar" to the
safe which
had been stolen from his house.
I must note that accused 2 has given no explanation of why a
broken safe or a safe of any description was buried in the garden
of
his home.
I can only but conclude that this safe is indeed connected with the
robbery of 18 May, and that accused 2 knew of or was
party to
the robbery, and accused 2 knew of or was party to the opening
of the safe, and that accused 2 knew that the
safe needed to be
hidden.
THE PINK WATCH
On 20 October 2009 accused 1 was arrested back at work at the
premises where the robbery and murder had taken place.
The evidence which follows is probably the greatest example of
incompetence and stupidity that I have heard in the 15 years that
I
have been a judge in this court.
On that day, the evidence is that accused 1 was found in
possession of a watch of very particular identification.
The watch in question was described by Mr Coetzee as a watch used by
his wife for cycling. It was a heart rate monitor and it
was pink in
colour. Mr Coetzee said that this watch was usually kept in the
safe.
I know this type of watch, or at least I know heart rate monitors
produced by Polar. They are expensive and I can understand
that they
are kept in a safe or that this one was kept in a safe. They are not
unusual but they are unlikely to be worn by persons
who have no
interest in anything other than the time. They are used as a
stopwatch. They are used for heart rate calculation.
They are used
to determine heart rates over a period of time as to average and at
the moment.
The evidence that the accused was in possession of this watch is
overwhelming. Inspector Dikiso gave evidence that he arrived
at the
premises, asked Mr Piet Mahlangu where were the builders. He then
found accused 1 Thokozani, and he recognised a wristwatch
being
worn on the wrist of accused 1. It was pink in colour.
Accused 1 made certain admissions which are not admissible
in
evidence.
Warrant Officer Mthembu was with Inspector Dikiso. He gave evidence
that on finding accused 1 he saw the watch in the possession
of
accused 1. He said the watch was strapped onto his arm and
Warrant Officer Mthembu demonstrated his left arm.
Mr Piet Mahlangu, brother to accused 1 was in a very difficult
position. He clearly did not want to give evidence. However,
his
evidence was that when the South African Police arrived, Thokozani
was at the back of the house, having gone there to change
his
clothes. He said he saw that his brother Thokozani was wearing a
watch on his left wrist. He did not remember the colour
of the watch
but thought it might be green. This was the first time he, Piet
Mahlangu had seen the watch. He was adamant that
it was found on the
wrist of his brother.
Mr Coetzee gave evidence that when the South African Police returned
with accused 1 he was wearing his wife's watch. It
was on
accused 1's wrist, and Mr Coetzee identified it.
There were certain admissions apparently made by accused 1,
either to Inspector Dikiso or to his brother Piet Mahlangu.
I
indicated at the time that insofar as the admission or confessions
made to Mr Piet Mahlangu I did not think that these
should
be admissible in evidence because they were made after apprehension
in the presence of the South African Police and when
accused 1
was handcuffed and in custody.
In the course of cross-examination of these witnesses it was put to
these witnesses that the watch was not found on the wrist
of
accused 1. If that indeed is the suggestion then of course the
suggestion is that the wristwatch was planted in his possession
or
placed on his arm by one of the policemen. I find this highly
improbable. Firstly the police would have had to have found
the
watch in the possession of the real robbers. They would have had to
have made a decision to incriminate accused 1 and
let the real
robber be released from this incriminating evidence. Secondly the
police would have had to have been in cahoots or
in a conspiracy with
both Mr Coetzee and Mr Mahlangu, because they would have all
have had to have agreed to conduct this
fake or made up lying story.
In respect of this denial that accused 1 was in possession of
the watch I must note that this was only put in cross-examination
and
accused 1 did not give evidence.
There may indeed be certain discrepancies as to exactly where
everybody was situate at the back or the front or the side of the

house when the watch first came to the light of day. Whether the
watch was on the left or the right wrist, but they really add
up to
nothing at all. The issue is possession of the watch. I find that
the accused was in possession of the watch on that day.
The inference can only be to link the accused very directly with the
robbery on 18 May. That watch was locked in a safe. The
safe was
subsequently found having been broken open. Someone removed items
from that safe and distributed them either to the robbers
or to third
parties, and for sale or otherwise.
Accused 1, as I have already pointed out, had been working at
this property prior to the robbery and murder. He has already
been
linked geographically and physically. He is now linked by means of
the spoils of the robbery.
POINTING-OUT BY ACCUSED 1 – EXHIBITS Q AND R
Accused 1 was taken to perform what is known in South African
law as a "pointing-out" exercise. Such exercises
have
absolutely no evidential value. All they show to the court is
photographs of a person waggling their forefinger up and down
in the
direction of something which may or may not be interesting. In the
present case they have particularly no value because
even if the
pointing-out operation shows anything, it shows what one would expect
the accused to know anyway, namely the place
where he worked.
The pointing-out exercise is contained in the photographs
constituting EXHIBIT Q.
Of course the purpose of the pointing-out exercise is not the
waggling of the forefinger but the waggling of the tongue. It is

always hoped that in the course of a pointing-out exercise a suspect
will say certain things which are recorded by the pointing-out

officer and that they will add up to admissions or hopefully even a
confession. That was indeed the situation in this case.
I have admitted into evidence EXHIBIT R which are the notes which
accompany the pointing-out exercise and which constitute a
confession. I handed down my ruling that the written document or the
written confession found in EXHIBIT S, to Captain Magwae was

admissible in evidence and that the pointing-out photographs
contained in EXHIBIT Q accompanying a confession or visa versa to

Captain Whitford was admissible in evidence.
I must now give my reasons for such ruling.
JUDGMENT ON ADMISSIBILITY OF EXHIBITS Q AND R AND S
A trial-within-a-trial was held in order to determine the
admissibility of a pointing-out exercise and confession made at 10h39

on 21 October to Captain Whitford. A trial-within-a-trial was held
to determine the admissibility of a confession made to Captain
Magwae
at 12h50 on 12 October.
Quite clearly since these pointings-out and confessions were made on
the same day it is appropriate to make a decision and to
hand down
reasons in respect of all three at the same time.
Three issues need to be decided in respect of the admissibility of
these documents. In respect of all of them the onus is upon
the
state to prove the admissibility thereof.
WHO IS THE AUTHOR
The question of authorship arose because under cross-examination the
accused raised a new version which had not appeared when
the various
state witnesses gave evidence, to the effect that he was not the
author of that which was said or written.
The version of the accused was that then Warrant Officer Dikiso
wrote out a document in English. The accused says that he read
this
document and then repeated it to Captain Whitford during the
pointing-out exercise and Captain Magwae about two hours later.
In the course of his cross-examination the accused was taken through
the document because he had raised the question of the content

thereof, and he was questioned at length thereon.
I was satisfied, as a result of such questioning, that the accused
was not regurgitating one document because these two separate

statements differed considerably. I was satisfied that the contents
of the documents showed the maker thereof to be quite emotional
and
there was a fair amount of exculpatory statement contained therein.
I was also interested to note that the content did not
implicate
other persons by name.
Accordingly I was very comfortable in rejecting the version of the
accused. The reasons are very simple. How would the accused

possibly read a document written by Dikiso in English. If this was
his entire knowledge of the events why would he give two different

versions based on the one statement. If Dikiso was attempting to
implicate the accused and concoct something against the accused
then
why are the statements so exculpatory blaming other people.
Accordingly I was satisfied that the accused was the author of this
document.
CONSTITUTIONAL RIGHTS
Both police officers Dikiso and Mthembu described the arrest. Both
of them described that they had warned the accused of his

constitutional rights. Captain Magwae and Captain Whitford completed
the forms EXHIBITS Q, R and S, setting out a series of questions
and
answers pertaining to constitutional rights.
On the face of it every effort was made to warn the accused of their
constitutional rights.
I am satisfied that there may, in the hysteria or excitement or
speed of arrests, be moments where police officers failed to do
their
duty, and I can certainly understand that in the speed and excitement
of an arrest an accused person does not hear their
rights or does not
understand them. Therefore it is entirely possible that when
Inspector or Warrant Officer Dikiso informed the
accused of his
rights they were not clearly explained or the accused did not hear or
understand.
However, there is the evidence of Warrant Officer Mthembu, the
rights were explained to the accused at Norkem Park. There was
not
the same excitement. The situation was calmer. The situation was
stable.
At the time that the accused met with Captain Whitford and
Captain Magwae the situation was very calm. There was no hurry.

Each document from which Captain Whitford and Captain Magwae worked
contained the relevant questions to which answers were given.
There
is, to my mind, no reason why either Captain Whitford or
Captain Magwae would go to the trouble of filling out answers
to
certain questions without actually putting the questions themselves.
If one has regard to EXHIBIT R, which is the document filled in my
Captain Whitford, earlier on the day in question, 21 October,
one
sees that there is a considerable amount of information included in
the document. I need only refer to for instance question
7 which was
put to him. Accused 1 was asked if he wanted to still point out
the scene and his answer was "I am prepared.
I am just afraid
of the person by the house where I am going to show", and one
sees this followed through later on where
Captain Whitford takes
steps to ensure that people were removed from the house before the
inspection and pointing-out took place.
There are other examples but
I do not need to go into them. Questions were read and answers were
indeed given. Based on that
form EXHIBIT R, it is clear that
accused 1 was informed of his right to remain silent, the right
to consultation, the right
not to be compelled to make a confession.
A similar position applies in respect of EXHIBIT S which is the
statement made some two hours later to Captain Magwae. Again
a
series of questions are to be found on the form and a number of
answers are given. Interestingly the accused felt sufficiently

confident to respond that he had been assaulted by the police but
that he had not been influenced to make a statement. This was

repeated several times. At this stage I am not commenting on the
question of the assaults, I am simply pointing out that it would
have
been very difficult for Captain Magwae to have filled in answers
if he had not put certain questions. Those questions
include certain
constitutional rights, including the right to remain silent, the
right to consult and the right against compulsion.
On the evidence before me I am satisfied that the accused was warned
of his constitutional rights. He says that he was not.
If he is
correct then a very time wasting charade was undergone. It is
difficult to conceive why one would go through such a charade
because
one does not need to conduct such a charade and fill out such
detailed answers in order to complete these documents EXHIBIT
R and
S.
ASSAULTS/DURESS
The onus is on the state to prove that these statements made by the
accused were made freely and voluntarily and without being
subject to
undue influence. For this purpose the state led the evidence of a
number of witnesses, Inspector Dikiso, Warrant
Officer Mthembu,
Mr Coetzee, Mr Mahlangu, Mr Mbonani, Mgomo and Masinya.
The accused was arrested at the house in Kempton Park. He was
placed on the ground and cuffed.
In the course of the trial-within-a-trial it was not put to
witnesses that he had been assaulted at the time of his arrest, but

when he was giving evidence under cross-examination only then did it
emerge for the first time that he said he had been kicked.
I find this highly improbable. It was a public place. There were
civilian witnesses and more particularly his own brother was
present.
At Norkem Park where the accused was taken after his arrest, the
evidence of the South African Police was that there were no assaults.
The accused, however, said that he was assaulted. The difficulty is
there was no clarity as to when and by whom and where he
was
assaulted. This was not presented in a consistent fashion.
In the course of the state's case the assaults as subsequently
described by the accused were not put to the various witnesses.
For
instance the assaults were not put to the female police officer
Monyane. For instance he did not put that he was kicked on
the
shins, to the police witnesses. The state, however, endeavoured to
discharge its onus by presenting evidence of the chain
of action in
that morning, without being provided with proper information or
averments as to what the accused said had happened.
To both Captain Whitford and Captain Magwae, the accused said he had
been assaulted.
In his information to the two captains the accused was not
consistent as to when and where he was assaulted. To
Captain Whitford
he said he had been assaulted at Norkem Park
police station, to Captain Magwae he said he had been assaulted at
the time of his
arrest.
Both captains wrote down that the accused said he had been assaulted
but both specifically added in comment from the accused.
In the
accused's cross-examination of the state witnesses it was not put in
detail to those state witnesses the averments upon
which the accused
based his challenge to the admissibility of these statements. For
instance the assaults were not put to female
police officer Monyane
and it was not put to the witnesses that he had been kicked on his
shins.
To both Captain Whitford and Captain Magwae the accused said that he
had been assaulted. This was recorded.
However, the place and time of the assault different in what he said
to both captains. In the first statement to Captain Whitford
he says
that he sustained injuries when he was arrested and he referred to
his shins. To Captain Magwae he stated that he was
assaulted by the
police at Norkem Park.
Captain Whitford took seriously the complaint about the injuries to
the shins. He observed abrasions on the shins, and photographs
were
taken. These emerge at photograph Q7.
I was concerned about these injuries and Dr Moweng was called
to give evidence. Obviously he was confronted only with the

photographs but he was able to present a medical opinion based on
those photographs. He found a distinction between the abrasions
to
be seen on both the left and the right leg. He described that the
left leg gives the impression of swelling and reddening whereas
the
right leg looked dry. His view was that the injury to the right leg
was older whereas that on the left leg was more recent.
The injury
to the right leg would be at least three days old while the injury to
the left leg was more recent, perhaps less than
a day.
What was interesting in response to the averment of the assaults was
that to Captain Magwae the accused stated that the assaults
had not
influenced him to make a statement.
The difficulty of course is that it would appear that it is possible
that the accused sustained an injury as recently as the day
of his
arrest because this is confirmed by the photograph taken by
Captain Whitford and Dr Moweng's evidence. Furthermore
the
accused has been consistent in his statements to both
Captain Whitford and Magwae that there was an assault, although

not consistent as to when and where.
The fact that the accused says that the assault did not cause him or
influence him to make a statement is always problematic.
The problem
is very simple. He remains in the custody of the South African
Police. It is sometimes difficult to distinguish
between arresting
officers, detaining officers and those who are taking statements.
The evidence of accused 1 was in essence that he had been slapped
and kicked. What was put to Dikiso and Mthembu was that he
was
assaulted at Norkem Park under a table, and that a plainclothes woman
had kicked him. In his evidence-in-chief this was not
his version.
Then under cross-examination he said Dikiso slapped him and put a gun
to his eye but that Mthembu did not assault
him, and that the female
police officer had kicked him later. In short, on the three separate
occasions that a version was put,
namely the cross-examination of the
witnesses, the evidence-in-chief and in cross-examination his
evidence was inconsistent and
contradictory.
At the end of the day the accused's version is difficult to place
any reliance upon. His version changes and it is certainly
not
reliable. The only thing which in any way supports him is that of
the injuries on his legs one is more recent than the other.
The fact that he has an injury on both legs and that one is at least
three days old, i.e. well before his arrest, allows for the

possibility that the other injury has nothing to do with his arrest.
CONCLUSION
It is for these reasons firstly that I am satisfied that
constitutional rights were advised to the accused, secondly that he
was not assaulted at the time of his arrest; thirdly that there is no
credible version as to any assault at Norkem Park; fourthly
that he
was clearly advised of his rights; and fifthly that he is certainly
the author of both different statements. I made the
ruling which I
have already described, that I admitted into evidence both documents
R and S.
EXHIBIT R
Exhibit R consists of a series of statements made by accused 1
to Captain Whitford as they were travelling to the scene
of the
robbery and murder, and whilst they were at the house where the
robbery and murder were committed. The notes indicate that
certain
contemporaneous photographs were taken at the time that these
statements were made. Alternatively that the statements
were made
contemporaneously with the photographs. Each page of the handwritten
notes is signed by the accused. I am reading only
that which was
said whilst the accused and Captain Whitford and the
photographer were inside the house:
"This is the house. We entered through the other side. We
exited at front door. We entered here. The door was open because

someone was inside. The woman was standing here. We took the woman
and let her sleep here, and started beating her here. The
safe was
here. I once saw it before so I knew it was here. The baskets were
not here but the safe was right here. We took the
whole safe. Where
I was pointing where the lady was sleeping and we were beating her is
where we killed her. We only used the
golf stick to beat the woman.
When we left she was still breathing. We took the safe and we took
the safe, and we took clothes
from this wardrobe. When we were going
up and down the lady was still sleeping. We just jumped her. We
took the caps from here,
hanging on wall. When we went out, we went
out using this door. When we entered here we called the woman to
open for us. She
knows us so we had no problem. When we left we had
the remote which we then threw away."
"Wed were three when we were coming to rob this place. Each one
got 4 400. We did not take many clothes. We left the
bag with
most clothes. This thing was haunting me for a very long time. I
wanted to tell my brother but I could not know how.
I wanted justice
to be done but I could not know how. My heart is very sore because
my brother trusts me and he is hurt. He
is working there still. I
started working there last year. I started at that factory of the
owner. I do not remember the month."
As I have indicated that is not all which was said but it is what
appears to be most relevant.
Quite clearly from this document the accused has made a full and
complete statement from which can be extracted the following.
He
worked at those premises. A woman who worked there was called to
open up for him and two others. They entered the house.
They beat
her using a golf stick. He had previously seen the safe, and the
whole safe was removed. Clothes were taken. The
lady was "sleeping"
when they left, whereas sometimes he says we "killed her".
From this statement one can conclude nothing other than that
accused 1 was an active participant in the robbery of these

premises and that he was involved in the killing and murder of Mrs
Patricia Kauitsane.
CONFESSION – EXHIBIT S
I have given the reasons for the admissibility of EXHIBIT S. The
relevant portion of this statement reads as follows:
"During June or July 2009, not remembering the date and month
very well, at about plus or minus 08 or 09 I was together with
my two
friends namely Meshack Mandla Seluma and Jeffrey. We
arrived at Van Riebeek park at a certain house. I do not
know the
street, as well as the number of the house, but can be able to point
out the house. When arrival at that house I called
the lady in the
house, saying "mama, mama". The lady (cleaner) peeped
through the burglar door and noticed that it is
me who is calling.
She then opened the main gate with a remote control, because she
knows me. After that we both, three of us
entered inside the house.
At that time the lady was in the kitchen. I then grabbed the lady
without any question and pulled her
in the passage of the house.
Suddenly my two friends came with golf sticks and started assaulting
her with golf sticks. I also
took golf stick from the room, in the
golf stick bag, and we both assaulted her with those golf sticks.
The lady fell on the floor
and we both repeatedly assaulting her with
golf sticks. We left her helplessly on the floor and entered inside
the rooms. We
took the safe from the wall, which was not properly
mounted on the wall. We also took jewellery as well as clothes. We
then left
the scene with the above items, to Moloto Village near
Pretoria, using public transport. On arrival at Moloto Village
we
proceeded to another scrap yard. The owner of the scrap yard
forcefully opened the safe with an axe. I noticed a firearm inside

the safe, cash 13 000, as well as jewellery. We shared the
money between three of us. We also sold the jewelleries. The
owner
of the scrap yard did not see what was inside the safe because when
the safe started to be open a little lid, we told him
to leave it and
we took the safe to my residence. We gave the owner of the scrap
yard R10 or R20, I do not remember well. During
August 2009 at about
02:15 I was asleep together with Meshack in the house, and the
firearm was in-between the mattress when we
were arrested by the
police, in possession of the firearm. That is all."
To be extracted from this EXHIBIT S is firstly that the accused has
no real comprehension of dates. Secondly he now names his

co-perpetrators. Thirdly the chronology is a little different to
that which was in EXHIBIT R.
However, what does emerge is that the accused and his two friends
arrived at the house, called the lady who recognised him, and
then
opened up because she knew him. The cleaning lady
Mrs Patricia Kauitsane was immediately grabbed and she was
assaulted
with golf sticks by all three of the robbers. The safe and
jewellery and clothing was taken. The safe was opened and the cash

and jewellery and a firearm was extracted. At the time of
accused 1's arrest in July he was still in possession of the
firearm.
STATEMENT BY ACCUSED 2 – EXHIBIT T
The state tendered into evidence a statement allegedly made by
accused 2, the admissibility whereof was challenged. I have

handed down a ruling that the statement is admitted into evidence and
must now give my reasons therefore.
The accused was arrested in the middle of the night. He was brought
to Norkem Park and it was there that he made the statement
identified
and now known as EXHIBIT T.
The evidence was that then superintendent, now Colonel Potgieter
was brought from Tembisa and he took the statement EXHIBIT
T from
accused 2.
Colonel Potgieter's evidence was to the effect that he was called.
He arrived. He met with the accused and he ascertained from
the
accused whether he was prepared to make a statement, and was informed
in the affirmative. He also ascertained whether or not
the accused
or then suspected needed and interpreter, and ascertained that he
did. That led to the arrival of female Constable
Noge.
EXHIBIT T contains a series of questions dealing merely with the
personal circumstances of the suspect. One of those personal

circumstances is the language choice which is indicated on the
document as being "English/Sepedi". Thereafter the
document
contains a series of questions, the most important one of
which reads "I want to make a statement".
Colonel Potgieter gave evidence that with female Constable Noge
in the room he advised the suspect of his rights as set out
in
EXHIBIT T, and thereafter wrote down everything that was told to him
by the suspect through the medium of Constable Noge.
The first and initially apparently the most major challenge to the
admissibility of this document was the language employed.
Colonel
Potgieter testified that he had been told by the suspect that he
wished to talk Sepedi. Constable Noge testified that
her home
language was Tswana but that she had an understanding of Sepedi and
that she spoke Tswana to the suspect, and that he
responded in
Sepedi. However, the accused testified that neither English nor
Sepedi was the language of his choice, nor was Tswana,
but that he
spoke Ndebele throughout.
On the basis of this version there would certainly be doubt as to
whether firstly it would be possible for the suspect to have

comprehended the warning of his constitutional rights, and secondly
whether one could be comfortable that the statement which was
taken
reflected that which was said by the suspect.
However, in the course of the accused giving evidence this concern
as to use of language disappeared completely. Initially in
his
evidence-in-chief the accused gave evidence that he understood some
of the things which were asked of him, such as his name
and address.
Then under cross-examination he said that Inspector Noge did
communicate with him in Ndebele but she was not fluent.
Then he went
on to say, in response to a question as to whether they had
understood each other, he said "Noge understood
when I spoke but
when she spoke she struggled and I simplified". I was concerned
as to what was meant by this and asked whether
Constable Noge
understood him, and the accused responded in the affirmative. He
said that it was simply that when Constable Noge
spoke Ndebele she
struggled somewhat. Finally the accused went on to say that, and
this is in response to a series of questions
by myself, that "we
understood each other" and "there was not a problem of
language because before she interpreted
we conversed and understood
each other" and "we conversed until we reached a point we
understood each other".
Accordingly the difficulty of language falls away.
The accused then testified that he had been assaulted, this proved
to be a very difficult and most confusing challenge to the

admissibility of the statement. Firstly one version was put to the
witnesses, namely Colonel Potgieter. Another version to
Constable Noge.
A third version in evidence-in-chief and a
fourth version under cross-examination. One of the problems was that
that which subsequently
emerged in the course of evidence-in-chief
and cross-examination had not been put to the state witnesses.
In the course of evidence-in-chief he merely stated that Mthembu,
Dikiso and many other members of the South African Police were

present and they assaulted him for about five minutes. Potgieter
then arrived and Dikiso told him what the accused/suspect had
done,
and Potgieter then started assaulting him.
As to the purpose of the assault no mention is made of any attempt
to obtain any information or a statement from the accused.
In the course of the cross-examination of Potgieter and Noge it was
put that Noge had also participated in the assault but this
was
explained as counsel's error and under cross-examination it was now
stated that Noge was present but standing there merely
as a
bystander. Similarly under cross-examination of the witnesses it
appeared to be put to them that there was an assault prior
to the
taking of the statement and in the room in which the statement was
taken. Again this was clarified when the accused gave
evidence, and
he said this did not happen. Again it was an error that was put in
cross-examination.
The difficulty with these various assaults is that at the end of the
day the accused claims that he was assaulted and he was not
advised
of his rights, and then he goes on to say that Potgieter put things
into the statement.
The great difficulty with that version is that if Potgieter, a
colonel in the South African Police is himself concocting, out
of
knowledge given to him by Inspector Dikiso, a statement, then
assaults are not necessarily in order to induce any statement.
One
does not need to pressurise a suspect into making a statement if the
policeman himself is making the statement. In fact the
presence of
the suspect is not even necessary.
Clearly this contribution that Potgieter was the author of portion
of the statement was somewhat of an afterthought. That it
was an
afterthought meant that the state did not have the opportunity to
cross-examine the witness, i.e. the accused, on the contents
of the
documents.
Colonel Potgieter testified that there were absolutely no assaults
of which he was aware or in which he participated. Constable Noge

testified that there were absolutely no assaults of which she was
aware or in which she participated. Both were adamant that they
went
through the form, that the accused was advised of his rights and that
the was the author of the statement which was recorded.
The challenge by the accused was haphazard, contradictory and
somewhat half-hearted.
I am satisfied that the accused was advised of his rights and that
he was not assaulted for the purposes of extracting a statement
from
him. I am satisfied that he understood the proceedings, and that he
is the author of the document EXHIBIT T.
EXHIBIT T reads as follows:
"During May 2009 it was a Sunday, I found Thokozani and Jeffrey
talking very serious about money in Mpumalanga where I was
residing.
The address was at Moloto block 13. Thokozani told me they had a
plan of robbing a guy who stays in Norkem Park.
Thokozani was
doing renovations at the house in Norkem Park. He told me that the
white man who stays at this house always used
to carry R200 notes. I
was unemployed and then I then also decided to join the plan of the
robbery because I needed money at that
stage. The following day, it
was a Monday, I came with Thokozani and Jeffrey to the house in
Norkem Park. We had had no firearms
of knives with us. The cleaning
lady opened the gate for us with a remote. I and Jeffrey went to the
garage. Thokozani went
inside the house. He then whistled and we
went in the house. We found Thokozani busy strangling the cleaning
lady. I and Jeffrey
started searching the house for DVDs and CDs.
Thokozani then came with the cleaning lady to the bedroom. He asked
me to hold
the lady. I then held the cleaning lady. Thokozani and
Jeffrey went through the house. Thokozani came back and took a golf
stick
and started to bash the cleaning lady on her head. The lady
fell to the ground and there was a lot of blood. Me, Thokozani and

Jeffrey then put items like DVDs, CD player, clothes and shoes in
bags. We also broke out the safe. I then saw Thokozani dragging
the
cleaning lady and bashing her again with the golf stick. He then
covered her with a blanket. We then left the premises through
the
gate with the remote. We walked to Kempton Park station where
we took a taxi to Pretoria and Mpumalanga. We opened the
safe and
found R13 140 inside the safe, as well as a 9 mm pistol. We
shared the money. During June we were arrested. This
is all I can
state about the incident."
From this statement we extract the plan to commit the robbery, that
access to the premises was gained by the assistance of the
cleaning
lady who knew accused 1. An attempt to strangle her, which was
obviously not continued. A searching of the house.
That this
accused held the lady for a while. She was assaulted with a golf
stick and thereafter her body was left in the passage.
There is clearly an attempt to distance accused 2 from
leadership or responsibility for the murder. For instance he makes

it clear that he is the last person to join in the plan to rob. For
instance he makes it clear that it was accused 1 who
was trying
to strangle the lady. For instance he makes it clear that he did not
more than hold her. For instance he makes it
clear that he did not
kill her.
STATEMENT BY ACCUSED 3 – EXHIBIT P
Accused 3 also arrested on 20 October, made a statement at
09:20 on the morning of 23 October. I made a ruling to the effect

that the statement was admissible in evidence, after a
trial-within-a-trial and must now give reasons therefore.
The document EXHIBIT P can certainly be criticised because it is not
complete. On the first page thereof there is a question
put to the
suspect "what do you wish to do: make a statement, answer
questions or remain silent" and no answer is written
in. The
second page of a series of questions has a line to be signed by the
suspect and he has not there signed. He has, however,
signed at the
bottom of both of the two pages comprising the statement.
Clearly it is highly undesirable that the memorial of any statement
is incomplete. However, incompletion is not fatal to the

admissibility of the document. One must have regard to the
circumstances of the taking and the nature of the incompletion.
There were two challenges to this document. Firstly the accused
said he did not make the statement and secondly he said he was
not
advised of his rights. I shall deal with both of these in turn.
Having indicated the nature of the challenge the state then
attempted to discharge the onus resting upon the state for the
document
to be found admissible.
The statement was taken by the investigating officer Dikiso. It is
not a confession to murder. On the face of it, it is a not
a
confession to robbery. This is because it is not a "clear and
unequivocal acknowledgement of guilt". Accordingly
it is
acceptable that the statement taken as a "warning statement"
is taken by a mere inspector.
The version given by the accused is that on the day of his arrest
certain information was requested from him. He said that when
Dikiso
came to take this warning statement, he was presented with a blank
page on which nothing was written and he was ordered
to sign. That
was his evidence-in-chief.
In cross-examination it was put to him that his signature appeared
on two pages. He then gave evidence that "I copied from
what he
wrote" and then signed. He went on to say "when he
presented the documents, the writing was not on the paper
and he
asked me to transcribe".
What I understood from this is that the first version of the accused
was that he was presented with a blank sheet of paper which
he
signed, which means that he was advised of no rights and that he made
no statement. The second version is that he was given
something
already written down, and he had to copy it down himself.
Insofar as the first version is concerned the first page is not a
blank page, it is a fully typewritten page in prescribed format.
It
could never had been a blank sheet signed by the suspect. The second
sheet is also a page containing a number of typewritten
lines,
although there is one portion where there is space for something to
be written. Conceivably that could have been left blank.
Insofar as the accused says that he is not the author of the
document one is entitled to have regard to the document itself.

Looking at the document one sees that very little at all is said.
This is not a statement that an overly diligent policemen is
going to
himself concoct. This is an attempt to provide an entirely
exculpatory statement. Indeed it is a statement putting off
the evil
day, because what is stated three times is "I want to tell the
magistrate about the murder"; "I will tell
the statement"
and then apparently in the suspect's own writing "I am prepared
to tell the magistrate the story",
with the suspect's name
immediately thereafter.
It is difficult to see what possibly could have been concocted by
Dikiso, that the accused wished to make a statement to the
magistrate.
As far as the advisement of rights is concerned Dikiso is the only
witness for the state. As I have already indicated the state
bears
the onus to discharge and prove the admissibility of this document.
Dikiso's evidence was that he and the accused could
communicate.
That his own home language is Northern Sotho, and he translated
everything that is in this document into Zulu for
the benefit of the
accused. It was put in cross-examination to Inspector Dikiso that
the accused speaks Sepedi but Dikiso was
adamant that the
conversation was in Zulu and understood by both.
Now if Dikiso had concocted this entire exercise then it is
difficult to understand why Dikiso had not properly completed this

form. It would have been very easy not to leave the answer to the
question whether or not the suspect wished to make a statement,

answer questions or remain silent blank, it would have been easy to
fill that answer in. Instead he left if blank. He gave a
reason
therefore.
He said to the accused, according to Inspector Dikiso, that the
suspect had a choice as to whether or not he wished to make a

statement and he said that the accused was silent. That the
accused/suspect did not give an answer. He says that is the reason

why he did not fill in the answer to that question.
Dikiso assumed from the accused's silence that he did not want to
answer the question. He took the view he says, that "he
did not
want to answer some questions and he did answer other questions".
He did not understand from the refusal or the failure
to answer the
question that the accused was choosing to remain silent. Dikiso says
that if the accused had indicated he wanted
to remain silent then "I
would stop".
I made a note to myself at the time that Inspector Dikiso was being
cross-examined that if the accused was exercising his right
to
silence then I found it difficult to understand why Dikiso did not
just stop asking any questions. However, immediately after
that note
it seems that the accused/suspect then went on to answer questions.
In other words he chose to not make an election
between remaining
silent, making a statement or answering questions but he did choose
to answer the other questions as to whether
he wanted to make a
statement, did he make it out of his own free will and had he been
assaulted.
It is here that the suspect has not signed the document. Clearly
what has not been signed is the line indicating advisement of
rights.
It should be noted that I learnt in the course of cross-examination
that this accused did not make a statement to a magistrate.
Clearly
that was his choice, apparently on the 26
th
when he was
taken to a magistrate.
The accused has certainly elected to play a very careful game. He
has said nothing on the face of it which is incriminating,
and on
three occasions he has indicated that he prefers to go and talk to
the magistrate. On one occasion himself writing that
down in his how
handwriting. Clearly he is behaving carefully. Some would say
sensibly and some would say strategically.
However, such calculation does not necessarily mean that a statement
has been induced or that a statement is inadmissible. It
suggests
exactly the opposite.
At the end of the day I have to choose between the evidence of
Inspector Dikiso and the suspect. I have chosen to accept
the
evidence of Inspector Dikiso.
I have found against the accused on both of his versions that he was
presented with a blank page, alternatively that he was given
a
version by Inspector Dikiso, and that he copied that down.
It was for this reason that I made a ruling that the statement
EXHIBIT P was admissible in evidence.
The statement EXHIBIT P reads as follows:
"On 2009-05-18 at about 08:00 I went to Norkem Park with Meshack
and Thokozani. On arrival Thokozani called the maid to open
for us.
I went to the garage with Meshack while Thokozani went to the house.
(I want to tell the magistrate about the murder.)"
The statement is not a confession to either robbery or murder.
All that can be extracted from this statement is that firstly it
places accused 3 on the scene on the day at the place with
the
other two accused. Secondly he distances himself from any activity
at all. Thirdly he knows about "the murder".
It has been argued that reference to "the murder" does not
necessarily mean the murder of Mrs Patricia Kauitsane.
I must
reject this argument. Firstly the warning statement taken by Dikiso
states on the first page that what is being investigated
is a charge
of murder and housebreaking on 17 May 2009. Secondly if the suspect
had information to give a magistrate about a murder,
that is a murder
other than the one with which we are concerned today, then he would
be an unusual young man.
Thirdly and most importantly the accused has not given evidence and
there is no explanation at all as to the murder to which he
makes
reference. I can draw one conclusion only. He wanted to tell the
magistrate "the whole story" about the murder
of
Mrs Patricia Kauitsane.
There is no explanation in the form of evidence from the accused as
to why he was at this house in Norkem Park. Why he was with

accused 1 and 2 on 18 May. For what purpose he was there, and
what happened.
The inference that I must draw is that he went there with accused 1
and 2 for the same purposes, i.e. to rob that home.
That he did so,
and that he knew that Mrs Patricia Kauitsane was murdered.
THE ASSESSMENT OF THE EVIDENCE
ACCUSED 1
As has been indicated in my analysis of the evidence thus far it is
clear that accused 1 worked at these premises, had knowledge
of
valuables within in the house and went to the house on the Monday to
perpetrate the robbery. He knew that on that day the cleaning

lady/domestic worker Mrs Patricia Kauitsane would be the only
person at home.
The issue of the murder is of course very important. There is no
evidence that accused 1 went to the premises armed with
a weapon
and there is no evidence that the murder was planned in advance.
I have regard to the fact that the only way in which accused 1
and his co-perpetrators could gain access to the premises
was by
presenting himself to Mrs Patricia Kauitsane and relying on her
knowledge of him to gain access. She knew who he was.
She knew his
face, she knew his name, she knew that Piet Mahlangu was his brother.
Accused 1 had every motive to conceal that he was a robber
because otherwise Mrs Patricia Kauitsane could lead the police

to him. He would be arrested for robbery and imprisoned for a
lengthy period of time. Mrs Patricia Kauitsane guaranteed
that
he would spend a long period of time in jail.
It was therefore never going to be enough for accused 1 and his
fellow robbers to tie Mrs Kauitsane up, to lock her up, or
to
restrain her in any way so as to prevent her from escaping or raising
the alarm. She had to be killed.
The robbery could only take place because accused 1 knew that
Mrs Patricia Kauitsane would be in the house. If she
was not
there they could not gain access to the house. The only person who
would open up would be Mrs Patricia Kauitsane
who knew him.
The result is that the minute accused 1 planned this robbery he
planned the murder. The robbery could not take place without
the
murder taking place. There would be no point in committing a robbery
and being picked up by the South African Police the very
next day.
The only inference from all the evidence before me is that in the
mind of accused 1 there was the intention to kill Mrs
Patricia Kauitsane the minute he planned the murder. The
question of course is whether this was the plan with accused 2

and 3 as well. I have had to ask myself when the robbery was planned
and accused 2 and 3 said how are we going to get into
the house,
and he said to them oh Patricia, the domestic worker will let us in,
if one or both of them did not say but she is going
to tell on us.
She is going to tell Mr Coetzee that it was you who came and did the
robbery. Your brother Piet Mahlangu will
say where you can be found.
You will lead the police to us and we will all go to jail. And I
have to ask myself if that conversation
took place and if accused 1
did not say do not worry we will kill her.
Insofar as the counts in respect of the unlawful possession of the
firearm and the unlawful possession of the ammunition is concerned

the accused's own version as set out in his statement confirms what
we would all know as common sense. Once the safe was opened
one
would look inside and see what one had achieved as a result of this
robbery. We know this was done, not only from the accused's
own
statement but from the recovery of the safe and possession of the
firearm thereafter.
The result is that accused 1 must be found guilty of all four
counts against him.
ACCUSED 2
There is no doubt that accused 2 participated in the robbery.
He went to that house on that particular day for one reason
only, to
rob. His statement makes it clear that that is the reason for going.
Insofar as the question of access is concerned accused 2 must
have been assured by accused 1 before they ever went to
the
house that there was a means whereby they could gain access. He
obviously was not told that they would have to climb over
fences and
break down burglar bars. Quite obviously accused 1 informed
accused 2 that he was going to gain access through
being known
by the domestic worker working on the property. Accused 2 therefore
knew the means by which they were going to gain
access to perform
this robbery.
Accused 2 obviously realised from what he must have been told
by accused 1 that the domestic worker who was the means
of their
access knew accused 1 and who was therefore in a position to lead the
South African Police to all of the accused once
the robbery was
complete. Accused 2 therefore had a number of possibilities
available to him. He either thought that the
domestic worker would
be able to identify accused 1 only but he had the utmost faith
that accused 1 would never identify
him or reveal his identity
to the South African Police. The second possibility is that
accused 2 would take every step to
ensure that the maid, the
domestic worker in the house could not identify him so she could
never be a witness against him. The
only person who could then
implicate him would be accused 1, and he would obviously be a
very untrustworthy witness in any
court of law. All accused 2
had to do to make certain that the domestic worker could not identify
him was to wear a hat or
a balaclava or to cover his face and to wear
some gloves. But there is no evidence that this was done.
The third possibility is that accused 2 knew that he would
never have anything to fear from the one person inside the house.

After all the one person inside of the house could be silenced. So
the possibility, which is virtually a probability, is that
in going
to carry out this robbery accused 2 knew that the intention all
along was to kill Mrs Patricia Kauitsane.
In his statement to the South African Police, EXHIBIT T, all that
accused 2 says that he did was to restrain Mrs
Patricia Kauitsane.
He says that it was accused 1 who did
the actual deed. Now this is not evidence against accused 1, it
is indicative
of how accused 2 distances himself from that which
actually happened.
To try and achieve some distance from what actually happened does
not serve accused 2 well. Accused 2 knows that
Mrs Patricia Kauitsane
has not been tied up or locked into
a bathroom. He knows, on this own version that she is not being
restrained. He seems, on
his own version, unworried that she is
available to either raise the alarm, make an escape or identify him
and his confederates.
There is absolutely no indication that accused 2 did anything
to stop this murder taking place, in fact there is every indication

that he was relying upon this murder in order to complete the
robbery.
Insofar as the safe is concerned it is quite clear that accused 1
could not carry off the safe by himself and he needed assistance.

Once the safe was opened of course each accused or each robber would
be interested in what was taken. In the case of accused 2
it
would appear that items were removed from the safe, such as the
firearm, and the safe was then buried in the garden of his home.
As
he says in his statement he benefitted in the spoils of a robbery.
The safe was buried in his garden.
What was taken from the safe included the firearm. The firearm was
recovered at the same time that he was first arrested. There
appears
throughout to have been little distance between himself and the
firearm. At least at the time that the safe was opened
he we was in
joint possession with his co-accused, of the firearm and ammunition.
Accused 2 must therefore be found guilty in respect of the robbery
and the unlawful possession of the firearm and the ammunition.
I shall return to the question of the murder.
ACCUSED 3
The admissions made by accused 3 in the warning statement are
very limited and certainly distance him from all events.
I have certainly wondered why the accused said that he and accused 2
went to the garage while Thokozani went into the house,
but have
decided that there is probably the simple version that he and
accused 2 were hiding in the garage while accused 1
was
gaining access to the house. In his statement accused 3 wrote
in his own handwriting that he was prepared to tell the
magistrate
the story, and Inspector Dikiso has written that the accused/suspect
said "I want to tell the magistrate about
the murder".
Notwithstanding this statement the accused did not give evidence.
As I have already commented there is no attempt at an explanation.
From this document it is clear that the accused firstly was on the
scene at the date and time when the robbery and murder took
place.
He was present with two persons, accused 1 and accused 2
who, without hesitation I find guilty of conspiracy
to rob. He would
not have gone to that house for any other purpose than to participate
in the robbery. After all if two people
go to commit a robbery a
third hardly accompanies them in order to hold their hands but not
participate in a robbery.
Accused 3 must therefore be found guilty of robbery. Again the
question arises, which I have discussed at some length in
respect of
accused 2, as to how accused 3 thought that he would gain
access to the premises. He too must have been told
of the existence
of the domestic worker, who knowing accused 1 would give him
access to the house. He too must have been
assured that there would
never be any chance that the domestic worker could identify accused 1
to the South African Police.
Accused 3 makes no mention of any
attempt to disguise or hide his identity. He obviously felt no need
to conceal himself
from Mrs Patricia Kauitsane.
One is left with accused 3 in exactly the same position as
accused 1. Reliant upon the existence of Mrs Patricia Kauitsane

and her knowledge of accused 1, to gain access, equally
dependent upon the continuing silenced of Mrs Patricia Kauitsane

by reason of her death.
Insofar as accused 3 is concerned, once he is on the scene,
once he is a co-perpetrator of the robbery he too has an interest
in
the contents of the safe, and at the very least he was guilty of
joint possession of that firearm at the moment that the safe
was
opened and its presence was discovered. It does not matter that when
he was arrested the firearm had already been discovered
at the time
of the arrest of accused 1 and 2. There was possession at the
exact moment that the safe was opened.
Accordingly accused 3 must be convicted of robbery as also
unlawful possession of the firearm and the ammunition.
THE MURDER OF MRS PATRICIA KAUITSANE
I have already commented at length that the role of
Mrs Patricia Kauitsane was unknowingly and certainly not
unlawfully,
to give access to accused 1 to this house and
thereby let all three robbers into the house.
Once the robbers were inside the house Mrs Kauitsane was beaten most
severely. This certainly appears from the photographs in
EXHIBIT E,
which shows her body lying in the passage, facedown, blood oozing
from her head, her skull at the back being a mass
of blood, and when
her body is turned over her face also being a mass of blood.
The post mortem report was admitted into evidence. The post mortem
indicates the most severe injuries sustained by this lady.
The
injuries are about her head, neck and chest. I refer to paragraph 4
of the post mortem report which simply describes the
external
appearance of the body. From this it is clear that it was not one
blow by one person only on one occasion only that was
inflicted upon
Mrs Patricia Kauitsane. She was the victim of a sustained
and overwhelming assault.
I quote as follows from paragraph 4:
"1.
Kop, gesig en boonste ledemate is oortrek
met bloed.
2. Ingedrewe skedel
fraktuur oor die agterkop regs as gevolg van veelvuldige laserasie
kneuswonde.
3. Vier verdere laserasie kneuswonde linieer agter die linkeroor.
4. Vier laserasie wonde wat van die eerste op
linkerwenkbrou lateraal is, tweede vanaf linkerwenkbrou tot op
voorkop, die derde
op voorkop links tot by vorige laserasie, en die
vierde op die middel van die voorkop.
5. Laserasie kneuswonde op regterwang.
6. Bloed uit neus en mond.
7. Twee laserasies in die middel van rug net bokant boude.
8. Veelvuldige laserasie kneuswonde op agterkop regs en links."
The injuries or the lacerations to which I
have referred, they ranged in depth from two to eight centimetres.
In other words some
of them were very deep.
The photographs show a golf stick which was apparently left lying in
the passage, and from the statements of two of the accused
one knows
that this golf stick was used for the purposes of the assault. The
photographs also show blood on both walls of the
passage higher than
the prostrate body of Mrs Kauitsane, indicating that either her body
or some spurts of blood must have made
their way to the wall before
she fell down. Perhaps she struggled for her life unable to believe
what was happening to her.
I have already found that accused 1 must have intended to kill
Mrs Patricia Kauitsane in order to prevent her reporting

him as the robber. It is also quite clear from the medical evidence
that the only purpose of the assault was to kill her. You
do not
perpetrate these injuries on somebody and then it is a mistake or an
error that they are dead. She was bashed about with
this golf stick
until she was dead.
I have already commented that it was not only necessary, and for the
benefit of accused 1, Mrs Patricia Kauitsane
was
killed. It was in the interests of all three robbers that she was
killed because they needed to avoid detection.
I have to ask myself whether the intent to kill
Mrs Patricia Kauitsane was part of the original common
purpose to rob
or whether this was something which developed later.
Of course there is no evidence that the accused arrived at this home
armed with weapons enabling them to kill her. But the absence
of
weapons does not negate an intention to kill, a conspiracy to kill, a
common purpose to kill. One can kill without a firearm
or a knife,
as one has seen in this particular case.
Accused 2 and 3 have made absolutely no attempt to do anything
other with the lady inside the house than to see that she
is killed.
They are not disguised and so they are not concealed from her. They
do not need to protect their identity from her.
She is not tied up
while they go around the house rampaging and ransacking and stealing.
She is not locked up so that she cannot
make a phone call or shout
out a window for help.
All this points away from the idea that accused 1 took it upon
himself to kill Patricia Kauitsane and accused 2
and 3 had
no idea that he planned to do this. All this points away from a
finding that there was an expansion of a common purpose
to rob to a
common purpose to murder. All this strongly suggests that there was
the intention to kill, the conspiracy to kill,
the common purpose to
kill Mrs Patricia Kauitsane from the very beginning.
Even if this was a new development in the course of a robbery one
sees absolutely no dissociation or disengagement by accused 2

and 3 from the murder of Mrs Kauitsane.
In a judgment of the Supreme Court of Appeal,
State v Musingadi
and others
2005 (1) SACR395 the court had to consider a very
similar case. Three persons entered a house intended to rob cash
from a safe.
One of the persons inside the house was the domestic
worker. The three intruders and the domestic worker were all found
guilty
of robbery and murder. They were sentenced to death.
The basis of the decision of the court was that the accused had all
agreed to participate in the robbery. Those who left the
house had
left the lady of the house to what was called her probable fate,
which was that she would be killed so that the domestic
worker could
not be identified. The court said that thereby they had shown their
agreement in the expansion of the common purpose
to rob, to include
now a common purpose to murder.
The lady who was killed, was killed after three of the robbers had
left the house. They were not even there but the court found
that
they knew that she had to be killed because otherwise she would have
identified one of the robbers, and the court said that
they had not
disassociated themselves or disengaged themselves from that murder.
They accepted that murder. I quote from certain
portions of the
judgment.
1. The judgment points out that there was a good opportunity to
steal money from the safe, to which the deceased held the key.
To
obtain that key she had to be overpowered.
2. Had the deceased survived the robbery she would have been able to
identify accused 2 as the household traitor. The deceased

therefore had to be killed in order to avoid accused 2's
detection.
The deceased's death by whatever means was in the air.
The trial court accepted the reasonable possibility that the
deceased was still alive when the men left the house, taking the

money with them. In convicting the other accused of the murder on
the basis of
dolus eventualis
the court pointed to the fact
that the accused were responsible for the deceased's captive state.
That they left her helpless.
That they must have known that the
other accused was intent upon killing the deceased, and they must
have known that she was powerless
to resist.
The court said that the accused "cannot in law just be allowed
to wash their hands of what they knew to be the consequence
of
leaving the deceased a bound, helpless captive at the mercy of a
vicious would-be murderer".
It was assumed by the point that the intent to kill was not part of
the common purpose in the first place. Therefore the court
went on
to consider whether the common purpose to rob was expanded to include
a common purpose to murder.
The accused did not dissociate themselves from the robbery because
they went off with the money and shared it. What had become
clear to
them, however, was that the robbery was developing into a murder
which would be facilitated by their own prior conduct.
By departing
the scene and leaving the helpless accused to her probable and actual
fate, the appellants must be taken to have
acquest in the expansion
of the common purpose unless they took steps to effectively to
dissociate themselves from that development.
The court commented on a number of judgments of South African and
other jurisdictions with regard to dissociation. Then went
on to say
not every act of disengagement will constitute a dissociation. Much
will depend on the circumstances; on the manner
and degree of an
accused's participation; on how far the commission of the crime has
proceeded; on the manner and timing of disengagement;
on what steps
the accused took or could have taken to prevent the commission or
completion of the crime.
What emerges from this judgment in the matter of
State v
Musingadi
is that in this case the robbers were found not to have
formed an intent to kill at the time that they planned the robbery.
I find
differently. In drawing inferences from all the facts before
me, from the knowledge of accused 1 by Mrs Patricia Kauitsane

through to the failure to take any steps at disguise, through to the
failure to restrain her by locking her up or tying her, I
can draw no
other inference than that all three of the accused intended to have
her killed from the very beginning that they planned
the robbery
otherwise they were guaranteed arrest.
If, however, I am wrong then one must examine, as was done in
State
v Musingadi and others
, the question of disassociation. Did
accused 2 and 3 dissociate themselves from the murder of
Patricia Kauitsane when
it became likely that it was about to
happen. The house I not that large. She was murdered in a passage.
They could not fail
but to be aware of what was about to, and did in
fact happen. Rooms lead off from this central passage. It is there
that her
body lies. It is there that there is blood on the wall.
They must have been aware, even if they themselves did not wield the
golf stick.
Furthermore this was not a quick death. From the wounds I have
indicated there were many, many, many blows. After the first
one
they could have stopped accused 1. Accused 2 and 3 could
have either physically or verbally stopped accused 1.
They
could have said no, let us lock her up, let us tie her up. Instead
they obviously accepted the need for her to be killed.
Even furthermore what did they do. They carried on searching. They
carried on rampaging. They left her lying in the passage,
dead or
dying. They carried out their robbery. They did not abandon their
robbery because their robbery depended upon her death.
It would not
be a successful robbery if she were not dead.
I return to
State v Musingadi
at paragraph 39, page 409
against the letters G-H:
"The greater the accuseds' participation and the further the
commission of a crime has progressed then much more will be required

of an accused to constitute an effective disassociation. He may even
be required to take steps to prevent the commission of the
crime or
its completion. It is in this sense a matter of degree and in a
borderline case cause for a sensible and just value judgment."
Assessing the evidence in this case as
State v Musingadi
the court found that the accused did not do enough. They could not
simply walk away leaving the deceased tied up and at the liberty
of
the accused who actually did the killing. They were convicted of
murder. They were sentenced to death.
In the present case accused 2 and 3 have, as I pointed out,
relied upon the death, the murder of Mrs Kauitsane in order to

achieve their robbery. They are therefore guilty of murder. If I am
wrong in that, and this was something that developed as the
robbery
went along, they are still guilty of murder because they did not
dissociate or disengage therefrom.
COMMENT ON THE WORK OF THE SOUTH AFRICAN POLICE
As has become customary now in the criminal courts one wishes to
comment on the hopeless nature of the investigation of the South

African Police. In this case I comment firstly on the fact that no
fingerprints were taken at the scene. We do not even know
whose
fingerprints were on the golf club. I comment secondly on the fact
that the items which were handed into the South African
Police
register were declared "forfeited to the state" and sent
off for auction notwithstanding that the trial had not
even
commenced.
This incompetence is not surprising, after all we learnt from
Captain Majola, who was the policeman who declared the various

what would have been exhibits, forfeit, that he moved from constable
to captain without an examination or even an interview. We
wonder if
his promotion had something to do with a family relationship to
somebody in power because it certainly had nothing to
do with greater
knowledge, charm or competence.
Finally one must comment upon the great reluctance of the South
African Police to ever take suspects to magistrates for statements
to
be made. The claim is always that magistrates are not available.
They may be difficult to find but in this case there is no
suggestion
that any attempt was ever made to find a magistrate.
FINDING
Accused 1 Thokozani Mahlangu, you are found guilty as follows.
Count 1, in the murder of Patricia Kauitsane on 18 May
2009.
Count 2, the robbery of a number of items from 14 Magaliesburg
Street, on 18 May 2009. Count 3, the unlawful possession
of a
firearm, on or about 18 May 2009 and 21 July 2009. Count 4, unlawful
possession of firearm, on or about 18 May and 21 July
2009.
Accused 2 Mandla Seluma, you are found guilty of the murder
of Mrs Patricia Kauitsane on 18 May 2009.
You are found
guilty on count 2, a charge of robbery, and the taking of
certain items from 14 Magaliesburg Street, on
18 May 2009. You
are found guilty on count 3 on unlawful possession of a firearm
on or about 18 May and 21 July
2009. You are found guilty
on count 4, unlawful possession of ammunition on 18 May and 21 July
2009. Accused 3, Jeffrey
Sello, you are found guilty on count
1, the murder of Patricia Kauitsane on 18 May 2009.
You are found guilty on
count 2, robbery of certain items from 14
Magaliesburg Street on 18 May 2009. You are found guilty on count 3,
unlawful possession
of a firearm on or about 18 May 2009. You
are found guilty on count 4, unlawful possession of ammunition on or
about 18 May
2009. In respect of count 2, the conviction of robbery
it must be noted that this is a robbery were aggravating
circumstances
as defined in Act 1 of 51 of 1977 are present.