S v Krejcir and Others (SS26/2014) [2015] ZAGPJHC 185 (24 August 2015)

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[2015] ZAGPJHC 185
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S v Krejcir and Others (SS26/2014) [2015] ZAGPJHC 185 (24 August 2015)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS26/2013
DATE:
24 AUGUST 2015
In the matter
between:
THE STATE
And
KREJCIR
RADOVAN
..............................................................................................................
Accused
1
LUPHONDO
DESAI
................................................................................................................
Accused
2
MARUPING
SAMUEL
............................................................................................................
Accused
3
NTHOROANE
JEFF
................................................................................................................
Accused
4
MIYA
SIBONISO
......................................................................................................................
Accused
5
MOFOKENG
LEFU
.................................................................................................................
Accused
6
J U D G M E N T
LAMONT, J:
[1] The six accused are charged with
three counts. Count 1 is a charge of contravening
section 5(b)
of
the
Drugs and Drug Trafficking Act 140 of 1992
in that the accused
dealt in an undesirable dependence-producing substance. Accused 1 and
2 are in the alternative to count 1 also
charged with possession of
the substance. The accused are charged in count 2 with kidnapping
one Bheki Themba Lukhele (“Lukhele”)
on 25 June 2013 and
holding him over the period 25 June 2013 until 29 June 2013. The
accused are further charged with count 3
that they attempted the
murder of Lukhele.
[2] The accused all pleaded not guilty
to all counts.
[3] The claim made was that accused 2
acting in concert with accused 1 had given one Doctor a bag
containing 25 kilograms of ice,
tik or crystal meth drugs to enable
him to export same. He had in breach of the arrangement taken the bag
of drugs for himself.
Accused 1 and 2 were urgently trying to recover
their drugs from him and decided to capture Lukhele, Doctor’s
brother and
use him to find Doctor or at least blackmail Doctor to
deal with them and return the drugs to them. In the course of the
activities
to seek to find Doctor and recover the drugs accused 1 and
2 had made use of the services of accused 3, 4, 5 and 6. Boiling
water
had been poured over Lukhele and he had been kicked, punched
and manhandled during the time he was held captive.
[4] The version of the accused who all
gave evidence was that they had been involved in neither kidnapping,
nor assault nor dealings
in relation to a bag of drugs. Accused 2’s
evidence in addition was that at or about the time of the abduction
of Lukhele
and for a day or two thereafter he had been urgently
seeking Lukhele’s brother. The reason why he was seeking the
brother
was because the brother owed him money which accused 2 wished
to be repaid.
[5] A convenient point at which to
begin a consideration of the matter is the kidnapping of Lukhele.
THE KIDNAPPING OF LUKHELE.
[6] The evidence of Lukhele was that he
was at home at about 20h20 in the evening of 25 June 2013. He heard
a knocking at the gate.
He looked through the window and saw people
outside. He went to the gate and the people who were there asked him
where his brother
was. His brother is Doctor. Lukhele stated that
his brother was not at home. One of the people showed him the
identity card
of a policeman and said that he was a policeman. The
person who showed him the identity card said that he wanted to speak
to Lukhele’s
grandmother. Lukhele opened the gate to allow
them into the yard. They asked him when he had last seen his
brother. He replied
that it had been some days since he had last
seen him. The people knew that this was not true. They interrogated
him to try to
get him to concede that he had been at a shopping mall
with his brother much more recently than he claimed. The people
grabbed,
manhandled and slapped him. There were about six people who
had come in three different motorcars, a white BMW, a Vito Mercedes

Benz and a 4x4 of a dark colour. Lukhele was forced into the BMW.
His shirt was used to cover his face and he was told to look
down.
His hands were tied behind his back with a cable tie.
[7] According to an affidavit contained
in a docket handed in by the accused, the fact that Lukhele was put
into a car by a group
of men was witnessed by Lukhele’s
neighbour one Ngcobo. Ngcobo on 29 June 2013 at 14h00 (prior to the
release of Lukhele)
laid a charge that Lukhele had been kidnapped.
He made an affidavit at 11h45 that day setting out that Lukhele had
been kidnapped
by a group of men in a vehicle which he believed to be
a Toyota the registration number of which he provided. Pursuant to
this
charge being laid a docket was opened. That docket bore case
number CAS No 303/6/2013. Ngcobo was not called as a witness. The

docket was produced in evidence by the accused. It contains the
hearsay statements set out above. The evidence about the incident
is
inadmissible to establish its truth. The fact that at the time when
the docket concerning the incident at Lukhele’s residence
is
admissible, however, those facts establish that prior to the release
of Lukhele, a charge that he had been kidnapped had been
laid and
these corroborates Lukhele’s evidence that he in fact was
kidnapped.
[8] Lukhele said that the reason given
by his captors for capturing him was that Doctor had taken their
money. After he was put
in the BMW, Lukhele was taken to a house. In
the house there were a number of people present. He was manhandled,
kicked, slapped
and punched. He was also threatened by a white
person. The purpose of the interrogation was to find out where his
brother was.
During the course of the interrogation Lukhele was
forced to sit on the floor facing a corner. One of the persons
attacking
him spoke in English and said that Lukhele’s brother
had robbed him of money and that he wanted the brother as well as the

money. The blindfold over Lukhele’s eyes was removed by a
person identified as accused 5 by Peter. The person who had spoken

asked Lukhele if he could see him and Lukhele was asked to look at
his attacker. He was also asked whether he knew his attacker
and
whether he was prepared to die like a soldier. Lukhele said that he
could see him. This person asked where Lukhele’s
brother was.
Lukhele did not finish the answer. The person who had asked the
question poured boiling water over his head. Lukhele
was able to
identify the person who had poured the water over him as accused 1.
Lukhele suffered injuries including blistering
of his skin in
consequence of the boiling water being poured over his head. He was
subsequently kept in a safe house. He was at
a point taken to Ermelo
to find his brother. Apart from that trip he was kept in the safe
house until his release some days later
on 29 June 2013. The details
of these events are dealt with more fully below.
[9] On 30 June 2013 he went to the
doctor. The doctor, Dr Nkosi recorded his observations as follows:
“Burn wound (primary).”
He prescribed treatment and
required his patient to return after two weeks. All this appears
from Exhibit “DDD”.
A form J88 was completed not by Dr
Nkosi but by Dr Ndlandlamandla. That form reveals under general
history that the patient had
come with a history of being burnt by
boiling water being poured on his head, the left side of his face and
left chest. The form
indicates that there was a primary (first
degree) burn wound over the head and left side of the face and cheek.
The picture on
the form (page 4) was completed and showed markings
intended to indicate the place where the injuries were situate on the
left
side of the head and face and the top on the left side of the
head. These markings were not made by the treating doctor. On 20 May

2014 (during the trial) Lukhele was examined and a report prepared
and handed in as Exhibit “H”. That report revealed
that
Lukhele evidenced scars of year old burn wounds including a big scar
on his right shoulder and scapula, a small scar on the
left shoulder
and a scar on the left cheek. Markings were made on page 4 of a
different J88 reflecting the situation of the scarring.
[10] That examination was made and the
findings written in the absence of the defence counsel. Defence
counsel wished to examine
Lukhele to ascertain whether or not the
findings were accurate. In order for this examination to take place
in a dignified manner
Lukhele, by consent of, all was taken to Dr Mia
who filed a report Exhibit “P”. The findings contained in
the report
were common cause. They showed hyperpigmented lesions over
bilateral shoulders extending anteriorly onto clavicles. They were
also bilaterally visible over scapulae and the right shoulder. The
lesions were flat and had a “geographical” nature.
A
left clavicular hyperpigmented area was noted as well. In addition
the right forearm evidenced an old scar and skin grafts.
These skin
grafts and scar antedate the kidnapping. The left hand also had been
injured and showed hyperpigmented areas on some
of the fingers. The
doctor’s conclusion was “Hyperpigmented old scars with
‘geographical’ pattern over
left pre-clavicular area,
face, bilateral shoulder and scapula areas and over clavicles.
Consistent with but not exclusive to history
of eleven month old burn
wounds”. Page 4 of the J88 was completed and reflects where
the injuries were seen. The injuries
seen by the doctor (an expert in
the field) were common cause as reflecting the condition Lukhele was
in at the time of trial.
His opinion was also not challenged by
anyone.
[11] Lukhele stated that he had not
suffered any other relevant injuries. The only source of the
remaining injuries beyond doubt
is the pouring of boiling water over
him about 11 months before the examination. Eleven months before the
examination was at a
time when Lukhele was kidnapped.
[12] The doctor who treated Lukhele, Dr
Nkosi gave evidence and made light of his injuries stating that from
his notes there would
only have been a redness of his skin and not a
blistering. This evidence is not in line with his treatment of
Lukhele. He prescribed
Diclofenal, Furox, Savlon and Emerite; drugs
to deal with sepsis and pain.
[13] The objectively ascertainable
facts show that there is pigmentation of the skin caused by damage to
it. Various State witnesses’
including Lukhele described
blistering. Even on the treating doctor’s evidence there was
evidence of burning of the skin.
His issue related only to the
severity. It appears to me that he was attempting to explain away the
inadequate attention that he
had given his patient. There would have
been no sepsis to treat without open wounds. The only open wounds
referred to by the witness
are caused by the burn. Hence Lukhele had
open wounds when seen by Dr. Nkosi. In my view beyond reasonable
doubt there was blistering
and such blistering left the
hyperpigmented areas seen by Doctor Mia.
[14] The fact that a charge concerning
the kidnapping was laid prior to the release of Lukhele is
corroborative of the fact that
he was kidnapped. There is evidence of
his having been burnt and sustaining injuries consistent with the
burn emanating from boiling
water being poured over him. He did not
burn himself, someone burned him. Lukhele went to consult a doctor
(the day after his
release) at the first reasonable opportunity. The
only inference is that he was in sufficient pain to require
treatment. The only
inference to be drawn is that he was kidnapped
and that while he was in the control of the kidnapper he was burned
by boiling water
being poured over him.
[15] These facts establish in my view
beyond reasonable doubt that Lukhele was kidnapped on 25 June 2013
and that he was assaulted
by the pouring of boiling water over him.
[16] The duration of the kidnapping can
be determined with reference to Lukhele’s conduct as well as
his ipse dixit Lukhele
stated that he was held until 29 June 2013.
The fact that he was so held is corroborated by the fact that at the
first reasonable
opportunity when he could go to seek treatment (30
June 2013) he did so. I accordingly find that Lukhele was held from
25 June
2013 until 29 June 2013.
[17] I accept Lukheles evidence that he
was kidnapped held, over the period slapped, manhandled, kicked,
punched and burnt as he
stated in his evidence.
CRITICISMS MADE OF LUKHELE’S
EVIDENCE.
[18] Lukhele in his statement did not
distinguish between being held at the place where the assault took
place and at a safe house.
He was severely criticised for this.
This criticism is dependent upon whether the statement was taken
accurately by a person
who asked the right questions to get the whole
story accurately. The police investigation in the matter will be
dealt with later.
For present purposes it is necessary only to note
that three attempts were made to get Lukhele’s statement and
the result
remains a poor effort. In my view all the statements were
taken in a slapdash way without proper attention to the facts they
needed
to cover. Hence there are multiple omissions and apparent
inconstencies in them. In addition a statement is generally a précis

of facts and one should expect omissions when the larger picture is
pieced together and produced in evidence.
[19] Lukhele in his evidence before me
indicated that he had originally been assaulted at an office in a
house and had subsequently
been kept in a different house. I accept
this evidence of his. It is supported by the evidence of other
witnesses with whom I
shall deal later. Importantly it is supported
by the cell phone records of Peter Masimango (“Peter”)
which indicated
that he spent time in Kensington near where the safe
house was situated and where he said he had guarded Lukhele. These
records
corroborate that Peter was with Lukhele on the day and at the
place he said that he was requested to guard Lukhele.
[20] The offices of Money Point are
situated within a house. Lukhele correctly identified the place where
he was held initially.
The probabilities favour, that Lukhele would
not have been detained in the office at Money Point during working
hours and overnight,
but would rather have been kept elsewhere. The
explanation for the apparent discrepancy as to where Lukhele was kept
is in the
poor statement taking of the police.
WHO WOULD WANT TO KIDNAP LUKHELE.
[21] It is apparent from the evidence
of Lukhele that there was no person looking to kidnap him and that
there wasn’t any
reason why he should be taken and held captive
never mind be assaulted. During the course of being held captive he
was taken to
Ermelo. There was no reason why on his own he would go
there.
[22] Lukhele provided a reason for his
being kidnapped, assaulted, detained and transported to Ermelo. That
reason was that the
person who had done these acts was seeking his
brother Doctor. That person sought to find Doctor by forcing Lukhele
to disclose
his whereabouts and/or blackmail Doctor into handing
himself over to secure the release of Lukhele.
[23] The evidence of accused 2 was that
he was looking for Doctor and that at the material time he made use
of Peter and Paul to
help him look for Doctor. Peter and Paul
corroborated those facts. Accused 2 said that he did not kidnap
Doctor’s brother
and further that he was not looking for drugs
but for money. This evidence will be dealt with in more detail as the
story unfolds.
[24]The inference is irresistible that
the only person conducting a search which in any way was linked to
Lukhele is accused 2.
The State witnesses describe accused 2 as being
the person who was involved. It is common cause that accused 2 at the
relevant
time was seeking Doctor and that, that search for Doctor was
urgent. Accused 2 on his evidence owed money to his creditor which

he was unable to pay easily as that money had been lent to Doctor and
Doctor had not repaid it to him. Accused 2 sought corroboration
for
the fact that he was looking for Doctor for money which had not been
paid in the evidence of Lukhele who said that he was told
that his
brother Doctor was being hunted in order to obtain money which had
been given him. The only person hunting anyone whether
for money or
drugs at that time was accused 2. The inference that accused 2 was
the hunter is irresistible and I so find. The fact
that Lukhele said
that the kidnappers were looking for money corroborates only that
that is what he was told. It was accused 2
who implemented (together
with others) the steps taken to kidnap Lukhele. The kidnapping of
Lukhele was designed to flush out
Doctor. Accused 2 and others went
to Ermelo where Doctor was believed to be. They took Lukhele with
them to help find Doctor once
they were there. The fact this trip was
undertaken further links the kidnapping of Lukhele to a hunt for
Doctor. The only person
wanting to flush out Doctor was accused 2 on
his own evidence. The evidence was that he was present at the time
that the boiling
water was poured over the head of Lukhele. I accept
that evidence. I accordingly find that accused 2 was a participant in
respect
of that incident too.
WHY HUNT DOCTOR.
[25] The courier, Doctor convincingly
describes a plan to export drugs and its implementation. The extent
of the search and the
facilities (including the employment of Peter,
Paul and sundry policemen) used indicate that the hunt was for
something of significant
value. Accused 2’s evidence was that a
large sum of money changed hands. The evidence of the State
witnesses concerns a
lot of money changing hands. Accused 2 has a
different causa for the money changing hands; he said it was a loan
to Doctor. He
needed the money back to pay his creditor. The reason
why suddenly on the Monday the matter became urgent is on accused 2’s

version unexplained. When was he being pressed for payment; when was
he to make the actual payment. Why could he not get terms
as he
appears ultimately to have easily been able to manage. After a few
days searching for Lukhele he gave up. There was no reason
on his
evidence to suddenly stop a very extensive and expensive hunt. The
reason for stopping the search is much more likely to
be because he
believed at the time the bag of drugs was irrecoverable. It is
impossible that being forced to pay any amount to
his creditor would
at a point make the matter urgent for accused 2 and that it would be
less urgent once he had actually paid his
creditor out of his own
money. It is much more probable that accused 2 if he was forced to
pay his own money would redouble his
efforts to find Lukhele
[26] The evidence of accused 2 on this
issue is unacceptable and I reject it. The evidence of all the State
witnesses was that a
considerable quantity of drugs which accused 2
had given Doctor was the subject of the search. Accused 2 was hunting
Doctor to
retrieve a bag of drugs. In the course of that hunt accused
2 kidnapped Lukhele and was party to the assault on him.
WHO ELSE KIDNAPPED LUKHELE ON LUKHELE’S
EVIDENCE.
[27] After Lukhele’s capture and
during the interrogation boiling water was poured over him.
Immediately prior to the boiling
water being poured onto Lukhele a
white person indicated to Lukhele that, he, Lukhele should look at
him. He had previously been
told to look down and had had his eyes
covered. However when he was asked to look at the person he did so.
He looked long enough
to be able to identify accused 1 as being that
person. He was forced to look at the person, saw the kettle in his
hand and then
the water was poured over him.
[28] It was submitted that this
identification of accused 1 constituted a dock identification and was
unreliable. Lukhele was certain
who he had seen. He had looked in
response to being asked to do so. It appears to me that in the
circumstances there is no reason
why his looking should not be
accurate. He was specifically inspecting accused 1 for a period of
time in response to accused 1’s
request. His identification of
accused 1 as the perpetrator of the act of pouring boiling water on
him is also corroborated by
other witnesses.
[29] In addition the events according
to the evidence of other witnesses took place at Money Point a place
which is frequented by
accused 1.
[30]In the light of these facts
(witness’ evidence and the fact Lukhele was taken to Money
Point) the identification by Lukhele
of accused 1 as a participant in
the kidnapping and the perpetrator of the assault constituted by
pouring boiling water over him
is established beyond reasonable
doubt.
[31] Lukhele identified accused 4 as
being one of the persons who had kidnapped him from his home on the
evening of 25th June 2013.
He identified accused 4 as being the
person who had produced his appointment card as a policeman. He also
identified him as being
the person in a lumber jacket. He described
certain physical features of accused 4 and said that he had seen him
and was able
to identify him properly; he had seen him over a period
of time and interacted with him.
[32] Paul identifies accused 4 as being
the person who was in the Mercedes Vito at the time that the party of
hunters went to Ermelo
with Lukhele with a view to finding Doctor.
He went to the Vito when accused 3 was unable to open the car door as
he was using
the incorrect key. At that time the original travellers
in the car (which included accused 4) had returned to it. The
submission
was made that he had not expressly said that accused 4 had
returned to the car. It is apparent from the evidence of Paul however

that the persons who had been in the car had returned to it there
were no others. Accordingly accused 4 was present.
[33] The identification by Lukhele was
challenged as being a dock identification made by a witness who had a
limited opportunity
to see the accused. Lukhele was accurate in his
identification. He identified accused 4 as a policeman. He
identified him as
being a person wearing a lumber jacket. It was
never denied that accused 4 had a lumber jacket it was only denied
that he was there.
The fact that Paul saw accused 4 participating in
activities involving the hunting down of Doctor of which the
kidnapping of Lukhele
was part corroborates the evidence of Lukhele.
[34] There are inconsistencies within
the evidence of Lukhele itself and as given in court against the
evidence in the three statements
which were taken from him.
[35] Those inconsistencies and
conflicts are mainly constituted by omissions and pale into
insignificance when the major probabilities
of the case which I have
set out above are considered. It appears to me that a number of
statements were taken from him by police
who had no understanding of
the issues, how to take statements or what the adequacy of the
statements was. I do not accept that
the conflicts between the
evidence and the matters contained within the statements demonstrate
recent fabrication or a change of
version on the part of Lukhele. I
rather consider that the statements were inadequately taken and do
not properly reflect what
he intended to say.
[36] I find that the events described
by Lukhele took place and that his identification of accused 1,2 and
4 is reliable beyond
reasonable doubt.
THE DRUG DEALERS.
[37] It is convenient now to consider
the matter from the perspective of Lukhele’s brother Doctor and
his co-worker Bhekizetha
Khumalo (“Sobaba”). This will
introduce the early stages and set the stage for the events which
took place.
[38] Doctor’s evidence was that
during 2012 he met accused 2. He, Doctor worked as a supervisor in
the baggage section at
the airport. Accused 2 suggested that Doctor
could assist with the dispatch of a parcel to Australia. Accused 2
said that he
was involved with a white person who would make their
lives change. The assistance related to the export, illegally, of
drugs.
They would test whether it was possible to export the drugs.
They did so and one of the dummy runs at least was successful in that

a 5kg quantity of drugs was successfully exported during May 2013.
Doctor was paid money for his work. This money was only a part

payment of the full amount due to him.
[39] In June 2013 during the first week
Doctor and accused 2 met. By then accused 2 had not paid Doctor the
balance outstanding
in respect of the previous dummy run. Doctor was
disgruntled as he was working and being involved but not receiving
the payment
which he was supposed to have received. Later accused 2
made an arrangement to bring a bag to Doctor on a Saturday. Doctor
was
working a morning shift. Doctor decided that he would not export
the bag to Australia as he had agreed to do but would rather sell
it
himself. He made arrangements that once he had the bag he would sell
it to one Morris. On 22 June 2013 accused 2 brought Doctor
the bag
of drugs he was to export to Australia. Doctor took the bag from
accused 2’s car and put it in the car of Sobaba.
Accused 2
left. Doctor and Sobaba drove off and Doctor shortly thereafter
handed over the bag to Morris. They all went to Benoni.
At the
house to which they went the bag was opened by Morris. There were
small parcels inside, roundish in shape and wrapped in
silver tape.
In all there were twenty-five parcels shaped like a fist inside the
bag. These twenty-five parcels had been described
previously by
accused 2 as being the drugs which were to be exported to Australia.
Morris said that he would find a buyer but he
did not know what the
things in the bag were. Doctor naively believed the things in the
bag to be ice meaning frozen water. He
did not want to take the
little parcels with him in case they melted. This belief of Doctor
can only have arisen because he was
told they were ice. The next
morning accused 2 came to Doctor’s door. He asked what had
happened to the bag. Doctor explained
that he had been searched by
police who had taken the money which he had in his possession as well
as the bag. Accused 2 did not
believe him. Accused 2 spoke to
someone on his phone and then handed the phone to Doctor saying that
a white man wanted to talk
to him. Doctor was told that he should
sort the matter out as the “Hawks” from Pretoria had been
to the airport and
had said that no one had been arrested. Accused 2
said the thing should be sorted out before it got rough. Accused 2
took Doctor
to the airport. Doctor stayed there until it was time to
go home. He and Sobaba then left and went to Tembisa. On the Monday
Doctor went to work. Accused 2 phoned to have a meeting. Doctor was
told that the failure of the drugs to arrive and the loss of
the
drugs affected many people. They arranged to meet at a garage in
Tembisa. Doctor spoke to Morris who said that the best he
could raise
for the parcels was R100 000,00. Later there was a meeting between
accused 2, and two others he brought with him (Peter
and Paul);
Sobaba, Doctor and three brothers at the garage. Accused 2 and the
two others had come in a kombi. Accused 2 told Doctor
that a white
man wanted to see Doctor and that he should agree to a lie detector
test. Doctor refused. They separated. Doctor spoke
at the garage to a
man (Morris) who was in a Navara. He received payment from Morris. He
followed the Navara and unbeknown to him
was followed by accused 2,
Peter and Paul. On the way the Navara stopped and they also stopped.
Accused 2, Peter and Paul fearing
detection drove on. This meeting
and the following of Doctor is described by accused 2, Peter, Paul,
Doctor and Sobaba. The issue
is only what happened at the meeting.
The probabilities favour that the discussion concerned the missing
drugs as the State witnesses
describe.
[40] Later Doctor told his brother
Lukhele to meet him at the mall. He told Lukhele that he thought that
he should hide for a bit
as he had done something which could get his
family and the brothers into trouble. Doctor went to Ermelo. That,
evening (23 June
2013) Lukhele, phoned Doctor and said there were
people at the yard. When he tried to phone him again he could not get
through
so he phoned the neighbour and asked the neighbour to see
what was happening. The neighbour must have been Ngcobo. He gave
Doctor
the registration number of the car and its colour. Doctor
saved that information. Subsequently that night he received a phone
call from his brother Lukhele. Lukhele however did not speak to him
it was someone else. He was told that he thought he was clever
and
he heard the voice of his brother Lukhele saying that his Lukhele’s
life was in his hands. This evidence is corroborated
by Lukhele who
described such a phone call taking place. According to the evidence
of Peter this call was made from Lukhele’s
phone in the
presence of accused 5 who on the evidence spoke to Doctor.
[41] The evidence of Doctor is
corroborated by other State witnesses and in part by accused 2.
[42] Bhekizetha Khumalo also known as
Sobaba gave evidence. He was with Doctor when the bag of drugs was
handed over to Doctor.
He did not know the person who handed over the
bag and did not interact with him. After the bag was handed over they
drove away
and the bag was handed over by Doctor to a man in a
Navara. He and Doctor followed the Navara. In due course the bag
was opened
and it contained little parcels wrapped in plastic which
were silver-grey in colour. There were twenty-five of them. He did
not
know what was inside the parcels. During the night he was phoned
by a person who was not known to him. That person asked to meet
him.
He agreed to meet the person in Tembisa at an Engen garage. He met
accused 2 at the garage. Accused 2 asked what had happened
to the
bag and explained that he was having difficulty making contact with
Doctor. Sobaba said he did not wish to become involved
and that
accused 2 should speak to Doctor. The next day while he was at work
he got a phone call from Doctor who told him that
the person who had
given him the bag (accused 2) had come to his house to try and find
the bag. He said that he had told accused
2 that the police had the
bag. Sobaba spoke to accused 2 on Doctor’s behalf. Accused 2
said he wanted to see the two of
them to get an explanation about the
bag. Accused 2 informed him that the owner of the bag was looking
for it and that it was
not his accused 2’s bag. They agreed to
meet at Tembisa at a Sasol garage at 18h00. At the meeting Doctor
reiterated that
the bag had been taken by the police. Accused 2 said
that it was accused 1’s bag and that he was demanding that it
be returned.
He said further that accused 1 was fighting with
accused 2. While they were together accused 2 phoned someone and gave
the phone
to Doctor to speak to that person. At the time he handed
over the phone accused 2 said “Here is Radovan Krejcir, Doctor
speak to him”. Doctor spoke to the person and an argument
ensued over the phone. The next day Doctor spoke to Sobaba and
told
him that he could not sleep as accused 2 had been phoning him
continuously trying to get a meeting organised. They agreed
to meet
at about 18h00. Sobaba asked his three brothers to come with them.
They were to meet at a Sasol garage at Natalspruit.
When they arrived
at the meeting place three people came to the vehicle two were
unknown and one was accused 2. Accused 2 said
that they should go to
Bedfordview so that a machine could check whether they were telling
the truth. They refused. While they
were at that place Doctor went
to a white Navara and spoke to the occupant. When he returned, he
said they should follow the white
Navara which they did. Eventually
a black plastic bag containing money was handed over. The money was
said to be R100 000,00.
Sobaba had already been given R10 000,00 for
the transport. That is the last he knew of the matter.
[43] His evidence corroborated the
evidence of Doctor. His statement was put to him at length and there
were discrepancies of a
minor nature between the statement and his
evidence.
[44] In my view the witnesses with
whose evidence I have dealt namely Lukhele, Doctor and Sobaba were
honest witnesses, told the
truth and are credible. Their evidence
accords with the probabilities and is reliable.
THE PLAN TO EXPORT.
[45] The evidence of Doctor establishes
vividly that after a successful dummy run an arrangement was made to
export drugs. The arrangement
was made with him by accused 2 who
delivered the drugs to him. He did not know if the drugs were
actually drugs as he did not
check the contents of the parcel but he
was told by accused 2 that they were drugs. He beyond reasonable
doubt was told the parcels
contained ice this is what he believed to
be in the parcels. He patently had no idea that ice is a type of drug
and does not have
the characteristics of frozen water. The only
person who could’ve told him the parcel contained ice is
accused 2.
[46] Doctor explained how he had
intended to export the drugs and how the drugs comprising the dummy
run had in fact been exported.
He had found a weakness in the system
which he was able to manipulate to get the drugs aboard an aircraft.
That system involved
generating and attaching a label to the baggage
and then pretending that it was baggage which had been left behind by
a passenger
who had already flown out or who was imminently due to
fly out.
.
[47] It is not clear whether Doctor
discovered the weakness in the system before or after he met with
accused 2 to arrange for the
transport of the drugs. It is probable
that having discovered the weakness he would manipulate it to his
benefit. This lends credence
to the fact that there would be a test
run to check whether the weakness he had found would actually prove
successful when manipulated
and would be followed by a “real
shipment” if that dummy run proved successful.
[48] In my view it is improbable that
Doctor would have dreamed up this detail he provided about how the
plan could be implemented
and how he came to implement it.
THE HUNTERS.
[49] Peter Msimang indicated that he
had received a phone call from a friend of his one Paul. Paul had
asked him if he could see
him immediately and arrangements were made
to meet at Eastgate. When Peter arrived at Eastgate he found Paul in
the company of
accused 2. Accused 2 was a person unknown to him.
Paul in the presence of accused 2 explained that a friend of accused
2 had taken
a bag containing 25 kilograms of crystal meth also known
as Tik. This person was known as Doctor who was employed at the
airport
and who lived in Katlehong. Paul asked whether Peter would
be able to help recover the bag as he knew his way around Katlehong.

The assistance which Peter would provide would be to go with Paul to
Doctor’s home and act as a backup. In return he would
receive
2 kilograms of the Tik if it was found. Accused 2, Paul and Peter got
into Peter’s car and drove to Doctor’s
home. They drove
past Doctor’s house which was pointed out by accused 2 as they
drove past. Accused 2 explained that the
bag had been given to Doctor
and one Sobaba on a Saturday. At the time the bag had been given to
Doctor, money had also been given
as part-payment for the
transportation of the bag to Australia. All in all Doctor would
receive in the region of R250 000,00 to
R300 000,00. Accused 2 said
that prior to handing the bag over to Doctor there had been a meeting
between himself, accused 1 and
Doctor. After the meeting and
unbeknown to Doctor, Doctor had been followed back to his home so
accused 2 knew where he lived.
A previous consignment had been sent
using Doctor’s services. This consignment was approximately 5
kilograms and had been
successfully exported. By reason of the
success of the first conveyance the second conveyance (the current
one) was increased to
25 kilograms. While they were in the car in the
immediate vicinity of Doctor’s home accused 2 asked Peter to go
to Doctor’s
house and see if he was there. Peter went to the
Doctor’s home and met with his grandmother. She told him that
Doctor had
just left with his younger brother. Peter told accused 2
and Paul this. When Peter had entered Doctor’s home he told
the
grandmother that he was Jeff using a false name. While they were
in the car accused 2 phoned Doctor and spoke to him. He asked
Doctor
where he was and arrangements were made to meet. Peter, accused 2 and
Paul went and waited for Doctor who did not come.
Accused 2 phoned
Doctor who said they should meet at about 6 o’clock. Peter told
accused 2 and Paul that Doctor was playing;
he believed it unlikely
that they would see Doctor at 6 o’clock. This, notwithstanding
they waited for Doctor. Accused
2 telephoned Doctor again and they
were directed to a white minibus which he was told to meet at a
garage. They found the vehicle.
Inside the vehicle were five men
unknown to Peter. Doctor came out. When he came out he was speaking
on the phone giving a person
direction. The person to whom directions
had been given came (this person must be Morris) and Doctor spoke to
him and then returned
to accused 2, Peter and Paul. Accused 2 spoke
to Doctor telling him that the boss was looking for him as he
understood that the
bag was lost. Doctor should come with them to
take a lie detector test. During the discussions a person known as
Sobaba stopped
accused 2 and asked who Peter, accused 2 and Paul
were. He was assured that they were friends. Doctor indicated
during the discussion
that as he had no guarantee that he would
return alive if he went with them he refused to do so. Doctor said
that while he would
not go and see the boss he would meet Peter,
accused 2 and Paul the next day. Accused 2 explained to Peter that
the boss is accused
1. They observed Doctor and the people he was
with for a while but decided that they had become aware of the fact
they were under
surveillance and so they left. They returned to
Eastgate. Accused 2 telephoned the boss (accused 1). He said that he
had found Doctor who refused to undergo a lie detector
test. Accused
2 told accused 1 that Doctor had said that the bag had been
confiscated by the police and been impounded. He also
told him that
they would meet again tomorrow. Peter said he had a problem and
needed money which was given to him by accused 2.
The next day
accused 2, Paul and Peter met at Eastgate. They decided to use
Paul’s Mercedes Benz. They went to Natalspruit.
On the way
accused 2 phoned Doctor but was unable to speak to him as his phone
was off. Eventually he managed to speak to him.
Accused 2 told Peter
that Doctor was evasive and would not meet or deal with him. The
vehicle they were in developed a mechanical
problem and they stopped
to give attention to it. At that stage accused 2 said that accused 1
had said they should kidnap the
youngster who is a member of Doctor’s
family. Peter asked accused 2 how this could be achieved. Accused 2
said that accused
1 had said that he would send his own “police”
to do the work. Paul left and accused 2 and Peter continued to wait.

They waited at a filling station outside a Debonairs. While they were
waiting there a white BMW 535 came. Accused 2 told Peter
that these
are the boss’ boys. He added that they would wait for the boss
himself. After a short while accused 1 arrived
in a white Mercedes
Benz. Accused 2 called Peter over and introduced him to accused 1 as
the boss. Peter recognised accused 1
as he had seen him previously
on television. The lighting was good. Accused 2 said “he is
Radovan”. After the introduction
Peter had left them alone.
After a while accused 1 had driven away. He did not hear the
discussion between accused 1 and 2.
The discussion was however
relayed to him by accused 2 who said they should wait as the police
were on their way. Doctor would
get a message that accused 1 and 2
were no longer playing games. The police came in a Ford Focus sedan
which was maroon in colour.
Peter was only able to recognise accused
3 amongst the persons who arrived. Peter did not wish to participate
in the kidnapping
and for this reason he went to Eastgate leaving the
others to attend to the kidnapping. After he returned to Eastgate he
was told
by accused 2 that they had kidnapped the young man and that
he should go to the office. The office was situated at Money Point

near Eastgate. When Peter got to the office he found many people
there. Accused 1, accused 2, one Johnny, one Mike, one Ronny
and the
person who had been kidnapped. Of the people in court the persons
present were accused 1, 2, 3, 5 and 6. In addition
Lukhele was
present. This was the first time Peter had met accused 5, accused 6
and Lukhele. Lukhele was facing a corner sitting
on the floor. His
hands were bound behind his back. His head and face were covered with
a hat. The persons present asked him questions.
He said that he had
last seen Doctor two days ago. It was however known that he had seen
Doctor much later than that and he was
confronted with the fact that
Peter had been to Doctor’s home and knew this. Lukhele was told
that he was telling lies.
He was kicked by Ronny, accused 6,
Khanyiso and others. He was also slapped. Lukhele asked if he could
phone Doctor. At a point
in time accused 5 took the blindfold off
Lukhele. Accused 1 said to Lukhele “I want you to look at me.
Do you know me? Why
are you lying? You were with him in the day.
Are you prepared to die like a soldier? That is fine.” (As is
apparent from
what accused 1 said he knew the facts which had been
obtained from Lukhele’s grandmother). Accused 1 brought a
kettle, which
contained boiling water and poured it over the top of
Lukhele’s head. Lukhele experienced excruciating pain and
screamed.
He had blisters on his skin. Lukhele asked if he could
phone Doctor. Accused 1 said they should leave the premises to enable
the phone call to be made and that the phone should not
be assembled
until they were well away from the premises. Peter, accused 2,
accused 5, Khanyiso and Lukhele left to enable the
phone call to take
place. When they were far from Money Point the phone was assembled.
Lukhele telephoned Doctor and told him
that his life was in his
hands. He told Doctor to return whatever he had taken for if he died
it would be because of Doctor. Accused
5 took the phone and said
that he was Sbu. He said that Doctor should make things easy by
returning the goods he had taken so
that Lukhele could be set free.
The response of Doctor was that he had been provoked and that it was
a serious matter for which
they could be arrested. Doctor further
said that he could come the next day. Accused 5 suggested they
should meet immediately
and deal with the matter. Doctor told
accused 5 that he could only come the next day. It was agreed that
they would meet the next
day and the phone was taken apart. They
returned to Money Point and what had happened was explained to
accused 1. Accused 1 said
that Lukhele should be taken to a house.
Lukhele was taken to the house which was empty. Accused 2 opened the
house. Lukhele was
left in the house guarded by accused 2. Lukhele
was offered a box to lie on so that he did not have to lie on the
cement floor.
Accused 5 gave accused 2 a handgun to arm himself so
as to properly guard Lukhele. Accused 2 told Peter to come the next
morning
to relieve him. The next morning accused 2 telephoned Peter.
He was told to fetch Paul. Paul did not know where the house was
so
Peter would have to fetch Paul and take him to the house. Peter went
to Eastgate and met Paul who said that Peter should take
him to the
house as he did not wish to use his vehicle. They went to the house
where they found accused 2. Accused 2 left in Paul’s
vehicle
leaving Paul at the house and Peter went home. At noon that day Peter
met accused 2 and Paul at Eastgate. They all went
to Money Point. The
persons at Money Point included Peter, Paul, accused 2 and accused 5.
One Mike arrived and said that he had
found a member of the police who would be able to trace Doctor using
a cell phone. It was
established that Doctor was in Daveyton at his
wife’s house. Paul, accused 2, accused 5 and Khanyiso went to
the house looking
for Doctor. He was not there. The next morning
they heard that Doctor was in Ermelo. Accused 1 who was present said
that they
should get Lukhele to explain how to get to that place.
Lukhele was brought and said that that place was his and Doctor’s

home. He said that Doctor would be there and that he would be able
to show them where the place was. Accused 1 said that they
should get
the “police” to go with them to Ermelo. They went to
Ermelo in a convoy comprising a white Ford Ranger,
a white BMW 535
and a white Vito panel van. The persons who were involved included
accused 2,3,4,5 and 6. Accused 5 paid for
the petrol for the cars
and for snacks with money given to him by accused 1. Eventually they
found the place where Doctor was
suspected to be. The members of the
police went to the place. Those persons were accused 3 and accused 6.
They spoke to Doctor’s
father. They showed their appointment
cards and said that Doctor had messed up in Johannesburg. Doctor’s
father said that
he suspected that there was a problem with Doctor.
Doctor was not present. When they returned to the Mercedes accused 3
could
not open it as he was using the wrong key. Peter went to the
Mercedes to look what the problem was. At this point he would’ve

been in close proximity to accused 4 who was to travel in the
Mercedes. Hence he could not make an error concerning the
identification.
They returned to Money Point from Ermelo and sat
there for about an hour. They reported what happened to accused 1.
Accused 2
later said that they should rest and they would meet later
in the afternoon. Later they met again at the Money Point office.
It was accused 5, Khanyiso, Paul, accused 2 and Peter. Accused 1 was
present and they all discussed the way forward. Accused 1
suggested
that Lukhele should be killed. Paul, Peter and accused 2 did not
agree to kill Lukhele and the matter was discussed.
Accused 5 said
they were concerned with drugs during this conversation. Accused 5
was aware that he was involved in a hunt for
drugs. There were
complaints about the money which Peter wanted to be paid and accused
2 was told that this would be dealt with
the next day. It was agreed
that Lukhele would not be killed.
[50] Peter was extensively
cross-examined about his statement and in relation to shortcomings in
it. Peter’s evidence in
court was more detailed than the facts
set out in the statement. He was asked as to omissions in the
statement. His evidence was
that he himself had edited the facts
which he provided the policeman and that the policeman had edited the
facts by not writing
down all the matters which he told him. He was
being asked for many more details in court than he had furnished at
the time he
made his statement.
[51] Where there are discrepancies
between the evidence of a witness and his statement it is necessary
to consider whether or not
these discrepancies are innocent or
whether they reflect either:
faulty recollection by the witness;
deliberately given differing sets of facts.
[52] There were discrepancies between
the statement which he had made and his evidence. Peter stated that
the statement if it was
inaccurate could be because he himself had
not given as much detail in the statement and also had not been asked
about such detail
as also not everything which he had said had been
written out. There were numerous differences in the detail within the
evidence
he gave as opposed to the statement he had made and with
regard to other witnesses. In my view these discrepancies do not so
detract
from his evidence that it is not credible. The evidence which
he gave consisted of events which took place over a long period of

time and in respect of which he gave extensive detail. He was
cross-examined extensively on cell phone records and his whereabouts.

There were discrepancies as to what he had said and where he had been
as opposed to what the records disclosed. In my view these

discrepancies are not material for the simple reason that it is
common cause that he was a participant in at least certain of the

events which I have found to have taken place as I have set out
earlier and for the reasons which I have set out. There is material

corroboration for each of the material aspects of the evidence he
gave. As with the evidence of Paul it matters not who went to
whose
house or at what precise time. What matters is that there were in
fact meetings as described; that events took place as described
and
that persons were involved as described.
[53] He was extensively cross-examined
over a period of weeks as to what had happened subsequent to the
events in question. The
relevance of the cross-examination was it
appeared to me to attempt to establish that there was a conspiracy by
the police to justify
the arrest of at least accused 1 and 2. No
such conspiracy was ever established neither was there any evidence
of such a conspiracy.
[54] There was lengthy
cross-examination as to the involvement of one Colonel Ximba in the
matter. Peter agreed that he well knew
a person known as Colonel
“Killer” Ximba. The colonel is a policeman who owns a
carwash business. It was suggested
to him that Ximba was involved in
the dealings which he had had with the kidnappers. He denied that
this was so. He explained that
he often spoke to Ximba, but Ximba had
nothing to do with the events. It was suggested that Ximba was a
participant in the events.
It was also suggested that he was the
person who had influenced accused 2 to make a statement at a point in
time. Whether or not
he was involved in the affair is of no concern.
The only reason it might be of some concern is if he was a
participant in a plot
to inculpate accused 1 and 2. No such plot has
been established. His participation in the events is irrelevant.
Even if he was
a participant the fact that he was not charged in the
present matter has no impact on the facts or whether or not the
offences
were committed.
[55] Peter conceded that he was a
criminal; that he had been arrested for a number of crimes. He had
laid a charge against Colonel
Ximba as he believed Ximba had dealt
with him improperly. This colonel was the colonel who, at a point,
accused 1 indicated may
have participated in a discussion with him.
Ximba and accused 1 met at a point in time according to accused 1.
This meeting antedated
the kidnapping. The evidence concerning Ximba
paints him as a shadowy figure who is mentioned as entering and
exiting various scenes
but who plays no visible role. The accused
suggested Peter manufactured facts. There is no evidence that he did
so. The facts I
accept are ascertainable on well corroborated
detailed evidence and the probabilities.
[56] Peter stood to gain 2 kilograms of
ice, crystal meth or tik which was worth a significant amount of
money and he intended to
pursue his activities in seeking to recover
the drugs with a view to that end. For this reason he did not inform
the police or
desist from further conduct and participation in the
events. The accused made much of this criticism. In my view it is of
no consequence.
[57] The events which Peter had
described in evidence were canvassed in great detail and it was put
to him that there were differences
between the detail he had
described in court and what he had said in the statement which he had
made. For example he said at one
point that there was a squabble and
he in court had said there was no squabble. He said that Ximba was
met at a point in time
but that fact was omitted from the statements.
He had not dealt with the fact that part of the assault immediately
prior to the
boiling water being poured over Lukhele was constituted
by kicking and slapping. In his evidence-in-chief he had said that
the
boiling water was poured over the victim before he had gone out
with Lukhele to phone Doctor, whereas in the statement he had said

that it was after. In the statement he did not mention that a Nissan
Navara had come whereas in chief he had said these things.
In the
statement he had not said that he had been to the house of Lukhele
the previous day which he had said in his evidence-in-chief.
In his
evidence-in-chief he had mentioned a number of persons including
policemen whereas in the statement he did not. He had
mentioned
persons as working for accused 1 whereas they were present as
participants in the event and he had meant “working”
in
that sense. In my view none of these alleged conflicts is material or
affects the honesty of the detailed evidence he gave.
[58] A criticism of Peter’s
evidence the accused advanced is that Captain Ramuhala said that
Peter had told him that he participated
in kidnapping Lukhele at his
house. I found Ramuhala to be dishonest, devious and totally
untrustworthy in a different judgment
in this case. I stand by what I
said there. He in addition to his dishonesty was reckless and
uncaring about the accuracy of his
evidence. His dishonest,
incompetence is the foundation of this criticism of Peter. The
accused assumed wrongly that Ramuhala’s
evidence is acceptable
and point to the conflict (Peter said in evidence he was not there)
and seek to bolster the argument by
producing the cell phone records
to prove Peter was there. The cell record shows activity in Katlehong
but some time before the
kidnapping and activity during or about the
time of the kidnapping at Eastgate. It takes some time to travel from
the one place
to the other. It seems to me that if anything the
records support Peter. They certainly do not establish his presence
in Katlehong.
This criticism of Peter is unfounded.
[59] A further criticism of his
evidence is that the cell phone records show a different date for the
trip to Ermelo than the one
he gave in evidence (one day’s
difference). It seems to me that the record supports Peter. There was
a trip corroborated
by the cell phone records. He got the date wrong.
[60] I accept Peter’s evidence.
It is cogently coherent and accounts with the probabilities.
[61] Paul Mthabela (Paul) gave
evidence that on 24 June 2013 he and accused 2 had met. Accused 2
was well known to him; they were
friends. He also knows accused 1.
There is a conflict between the evidence of accused 2 and Paul as to
precisely how they came
to meet. This conflict is irrelevant in the
light of the fact that it is common cause accused 2 and Paul did in
fact meet, did
in fact contact and meet Peter and did go to look for
Doctor. During the conversation that Paul had with accused 2, accused
2 said
that he had a problem, concerning one Doctor who was supposed
to facilitate the export of a bag to Australia. Doctor, who worked

with Sobaba, had vanished together with the bag of drugs which he was
supposed to export. Doctor, was supposed to produce the slip
or
waybill to show that the bag had been exported and had not done so.
Doctor when confronted had explained that the police had
taken the
drugs. During the conversation accused 2 explained that a parcel had
previously been sent that the bag could and should
have been sent.
He further explained that Doctor had been give R70 000,00 as an
upfront payment. On the previous day accused 2
had suggested to
Doctor that he should go to the owner and explain what had happened.
Doctor refused to go. The owner who was in
Cape Town would return on
the Monday and accused 2 needed Doctor to explain and/or produce the
bag. During the conversation accused
2 asked Paul to help him.
Paul knew someone namely Peter. Peter, Paul and accused 2 met.
Accused 2 explained the problem to Peter.
Paul could not have known
the detail unless he was told it by accused 2. Paul also knows detail
unknown to Peter and could not
have manufactured.
[62] I have set out the portion of
Paul’s evidence which was not known to or spoken about by
Peter. Paul’s evidence
in all respects materially corroborates
Peter’s evidence.
THE ACCUSED.
[63] The evidence of each of the
accused was a denial.
ACCUSED 1.
[64] Accused 1 admitted that he
frequented Money Point but claimed that he had been present about his
own affairs and that he was
not a participant in the events at all.
He knew of Colonel Ximba as he had spoken to him about his apparent
blackmailing of a friend
of his. It is probable that accused 1 was
not just lounging about Money Point as his evidence would have it. It
is probable that
Money Point was as described by the witnesses:- the
hub of the business accused 1 was controlling. Every activity
undertaken involved
as a material part of it some incident at Money
Point. Lukhele was taken there, discussions were held there, the
search was co-ordinated
from there and attempts were made to get
Doctor to go there. Accused 1 on the State’s evidence was
alerted to and in control
of the plan to export the drug, the plan to
kidnap Lukhele and the implementing of the plan.
ACCUSED 2.
[65] Accused 2 denied participation in
any drug deal, kidnapping or assault.
[66] Accused 2 admitted that he was
urgently seeking Doctor at the time. He gave as a reason that he had
advanced Doctor money which
had to be repaid. The money had been
advanced to enable Doctor to purchase clothing which he would sell in
a business. He stated
that he stopped looking for Doctor as at a
point in time he had been forced to pay at least some of the debt due
to the person
from whom he had borrowed the money and that for that
reason he had ceased looking for Doctor. This explanation is highly
improbable.
The moment a creditor pays over his own money because
his debtor failed to pay him is the moment when it becomes more
important
than ever before to obtain payment from the debtor. A much
more probable reason to stop the hunt would be the realisation that
the subject-matter of the search (Doctor and the bag) could not be
found.
[67] Accused 2’s evidence as to
what he was to be repaid is also improbable. At a point in time
accused 2 claimed that he
was to be repaid a certain amount,
subsequently he claimed he was to be paid that amount and a share in
the business. He also
claimed that the full amount, was fully due,
owing and payable at that point in time. This could not be unless all
the clothes
which had been bought with the money had been sold. It
is improbable that the clothing would have been sold as a unit and a
lump
sum received as a unit. It is much more likely that a business
over a period of time would generate the funding and that as and
when
it did so the debtor would be obliged to pay the creditor.
[68] At a point in time accused 2
seemed to indicate that the urgency was related to the salary which
Doctor would receive at or
about that time. This suggestion is
wholly improbable having regard to the small salary and the large
amount which accused 2 was
seeking to recover from Doctor.
[69] The claim of accused 2 is in
direct conflict with the evidence of the State witnesses, is
improbable having regard to the scope
of the search, the number of
people employed in it, the amount of money changing hands and the
urgency. Accused 2’s evidence
is false. The search concerned
attempting to recover drugs and the missing courier. The search
included the kidnapping and assault
of Lukhele. There is no
explanation on the evidence of accused 2 for the kidnapping and
assault on Lukhele. The probable reason
for the kidnapping and
assault is set out previously to flush out Doctor and recover the
drugs.
ACCUSED 3.
[70] Accused 3 is a member of the South
African Police. On the 25th June 2013 he had three phones which he
kept with him continuously
day and night. He was investigating and
was on duty. He used a Mazda 6 which is a police vehicle which was
allocated to him. He
was investigating corruption of traffic officers
on the East Rand. On that day he was nowhere close to Katlehong
which is the
place where Lukele was kidnapped. He was also nowhere
near Sasol garage at or about the time that the meeting took place
prior
to the kidnapping. He denied being at any of the other places
including at Money Point, at Ermelo. He was involved in none of the

offences. He knew about a bag of drugs as he had heard of it. He
had no personal knowledge of these things. Accused 4 and 6
are his
colleagues. He neither knew accused 1, 2 nor 5. In 2013 Colonel
Ximba asked him to set up a meeting with accused 1 and
asked him if
he knew accused 1. He did not set up the meeting as he did not know
accused 1. He later said in conflict with his
earlier evidence that
Ximba had phoned him and asked only if he knew accused 1. He had not
asked him to set up a meeting. He knew
Peter. They had from time to
time lent each other money. On the afternoon of the 25th June2013 he
was at Bradford Road and at or
near Money Point. The records show the
vehicle parked near Bradford Road and stationary there for some
period of time moving a
short distance and being stationary again.
Accused 3 said that he was not inside Money Point he was at the taxi
rank which is about
100 metres from Money Point. He worked together
with accused 4 in the same group and their vehicle records show them
together at
OR Tambo, the airport. At that time they were working on
a complaint involving rifles, RDP houses and drugs. This is in
conflict
with his earlier evidence that the work with which he was
involved was corrupt traffic officers. During the course of the
trial
it was put by counsel for accused 3 that the vehicle he drove
was allocated to him for his exclusive use. When he gave evidence

accused 3 cleverly modified the version to cope with the conflict in
his evidence that he did not have exclusive use of the vehicle
by
saying that the person with whom he shared came after the vehicle had
been originally allocated to him exclusively. This point
might appear
insignificant but it is material as his sole use of the vehicle
founded his alibi defence. Accused 3 referred to vehicle
records as
establishing he was not at Lukhele’s house at the time of the
kidnapping. The records show the vehicle inter alia
circling about in
the immediate vicinity of the airport and at a time as stopping near
accused 4’s vehicle.
[71] The evidence of accused 3 is
flawed in material respects concerning his exclusive use of the
motorcar, why he was with accused
4 on the day in question and
whether or not he was at Money Point.
[72] The probabilities are that the
vehicle used by accused 3 would not drive aimlessly around the
airport as it seems to have done.
The investigation whether it
involved traffic officers, rifles, RDP houses and other corruption
including drugs remains unlinked
to the movement of the vehicles and
the movement of accused 3 on the day. It appears to me that accused 3
and accused 4 have orchestrated
an alibi through the use of their
vehicle records. I do not accept that either accused 3 or accused 4
were present in their vehicles.
As is clear from the evidence of
accused 3 he used many cell phones. The fact that any particular
cell phone records demonstrate
him being at a particular place on a
particular day does not independently of his evidence (which I do not
believe) establish his
whereabouts.
[73] Peter identified accused 3 as
being at the Sasol garage at Money Point when Lukhele was assaulted;
at Bethal at the filling
station and at Ermelo when they were looking
for Doctor.
[74] Paul identified accused 3 as being
at Money Point when Lukhele was assaulted and at Ermelo when they
were looking for Doctor.
[75] Accused 3 put himself near Money
Point in the afternoon prior to the kidnapping. The co-ordinates show
that he was on the premises.
They are accurate to 5 meters. He was
also seen at Money Point and admittedly went there. He claims he went
on business. It is
not coincidence that accused 3 is linked to events
at Money Point by witnesses and his admission that he was there on
occasion
about a different occasion.
ACCUSED 4.
[76] The evidence of accused 4 was that
over the period of the kidnapping he was working with the Organised
Crime Unit and in particular
that on 25th June 2013 he was working
together with accused 3 on the same project. He was involved in the
observation concerning
a crime involving drugs. He said he was
working together with accused 3 but was not continuously with him. He
specialised only
in drugs; that was his main concern whereas accused
3 was a co-ordinator of the other matters which were being
investigated. He
in particular was only doing investigation of
drugs.
[77] This is in conflict with accused
3’s evidence which was that they were working together on a
number of matters. Accused
3 did not isolate any particular matter as
being the domain of accused 4. He explained that he was at OR Tambo
that evening (25th
June 2013) for observation. He also had his own
purpose which was to fetch a plane ticket for his child who was
leaving the next
day for Durban. Subsequently it became clear from
his evidence that he was fetching not only a ticket for his son but
for other
people including himself and the dates when the travel was
to take place did not coincide with his original suggestions as to
when
the dates were.
[78] It transpired that on the day when
he went to fetch the tickets he was there to fetch three tickets and
that whereas in his
evidence he had originally mentioned one ticket
as had been put in evidence that he was there to fetch two tickets.
[79] He was unable to explain why
details which had been given by the state witness such as that he was
a policeman, and that he
worked with accused 4, that he had been in
Money Point at or about the time and on the day when his records show
him to have been
in the immediate vicinity of Money Point. In
addition accused 4 put it to Captain Ramuhala that the reason accused
4 went to the
airport was to purchase a ticket as if that was the
only reason he had gone there. It was not put that he was there
about police
business together with accused 3.
[80] I do not accept the evidence of
accused 4 and do not accept that he was in possession of the vehicle
at the time that he was
identified as being one of the kidnappers at
Lukele’s house. I further do not accept that he was not
present in Ermelo.
[81] It was submitted that there could
have been an error made by Lukhele in identifying accused 4 whose
name is Jeff in that Jeff
was the person who had been to the property
earlier in the day and was not the current accused 4: Jeff. There is
no evidence that
the witness was in any way confronted with the names
of the person he identified or that he identified on the basis of the
names.
He identified on the basis of what he saw. He dealt with the
six attackers at his home for some time. He was in their presence
for
some time prior to being manhandled and bundled in the car. In the
later statement he made he said that he would be able to
identify
them. He did not give a description. In an affidavit dated November
2013 Lukhele said that his eyes were closed so he
might not be able
to identify his attackers. This is the only very hesitant indication
that he could not identify them. I do not
believe it impacts upon his
certainty.
[82] Accused 4 produced documentation
reflecting that had he been in possession of the motor vehicle that
was issued to him; by
the SAPS had been in possession of his cell
phone, was not present at the place when Lukhele said he was there.
This evidence presented
as an alibi is dependent on a finding that
accused 4 was in fact in possession of the car and cell phone at the
time.
[84] Accused 4 produced similar
documents to those produced by accused 3. For quite some time over
the relevant period the two accused
were driving seemingly, aimlessly
around the airport. Both accused are aware of the tracking
capabilities of cell phones and the
cars they rove. It is
inconceivable that they would take those cars with them when they
want to perform activities where they did
not wish to leave an
electronic trail. It is much more likely they would use them to
create a fictitious alibi.
[85] I do not accept the evidence of
accused 4.
ACCUSED 5.
[86] Accused 5’s evidence was a
blunt denial of what had been said of him by the state witnesses. He
said that his name was
Miya and that he had never been known as Zulu
or Zuluboy or as Sbu. He raised as an issue that he may have been
implicated because
he had fallen out at a point in time with Ximba.
It is apparent from the facts which I have set out previously that he
was identified
positively as being a participant in numerous of the
events and by numerous witnesses. His explanation is not only
incredible
it is untrue and not reasonably possibly true. There is
simply no indication of any accused being substituted for any
participant.
The detail concerning his identification is too detailed
in time, place and event. He is a person involved in the taxi
industry
in which people are killed for little money. He claimed to
have never experienced this. It is a well-known feature of this
country
that the taxi industry is regularly involved in violence. I
do not accept his evidence. In addition the motive of Peter and Paul

to implicate him was never put during evidence.
[87] Peter identified accused 5 at
Money Point where Lukhele was assaulted, at the safe house on 25 June
2013, as being with him
hunting in Daverton on 26 June 2013 as being
at Money Point prior to the Ermelo trip and at Money Point when they
returned. Peter
also identified him as being the person who took
Lukhele to phone Doctor and as the person who spoke to Doctor. He was
one of the
people who were opposed to killing Lukhele. Paul
identified accused 5 at Money Point before the Ermelo trip. Accused
5 fetched
Lukhele from the safe house. During the Ermelo trip he was
identified as the person who paid for petrol and snacks with money he

got from accused 1. Paul well knew accused 5.
ACCUSED 6.
[88] Accused 6 is a member of the South
African Police. Similarly his evidence was a blunt denial. He
conceded that he works together
with accused 3 and 4 at the same
office. At the time of the events he was on leave. Accused 6 was
similarly identified as previously
set out by numerous witnesses
whose evidence was reliable. The witnesses corroborated each other
and gave detailed evidence which
proved to be accurate.
[89] Peter identified accused 6 at
Money Point when Lukhele was assaulted, at the Bethal filling station
on the way to Ermelo.
[90] Paul identified accused 6 as being
at Money Point before they left on the Ermelo trip and at Ermelo when
they went to look
for Doctor.
IDENTITY ACCUSED 1,2,3,5 AND 6.
[91] All the accused were identified at
various point in the events by various witnesses. All save for
accused 4 were present at
Lukhele’s assault at Money Point.
[92] One or more or all were present at
various other points. The witnesses who gave evidence of the trip to
Ermelo identified the
accused who were present at different times.
There is evidence which inherently contains the assertion that those
who left for
Ermelo returned. The fact that different witnesses saw
different accused at different times does not mean they were not
participants
throughout the Ermelo incident.
[93] The witnesses who gave evidence of
occurrences where only a few of the accused were present corroborated
each other as to what
had happened. All the events spanned more than
a few minutes each. There was ample opportunity to observe in each
case. The sightings
occurred over several days and the witnesses had
time and opportunity to recollect and reinforce their identification
of each accused.
[94] Certain of the accused were known
to certain witnesses.
[95] In my view the identification of
each accused are reliable and supported by the probabilities.
ICE/TIK/CRYSTAL METH/ AS
METHAMPHETAMINE IDENTIFICATION.
[96] Count 1 charges the six accused
with dealing in an undesirable dependence-producing substance in
breach of
section 5(b)
of Act 140 of 1992 in that the accused dealt
in methamphetamine commonly referred to as crystal meth/ice/tik. It
is an element
of the charge and the State is required to establish
that the accused dealt in 25 plastic bags containing that substance.
The first
issue to be resolved is whether the State established that
the substance allegedly dealt in was the substance defined in the Act

namely methamphtetamine.
[97] No expert evidence was called. The
evidence was that accused 2 referred to the contents of the bag as
being drugs.
[98] Paul told Peter in the presence
of accused 2 that accused 2 had also told him that what had been lost
was 25 kg crystal meth.
Accused 2 agreed to pay Peter 2 kg of tik if
the bag containing all the drugs was recovered. Paul said that
accused 2 had said
that he had a problem about a bag containing ice
which was supposed to be sent to Australia. Accused 2 is the source
of the information
of what the bag contained. He knew what was inside
it. Doctor referred to the substance as ice. Doctor did not know
what was in
the bag which was sent on the dummy run but was told by
accused 2 that it was a drug. Accused 2 gave Doctor the bag
containing
25 parcels. Doctor thought that the contents were ice as
in frozen water as, when he was told to take the bag with him his
response
was “What if it melts while in my possession?”
Doctor’s description of the contents of the parcels as having

properties similar to the properties of ice is indicative of the fact
that that he was told that the parcels in fact contained
ice. He,
Doctor clearly did not have any idea of what ice was and assumed that
the reference to ice was a reference to frozen
water. The fact that
this suggestion to him led him to believe that the properties of
packets were frozen water is indicative of
the power of the
suggestion which had been made to him. In my view the State has
proved that it was stated by accused 2 that the
parcels contained
crystal meth, tik and ice on several different occasions. Additional
evidence that the bag contained drugs is
found in the elaborate
furtive process to export the bag, the value of the contents and in
the nature and cost of the search to
recover the bag when it was
lost. This was a hunt on a large scale. A hunt at all costs to
recover something extremely valuable.
The statement of accused 2 is
not admissible against the other accused but is one of the facts
setting the matrix.
[99] The bag was proven beyond
reasonable doubt to contain a drug known as crystal meth, tik and
ice. The question is whether that
evidence establishes that its
contents were methamphetamine.
[100] The Oxford Dictionaries Online
defines crystal meth as being methamphetamine. The Memidex online
dictionary defines crystal
meth as being a methamphetamine derivative
used in the form of a crystalline hydrochloride. Its source is given
as a crystal methamphetamine,
methamphetamine hydrochloride.
Synonyms include crystal, glass, ice and meth. The Collin’s
Dictionary online which can
be sourced at the same site as the
Memidex Dictionary defines crystal meth as being crystal
methamphetamine which is a concentrated
and highly potent form of
methamphetamine with dangerous side effects. A number of other
dictionaries referred to in the same website
indicate that
methamphetamine, ice, tik, crystal, crystal meth are all synonyms
meaning methamphetamine. The English language defines
the names as
all meaning the same thing methamphetamine. The Concise Oxford
Dictionary tenth edition published 2001 defines meth
(also crystal
meth) as methamphetamine.
[101] In the present matter the drug
forming the subject-matter of the charge was sold by Doctor and is
irrecoverable. It is accordingly
impossible to check and analyse the
substance which was contained within the plastic bags inside the
sports bag. The substance
was repeatedly referred to by accused 2 as
being crystal meth, ice or tik according to the evidence which is set
out above. Each
of those references by accused 2 constitutes a
reference to the prohibited drug methamphetamine. In my view the use
of the language
by accused 2 of the abbreviation and slang which have
the same meaning as the word contained within the statute is a
reference
to the word contained within the statute and the substance
defined by that word which is a prohibited substance in terms of the

Act. Accordingly accused 2 on the evidence provided sufficient
information as to the contents of the bag to enable the
identification
of the drug within it to be identified as
methamphetamine.
Each of the 25 bags was worth R300
000,00 so the total consignment was worth of the order of R7,5
million. The extent of the steps
taken to recover the drug
demonstrates the employment of a significant number of people and a
great degree of urgency. These steps
must have been expensive. Peter
would have been paid of the order of R600 000,00 had the drug been
recovered. The lengths to which
the persons seeking to recover the
drug were prepared to go also indicate the value of the substance and
that it is a drug. It
is highly improbable that for a relatively
insignificant amount Lukhele would have been captured tortured and
kept hostage for
several days. In addition to the resources which
were employed in the attempts to recover the bag there was also
expense in travelling
to Ermelo, to the airport, to Katlehong and
various other places on an almost continuous basis over a period of
some days by a
significant number of people.
[102] In my view it is established
beyond reasonable doubt that the bag contained the drug
methamphetamine.
ATTEMPT.
[103]
Section 256
of the
Criminal
Procedure Act 51 of 1977
makes it competent if the evidence proves an
attempt to convict.
Section 256
provides:
“If the evidence in criminal
proceedings does not prove the commission of the offence charged but
proves an attempt to commit
the offence or an attempt to commit any
other offence of which an accused may be convicted on the offence
charge, the accused may
be found guilty of an attempt to commit that
offence or as the case may be such other offence.”
[104] This section makes it competent
for an accused who participates in a crime to be convicted of an
attempt if the facts are
appropriately proven. The offence charged
is dealing in a prohibited substance. The element of the offence
involves not just the
existence of a state of affairs but proof that
the affairs concern a prohibited substance.
DRUGS AND DRUG TRAFFICKING ACT 140 OF
1992
.
[105] The definition section of the Act
provides that dealing is constituted by:-
“performing any act in connection
with the transhipment, importation, cultivation, collection,
manufacture, supply, prescription,
administration, sale transmission
or exportation of the drug” The offence is contained in section
5 (b) which provides:
“Section 5 No person shall deal
in –
(a) Any dependence-producing substance”
[106] In this case accused 2 and
accused 1 were involved with the arrangements for and exportation of
drugs contained in the bag.
Accused 2 was the person who made
arrangements with the courier and who implemented the plan. Accused 1
is beyond reasonable doubt
the mastermind who only appears as and
when he is needed. Accused 1 was intimately involved and in control
of all the events described
by the State witnesses.
[107] Accused 1 and 2 were also each
instrumental in attempting to recover the bag by way of recovery of
the person in whose possession
they had left the bag. The knowledge
of accused 2 was the knowledge of accused 1. Accused 2 and accused 1
both knew that drugs
were inside the bag. Accused 2 knew the drugs
were methamphetamine. Accused 1 according to what accused 2 said
would also have
known this. The extra curial statements of accused 2
concerning the identification of the drug as crystal meth, tik or ice
are
inadmissible against accused 1. Accused 1’s knowledge is
limited to the bags containing a prohibited drug as that is all that

the admissible evidence against him establishes.
[108] Applying the principle of dolus
eventualis to the problem the knowledge of accused 1 extended to any
one of the prohibited
drugs listed in the act being within the bag.
Hence accused 1 attempted to deal in methamphetamine as the State
proved what drug
was in the bag, but only proved that accused 1 was
dealing in an illegal unidentified drug.
[109] The provisions of section 256
allow a conviction of an attempt. In S v Ndlovu
1982 (2) SA 202
(T)
Nestadt J with whom Van Dijkhorst J concurred held at page 205 that a
conviction of attempt was competent on a similar provision.
In the
present case accused 1 was attempting to commit what on the evidence
before me is impossible namely the export and recovery
of a
prohibited substance which has not been proven as against him to be
the particular one alleged. Hence accused 2 is guilty
of court 1 and
accused 1 is guilty of an attempt to commit the offence in count 1.
ACCUSED 3, 4, 5, AND 6 AND COUNT 1.
[110] It remains to deal with the
involvement of accused 3, 4, 5 and 6. It was submitted that the
evidence did not establish beyond
reasonable doubt that they knew
that the person they were hunting was being hunted because of his
possession of the bag of drugs.
The bag and Doctor were freely
discussed among all of the accused. There is, save in respect of
accused 5, no evidence actually
identifying the contents to the
accused. In respect of accused 3, 4, and 6 there is no reliable
evidence that they knew the bag
contained drugs. The position of
accused 5 is different. At the meeting where the killing of Lukhele
was discussed and accused
5 and others opposed his murder, accused 5
said they should not kill him and that they were seeking drugs worth
millions. Hence
he knew the bag contained drugs. There is no evidence
that he knew what specific drug was in the bag. On the same reasoning
applicable
to accused 1 he is guilty of an attempt.
IDENTITY GENERALLY.
[111] The witnesses who identified the
accused were able to in addition to making the identifications refer
to numerous facts about
each witness. The witnesses were able to
identify the policemen as such, Money Point as the hub of activity,
the different roles
each accused played features of each individual
accused accurately. The fact that the corroboration in detail exists
strengthens
the probabilities that the identification is accurate. If
from the analysis that on count 1 accused 2 is guilty on the main
count
and accused 1 and 5 are guilty on an attempt; on count 2 all
the accused are guilty. On count 3 accused 1, 2, 3, 5 and 6 are
guilty.
Accused 4 was not at Money Point but was complicit in the
common assault which took place at Lukhele’s house.
SAPS.
[112] The accused submitted that
Lukhele had made a conscious decision not to pursue any charge and
hence the earlier charge had
not been prosecuted. These submissions
arose out of the fact that a docket had been opened pursuant to a
charge being laid by
Ngcobo at a time prior to the release of
Lukhele. The police according to the investigation diary had taken
some steps to investigate
the matter concluding the registration
number for Ngcobo and the type of vehicle. On 3rd July 2013 the
police discovered that
Lukhele was at home having been released.
Lukhele told them that he had been released because the persons who
had kidnapped him
were looking for his brother not for him. There is
an entry dated 8th July 2013 stating that the docket was closed as
being false.
[112] Notwithstanding clear evidence
before SAPS as to facts concerning the kidnapping of Lukhele no
further steps were taken.
[114] The next step in the
investigation was the assignment of the case to the investigating
officer Captain Ramuhala by a General
Moono. The instruction Captain
Ramuhala received was to trace and arrest the suspects. At a point in
time he received the old docket
from General Moono. This docket
appears to have been made available at some time after the
investigating officer had commenced
the investigation.
[115] It is apparent that the
investigation was commenced not in consequence of any initiation of
the investigation by Lukhele but
from some other source. It became
common cause that the fresh investigation had commenced or the
instruction emanated from the
National Task Team in Pretoria. It
appears as if the police discovered the existence of what had
happened to Lukhele and pursuant
to an instruction to investigate
further did so. It was submitted that the instruction given was to
“get accused 1”
and that in the course of doing so the
police behaved improperly in the investigation by creating and/or
tampering with and/or
failing to obtain evidence.
[116] There is no evidence that the
police in any way were instructed to falsely implicate any of the
accused or that the police
in fact did so. There is further no
evidence of any conspiracy on the part of the police to implicate any
of the accused or modify
the evidence. The evidence of the
kidnapping, assault and drug deal are established independently by
the witnesses to the events.
Accused 1 and accused 2 have been found
by me to have been party to those events independently. The other
accused 3,4,5, and 6
are identified by evidence which is detailed and
corroborated in material respects. In my view not only is there no
evidence of
tampering it is improbable there was tampering with the
evidence.
[117] The investigation of the police
was poor. There were sources of information which could have been
collected and used, there
were leads which were not followed, and
there was objective evidence which was not obtained.
[118] The fact that the investigation
was poor and some evidence not obtained in no way leads to the
inference being capable of
being drawn that the evidence was in any
way tampered with or that in any way any of the witnesses were
directed as to who should
be implicated.
[119] The submission is made that as
the police knew who the suspects were that the identity of the
suspects have been created by
the police with a view to them being
implicated. There is simply no evidence of this conduct.
[120] The submission was made that
there were throughout the occurrence of the events during June 2013
numerous phone calls made
to and from several of the witnesses and
one Colonel Ximba. The cell phone records of the various witnesses
do evidence frequent
phone calls being made from time to time over
the period. The explanation of the witnesses was that the phone calls
were innocently
made and had nothing to do with the case. Even
assuming the phone calls were related to the case the fact that they
were being
made in no way means that the facts were being invented or
that the accused were being substituted for perpetrators. One does
not know if Ximba was evidence gathering for SAPS or whether he was a
rogue. Whichever one of the two it was, it does not amount
to
changing or tampering with the evidence.
[121] The rhetorical question was put
as to how the police could know that persons not identified in
affidavits were the physical
persons who subsequently became the
accused. The answer of the investigating officer is that there were
informers and that the
witnesses are reliable.
[122] The submission was made that the
trial was unfair in that the evidence had not been collected and for
example an identity
parade had not been held. The submission was made
that had an identity parade been held the accused would have been
vindicated
as witnesses would not have been able to identify them;
had the video-recordings been collected the accused would have been
vindicated
as their presence would not be visible on the video. In my
view these are all highly speculative submissions. All of the
witnesses
who gave evidence as to the identity of the accused in my
view attempted of their own accord to describe and relate how the
particular
accused was involved and why they said he was involved.
[123] It was submitted that certain of
the evidence was taken unconstitutionally in that for example a
witness had been lied to
as to the reason why he was being taken to
the police station. The answer to this is that he may well have been
lied to as to going
to the police station. He however voluntarily
made the statement at the police station when requested to do so and
he voluntarily
testified. In my view the concept of fairness in a
constitutional sense is not eroded in this case.
[124] It was submitted that several of
the records establishing the whereabouts of the cell phone of the
investigating officer and
others demonstrated that what had been said
in evidence was inaccurate. The criticism is factually correct. It
must be remembered
that the kidnapping endured over a period of time.
The events took place over an extended period of time. In addition
the persons
hunting the accused and the bag of drugs were under
pressure to perform the hunt. They appeared to me to have done a
large number
of things in a short space of time. In these
circumstances it is not unreasonable for a witness to remember events
in an inaccurate
order or in a slightly inaccurate way. The question
is not whether there is an inaccuracy; the question is whether or not
the reliability
of the evidence remains intact notwithstanding the
inaccuracy. In my view the witnesses who gave evidence attempted as
best they
could not to give detailed evidence over an extended period
of time of a large number of events which took place. I would expect

such witnesses to deviate from the precise sequence of events in
minor detail or to jumble the order on occasion.
[125] In my view the true result of the
police’s improper and inadequate investigation in this case is
that it put the State
case at risk. The State case was dependent
upon an unlawfully obtained confession which was excluded in evidence
and such witnesses
as the State was able to marshal. By the nature of
the events many of those witnesses fall into the category of
accomplice. I am
conscious of the fact that accomplice evidence can
be and often is easily manipulated. An accomplice can easily
substitute one
person for another while maintaining the true set of
facts. The accomplices in this case are accomplices in respect of
different
facets of the case which overlap to an extent. Some were
hunters some were drug dealers. There is sufficient objectively
accurate
evidence and factually corroborated evidence for their
evidence to be accepted. The overlapping portions of the case are
insightful
as the different witnesses to different events would not
in detail give the same evidence unless it was true.
SUBMISSIONS GENERALLY.
[126] I have not dealt with each of the
submissions made and each factual discrepancy allegedly existing as
those submissions run
into hundreds of pages. I have dealt with the
pertinent issues and the probabilities namely what happened and who
probably caused
what happened to happen. Those enquiries which are
the proper ones to be made encompassed a small portion of voluminous
evidence
and extensive cross-examination into minutiae. I allowed
this extensive cross-examination although I at the time believed the
cross-examiner
at times merely was milling each grain of sand on the
beach. After the milling of the grains of sand the picture remained
the same
– it was still sand on the beach. The accused fully
exercised all their rights of obtaining documents and investigating
each
aspect as deeply as laws of evidence permitted. The fact that
after this intensive attack upon the witnesses’ evidence
remained
intact is testimony to the fact that their evidence
materially was true.
REASONS FOR DISCHARGE APPLICATION BEING
REFUSED.
[127] The reasons given for convicting
the accused explain why I refused the application for discharge.
SECTION 204 WITNESSES.
[128] The witnesses who were warned in
terms of section 204 gave their evidence acceptably and are entitled
to the indemnity the
section permits me to give them. It is a matter
of sorrow that persons who were involved in reprehensible conduct
walk free. The
law recognizes however that society must sometimes
sacrifice its right to convict wrongdoers in the interest of
convicting others.
There was no easy way for the State to obtain a
conviction otherwise than by using the witnesses it did.
[129] It is apparent from what I have
said that it is my view that the following is an appropriate order.
1. Count 1
Accused 2 is guilty in the main count.
Accused 1 and accused 5 are guilty of
an attempted contravention of the main count.
Accused 3,4, and 6 acquitted.
2. Count 2.
Accused 1, 2, 3, 4, 5 and 6 guilty.
3. Count 3.
Accused 1,2,3,5 and 6 guilty
Accused 4 guilty of common assault.
4. Section 204 witnesses
4.1 The witnesses mentioned below are
indemnified from any possible prosecution arising out of the events
specified:-
4.1.1 Peter Vusi Msimang is indemnified
from any possible prosecution in relation to counts 1 and 2 of the
indictment.
4.1.2 Paul Mathabela is indemnified
from any possible prosecution in relation to counts 1 and 2 of the
indictment.
4.1.3 Bhekizwe Doctor Nkosi is
indemnified from any possible prosecution in relation to count 1 of
the indictment.
4.1.4 Bhekizitha Sobaba Khumalo is
indemnified from any possible prosecution in relation to count 1 of
the indictment.
Counsel for The State : Adv.
Mashiane
Counsel for Accused 1 and 2 : Adv. A
Van Den Heever
Attorneys for Accused 1 and 2: BDK
Attorneys
Counsel for Accused 3, 4, 5 and 6 :
Adv. Spangenberg
Attorneys for Accused 3, 4, 5 and 6
: Spangenberg Attorneys
Date of hearing : 8 May 2014
Date of judgment : 24 August 2015