S v Chirwa and Others (SS118/2008) [2010] ZAGPJHC 168 (5 March 2010)

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[2010] ZAGPJHC 168
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S v Chirwa and Others (SS118/2008) [2010] ZAGPJHC 168 (5 March 2010)

SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No. SS118/2008
DPP Ref. No. JPV2007/416
Date:05/03/2010
In the matter between:
THE STATE
and
JOHNSON TSHEPO
CHIRWA
...............................................................
Accused
1
DUMISANI SIBUSISO
XULU
..................................................................
Accused
2
GILBERT
MOSADI
..................................................................................
Accused
3
RONNIE MAZWI
KHUMALO
..................................................................
Accused
4
CELIWE
MBOKAZI
.................................................................................
Accused
5
VINCENT
DLAMIN
I.................................................................................
Accused
6
MEYER, J
[1] Mr. Johnson Tshepo Chirwa (accused
no 1), Mr Dumisani Sibusiso Xulu (accused no 2), Mr Gilbert Mosadi
(accused no 3), Mr Ronnie
Mazwi Khumalo (accused no 4), Ms Celiwe
Mbokazi (accused no 5), and Mr Vincent Dlamini (accused no 6), have
been arraigned for
trial on an indictment containing charges of the
robbery of the late Mr. Franz Xaver Richter (‘the deceased’)
of R23
213.35 with aggravating circumstances (count 1), the murder of
the deceased (count 2), a conspiracy to rob and kill the deceased

(alternative count to counts 1 and 2), the unlawful possession of
firearms (count 3), and the unlawful possession of ammunition
(count
4). Accused nos 1, 2, 3, and 4 are also charged with attempted
bribery in contravention of s 11(2)(b)(iv) read with ss
1, 2, 24, 25,
26(1)(a) of the Prevention and Combating of Corrupt Activities Act 12
of 2004 (count 5).
[2] Mr. Ntlakaza appears for the
State, and accused no 1 is represented by Mr. Ncoko, accused no 2 by
Mr. Biyana, accused no 3 by
Mr. Mgiba, accused no 4 by Ms. Mogolane,
accused no 5 by Mr. Mkhwanazi, and accused no 6 by Mr. Themba.
[3] Each accused pleaded not guilty to
all the charges. Accused no 4 made a statement in terms of
s 115(3)
of the
Criminal Procedure Act 51 of 1977
. The other accused elected
not to furnish plea explanations.
[4] During the course of this trial,
the State wished to introduce in evidence various statements that had
allegedly been made by
the accused and pointings out that had
allegedly been made by some of them, and six trials-within-this-trial
were held to determine
the admissibility thereof. The disputed
statements and notes of the disputed pointings out were removed from
the
pro formas
in
which they were included until their admissibility was determined at
the end of each trial-within-this-trial. When I gave the
rulings on
the admissibility of the disputed statements at the conclusion of
each trial-within-this-trial, I indicated that the
reasons for the
rulings would be given when judgment in the main trial is given. The
reasons in each instance had been prepared
before the rulings were
made. Such reasons for the rulings are first given in the paragraphs
that follow whereafter I return to
the main trial from paragraphs 207
below.
[5] The
first
trial-within-this-trial
concerned the admissibility of two statements that had allegedly been
made by accused no 2, and one that had allegedly been made
by accused
no 5. On 19 May 2009, I ruled that these statements were admissible
in evidence against their makers. These are the
reasons.
[6] The State wished to introduce in
evidence a statement by accused no 2, which had allegedly been made
before Supt. Richard Ramukosi
from 21h30 – 22h28 on 28 November
2007 at the Muldersdrift SAPS offices; a second statement by accused
no 2, which had allegedly
been made before Dir. Byleveld from 12h38 –
13h57 on 7 December 2007 at the Brixton SAPS offices; and a
statement by accused
no 5, which had allegedly also been made before
Dir. Byleveld from 09h16 – 11h15 on 11 December 2007 at the
Brixton SAPS
offices.
[7] Mr Biyana, on behalf of accused no
2, objected to the admissibility of the 28 November 2007 disputed
statement on the grounds
that ‘… accused no 2 disputes
having made the statement at all, that he was compelled to sign for
the said statement,
and his rights were never fully explained to him
…’. The admissibility of the 7 December 2007 disputed
statement
was objected to on the grounds that accused no 2 ‘…
was assaulted prior to making the said statement … and …

his constitutional rights were never explained to him ...’.
[8] Mr Mkhwanazi, on behalf of accused
no 5, objected to the admissibility of the 11 December 2007 disputed
statement on the grounds
‘… that she was assaulted and
was forced to make a statement …’, ‘… her
rights were not
explained to her’, and ‘…part of
the statement is not what she told the director.’
[9] The State, upon whom the onus
rests to establish the admissibility of the various statements, led
the evidence of Inspector
AJ Joubert, who is the investigating
officer, Const. SS Nkuna, Const. EB Senosi, Const. A Munyai, Supt. R
Ramukosi, Dir. PEJVS
Byleveld, Insp. AM Shezi, and Const. K
Letswamotse, whereafter its case was closed. Accused no 2 elected
not to testify and his
case was closed without calling any witnesses.
Accused no 5 elected to testify, whereafter her case was closed.
[10] We were informed by the State
counsel that the two statements allegedly made by accused no 2
constitute confessions. Counsel
for the other accused, and
particularly Mr Biyana for accused no 2 did not take issue with Mr
Ntlakaza’s classification of
the statements as confessions. We
had not had insight into the statements and accordingly accepted
their labelling as confessions.
[11] The statements that had allegedly
been made by accused no 2 may not be admitted, unless they were
proved to have been made
by him freely and voluntarily, while he was
in his sober senses, and without having been unduly influenced
thereto (the requirements
of
s 217
of the
Criminal Procedure Act).
They
must also, in terms of the provisions of s 35 of the
Constitution of the Republic of South Africa, be excluded if they
were obtained
in a manner that violates any right in the Bill of
Rights and if their admission would render the trial unfair or
otherwise be
detrimental to the administration of justice.
[12] The incident forming the
subject-matter of the criminal charges against all the accused
occurred at the Heia Safari Ranch,
Muldersdrift on 28 November 2007
at about 10h30.
[13] It is common cause that Insp.
Joubert arrested accused no 2 as a suspect at Video Squatter Camp,
Muldersdrift after 16h00 on
the day of the incident. Insp. Joubert’s
evidence that he communicated with accused no 2 in English and that
accused no
2 understood English was not disputed when he was
cross-examined. Insp. Joubert’s evidence relating to accused
no 2’s
understanding of the English language was also
corroborated by the evidence of Const. Nkuna, who testified that
accused no 2 had
told him that he understood English, and by the
evidence of Supt. Ramukosi, who testified that he had ascertained
that accused
no 2 understood English when he interviewed him. Insp.
Joubert testified that he introduced himself to accused no 2 as an
Inspector
from the Muldersdrift police detective branch and that he
showed him his SAPS identity card. He informed him that he was
arresting
him for murder and armed robbery. He informed accused no 2
of his right to remain silent, of the consequences of not remaining

silent, and of his right to legal assistance. He informed him that
he would be detained at Muldersdrift police station as a suspect.
[14] Before taking accused no 2 to the
Muldersdrift Police Station, they first went to the place where
accused nos 1 and 3 were
arrested (the reeds area) on a farm in the
vicinity of Heia Safari where a temporary satellite operations
station of the SAPS had
been set up. It was put to Insp. Joubert
that after accused no 2 had been arrested, he was taken to the place
where the deceased
had been shot, which was on the Heia Safari
premises, and that he, Insp. Joubert, had assaulted him on the way.
When they arrived
there, accused no 2 was asked whether he knew the
place, and, when he replied that he did not know the place, Insp.
Joubert accused
him of lying and he told him that that was the place
where they had shot ‘the white man.’ It was also put to
Insp.
Joubert that from that place accused no 2 was taken to another
place, which accused no 2 did not know, where his clothes were taken

from him. These statements were all denied by Insp. Joubert.
[15]
Insp.
Joubert took accused no 2 to the Muldersdrift Police Station where he
was detained as a suspect.
It
is common cause that Const. Nkuna, in the presence of Insp. Joubert,
furnished accused no 2 with a copy of a document (exhibit
‘J’)
that notified him of the reason for his detention and of the s 35
constitutional rights of a detained and of an
arrested person (SAP14A
form). It is in dispute whether Const. Nkuna first read the notice
to accused no 2 before a copy thereof
was given to him. Const. Nkuna
testified that, at the request of Insp. Joubert, he read the notice
to him in English and that
accused no 2 confirmed that he understood
what had been read to him. Const. Nkuna’s evidence on this
issue is corroborated
by that of Insp. Joubert.
[16] It is common cause that Insp.
Joubert commenced an interview with accused no 2 after the s 35
notice had been handed to him.
Insp. Joubert testified that, when
accused no 2 started to make some admissions, he stopped him, warned
him again of his rights,
which accused no 2 confirmed he understood,
and accused no 2 indicated to him that he would get legal
representation when he appears
in court and was willing to give the
information and to make a statement to a police officer who was a
justice of the peace. Insp.
Joubert contacted Supt. Ramukosi, who
agreed to assist in taking a statement from accused no 2. This was
confirmed by Supt. Ramukosi
when he testified. Insp. Joubert
requested Const. Senosi to guard the accused until Supt. Ramukosi
arrived. This was confirmed
by Const. Senosi when he testified. His
unchallenged evidence was that he guarded accused nos 1,2 and 3 until
about 21h00 or 21h30,
when Insp. Joubert phoned and requested him to
take accused no 2 to an office in the same building where Supt.
Ramukosi was waiting.
He complied and handed accused no 2 over to
Supt. Ramukosi, who was alone in that office, and he then left. His
evidence on this
aspect was corroborated by that of Supt. Ramukosi.
[17] Supt. Ramukosi, who was from a
different unit of the SAPS, testified that he interviewed accused no
2 from 21h30 until 22h28.
He testified that he had no knowledge of
the merits of the case. He introduced himself and at the outset
explained to accused
no 2 that he was an independent person who had
nothing to do with the investigation and that he had merely been
asked to obtain
a statement from accused no 2. He used an English
pro forma
for purposes of the interview that is used by officers only (exhibit
‘L’). He then read out the form, which includes

information relating to an arrested person’s s 35
constitutional rights, and he completed it with the answers provided
by
accused no 2. At his request, accused no 2 also provided him with
a copy of the notice (exhibit ‘J’) that had been
given to
him earlier on and in terms of which he had been notified of the s 35
constitutional rights of a detained and of an arrested
person (SAP14A
form). Supt Ramukosi also read the rights set out therein to accused
no 2 and annexed a copy thereof to the statement
that he obtained
from him. Supt. Ramukosi
inter
alia
recorded that accused
no 2 understood his rights and that he informed him that he would
appoint a legal representative ‘at
a later stage for court
purposes’ and that he wished to make a statement ‘to give
[his] side of the event.’
Accused no 2 confirmed to Supt.
Ramukosi that he had not been assaulted or threatened by any person
to make the statement; he was
not in any way influenced or encouraged
to make the statement; and no promises were made to him should he
make a statement. Supt.
Ramukosi testified that, according to his
own observations, accused no 2 appeared to have been in his sound and
sober senses.
At the request of Supt. Ramukosi accused no 2
undressed and Supt. Ramukosi inspected his body for injuries. He
observed no bruises
or visible injuries, except for an old mark on
the face. Supt. Ramukosi testified that after the form had been
completed, he read
it back to accused no 2, who then
inter
alia
signed each page and
furnished his thumb prints in confirmation that the information
supplied by him was correctly recorded. Supt.
Ramukosi wrote down
the statement furnished by accused no 2. It was also read back to
him and confirmed to be true and correctly
noted down. Upon
completion of this interview, Supt. Ramukosi handed over accused no 2
and the statement that had been obtained
from him to Insp. Joubert.
This was also the undisputed testimony of Insp. Joubert. Insp.
Joubert, was not present when Supt.
Ramukosi took the statement from
accused no 2.
[18] It was put to Supt. Ramukosi
under cross-examination on behalf of accused no 2 that Supt.
Ramukosi: did not explain his rights
to him; did not request or
instruct accused no 2 to undress; instructed accused no 2 to write
down everything that happened;
was informed by accused no 2 that he
knew nothing about what had happened and that he was therefore not in
a position to write
down anything; told accused no 2 that he was
going to make a statement whether he liked it or not; informed
accused no 2 that
he, Supt. Ramukosi, knew about their arrest and
that he, Supt. Ramukosi, knew all the suspects arrested with him;
wrote a statement
for accused no 2; told him to sign it; slapped
him and forced him to sign it when he had refused; and that accused
no 2 decided
to sign the statement because of the slap. Supt.
Ramukosi denied these allegations put to him.
[19] Accused nos 1, 2 and 3 appeared
before the Magistrates’ Court on 30 November 2007. Insp.
Joubert was present and it
is common cause that the Magistrate
informed accused no 2 of his rights. It is common cause that accused
no 2 requested that the
Legal Aid Board provide him with legal
representation. After their court appearance, accused nos 1, 2 and 3
were detained at Krugersdorp
police cells for further investigation.
[20] Insp. Joubert was assisted in the
investigation by Const. Kagiso Letswamotse. It was put to Insp.
Joubert that during an interview
in the cells on 5 December 2007 at
about 17h00, he grabbed accused no 2 by the ears and asked him
whether he had forgotten that
he could be assaulted, and that both he
and Const. Letswamotse threatened to assault him. Insp. Joubert
denied these allegations.
It was also put to Insp. Joubert that
accused no 2 replied and insisted that he knew nothing about the
case.
[21] A somewhat different and more
elaborate version was put to Const. Letswamotse. It was put to him
that he and Insp. Joubert
had booked accused no 2 out of the cells
and had taken him to an office where Insp. Joubert gave him a pen and
paper and told him
to write down everything that had happened. Upon
being told by accused no 2 that he knew nothing, Insp. Joubert said
to him that
it appeared as though he had forgotten that he could
assault him and that he was going to assault him again. It was put
to Const.
Letswamotse that he too threatened accused no 2 ‘to
speak’ otherwise he was also going to assault him. It was also

put to Const. Letswamotse that he had told accused no 2 to admit that
‘… he had an affair with the deceased’s
woman.’
In the process Inspector Joubert grabbed him by both ears and said
he must speak the truth. Const. Letswamotse
denied such ‘interview’,
accused no 2’s alleged refusal to make a statement, and the
alleged assault or threats
of assault.
[22] The undisputed evidence of Insp.
Joubert was that he received certain records on 5 December 2007 that
led him to assume that
accused no 2 and accused no 5 communicated
with each other telephonically prior to and on the morning of the
incident and it appeared
to him that accused no 2 had not been
telling the truth regarding his participation in the offence. He
contacted Dir. Byleveld
and requested his assistance with an
interview of accused no 2. Insp. Joubert explained that he sought
Dir. Byleveld’s assistance
because of the records that he had
received and Dir. Byleveld was more experienced in such
investigations than he was and might
assist in furthering the
investigation. Dir. Byleveld acceded to the request and it was
agreed that Insp. Joubert would take accused
no 2 to Dir. Byleveld’s
office at Brixton SAPS on 7 December 2007.
[23] Dir. Byleveld’s evidence
corroborated that of Insp. Joubert in this regard. Dir. Byleveld has
been a member of the SAPS
for the past 39 years. He is attached to
the provincial head office in Johannesburg and is the provincial
coordinator for the
investigation of serial killings and high profile
cases designated to him by the national commissioner. He is also
involved in
the training of detectives at the SAPS Hammanskraal
College. Dir. Byleveld testified that he had assisted other
policemen in the
country in the past and still assists them.
[24] When Insp. Joubert arrived at
Dir. Byleveld’s office with accused no 2 on 7 December 2007,
Insp. Byleveld excused Insp.
Joubert and he was not present at the
interview. Insp. Joubert also testified that he did not discuss his
investigation with Dir.
Byleveld. Dir. Byleveld also confirmed this.
Dir. Byleveld testified that only he, an English/Zulu interpreter,
Insp. AM Shezi,
and accused no 2 were present at the interview.
[25] Dir. Byleveld used a
pro
forma
for purposes of the
interview (exhibit ‘N’). Dir. Byleveld read the s 35
constitutional rights contained in the form
to accused no 2 and he
recorded the information that he obtained from accused no 2 on this
form. It was recorded that the interview
commenced at 12h38 and was
completed at 13h57. Accused no 2’s confirmation that he
understood his rights and his election
to submit a statement were
recorded on the form. Also accused no 2’s replies that he had
no injuries, that he had not been
assaulted, threatened or influenced
in any way to submit a statement or to answer the questions, and that
he willingly submitted
the statement and answered the questions were
recorded. His statement was taken down by Dir. Byleveld, who
testified that accused
no 2 gave a version to him of nearly four
pages. The statement was read back to accused no 2 and his reply
that it was written
down correctly was recorded. Accused no 2
signed and furnished his
thumb print at various places throughout the document.
[26] Dir. Byleveld’s evidence
was corroborated by that of Insp. Shezi on material aspects, such as
that he acted as the interpreter
when the statement was taken, that
whatever Dir. Byleveld said was interpreted to accused no 2 and
vice
versa
, and that Dir.
Byleveld read the statement back to accused no 2 after it had been
taken.
[27] When he was cross-examined on
behalf of accused no 2, it was put to Dir. Byleveld that accused no 2
denies having made the
statement freely and voluntarily, that he was
never informed of his constitutional rights, and that he had decided
to make a statement
only after assaults upon him by Dir. Byleveld,
Insp. Shezi and a third police officer who was present during the
interview, and
that during the assault Dir. Byleveld took out his
firearm and informed him that he was going to kill him and bury him
next to
the deceased. These statements were denied by Dir. Byleveld
who added that he would not put his career at risk with
irregularities
and that he would not allow it in his presence either.
It was also put to Insp. Shezi that accused no 2 made the statement
because
he was assaulted by him, Dir. Byleveld and a third officer.
This was denied by Insp. Shezi, and he added that he did not know the

suspect at all and he had no knowledge of the crime committed. It
was also put to Insp. Shezi that after he had made the statement
he
told Insp. Shezi that he had made up whatever he said, and Insp.
Shezi’s reply was that it did not matter that he lied
and that
what was important was that accused no 2 had made a statement. Insp.
Shezi denied such discussion and testified that
whatever had been
said by the suspect was interpreted by him to Dir. Byleveld.
[28] Accused no 2 elected not to
testify. It is his fundamental right to remain silent. We
considered the totality of the evidence,
including the version of
accused no 2 that had been put by his counsel to the various State
witnesses. We were impressed by the
State witnesses who testified in
this trial-within-the-trial. Each one’s evidence was coherent
and satisfactory in all material
respects. Together they sketched
the whole picture and they corroborated each other on material
aspects. Cross-examination did
not detract from their credibility as
witnesses or from the reliability of their accounts. Their evidence
called for an answer,
and, in the absence of rebuttal, proved beyond
reasonable doubt the requirements stipulated in
s 217
of the
Criminal
Procedure Act for
the admission in evidence of the statements that
had allegedly been made by accused no 2 and that the statements had
not been obtained
in an unconstitutional manner. See:
S
v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC), at p 11e – h.
Ex
facie
the forms (exhibits
‘J’, ‘L’, and ‘N’) and the
evidence given by the relevant State witnesses,
there was compliance
with the relevant provisions of ss 35(1) and (2) of the Constitution.
[29]
S 219
of the
Criminal Procedure
Act provides
that ‘[n]o confession made by any person shall be
admissible as evidence against another person.’ The disputed
confessions
of accused no 2 may accordingly only be admitted as
evidence against him.
[30] Upon completion of the interview
with accused no 2 on 7 December 2007, Dir. Byleveld contacted Insp.
Joubert, and, when he
arrived, handed accused no 2 and the statement
to him. Insp. Joubert testified that Dir. Byleveld also informed him
that ‘…
if he arrests a lady by the name of Celiwe
Mbokazi … [accused no 5] … [he] must inform him because
he also wants
an interview with this lady.’ Insp. Joubert
testified that Dir. Byleveld was interested in this case, and that he
was interested
to hear what she would say about the allegations
against her. Insp. Joubert’s evidence on these aspects was
corroborated
by that of Dir. Byleveld, who testified that he, at that
stage, considered himself as part of the investigation and was
interested
to interview accused no 5 due to the version furnished by
accused no 2.
[31] On the same day, 7 December 2007,
Insp. Joubert, accompanied by a female constable, Const. Anna Munyai,
attended at accused
no 5’s residence at Heia Safari where she
was arrested as a suspect. Const. Munyai acted as English/Zulu
interpreter for
Insp. Joubert. This is common cause. Insp. Joubert
testified that he introduced himself, he explained to accused no 5
the reason
for their visit, he explained to her that he was arresting
her as a suspect in the case, and he informed her of her right to
remain
silent, of the consequences of not remaining silent, and of
her right to legal representation. Const. Munyai corroborated Insp.

Joubert’s evidence on these issues and she testified that
accused no 5 confirmed to her that she understood the reason for
her
arrest and the rights that were explained to her. Accused no 5 also
testified that she was informed that she was arrested
as a suspect
because she was implicated in the death of the deceased. Although
accused no 5’s version, as put to Insp. Joubert,
Const. Monyai
and Const. Letswamotse, and as testified to by her, was a denial that
her rights were explained to her at the time
of her arrest, she,
under cross-examination, gave unsatisfactory evidence on this issue
and she
inter alia
contradicted herself on
whether or not she could remember whether the right to remain silent
was explained to her and whether or
not it was indeed explained to
her.
[32] It is common cause that Insp.
Joubert and Const. Munyai took accused no 5 to the Roodepoort police
cells after her arrest where
she was detained as a suspect. It is
also common cause that Const. Munyai, in the presence of Insp.
Joubert, furnished accused
no 5 with a copy of a document (exhibit
‘K’) that notified her of the reason for her detention
and of the
s 35
constitutional rights of a detained and of an
arrested person (SAP14A form). It is in dispute whether Const.
Munyai had read the
notice to accused no 5 before a copy thereof was
given to her. Const. Munyai testified that she first read the notice
to her in
English and thereafter explained to her in Zulu what she
had read in English. She testified that accused no 5 confirmed that
she
understood what had been read and explained to her and accused no
5 signed the document. Const. Munyai testified that after she
had
read the rights and had filled in the document, she gave a copy to
accused no 5 and advised her ‘… that she can
continue to
read those rights on her own in the cells.’ Const. Munyai’s
evidence on this issue is corroborated by
that of Insp. Joubert,
although he did not understand what Const. Munyai said to accused no
5 in Zulu. His evidence was also that
Const. Munyai read from the
SAP14A form and that she explained in her language accused no 5’s
rights to her. It was not
suggested to Insp. Joubert or to Const.
Munyai that accused no 5 did not appreciate what she was signing or
what was given to her.
Under cross-examination, accused no 5
testified that she read the notice which Const. Munyai had given her
when she arrived in
her cell. Under re-examination she said that she
did not understand anything written on the notice. At some stage
during her
cross-examination, accused no 5 testified that she was
able to understand the English language although she could not speak
it.
[33] It was put to Const. Munyai that
on the occasion when exhibit K was given to her, she showed her a
statement and said it was
a statement from Dumisani (accused no 2)
and that she told accused no 5 that she should tell the truth because
they knew everything.
Const. Munyai denied this and testified that
she had no knowledge of Dumisani Xulu. The proposition put to Const.
Munyai that
she reprimanded her to tell the truth since she or they
knew everything was not mentioned by accused no 5 when she testified.

In chief, accused no 5 testified that Insp. Joubert told her that it
was Dumisani’s statement, but under cross-examination
that it
was the woman police officer who had told her this.
[34] It is common cause that Insp.
Joubert interviewed accused no 5 on 9 December 2007. Exhibit ‘P’
is the form that
was completed regarding this interview. The form
inter alia
sets
out the right of a suspect to remain silent throughout the interview,
of not being compelled to make a statement or to answer
any
questions, the consequences of making a statement or answering
questions, and the right to legal representation. It is common
cause
that accused no 5 elected not to make a statement in this interview
with Insp. Joubert. She informed him that she preferred
to make a
statement in court. She also elected to consult a legal
representative of her choice. Her election not to make a statement

and her election to consult a legal practitioner of her choice –
Legal Wise – were recorded in the form and no statement
was
taken from her during this interview.
[35] Accused no 5 denied that Insp.
Joubert informed her of her rights or that she made an election upon
having been so informed.
Her evidence on this issue is rejected. It
was unsatisfactory, self-contradictory and is refuted by the
probabilities and the
contents of exhibit ‘P’. In
answer to a question under cross-examination why she wanted legal
representation at
that stage, accused no 5 replied ‘It was of
paramount importance that I should have an attorney.’ Upon
being asked
whether she was made aware of the right to legal
representation, she replied: ‘That is something which I
thought of myself.’
At some stage during her cross-examination
she, however, testified that she lacked the knowledge of invoking the
right to legal
representation herself. It also appears from the
evidence of accused no 5 that she was represented by an attorney
appointed by
Legal Wise until the commencement of her criminal trial.
It is overwhelmingly probable that the information relating to her
election
to consult with a legal practitioner of her own choice and
the information relating to ‘Legal Wise’ that was
recorded
on the form had emanated from her.
[36] Under cross-examination, accused
no 5 testified that, at the time of this interview with Insp.
Joubert, he ‘forced’
her to make a statement by
threatening her. The threat, according to accused no 5, was that he
told her to tell him everything
otherwise he was going to assault
her. This version of accused no 5 was not foreshadowed in the
cross-examination of Insp. Joubert
and is an obvious fabrication.
She first testified that she was not proficient in English and that
no interpreter was present
or seen by her at the time of this
interview. When she was questioned on how she could have understood
the threat, her reply was
first that she could see that he was
threatening her by the manner in which he spoke, and then that she
was able to understand
the English language although she could not
speak it. The objective facts are that she did not make a statement,
that her election
was noted on the form, and that her election was
respected.
[37] It is common cause that on 10
December 2007, Insp. Joubert and Const. Letswamotse took accused no 5
to the Krugersdorp Magistrates’
Court for her first appearance.
Accused no 5 testified that the magistrate explained to her the
constitutional rights of detained
and arrested persons. The case was
postponed. Under cross-examination, accused no 5 testified that an
attorney appointed by Legal
Wise appeared for her in court on this
occasion. In reply to my questioning as to when she had instructed
the attorney, accused
no 5 said that she had not instructed the
attorney to attend court personally, and it seemed to her that her
family had arranged
for the attorney to be present at court. She
also testified that she informed Insp. Joubert that she had
instructed a Legal Wise
attorney. She first testified that she did
not remember when she had told him, but then said it was at court at
the time of her
first appearance. She testified that she did not
tell Insp. Joubert the name or surname of her attorney, but only that
she had
one from Legal Wise.
[38] Insp. Joubert testified that
after her first court appearance on 10 December 2007, he, accompanied
by Const. Kagiso Letswamotse,
took accused no 5 to the Dr Yusuf Dadoo
Hospital to confirm her pregnancy and the stage thereof. They were
referred to the Lerathong
Hospital for a sonar, and they proceeded
there immediately. It is common cause that accused no 5 was taken to
hospital ‘to
check her pregnancy’ and it was not disputed
that her pregnancy was confirmed and the stage thereof determined at
between
six and seven months. Insp. Joubert’s evidence on
these aspects was materially corroborated by that of Const.
Letswamotse.
Although she could not remember the date on which she
was taken to hospital, accused no 5 denied that it was on the day of
her
first appearance in court, and she testified that it was on the
day when she was assaulted. She testified that she was taken to

hospital immediately after she had been assaulted by Insp. Joubert,
Const. Kagiso Letswamotse, and one white female officer, and
she
thought that they wanted to ascertain whether they had not injured
the baby. Accused’
s 5
version that she was not taken to
hospital on the 10
th
December 2007 is contradicted by a casualty form from the Dr Yusuf
Dadoo Hospital (exhibit ‘H’), which document I was

informed by counsel for accused no 5 was not in dispute.
[39] Accused no 5 testified that Insp.
Joubert and Const. Letswamotse fetched her from the cells and took
her to an office. A white
female police officer, who was also
present, showed her a statement that she alleged was from Dumisani
and she said to accused
no 5 that she had hired Dumisani to kill the
deceased. When accused no 5 denied any knowledge of what she had
been accused of,
she was made to lie on her stomach, Const.
Letswamotse placed plastic over her head, Insp. Joubert was holding
both her legs, and
they assaulted her. She could not say how many
times she was assaulted. During the assault they said she must admit
that she
was the person who had hired Dumisani to kill the deceased.
Under cross-examination, she testified that she sustained the
following
injuries: her jaws were numb and injured; the lower parts
of her legs were painful; and she had pain on her stomach. The
allegations
of an assault upon accused no 5 were denied by Insp.
Joubert and by Const. Letswamotse.
[40] We reject accused no 5’s
version of an assault upon her. Mere vague propositions of the
alleged assault in which he
participated were put to Insp. Joubert.
The propositions put to Insp. Joubert and to Const. Letswamotse also
differed in certain
respects from accused no 5’s testimony. It
was not put to any of the State witnesses that accused no 5 had
sustained any
injuries as a result of the assault. It is, in our
view, highly improbable that the police officers would have taken her
to hospital
immediately after they had assaulted her. The fact that
she did not report the assault upon her and the injuries that had
allegedly
been sustained by her as a result thereof to the doctor
that attended to her immediately after the alleged assault, and her
unsatisfactory
replies as to why she had failed to do so, support the
version of the State witnesses that she had not been assaulted.
Furthermore,
she was pregnant at the time, and had she indeed been
assaulted, one would have expected her to have enquired from the
attending
doctor whether the unborn baby had not been injured.
[41] Insp. Joubert testified that,
because Dir. Byleveld had indicated to him that he would like an
interview with accused no 5,
he contacted Dir. Byleveld on 10
December 2007, and it was arranged between them that he would take
accused no 5 to Dir. Byleveld
on 11 December 2007. Insp. Joubert’s
evidence that he explained to accused no 5 that he was taking her to
Dir. Byleveld
for an interview and that she did not object or refuse
when he booked her out of the Roodepoort SAPS cells on the morning of
11
December 2007, was not disputed when he was cross-examined.
Accused no 5, however, testified in chief that she was not told that

she was going to be taken to Dir. Byleveld or of the reason why she
was taken there. It is undisputed that Dir. Byleveld interviewed

accused no 5 on 11 December 2009, and it is common cause that only
he, Insp. AM Shezi in the capacity as interpreter, and accused
no 5
were present at the interview.
[42] It is common cause that, upon her
arrival, Dir. Byleveld introduced himself to accused no 5 and Insp.
Shezi who was to act
as the interpreter. Dir. Byleveld used a
prescribed
pro forma
for
purposes of the interview (exhibit ‘O’). Dir. Byleveld
testified that he read the
s 35
constitutional rights from the form
to accused no 5 and he recorded the information that he obtained from
her on it. Accused no
5’s confirmation that she understood her
rights and her election to submit a statement were recorded on the
form. Accused
no 5’s replies that she had no injuries, that
she had not been assaulted, threatened or influenced in any way to
submit a
statement or to answer the questions, and that she willingly
submitted the statement and answered the questions were also
recorded.
It is common cause that accused no 5 was in her sound and
sober senses when she furnished the statement. Dir. Byleveld
testified
that accused no 5 had given him a very long account. This
was not disputed. We were informed by the State counsel that,
although
an exculpatory statement, it contains certain admissions.
Dir. Byleveld testified that the statement was read back to accused
no 5 and her reply that it was written down correctly was recorded.
Accused no 5
signed
each page of the document. It was also recorded that she did not
want a lawyer present. It was recorded that the interview
commenced
at 9h16 and was completed at 11h15. Upon completion of the
interview, Dir. Byleveld contacted Insp. Joubert, and, when
he
arrived, Dir. Byleveld handed over accused no 5 and the statement
that he had taken from her to him.
[43] Dir. Byleveld’s evidence
was corroborated by that of Insp. Shezi on material aspects, such as
that he acted as the interpreter
when the statement was taken, that
whatever Dir. Byleveld said was interpreted to accused no 5 and
vice
versa
, that accused no 5’s
rights were read to her and that he interpreted them to her, that the
opportunity of electing whether
or not to make the statement was
afforded to her, and that Dir. Byleveld read the statement back to
accused no 5 after it had been
taken.
[44] Accused no 5 testified that Dir.
Byleveld ‘forced’ her to make the statement. When
cross-examined, she testified
as follows about this issue:
‘
In what manner were you
forced? --- He took out a firearm and he said that whatever I am
going to tell him, I must tell him the
whole truth.
What did he do with the
firearm? --- He took out the firearm, put the firearm on top of the
table and said to me that he knows everything,
that I was involved or
implicated in the murder of Mr Richter. All what I am going to tell
him, I must tell him the whole truth.
Was the firearm used against
you in any way? --- All what he did, he took out the firearm and put
the firearm on top of the table.
So do I understand you
correctly that the firearm was not used against you. --- No, he did
not use the firearm against me. All
what he said, that I must tell
him the whole truth.
Did you then tell Director
Byleveld the whole truth as he asked? --- Yes, I told him what I
know.’
And also:
‘
All what he did and said
is that he produced the firearm, placed the firearm on top of the
table and said to me that I must tell
the truth, that is all. He
further said to me that if I do not tell him the truth I will see
what is going to happen.’
[45] Accused no 5’s version as
to what had induced her to make the statement to Dir. Byleveld is not
without contradiction.
It was emphasised during the
cross-examination of Insp. Joubert that the reason why accused no 5
had made the statement to Dir.
Byleveld was because of Insp.
Joubert’s assault upon her. It was put to him that he ‘forced’
her to make a statement
to Dir. Byleveld.’ In reply to
questions from me on the issue why she had made the statement to Dir.
Byleveld, accused
no 5 said that ‘the only reason’ was
that Director Byleveld said to her that she should tell him all that
she knew.
W
hen
questioned by her counsel arising from the questions asked by me she
said she was threatened because he placed the firearm on
top of the
table and she was scared that something was going to happen to her.
[46] Accused no 5’s version was
further that Dir. Byleveld did not explain her rights to her before
she made the statement
to him and that he did not ask her whether she
needed a lawyer present. According to her, because her rights were
not explained
to her, she was not afforded the opportunity of
electing not to make the statement and of first consulting with her
legal representative.
On the issue whether Dir. Byleveld explained
her rights to her, accused no 5 contradicted herself in chief by
testifying that
he did not explain any rights to her, then that she
could not remember whether he informed her of her right to remain
silent, and
again that he did not inform her of this right. Her
allegation that Dir. Byleveld’s failure to explain her rights
to her
deprived her of an election is untenable. She conceded that
she knew of her right to legal representation at the time when Dir.

Byleveld was taking the statement. She testified that she did not
inform Dir. Byleveld that she already had an attorney and that
she
required the presence of a legal representative when the statement
was taken, because he did not ask her. Yet, two days before
when
Insp. Joubert interviewed her, she had elected not to make a
statement and to consult a legal representative despite his alleged

threats and failure to explain her rights.
[47] Accused no 5 also testified that
Dir. Byleveld obtained the personal particulars that were completed
in para 2 of the form
from her, but she denied that she furnished her
employment telephone number that was also recorded. This was not put
to Dir. Byleveld.
Under cross-examination she conceded that the
number that was filled in was the correct one. In her evidence in
chief, she also
referred to more questions that had allegedly not
been read to her over and above those that were put to Dir. Byleveld.
It was
inter alia
put to Dir. Byleveld that he did not ask the questions in paras 7.1
and 7.6 of the form (whether she had been assaulted, threatened
or
influenced in any way to submit a statement or to answer the
questions, and that she willingly submits the statement and answers

the questions). He denied these statements. Under
cross-examination, accused no 5 initially persisted that question 7.1
had
not been asked, but then said that she did not remember whether
it had been asked or not. When asked whether she had furnished
any
further information to Dir. Byleveld other than the information
appearing on the first page of the form (in other words para
2 of the
form), accused no 5 contradicted herself on whether or not she was
able to recall whether he had asked her questions other
than
questions in connection with the crime.
[48] Accused no 5
inter
alia
testified as follows
when she was cross-examined by the State counsel:
‘
When Director Byleveld
was writing this statement was he getting information from you or was
he writing it on his own? --- I think
he was writing what I was
saying.
So the content of the statement
is what was coming from yourself? --- Yes that is correct, some of
the things I did say but I do
not know whether there were other
things that he wrote which I did not say.
So you were not aware whether
there were other parts which are incorrect? --- Yes I did not know.
Today whilst you are on the
witness stand do you know whether there are any other parts on the
statement which you do not agree
with? --- Because I did not see the
statement I am not in a position to say or dispute anything.’
When accused no 5 was confronted with
the fact that her objection to the admissibility of the statement was
also that part of it
was not what she had told Dir. Byleveld, she
adjusted her evidence by saying that her advocate had read the
statement to her in
a hurry. I should add that accused no 5
confirmed under cross-examination that Insp. Shezi interpreted to her
what Dir. Byleveld
was saying and that he interpreted to Dir.
Byleveld what she was saying to him. She had no problem with the
interpreting.
[49] In conclusion, this, in our view,
was not ‘a situation of stealing a march on an accused person.’
Compare:
S v Agnew and
Another
1996 (2) SACR 535
(C) and
S v Mphala and
Another
1998 (1) SACR 388
(W). When Insp. Joubert interviewed accused no 5 on 9 December 2007,
she refused to furnish a statement to him, she elected to
make a
statement in court, and she elected to consult with an attorney of
her choice. On her version, she advised Insp. Joubert
at the time of
her first appearance at court on 10 December 2007 that she was
represented by an attorney that had been appointed
for her by Legal
Wise. She did not tell him who the attorney was nor did she furnish
him with the attorney’s particulars.
Insp. Joubert did not
take her to Dir. Byleveld because she, on 9 December 2007, elected
not to make a statement, but because
Dir. Byleveld had, on 7 December
2007, requested an interview with her. Dir. Byleveld is a senior
officer and Insp. Joubert is
a relatively young one. When
interviewed by Dir. Byleveld, she was fully aware of her
constitutional rights, including her rights
to remain silent, against
self-incrimination, and to legal assistance before and at the time of
making the statement in issue.
If she had wished to invoke any of
her rights, she was at liberty to do so and she could simply have
mentioned it to Dir. Byleveld.
This was precisely what she did two
days earlier when she was interviewed by Insp. Joubert. It was not
suggested that she had
been prevented by Insp. Joubert or by Dir.
Byleveld from contacting, seeing or receiving advice from her
attorney or that her attorney
was prevented from contacting, seeing
or advising her prior to or at the time of making the statement. She
elected not to tell
Dir. Byleveld of her attorney. She did not
contact or have her attorney contacted. Her explanation for not
having done so (because
she was arrested and she did not have the
facilities to phone) is simply not plausible.
[50] On the totality of the evidence
my assessors and I had no hesitation in concluding that accused no
5’s version that she
had not been informed of her
constitutional rights at the time of her arrest, when she was booked
into the Roodepoort SAPS cells,
when she was interviewed by Insp.
Joubert, and when she was interviewed by Dir. Byleveld, was false.
We also had no hesitation
in finding that her allegations of being
threatened, of being assaulted, and of Dir. Byleveld threatening her
with his firearm
and verbally, were fabricated. We are satisfied
that the evidence of each one of the State witnesses was coherent and
satisfactory
in all material respects. Their evidence was consistent
and they corroborated each other on material issues as I have
mentioned.
[51] The State, on the totality of the
evidence, discharged the
onus
of proving beyond
reasonable doubt the requirements stipulated in
s 217
or in
s 219A
of
the
Criminal Procedure Act for
the admission in evidence of the
statement which had allegedly been made by accused no 5 contained in
exhibit ‘O’ and
that it had not been obtained in an
unconstitutional manner.
[52] The disputed statement of accused
no 5, being admitted as an extra-curial admission under
s 219A
of the
Criminal Procedure Act, is
only admissible against her, unless the
requirements for admissibility of hearsay evidence under
s 3
of the
Law of Evidence Amendment Act 45 of 1988
are satisfied. It was
accordingly at that stage only admitted in evidence against accused
no 5.
[53] The ruling made in this first
trial-within-the-trial was the following:
1. The statement made by accused no 2
before Supt. Ramukosi on 28 November 2007 at Muldersdrift SAPS and
contained in exhibit ‘L’,
is admitted in evidence against
accused no 2.
2. The statement made by accused no 2
before Director Byleveld on 7 December 2007 at Brixton SAPS and
contained in exhibit ‘N’,
is admitted in evidence against
accused no 2.
3. The statement made by accused no 5
before Director Byleveld on 11 December 2007 at Brixton SAPS and
contained in exhibit ‘O’,
is, at this stage, only
admitted in evidence against accused no 5.
[54] The
second
trial-within-this-trial
concerned the admissibility of a statement that had allegedly been
made by accused no 1 on 28 November 2007, and a pointing out
that had
allegedly been made by him on 29 November 2007. On 1 June 2009, the
statement and pointing out were ruled to be admissible
in evidence
against accused no 1. These are the reasons.
[55] The State wished to introduce in
evidence a statement by accused no 1, which had allegedly been made
before Supt. CS Scherman
from 22h05 on 28 November 2007 until 00h50
on 29 November 2007 at the Muldersdrift SAPS and a pointing out,
which had allegedly
been made by accused no 1 before Snr. Supt.
Louise Eksteen in the afternoon on 29 November 2007.
[56] We were informed by counsel for
the State, Mr. Ntlakaza, that the statement constitutes a confession,
which labelling was confirmed
by counsel for accused no 1, Mr. Ncoko.
We accordingly accepted such labelling, and we also considered the
pointing out to constitute
a confession. Such approach accorded with
that taken by counsel.
[57] The State must accordingly, in
both instances, discharge the
onus
of proving beyond
reasonable doubt the requirements stipulated in
s 217
of the
Criminal
Procedure Act for
the admission in evidence of the disputed statement
and of the disputed pointing out, and also that they had not been
obtained
in an unconstitutional manner.
[58] Mr Ncoko, on behalf of accused no
1, objected to the admissibility of the statement on the grounds that
accused no 1 was induced
to make the statement as a result of the
following:
he used dagga prior to his arrest and
consequently lacked ‘appreciation’;
he was exposed to high temperature or
heat at the time of his arrest;
he was ‘shot at’ at the
time of his arrest;
the making of the statement was
preceded by a lengthy interrogation that was accompanied by
assaults;
he was not the author of the
statement and what is contained in it was what accused no 1 had
overheard from the police officers
at the time of his arrest; and
he was not informed of his
constitutional rights to remain silent and of legal representation.
The admissibility of the pointing out
was objected to on the same grounds, except for the one that he
lacked appreciation as a result
of his alleged use of dagga prior to
his arrest. Accused no 1 confirmed the grounds of objection.
[59] The State led the evidence of
Capt. CH Slaughter, who allegedly arrested accused no 1; Supt.
Christa Scherman, to whom accused
no 1 had allegedly made the
statement; Snr. Supt. Louise Eksteen, to whom accused no 1 had
allegedly made the pointing out; Insp.
Manoko, who took the
photographs that had been taken prior to and after the disputed
pointing out; Const. Nkuna, who furnished
an SAP14A to accused no 1
at the Muldersdrift SAPS; Const. Senosi, who guarded accused no 1 at
the Muldersdrift SAPS; Insp. FJ
Scott, who was the driver during the
disputed pointing out; Mr K Mpodisang, who was the interpreter
during the interview with
Supt. Scherman; Snr. Const. Barati Molefe,
who was the interpreter during the interview with and the disputed
pointing out to
Snr. Supt. Eksteen; and Insp. AJ Joubert, who is the
investigating officer. The State thereafter closed its case.
Accused no
1 elected to testify, whereafter his case was closed.
[60] Capt. Slaughter testified that
there was a reasonably strong police presence on and in the vicinity
of the premises of the
Heia Safari on the day of the incident, 28
November 2007, and particularly surrounding an area comprising dry
reeds and grass on
a farm in the vicinity of Heia Safari. Civilian
people were also present. This area is depicted and encircled marked
‘M’
on photo 2 of exhibit D2, and it is hereinafter
referred to as the reeds area. Information received led members of
the SAPS to
believe that suspects were hiding in the reeds area.
Searching this area was difficult and it was accordingly set alight.
Accused
no 1 emerged from the reeds area with his hands raised above
his head about five to ten minutes after it had been set alight. He

fitted the description of one of the persons who was sought by
members of the SAPS in connection with the incident, and Capt.
Slaughter accordingly arrested him as a suspect at a point just
outside the reeds area that is depicted and marked ‘M1’

on photograph 2 of exhibit D2 (‘the arrest point’).
Capt. Slaughter communicated with him in English. Accused no
1’s
understanding and ability to communicate in the English language were
not disputed when Capt. Slaughter, Const. Nkuna,
Insp. Joubert, Supt.
Scherman, Mr. Mpodisang, and Snr. Supt. Eksteen were cross-examined.
They corroborated each other on this
aspect. Accused no 1 also
confirmed his understanding of the English language although he
testified that he does not speak it
well. Capt. Slaughter testified
that he warned accused no 1 of his constitutional rights (to remain
silent, the consequences of
not remaining silent, against
self-incrimination, and to legal assistance) immediately after his
arrest. Accused no 1 confirmed
that he understood his rights. Capt.
Slaughter testified that he walked accused no 1 from the arrest point
to a point that was
about 100 metres away where vehicles were parked
and police officers were gathered. He handed accused no 1 over to
members of
the Muldersdrift SAPS at this point, which is depicted on
and marked ‘M2’ on photograph 2 of exhibit D2 (‘the

departure point’).
[61] Insp. Joubert testified that he
arrived at the reeds area after 16h00 pm only minutes after accused
no 1 had been arrested
by Capt. Slaughter.
Insp.
Joubert was one of the police officers who took accused no 1 by
vehicle from the departure point to the nearby Video Squatter
Camp
and thereafter,
via
the departure point, to the Muldersdrift Police Station where he was
initially detained as a suspect.
[6
2] Const.
Nkuna testified that he was requested by Insp. Joubert
to read the SAP14A form (exhibit ‘T’), which form
notifies a person of the reason for his or her detention and of the
s
35
constitutional rights of a detained and of an arrested person, and
to hand him a copy thereof. Const. Nkuna testified that he informed

accused no 1 that he had been asked to read his rights to him. Since
Const. Nkuna was Tsonga speaking and accused no 1 Tswana
speaking,
Const. Nkuna offered to obtain the assistance of a person who speaks
the same language as accused no 1, but he declined
the offer and
agreed for Const. Nkuna to proceed in English saying that he was
comfortable in the English language. Const. Nkuna’s
evidence
that he had read the notice to accused no 1, that accused no 1
acknowledged that he understood what had been read to him,
that
accused no 1 had signed the notice, and that a copy thereof was
handed to accused no 1, was not challenged when he was cross-examined

on behalf of accused no 1. Const. Nkuna’s evidence that he had
read out accused no 1’s constitutional rights to him
was also
corroborated by the evidence of Insp. Joubert and of Const. Senosi,
whose unchallenged evidence was that it took place
in their presence.
[63] Insp. Joubert testified that he
interviewed accused no 1 just after 6:00 pm for about 5 – 10
minutes after the
s 35
notice had been read to him. He testified
that accused no 1 started to make admissions during this interview.
When this happened,
he stopped accused no 1 and warned him again of
his rights to remain silent, of the consequences of not remaining
silent and of
his right to legal assistance. Accused no 1 confirmed
to Insp. Joubert that he was willing to make a statement to a police
officer
who was a justice of the peace. Insp. Joubert also enquired
from him whether he would be prepared to do a pointing out regarding

the scene of the crime, and, in so requesting, again warned him of
his rights. Accused no 1 confirmed his willingness. Insp.
Joubert
thereupon contacted Supt. Scherman, who agreed to assist in taking a
statement from accused no 1. This was confirmed by
Supt. Scherman
when she testified.
[64] Const. Senosi’s
unchallenged evidence was that he, at the request of Insp. Joubert,
guarded accused nos 1, 2 and 3 from
just before 18h00 on 28 November
2007. Insp. Joubert phoned him during the course of the evening and
requested that he take accused
no 1 to an office where Supt. Scherman
was waiting. He complied.
[65] It is undisputed that Supt.
Christa Scherman interviewed accused no 1 from 22h05 on 28 November
2007 until 00h50 on 29 November
2007 in a detective’s office at
the Muldersdrift SAPS, and that only she, an English/Tswana
interpreter, Const. Mpodisang,
and accused no 1 were present at the
interview. Supt. Scherman was stationed at the West Rand Organized
Crime Unit of the SAPS,
and she has been a member of the SAPS since
1983. She was an officer with a rank higher than that of captain.
She testified that
she had no knowledge of the case or its merits
before the interview. Insp. Joubert only told her that accused no 1
had been arrested
for murder and robbery. She testified that she
used a prescribed
pro forma
for purposes of the
interview (exhibit ‘Q’). She, through the interpreter,
read the contents of the form to accused
no 1. His replies were
interpreted to her and recorded by her on the form. Supt. Scherman
testified that she
inter
alia
read the
s 35
constitutional rights from the form to accused no 1. She also
explained the rights to him in more simple English to make it easier

for him to understand. She recorded his acknowledgement to her that
he understood the rights, that he elected not to consult a
legal
practitioner before deciding whether to make a statement, that he was
willing to make a statement, and that he wished ‘…
to
tell the whole story.’ She further recorded his replies to her
that he had not been threatened, assaulted, or influenced
to make the
statement, her observation that he was seemingly of sound mind and
not under the influence of liquor or any other intoxicating
substance
or in a state of shock. Accused no 1 informed her that he had
injuries, namely bruises on his right upper arm and left
arm, and a
slight scratch on his left leg, and that he had sustained the
injuries when the grass burnt at the place where they
were hiding.
He also showed the injuries to her. Supt. Scherman testified that
she, through the interpreter, took down accused
no 1’s
statement. She thereafter, through the interpreter, read the form
and the statement back to him. He confirmed the
contents thereof to
be a true and correct reflection of the interview. It was signed by
Supt. Scherman, the interpreter, and accused
no 1. His thumb print
was also placed on each page of the document. An interpreter’s
certificate was completed and signed.
Supt. Scherman explained that
the interview took almost three hours since accused no 1 made a
lengthy statement of about seven
pages and he personally also
sketched a drawing of the scene.
[66] Mr. Mpodisang testified that he
is no longer a police officer and that he is currently employed at
the Department of Agriculture.
He was an SAPS constable during
November 2007. He corroborated Supt. Scherman’s evidence on
material aspects, such as that
he acted as an English/Tswana
interpreter during the interview; that whatever Supt. Scherman said
was interpreted to accused no
1 and
vice
versa
; that accused no 1’s
rights were read, interpreted and explained to him; that accused no
1 confirmed that he understood
them; that accused no 1 was asked
whether he was prepared to make a statement and that he confirmed
that he wished to do so;
that accused no 1 indeed made a statement;
that accused no 1 was ‘fine’; that accused no 1 did not
mention any complaints
or assaults upon him; and, that everything
accused no 1 said was interpreted to and recorded by Supt. Scherman.
[67] Snr. Supt. Louise Eksteen
testified that Insp. Joubert requested her during the morning of 29
November 2007 to assist in a
pointing out by accused no 1. She and
Insp. Joubert corroborated each other on this aspect. She has 24
years experience as a
member of the SAPS. She was the Area Head of
the West Rand Detective Branch at the relevant time. She is
presently the Commander
of a new SAPS Task Team. Snr. Supt. Eksteen
testified that she was given no particulars as to the nature of the
pointing out.
She used an office at the Krugersdorp SAPS Detective
Branch for purposes of the interview since the office was closer to
the
cells where accused no 1 was detained. Accused no 1 was brought
to her by the police officer who acted as the interpreter for the

purpose of the pointing out, namely Const. Molefe. The pointing out
started at about 14h45. It is undisputed that accused no
1 is Tswana
speaking. Tswana is a language in which Snr. Supt. Eksteen is
competent. She greeted him in Tswana to make him comfortable
and to
demonstrate that she was not a threat to him. She on occasion during
the interview also communicated with him in Tswana.
[68] Snr. Supt. Eksteen testified that
she used a prescribed
pro
forma
for purposes of the
interview (exhibit ‘R’). She, through the interpreter,
read the contents of the form to accused
no 1. His replies were
interpreted to her and recorded by her on the form. She read his
constitutional rights to him. She also
explained his rights to him
in Tswana. He confirmed that he understood his rights. Her evidence
that accused no 1 also replied
by furnishing her with an abbreviated
version of the rights was not challenged. This confirmed to her that
he fully understood
his rights. She testified that accused no 1
elected to obtain legal assistance through the Legal Aid Board only
when he appears
in court. He specifically elected not to have legal
representation at the stage of the pointing out and said that he
wished ‘to
tell everything’. Accused no 1 informed her
that he had sustained injuries. She inspected his injuries and
photographs
were taken of them by Sgt. Manoko, who subsequently
testified and confirmed that he, at the request of Snr. Supt.
Eksteen, compiled
the album (exhibit ‘S’) and took the
photographs of accused no 1. The injuries showed to her and depicted
on the photographs
were injuries on his left and right arms and on
his right shin, which accused no 1 told her were sustained when he
had hidden in
the grass when it was burnt by the SAPS. Accused no 1
confirmed to Snr. Supt. Eksteen that he was not assaulted, that no
promises
were made to him to influence him to point out anything,
that he had not been influenced in any way by any person to point out
anything, that he was not promised benefits if he points out
anything, and that he was satisfied that it was his own choice to do

a pointing out of his free will, without being forced, influenced, or
encouraged by any person to do so.
[69] Snr. Supt. Eksteen testified that
accused no 1 thereafter took her on the pointing out. Insp. FJ Scott
was the driver of the
motor vehicle. He confirmed this when he
testified. Snr. Supt. Eksteen was seated in the front passenger
seat. Accused no 1
and the interpreter were seated at the rear.
Insp. Scott testified that accused no 1, through the interpreter,
directed him where
to go. The interpreter, Const. Molefe
corroborated his evidence. When they returned after the pointing
out, the notes of the
pointing out were read to accused no 1, and he
confirmed that he was satisfied with the pointing out, that it was
his own version,
and that it had been correctly noted down. Snr.
Supt. Eksteen testified that the document was read back to accused no
1, confirmed
by him to be correct, and signed by her, the
interpreter, and accused no 1. His thumb print was also placed on
each page of the
document. The interpreter’s certificate was
completed and signed.
[70] The evidence of Snr. Const.
Barati Molefe corroborated that of Snr. Supt. Eksteen in certain
respects, such as that she booked
accused no 1 out of the cells and
took him to Snr. Supt. Eksteen; she, as the interpreter, interpreted
everything that was said
between Snr. Supt. Eksteen and accused no 1;
Snr. Supt. Eksteen ascertained through her questioning how accused
no 1 had sustained
his injuries; and when they travelled on the
pointing out, accused no 1 gave the directions, which she in turn
interpreted to the
driver.
[71] Accused no 1 testified that he
and accused no 3 went into the reeds area after 15h00 pm on the day
in question to smoke dagga.
They first sat next to the reeds, but,
upon noticing a police vehicle, went deeper into the reeds area. The
two of them smoked
half the contents of dagga contained in an
envelope that was sold for five rand. Police officers and civilian
people surrounded
the reeds area. He overheard the conversations
of people surrounding the area
inter
alia
saying that a German
person had been robbed and killed. The reeds area was ultimately set
alight. The inhalation of the smoke
of the burning reeds caused him
to be ‘dizzy and confused’ and the smoking of dagga
contributed to his dizziness.
He testified under cross-examination
that his dizziness and confusion lasted until the evening of the
following day when he went
to sleep, which was after the pointing out
that he had allegedly made to Snr. Supt. Eksteen. Accused no 1
testified that the effect
of dagga on him is that he does ‘not
think properly’ after he has smoked it.
[72] Accused no 1 did not suggest that
his exposure to high temperature or heat immediately prior to his
arrest in any way affected
him thereafter. This, however, was one of
the grounds raised in objection to the admissibility of the disputed
statement and of
the disputed pointing out, and Capt. Slaughter was
cross-examined thereon. The effect on him of the smoke caused by the
burning
reeds was, however, a new ground that emerged as the
trial-within-the-trial progressed. It was put to Supt. Scherman
‘that
before and during his arrest accused no 1 inhaled a lot
of carbon monoxide’, which had a calming effect on him.
Accused
no 1’s evidence of his lack of appreciation was
contradictory. His alleged dizziness and confusion were not put to
any of
the State witnesses. His claimed lack of appreciation,
dizziness, and confusion is entirely inconsistent with the account
that
he gave of his overhearing conversations, the accuracy with
which he conveyed to Supt. Scherman what Insp. Joubert had allegedly

instructed him to convey to her, and his detailed account of the
events and of his own actions and the actions and omissions of
the
various police officers involved. It is also inconsistent with his
appearance, behaviour, and communications about which the
various
State witnesses testified, and particularly the evidence of Supt.
Scherman and that of Snr. Supt. Eksteen.
[73] Accused no 1 testified that he
noticed a white male person a distance away when he emerged from the
reeds area. This person
fired a shot in the air. The warning shot
frightened him. This is in conflict with one of the grounds raised
and confirmed by
accused no 1 for objecting to the admissibility of
the statement and pointing out, which was that he was ‘shot at’
at the time of his arrest.
[74] Accused no 1 testified that he
was arrested after the warning shot had been fired. He was not
informed of his constitutional
rights upon his arrest. Contradictory
propositions on this issue were, however, put to Capt. Slaughter,
namely that he did not
explain or inform him of his constitutional
rights ‘at all’ and ‘that not all the rights were
explained to accused
no 1.’
[75] Accused no 1 testified that he
was ordered by the person who discharged the warning shot to lie on
the ground after his arrest.
Capt. Slaughter testified that he was
the person who ordered accused no 1 to lie on the ground. He denied
the proposition that
had been put to him that a male person older
than him ordered accused no 1 to lie on the ground. Accused no 1
testified that other
police officers joined them. They tied his
hands with plastic clamps and assaulted him by kicking him while he
was lying on the
ground. They asked where the other person was that
was with him. Accused no 1’s version in this regard was not
foreshadowed
by the cross-examination of either Capt. Slaughter or of
Insp. Joubert. All that was put to Capt. Slaughter was that accused
no
1 was assaulted at the time of his arrest. It was put to Insp.
Joubert that accused no 1 was assaulted by the person who arrested

him at the time of his arrest and thereafter on the way to the
departure point.
[76] Accused no 1 testified that a
police vehicle and a ‘Prado’ vehicle were stationary at
the departure point. He
was taken to the departure point where a
group of police officers assaulted him by hitting him with their open
hands and kicking
him. They told him that he was the person who had
committed the robbery, that he was not alone when it was committed,
and that
he was accompanied by friends. He testified that these
assaults upon him were intermittent and took a long time. He was
assaulted,
questioned, and, if he did not say what they required of
him, assaulted again. Capt. Slaughter’s undisputed evidence
was
that he was one of the police officers who accompanied accused no
1 from the point of arrest to the departure point. Accused no
1’s
version that he was assaulted and questioned at the departure point,
was not put to Capt. Slaughter or to any other State
witness. What
was put to Insp. Joubert was that accused no 1 was assaulted when he
was taken from the point of arrest to the departure
point.
[77] It is common cause that accused
no 1 was placed in a vehicle and taken from the departure point to
the nearby Video Squatter
Camp. Accused no 1 testified that he was
assaulted
en route
by two police officers who sat at the back of the vehicle with him.
They made him face to the side while hitting him with ‘long

fire-arms’. This version was not put to Insp. Joubert, whose
undisputed evidence was that he accompanied accused no 1 to
Video
Squatter Camp. After accused no 2 had been arrested at Video
Squatter Camp, they first returned to the departure point,
and then
to the Muldersdrift SAPS. This is common cause.
[78] Accused no 1 testified that
Const. Nkuna did not explain his rights to him and he did not read
the SAP14A form (exhibit T)
to him. He was made to sign the form at
about 921h00 pm and before he was taken to Supt. Sherman. He was
only handed the form
at about 01h00 am on 29 November 2009 after the
interview with Supt. Sherman and before he was taken to the
Krugersdorp SAPS where
he was further detained. Const. Nkuna’s
evidence that he had read the rights contained in the SAP14A form to
accused no
1 in English was, however, not disputed when he was
cross-examined. It was only disputed that Const. Nkuna afforded him
the option
of obtaining the assistance of an interpreter. It further
seems to us to be improbable that a copy of the form would not have
been given to accused no 1 at the time when it was read to him or
when he signed for it. The evidence of Const. Nkuna was corroborated

by that of Insp. Joubert and particularly that of Supt. Scherman, who
testified that accused no 1 was in possession of the form
and that he
showed the form to her when she interviewed him.
[79] Accused no 1 testified that they
arrived at the Muldersdrift SAPS when it started to become dark.
This is common cause. He
testified under cross-examination that when
he was interviewed by Insp. Joubert he told him that he knew nothing
about the incident
and he testified that Insp. Joubert’s
evidence that he started to make admissions during the interview with
him was a lie.
The evidence of Insp. Joubert on this issue was,
however, not disputed when he was cross-examined.
[80] Accused no 1 testified that upon
their arrival at the Muldersdrift SAPS they were taken to a large
common office with many
desks. Accused no 1 was placed at a desk
with Insp. Joubert. He was asked questions, but he informed ‘them’
that
he did not know anything. They assaulted him saying that he
should agree to what had happened. He was made to kneel on the floor

with his hands cuffed at his back. Some officers kicked him and
others hit him with open hands. The assaults upon him endured
from
the time of his arrival at the Muldersdrift SAPS until he was taken
to Supt. Scherman. Accused no 1 testified that, because
of the
assaults upon him, he ended up giving in. Whatever they told him he
agreed to.
[81] Accused no 1’s version in
this regard is
inter alia
irreconcilable with Const.
Senosi’s unchallenged evidence that he, at the request of Insp.
Joubert, guarded accused no
s 1
,
2
and
3
from just before 18h00 on 28
November 2007, that Insp. Joubert phoned him during the course of the
evening and requested him to
take accused no 1 to Supt. Scherman, and
that he complied with the request.
[82] It was put to Supt. Scherman that
accused no 1 was assaulted ‘just before’ he was taken to
her for his interview.
The alleged continuous assaults upon accused
no 1 for the nearly four hours preceding the interview with Supt.
Scherman, was not
put to her. Although it was put to Const. Nkuna
and to Const. Senosi that they were part of a group of police
officers who assaulted
accused no 1 on 28 November 2007, no mention
was made that they participated in the assaults upon him when accused
no 1 testified.
It was put to Snr. Supt. Eksteen that accused no 1
was assaulted before, during and after his arrest. Under
cross-examination,
accused no 1 conceded that he had not been
assaulted prior to his arrest.
[83] It was put to Insp. Joubert that
after 18h00 on 28 November 2007 when he interviewed accused no 1 he
placed a great amount
of pressure upon him by
inter
alia
saying to him ‘why
must he waste the rest of his life in prison while accused no 5 will
be sitting with her black bum on a
white person’s chair.’
This is a clear fabrication since accused no 5 was not even a
suspect at that time.
[84] Accused no 1 denied that he was
the author of the statement that Supt. Scherman had taken from him.
It was his evidence that
what he had told her was what he had
overheard discussed amongst the police officers before, during, and
after his arrest. Similar
propositions were put to Insp. Joubert and
to Supt. Scherman. Since accused no 1’s version was that the
statement that he
had made before Supt. Scherman was not made freely
and voluntarily, and his evidence that he had no personal knowledge
of its contents,
that he was not the author thereof, that its
contents came from the police and not from him because what he had
told Supt. Scherman
was what he had overheard discussed amongst the
police officers, I permitted the State to cross-examine the accused
on an extract
from the disputed statement (exhibit ‘Q.1’)
for the limited purpose of testing his credibility. See:
S
v Maake
2001 (2) SACR 288
(WLD), at pp 289i – 291a. Under cross-examination, accused no
1 first persisted with the version that what he had told Supt.

Scherman was what he had overheard the police officers talking about.
Cross-examined on what he had overheard, he testified that
he had
overheard conversations about a German person who had been robbed and
killed, and that after his arrest he was told by police
officers that
a white man had been robbed by four persons who had then fled.
Accused no 1 could not recall anything else that
he had heard. When
accused no 1 was then confronted with the first three paragraphs of
the disputed statement, he changed his
evidence and then testified
that the contents of the paragraphs of the statement that was put to
him was an accurate version of
what Insp. Joubert had told him to say
to Supt. Scherman. This version of accused no 1 was not put to Insp.
Joubert, Supt. Scherman,
or any of the other State witnesses, and
only emerged during his cross-examination. Accused no 1 obviously
adjusted his evidence
when the shoe pinched.
[85] Supt. Scherman testified that
accused no 1 did not mention to her that he was assaulted in any way.
Her evidence was that
accused no 1 appeared ‘very relaxed and
cooperative and it did not seem that he was influenced or threatened
in any way.’
She testified that ‘[h]e was not stressed
at all.’ She testified that she would have picked up if he was
stressed,
but she observed him by the manner in which he spoke and by
his relaxed attitude not to be stressed. He interacted with her and

the interpreter in a relaxed manner. Snr. Supt. Eksteen’s
evidence is also consistent with that of Supt. Scherman and the

denials of assault or influence by Const. Nkuna, Const. Senosi, and
Insp. Joubert. She testified that accused no 1 was willing
to show
her what had happened in respect of the incident the previous day.
Her personal observations were that he was in his sound
and sober
senses and that he fully appreciated what he was saying. He
displayed no form of fear. She testified that he did not
appear to
her as a person who had suffered any emotional trauma before the
pointing out. He was very comfortable with her. He
was relaxed and
calm. Snr. Supt. Eksteen also recorded that accused no 1 appeared to
be at ease, he participated in the conversation,
he was very
spontaneous, and he referred to himself as a friendly person.
[86] Supt. Scherman and Snr. Supt.
Eksteen each testified that they pertinently asked accused no 1
whether he had injuries. The
injuries shown to and observed by Supt.
Scherman were bruises on his right upper arm and left arm, and a
slight scratch on the
left leg. The injuries shown to and observed
by Snr. Supt. Eksteen and photographed by Insp. Manoko were
consistent with those
shown to and observed by Supt. Scherman, namely
a mark on the upper right arm, a mark on the left forearm, scratches
on the left
forearm, and scratches on the left shin. They testified
that accused no 1 had told each one of them that he had sustained the
injuries
as a result of the burning of the grass where he was hiding.
It was never put to them that the injuries testified to by them were

sustained during the alleged assaults upon accused no 1 or that he
had sustained visible physical injuries as a result of assaults.
The
injuries that he sustained were according to accused no 1 scratch
marks on both upper arms and his whole body was in pain.
When he was
shown the photographs that had been taken during his interview with
Snr. Supt. Eksteen, he changed his evidence by
saying that the
injuries that he had sustained on the left arm were not on the upper
left arm but on the forearm.
[87] When he testified about his
interview with Supt. Scherman, accused no 1 denied that she, through
the interpreter, went through
the
pro
forma
with him, that she
read him the constitutional rights, or asked him the questions
therein contained. Accused no 1 testified that
Supt. Scherman only
asked him his name, surname, and address. The rest she, according to
him, wrote herself. This evidence of
accused no 1 does not accord
with his version put to Supt. Scherman which was a denial that she
explained certain rights to him.
[88] When he testified about his
interview with Snr. Supt. Eksteen, accused no 1 denied that she
informed him of his rights before
he was taken on the pointing out.
This was not put to Snr. Supt. Eksteen. She was hardly
cross-examined and her version that
accused no 1 even furnished her
with an abbreviated version of the rights that had been read to him
was not challenged. What was
put to the interpreter, Snr. Const.
Molefe, on this issue was that ‘there is a possibility that
accused no 1’s rights
were not read back to him after the
pointing out.’ Accused no 1 testified that the notes of the
pointing out had not been
read back to him after the pointing out.
This too had not been put to Snr. Supt. Eksteen or to Snr. Const.
Molefe.
[89] Accused no 1’s objection
against the admission of the disputed confession (exhibit ‘Q’)
and the disputed
pointing out (exhibit ‘R’) is on the
totality of the evidence based on allegations that are not reasonably
possibly
true. The State witnesses were credible witnesses. Each
one’s evidence was satisfactory in all material respects. They

corroborated each other on material aspects. Cross-examination did
not detract from their credibility as witnesses or from the

reliability of their accounts.
[90] The State, on the totality of the
evidence, discharged the
onus
of proving beyond
reasonable doubt the requirements stipulated in
s 217
of the
Criminal
Procedure Act for
the admission in evidence of the disputed
confession and of the disputed pointing out and that they have not
been obtained in an
unconstitutional manner.
[91] The ruling that was accordingly
made is the following:
1. The statement made by accused no 1
before Supt. CS Scherman from 22h05 on 28 November 2007 until 00h50
on 29 November 2007 at
the Muldersdrift SAPS and contained in exhibit
‘Q’, is admitted in evidence against accused no 1.
2. The pointing out made by accused no
1 before Snr. Supt. Louise Eksteen in the afternoon on 29 November
2007 and contained in
exhibit ‘R’, is admitted in
evidence against accused no 1.
[92] The
third
trial-within-this-trial
concerned the admissibility of a warning statement that had allegedly
been taken from accused no 4 on 2 December 2007. On 17 June
2009, I
ruled that the disputed statement was admissible in evidence against
him. These are the reasons.
[93] The State wished to introduce in
evidence a disputed statement by accused no 4, which had allegedly
been made before Const.
EB Senosi from 14h20 on 2 December 2007 at
the Muldersdrift SAPS.
[94] We were informed by counsel for
the State, Mr. Ntlakaza, that the disputed statement contains
admissions. Counsel for accused
no 4, Ms. Mogolane, labelled it as
‘… just a statement containing facts.’ We
accepted that it might contain
admissions. Its admissibility was
heavily contested on behalf of accused no 4. Both counsel were,
however,
ad idem
that
the disputed statement does not constitute a confession.
[95] The State must accordingly
discharge the
onus
of
proving beyond reasonable doubt the requirements stipulated in
s 219A
of the
Criminal Procedure Act for
the admission in evidence of the
disputed statement and also that it had not been obtained in an
unconstitutional manner.
[96] Ms. Mogolane, on behalf of
accused no 4, objected to the admissibility of the disputed statement
on the following grounds:
it was obtained in violation of his
s
35
Constitutional rights;
a magistrate ordered accused no 4 to
cooperate with the police;
he was legally represented and both
officers responsible for the taking of the statement were aware of
it, but they disregarded
his express wish to be legally represented
during the interview when the statement was taken;
the making of the statement was
induced by means of persistent questioning, and accused no 4 was
induced to respond to questions
through threats, assault, and
suffocation;
the ‘recorded statement’
does not entirely reflect the correct answers given by accused no 4
during the interview;
the statement had not been read back
nor had it been interpreted to accused no 4 before he signed it.
Accused no 4 confirmed the grounds of
objection.
[97] The State led the evidence of
Const. EB Senosi, Insp. AJ Joubert, Const. SS Nkuna, Const. HS
Madumo, and of a Magistrate,
Ms. CE Breedt. The State thereafter
closed its case. Mr. Ronnie Khumalo, accused no 4, testified. His
brother, Mr. ZB Khumalo,
was also called as a witness on his behalf.
His case was thereafter closed.
[98] Insp. Joubert, who is the
investigating officer, testified that he arrested accused no 4 just
after 20h00 on 28 November 2007.
He introduced himself, explained to
accused no 4 why he had been arrested, and warned him of his
constitutional rights in English
(the right to remain silent, the
consequences of not remaining silent, and the right to legal
assistance). Accused no 4 replied
in English that he understood his
rights. Insp. Joubert then took him to the Muldersdrift SAPS. Upon
their arrival, he requested
Const. Nkuna to furnish accused no 4 with
a SAP14A notice, which form notifies a person of the reason for his
or her detention
and of the
s 35
constitutional rights of a detained
and of an arrested person.
[99] Const. Nkuna testified that, at
about 21h00 on 28 November 2007, he had been requested by Insp.
Joubert to read and to hand
over to accused no 4 the SAP14A form
(exhibit ‘V’). Const. Nkuna testified that accused no 4
spoke to him in isiZulu,
and, since Const. Nkuna was Tsonga speaking,
he enquired from him whether ‘he would be comfortable’ if
the rights were
read out to him in English, which accused no 4
confirmed. Const. Nkuna testified that he accordingly read the
notice in English
to accused no 4. After he had read the rights,
accused no 4 acknowledged that he understood them and he signed the
notice in confirmation
thereof. Const. Nkuna also signed the notice
and handed a copy thereof to accused no 4.
[100] Insp. Joubert testified that he
had an interview with accused no 4 in his office on Sunday, 2
December 2007. Only the two
of them were present during this
interview. He asked accused no 4 certain questions regarding the
matter. Accused no 4 did not
implicate himself. He mentioned that
he had an alibi and gave no further information. Insp. Joubert
booked accused no 4 back
into the cells after this interview. He
requested Const. Senosi to assist him in taking a warning statement
from accused no 4.
[101] Const. Senosi testified that he,
at the request of Insp. Joubert, took a warning statement from
accused no 4 on Sunday, 2
December 2007, from 14h20 in his office at
the Muldersdrift SAPS. Only the two of them were present. A
pro
forma
(exhibit ‘U’)
was used for the purpose of taking the warning statement. Const.
Senosi testified that he is fluent in
English and in isiZulu. His
fluency in English was also apparent when he testified. Isizulu is
the mother tongue of accused no
4. Const. Senosi testified that he
had read the form in English and that he had explained it to accused
no 4 in isiZulu. Accused
no 4 communicated with him in isiZulu and
he recorded the answers given by accused no 4 on the form in English.
Once a page had
been read and completed, it was signed by both of
them. Const. Senosi testified that he correctly explained the
constitutional
rights to accused no 4 in isiZulu, although the
English version reflected on the form contained various errors. He
testified that
accused no 4 confirmed that he understood his rights.
Const. Senosi recorded on the form that he had informed accused no 4
of
his rights and also his election ‘… to give a
statement in the absence of his legal representative.’ Const.

Senosi also recorded accused no 4’s replies that he did not
have any injuries and that he was not threatened, assaulted or

influenced to exercise the option that he had exercised. It was also
recorded that accused no 4 ‘… was seemingly
of sound
mind and did not seem to be under the influence of liquor or any
other intoxicating substance or in a state of shock.’
Const.
Senosi requested accused no 4 to briefly explain what had happened on
28 November 2007 and where he was on that date.
Accused no 4
furnished a statement in response. Const. Senosi wrote the statement
in English, and, at the end of the interview,
read it back to accused
no 4 and explained it to him in isiZulu. Accused no 4 confirmed the
contents thereof to be a true and
correct version of the interview
and it was signed by both of them.
[102] Insp. Joubert testified that he
was not present when Const. Senosi took the warning statement from
accused no 4. Const. Senosi
phoned him later during the day and
informed him that he had taken the statement. Insp. Joubert
commissioned the warning statement
late in the afternoon when it was
handed to him upon his return to the police station. Insp. Joubert
testified that accused no 4
appeared for the first time in the Krugersdorp Magistrates’
Court the next day, which was Monday,
3 December 2007. He testified
that accused no 4 was taken to court by uniformed police officers.
He was uncertain who they were,
but he ventured the name of female
Const. Madumo.
[103] Const. Hilda Madumo testified
that she and one other police officer had taken three suspects to the
Krugersdorp Magistrates’
Court on Monday, 3 December 2007, at
08h40. One of them was Mr. Ronnie Khumalo, who was taken to court in
connection with the
Heia Safari matter, which matter she said she
specifically recalled. She was in uniform when she took the suspects
to court.
She handed the suspects over to an officer at court and
then returned to the Muldersdrift SAPS. Const. Madumo referred to an
occurrence
book entry and a body receipt that, according to her,
substantiates her version. The State Advocate, Mr Ntlakaza, applied
for
leave to introduce the relevant occurrence book entry and body
receipt into evidence during re-examination. Ms. Mogolane, on behalf

of accused no 4, objected thereto on the ground that they should have
been produced when Const. Madumo testified in chief. I granted
the
State Counsel’s request because of certain propositions that
had been put to Const. Madumo when she was cross-examined.
Ms
Mogolane put it to her that the body receipt did not exist, and, if
it were to be produced, had been ‘arranged recently’.

Ms. Mogolane also objected to the admissibility of the occurrence
book entry on the ground that the document produced by the State
was
not an original. There was no merit in this objection. The body
receipt produced by the State is a carbon copy but bearing
the
original signature of Const. Madumo and on which she filled in the
case numbers and particulars originally. See:
Damata
v Otto and Another
1972 (3)
SA 858
(A), at p 881F-G. I permitted the defence counsel to further
cross-examine Const. Madumo on aspects flowing from the
re-examination
in respect of the occurrence book entry (exhibit ‘W’)
and the body receipt (exhibit ‘Y’).
[104] A Magistrate, Ms. Christa
Breedt, testified that she was the presiding magistrate before whom
accused no 4 appeared on Monday,
3 December 2007, in the Krugersdorp
Magistrates’ Court. It was his first appearance in court and
the matter appeared for
postponement only. She testified that
accused no 4 appeared in person and there was no legal representation
on his behalf. She
explained to him his rights to legal
representation and he indicated that he ‘was going to appoint
his own legal representative’.
The matter was postponed to 10
December 2007, and accused no 4 was to be held in custody at the
Muldersdrift police cells. Magistrate
Breedt
testified that postponement
matters were not mechanically recorded. Her notes on the charge
sheet (exhibit ‘Y’) constitute
the only record of the
proceedings.
[105] Insp. Joubert testified that he
was present in court when the case against accused no 4 was
postponed. He could not recall
whether or not an attorney was
present for accused no 4 at his first appearance. He, however,
recalled that accused no 4 was legally
represented at a later stage
when he applied for bail in the Magistrates’ Court,
Krugersdorp.
[106] Accused no 4, testified that
Insp. Joubert did not inform him of his constitutional rights upon
his arrest. He also denied
that Const. Nkuna read or explained to
him the constitutional rights set out in exhibit ‘V’. He
testified that Const.
Nkuna had instructed him to sign exhibit ‘V’,
whereafter a copy thereof was merely handed to him. A detainee,
Justice,
read and explained the contents of exhibit ‘V’
to him upon his arrival in the cells. He testified that he
understood
the rights. He also specifically denied that Const.
Senosi, or Insp. Joubert, had warned him of his constitutional
rights. Upon
his first appearance in the Krugersdorp Magistrates’
Court on Monday, 3 December 2007, the presiding magistrate explained

the rights to legal representation to him.
[107] Accused no 4’s version is
that he was legally represented at the time of his detention at the
Muldersdrift SAPS; that
both Const. Senosi and Insp. Joubert knew
this; that he had expressly elected not to give a warning statement
or to sign any document
without his attorney being present; and that
his election was ignored. In this regard he testified that, upon his
arrival in
the cells, he borrowed a cellular phone from a fellow
detainee. He called his brother and requested him to contact the
attorney
Mr Jackson Nqala, who was known to accused no 4, and to
arrange with him to represent him at his initial appearance in court.

At a later stage he again contacted his brother, who then confirmed
that he had arranged with Mr. Nqala to represent him when he
appeared
in court and that he had paid the attorney. Accused no 4’s
brother, Mr. ZB Khumalo, also testified that accused
no 4 had
contacted him and had requested that he instruct Mr. Nqala to
represent accused no 4 at his first appearance in court.
Mr Khumalo
testified that he thereupon instructed Mr. Nqala accordingly and that
he had paid the attorney an agreed fee. He testified
that Mr. Nqala
inter alia
undertook
to visit accused no 4 at the Mulderdrift SAPS where he was detained.
[108] Accused no 4 testified that the
attorney, Mr Nqala, was present when he appeared for the first time
before the Krugersdorp
Magistrates’ Court. When accused no 4
was informed of his rights in respect of legal representation, he
pointed at Mr. Nqala
and said ‘… here is my attorney
that I have chosen and that is an attorney that I have paid for.’
[109] Accused no 4 testified that
Insp. Joubert had visited him on several occasions during his
detention at the Muldersdrift SAPS.
On these occasions Insp. Joubert
told him that they had already arrested three other persons in
connection with the matter and
that they had implicated accused no 4.
Insp. Joubert told him to tell the truth. His response on each
occasion was that he knew
nothing of the matter and that, of the
three arrested persons who were mentioned, only Dumisani Xulu had
been known to him. He
testified that he informed Insp. Joubert that
he was prepared to furnish a response in the presence of his legal
representative
and he also invited Insp. Joubert to be present if he
so wished.
[110] Accused no 4’s account
relating to the interviews that he had with Insp. Joubert and with
Const. Senosi on 2 December
2007, was that Insp. Joubert had booked
him out of the cells, had taken him to his office, and had tried to
speak to him, but,
because of a communication problem between them,
had referred him to Const. Senosi, who was also present at that time.
Const.
Senosi then questioned him. His response to this questioning
was again that he knew nothing of the matter, that he only knew
Dumisani
Xulu of the three persons that were mentioned to him, that
he would give a response in the presence of his legal representative,

and he also invited Const. Senosi to be present if he so wished.
Accused no 4 testified that Const. Senosi had insisted that he
sign
‘certain papers’, but he refused and indicated that he
would only sign them in the presence of his legal representative.
[111] Accused no 4 testified that
Const. Senosi, Const. Nkuna, and another male police officer who was
unknown to him, took him
to the Krugersdorp Magistrates’ Court
for his first appearance. He denied that Const. Madumo took him to
court. Before
he was taken, Const. Senosi had again asked him to
sign the same documents, but he again refused to sign them. During
his first
appearance in court it was interpreted to him that it had
been said that he did not wish to cooperate with the police and that
he did not wish to sign. The magistrate then told him to cooperate
and to do whatever the police desired. The matter was remanded.

Once the matter was postponed, accused no 4 had a discussion with his
attorney. He brought it to the attention of his attorney
that he had
been refusing to sign certain documents, and his attorney undertook
to follow him and to attend at the police station.
Accused no 4
testified that he was thereafter taken to the holding cells at court.
After a short while Const. Nkuna, Const.
Senosi, and the other
police officer fetched him to take him back to the Muldersdrift SAPS.
On the way to their vehicle they told
him that he should bear in
mind what the magistrate had said to him, that he should cooperate
with them, that he should not waste
their time, and that he should
sign. Const. Senosi slapped him on the right cheek.
[112] Accused no 4 testified that
within two hours of their return to the Muldersdrift SAPS, Insp.
Joubert booked him out of the
cells. Insp. Joubert fetched a plastic
bag from a Polo motor vehicle that was parked nearby the cells and he
then took accused
no 4 to his office. He asked him to sign the same
documents. Accused no 4 refused. Accused no 4 suggested to Insp.
Joubert that
they should wait for his attorney who had indicated that
he was on his way to the Muldersdrift SAPS. Insp. Joubert refused
the
request and continued to insist that he should sign the
documents. Insp. Joubert placed them in front of accused no 4 and
shouted
at him to sign. Accused no 4 persisted in his refusal to
sign and in his request that they should wait for his attorney.
Insp.
Joubert then handcuffed his hands to the arm rests of the chair
on which accused no 4 was seated; Insp. Joubert told him that he
was
going to sign the documents; Insp. Joubert placed the plastic bag
over his head and tied it at the back of his head; Insp.
Joubert
punched him in the region of his heart and removed the bag when he
was breathless. This procedure, according to accused
no 4, was
repeated six times, and in between he was asked to sign and told to
tell the truth. He testified that Const. Senosi
came into the office
while he was being assaulted. Const. Senosi was seated and had with
him the documents that accused no 4 was
required to sign. He also
urged accused no 4 to sign the documents. Accused no 4 testified
that he gave in and signed each page
of exhibit ‘U’,
because the magistrate ordered him to sign and because of what he
‘had been made to bear’
during the torture and assault
upon him. He testified that the whole document was not read back to
him or interpreted to him before
he had signed it.
[113] On the totality of the evidence
we considered the evidence of each State witness who testified in
this trial-within-the-trial
to be satisfactory in all material
respects. Their evidence was consistent and they corroborated each
other on material aspects.
Cross-examination did not detract from
their credibility as witnesses or from the reliability of their
accounts. Apart from the
issue whether the statement correctly
reflects the account that accused no 4 had given, which is rather an
issue for determination
at the conclusion of the criminal trial, we,
on the totality of the evidence, find accused no 4’s version on
the disputed
issues in this trial-within-the-trial not to be
reasonably possibly true.
[114] Insp. Joubert and Const. Nkuna
each testified that they communicated with accused no 4 in English
when they each warned him
of his constitutional rights and that he
understood English. Insp. Joubert also corroborated Const. Nkuna on
the disputed issue
whether Const. Nkuna indeed read the rights
appearing on the SAP14A form to accused no 4. When the State
witnesses were cross-examined
on behalf of accused no 4, he was
portrayed as unsophisticated and unable to understand English. In
this regard it was
inter
alia
suggested to Const.
Senosi that accused no 4 was an ‘unsophisticated suspect’
and it was put to Insp. Joubert that accused
no 4 was not proficient
in and did not understand English. However, accused no 4 is
obviously not an unsophisticated person.
He achieved standard 9 at
school and also obtained employment qualifications in the security
industry. His own evidence refuted
the propositions that he had no
proficiency in or understanding of the English language.
[115] It is common cause that accused
no 4 at some stage during his detention appointed the attorney Mr
Nqala and that Mr Nqala
represented him when he appeared in the
Krugersdorp Magistrates’ Court subsequent to his first
appearance. Accused no 4’s
brother was not certain of the date
upon which he instructed Mr Nqala on behalf of accused no 4 and he
was not present at court
on the occasion of accused no 4’s
first appearance. In order to substantiate his version that he had
already been legally
represented at the time when the warning
statement was taken and at the time when he signed it on 3 December
2007, and that Insp.
Joubert and Const. Senosi were informed and
aware thereof, accused no 4
inter
alia
relied thereon that Mr
Nqala had been appointed to represent him prior to his first
appearance in the Krugersdorp Magistrates’
Court and that he
was legally represented at the time of his first appearance. His
evidence in this regard was refuted by the
evidence of Magistrate
Breedt, who was an impressive witness without any interest in this
matter and whose evidence we accept as
reliable, and also by the
record of the proceedings of his first appearance on 3 December 2007.
It is improbable that accused
no 4 would have informed the presiding
magistrate that he ‘was going to appoint his own legal
representative’ had he
already appointed an attorney who also
happened to be present in court. It is also improbable that the
attorney would not have
placed his appearance for accused no 4 on
record if he was present in court. The evidence of accused no 4’s
brother was
that the attorney Mr Nqala undertook to consult accused
no 4 at the Muldersdrift police cells. The evidence of accused no 4
was
that Mr Nqala undertook to follow him from the Krugersdorp
Magistrates’ Court to the Muldersdrift SAPS and that accused no

4 suggested to Insp. Joubert that they should wait for his attorney
when Insp. Joubert insisted that accused no 4 should sign the

documents on the occasion when Insp. Joubert threatened, assaulted
and suffocated him. We find it improbable, in the absence of
any
plausible explanation, that Mr Nqala would not have consulted accused
no 4 prior to his first appearance in court or at the
very least that
he would not have followed accused no 4 to the Muldersdrift SAPS
after accused no 4’s first appearance in
court if he had indeed
represented accused no 4 at the time.
[116] It was put to Insp. Joubert that
accused no 4 expressed the wish to be legally represented, that Insp.
Joubert was informed
and aware that accused no 4 was legally
represented, and that he was informed that accused no 4 would give a
statement to his legal
representative. It was put to Const. Senosi
that at the time when Insp. Joubert requested him to take a statement
from accused
no 4, he, Const. Senosi, was well aware that accused no
4 was legally represented. Also, that at the time when he noted
accused
no 4’s responses he was well aware that accused no 4
was legally represented. It was also put to Const. Senosi that
accused
no 4 informed Const. Senosi that he was legally represented
and that he would give his statement to his attorney. Under
cross-examination
accused no 4 testified that he, in the presence of
Insp. Joubert, explained to Const. Senosi that his attorney was Mr
Nqala, that
he furnished Const. Senosi with the cellular phone number
of Mr Nqala, and that he requested Const. Senosi to phone Mr Nqala.
This, however, was not foreshadowed in the cross-examination of
Const. Senosi or of Inspector Joubert. Accused no 4’s evidence

that before he was allegedly made to sign the statement in issue he
informed Insp. Joubert that his attorney was on his way and
that they
should wait for him, was also not put to Insp. Joubert. These are
material aspects of accused no 4’s version and
the explanation
proffered by him why they were not put to Const. Senosi and to Insp.
Joubert, namely that he only recalled these
aspects while he was
testifying, is not plausible. Accused no 4 attracted his counsel’s
attention whenever he wished to
consult with her and I have allowed
sufficient time on each such occasion for consultations to take
place.
[117] We reject accused no 4’s
evidence that Magistrate Breedt made a ruling or told him to
cooperate with the police and
to do whatever the police desired.
Apart from this being improbable, somewhat different propositions
were put to Insp. Joubert,
to Magistrate Breedt, to Const. Nkuna and
to Const. Senosi when they were cross-examined. The propositions put
to them were to
the effect that the magistrate had been informed that
accused no 4 was not cooperating with the police and that he refused
to sign
for ‘the charges’ whereupon she made a ruling
that he must cooperate with the police and sign for the charges. We

accept Magistrate Breedt’s evidence that no such submissions
had been made to her and that no such ruling had been made by
her.
She testified that she does her work properly and if submissions were
made to her and if rulings were made by her, she would
have recorded
them and that the submissions and rulings would have been reflected
on the record of the proceedings. She was also
adamant that her
notes on the charge sheet constitute a full and correct record of the
proceedings.
[118] It followed that accused no 4’s
evidence that Const. Nkuna, Const. Senosi and another police officer
confronted him
after his first court appearance with what the
magistrate had said to him that he should cooperate, and his evidence
to the effect
that the magistrate’s ruling was one of the
principal factors that induced him to sign the warning statement, was
also rejected.
[119] Const. Madumo’s version
was supported by the occurrence book entry (exhibit ‘W’),
which was signed by her
when the suspects were booked out to go to
court, and also the body receipt, which was signed by her in
confirmation that the suspects
reflected thereon were escorted by
her. Her version was also supported by Const. Senosi and by Const.
Nkuna who denied that they
took accused no 4 to court for his first
appearance on 3 December 2007.
[120] Accused no 4’s version as
to whether or not a warning statement was obtained from him was not
consistent or coherent.
His grounds of objection to the
admissibility of the disputed statement acknowledge that a statement
was made. It was
inter alia
put to Const. Senosi that the form was not signed at the time when he
narrated the events, but only at a later stage; that at
the time
when he obtained the statement from accused no 4 he, Const. Senosi,
was aware that it was alleged that accused no 4 was
involved in the
murder case and that it was therefore improper of him to obtain the
statement; that the statement ‘…
is not entirely a
correct reflection of the answers advanced by accused 4’; that
‘… he responded to some of
the questions that [Const.
Senosi] posed’; that accused no 4 did not give the statement
willingly; that Const. Senosi deliberately
left out some of the
questions and inaccurately recorded the answers; and that accused no
4’s version was that he responded
to questions that are omitted
from his statement in order ‘to create a misunderstanding of
accused no 4’s account of
what transpired on 28 November
2007.’. Under cross-examination in answer to a question from
the State Advocate whether
accused no 4 had given any information to
Const. Senosi which he wrote on exhibit ‘U’, he replied
that he gave answers
to questions that he could answer. It was also
put to accused no 4 that: ‘According to Constable Senosi it
was on 02 December
2007 when he took a statement from you which is
exhibit ‘U’? Accused no 4 replied: ‘I am not
aware of the
dates but if he says that the day when I was called to
the office and I refused to sign the documents it was the 2
nd
I cannot dispute that.’ Under further cross-examination
accused no 4, however, denied that he made any statement.
[121] Insp. Joubert and Const. Senosi
corroborated each other on material aspects relating to the taking of
the warning statement
from accused no 4, such as that Insp. Joubert
requested Const. Senosi to take the statement, that Insp. Joubert was
not present
when the statement was taken, and that accused no 4 had
already signed the statement when it was handed to and commissioned
by
Insp. Joubert on 2 December 2007. Const. Senosi’s
undisputed evidence was that accused no 4 did not implicate himself,
had
not told him anything about the commission of the crime, and that
accused no 4 had told him where he had been and that he had nothing

to do with the crime. Const. Senosi testified that he was unaware of
any admissions that had been made to him by accused no 4.
In these
circumstances we consider it highly improbable that Const. Senosi
would have assaulted accused no 4 to get him to sign
the exculpatory
statement or that he would have participated with Insp. Joubert to
get accused no 4 to sign the exculpatory document.
[122] Under cross-examination, accused
no 4 reiterated that ‘they were forcing or coercing’ him
to firstly admit his
involvement in the commission of the crime, and,
secondly, to sign the document. It is, however, not without
significance that
on his own version the alleged assault upon him
ended when he indicated that he would sign the disputed statement in
which he denied
his alleged involvement in the commission of the
crime. The alleged assault did not continue until accused no 4
implicated himself
in some way. We find it improbable on all the
evidence that the violence about which accused no 4 testified would
have been inflicted
upon him in order to get him to sign a statement
in which he did not implicate himself.
[123] The State, on the totality of
the evidence, discharged the
onus
of proving beyond
reasonable doubt the requirements stipulated in
s 219A
of the
Criminal Procedure Act for
the admission in evidence of the statement
that had allegedly been made by accused no 4 contained in exhibit ‘U’
and
that it had not been obtained in an unconstitutional manner.
[124] The disputed statement of
accused no 4, being admitted as an extra-curial admission under
s
219A
of the
Criminal Procedure Act, is
only admissible against him,
unless the requirements for admissibility of hearsay evidence under
s
3
of the
Law of Evidence Amendment Act 45 of 1988
are satisfied. It
was accordingly only admitted in evidence against accused no 4.
[125] The ruling that was made is that
the statement made by accused no 4 before Const. EB Senosi on 2
December 2007 at Muldersdrift
SAPS and contained in exhibit ‘U’,
is, at this stage, only admitted in evidence against accused no 4.
[126] The
fourth
trial-within-this-trial
concerned the admissibility of a confession that had allegedly been
made by accused no 3. On 3 August 2009, I ruled that the confession

was admissible in evidence against accused no 3. These are the
reasons.
[127] The State wished to introduce in
evidence a statement by accused no 3, which had allegedly been made
at Muldersdrift SAPS
before Capt. MP Madibo on 28 November 2007 from
21h47.
[128] Counsel for the State, Mr.
Ntlakaza, and counsel for accused no 3, Mr Mgiba, were
ad
idem
that the disputed
statement constitutes a confession. The statement in issue might
accordingly not be admitted, unless it was proved
to have been made
by accused no 3 freely and voluntarily, while he was in his sober
senses, and without having been unduly influenced
thereto (the
requirements of
s 217
of the
Criminal Procedure Act). It
must also
be excluded if it was obtained in a manner that violates any right in
the Bill of Rights and if its admission would render
the trial unfair
or otherwise be detrimental to the administration of justice (the
provisions of s 35 of the Constitution of the
Republic of South
Africa).
[129] Mr. Mgiba, on behalf of accused
no 3, objected to the admissibility of the disputed confession on the
grounds that accused
no 3 had not at any stage from his arrest until
the making of the confession been warned of his constitutional
rights, that the
confession had not been read back to him, and he was
only made to sign it. Accused no 3 confirmed his grounds for
objection.
[130] The State led the evidence of
Const. K Kokwe, Const. SS Nkuna, Const. EB Senosi, Capt. MP Madibo,
and Insp. AJ Joubert, whereafter
its case was closed. Accused no 3
testified and his case was thereafter closed.
[131] Const. Kokwe testified that on
28 November 2007, he attended as a back-up officer. He was one of
the officers who had searched
for suspects in an area referred to as
the reeds area in the vicinity of the Heia Safari premises. Const.
Kokwe testified that
he noticed accused no 3 in this area; he
thereupon arrested him; he searched him; he informed him of the
reason for his arrest;
he explained to him his constitutional rights
(the right to remain silent and that whatever he says could be used
as evidence
against him in a court, the right to legal assistance,
and the right to be released on bail); and accused no 3 responded by
saying
that he understood what Const. Kokwe had said. Const. Kokwe
testified that they communicated in the Tswana language since accused

no 3 had told him that he speaks Tswana and Const. Kokwe was also
Tswana speaking. Accused no 3 did not make any statement to
Const.
Kokwe. He thereafter handed accused no 3 over to Insp. Joubert.
[132] Insp. Joubert testified that
accused no 3 was handed over to him by Const. Kokwe between 16h00 –
16h30 during that afternoon.
A
ccused
no 3 was thereafter taken to the Muldersdrift Police Station where he
was initially detained. He requested Const. Nkuna
to read to accused
no 3 his constitutional rights in terms of the SAP14A notice.
[133
] Const.
Nkuna testified that, at the request of Insp. Joubert, he
read to accused no 3 in English the reason for his detention and the
s 35 constitutional rights of a detained and of an arrested
person as
reflected on the SAP14A form (exhibit ‘Z’). Before
doing so, Const. Nkuna offered to obtain the assistance
of a person
who speaks the same language as accused no 3, but he agreed that
Const. Nkuna could proceed in English. Const. Nkuna
testified that
accused no 3 acknowledged that he understood what had been read to
him and he signed the notice. Const. Nkuna also
signed the notice
and handed a copy thereof to accused no 3.
[134] Insp. Joubert testified that he
interviewed accused no 3 from about between 18:00 – 18:45 the
same evening. They comfortably
communicated with each other in
English. He testified that because accused no 3 started to make
‘certain allegations’
during this interview, he stopped
him and warned him of his rights (to remain silent, of the
consequences of not remaining silent
and of his right to legal
assistance). Accused no 3 indicated to Insp. Joubert that he did not
require an attorney at that stage
and that he was willing to make a
statement to a justice of the peace. Insp. Joubert thereupon took
accused no 3 to Const. Senosi,
who guarded him, he phoned Capt.
Madibo, and he requested him to assist in taking a warning statement
from accused no 3. Later
that evening he received the statement from
Capt. Madibo.
[135] Const. Senosi testified that, at
the request of Insp. Joubert, he guarded accused nos 1, 2 and 3 at
the Muldersdrift SAPS
during the course of the evening on 28 November
2007. He guarded accused no 3 from between 18h00 – 18h30 until
about 21h00.
Insp. Joubert phoned him during the course of the
evening and instructed him to take accused no 3 to Capt Madibo. He
complied.
[136] Capt. Madibo testified that he
was stationed at the West Rand Organized Crime Unit of the SAPS, that
he has served in the
SAPS for 27 years, and that he was a justice of
peace by virtue of his rank. He testified that Insp. Joubert
telephoned him between
approximately 17h00 – 18h00 pm on 28
November 2007, and that he requested him to assist in taking a
warning statement from
an accused person. Capt. Madibo later
attended at the Muldersdrift SAPS. Accused no 3 was brought to him
by Const. Senosi.
Capt. Madibo had no knowledge of the merits of the
matter. He
interviewed
accused no 3 from 21h47 and he obtained a statement from him. Only
the two of them were present. They communicated
in Tswana since
Capt. Madibo established from accused no 3 that he was Tswana
speaking. Capt. Madibo is South Sotho and proficient
in Tswana since
the Sotho and Tswana languages are, according to him, ‘basically
the same.’ Capt. Madibo is fluent
in English. This is the
language in which he testified.
[137] Capt. Madibo used a
pro
forma
for purposes of the
interview (exhibit ‘AA’). He read the contents of the
form in English and he interpreted it for
accused no 3 into Tswana.
He recorded accused no 3’s replies on the form in English. He
testified that he explained to
accused no 3 everything that is
written on exhibit ‘AA’ without omission or addition. He
inter alia
read
the rights prescribed by s 35 of the Constitution from paras 1 –
4 at p 1 of the form to accused no 3. He obtained accused
no 3’s
statement from him at the appropriate place provided for on the form.
Capt. Madibo testified that he read the statement
back to accused no
3 in English and he translated it to him in Tswana. Each page of the
form and statement was thereafter signed
by accused no 3 and by Capt.
Madibo. Accused no 3’s thumb print was also placed on each
page of the document.
[138] Accused no 3
testified that he had been
arrested during the afternoon on 28 November 2007 in the reeds area;
that he had been handcuffed and
searched by Const. Kokwe; that Insp.
Joubert had been present at the time of his arrest; that he had
thereafter been taken to
the Muldersdrift SAPS; that Const. Nkuna
had requested him to sign a document; that Const. Senosi had taken
him to Capt. Madibo;
and that he had made a statement before Capt.
Madibo. He testified that Const. Kokwe at no stage had read his
constitutional
rights to him; that Const. Nkuna merely made him sign
a document in a book saying it was to confirm that he had been
arrested
and that a copy of this document was only handed to him
after he had made a statement before Capt. Madibo and before he was
taken
to the Krugersdorp SAPS with accused no 1 and accused no 2;
that his constitutional rights had not been read to him at any time

during his detention at Muldersdrift SAPS; and also that Capt.
Madibo had not read his constitutional rights to him.
[139] There are unsatisfactory
features in the evidence of Const. Kokwe in this
trial-within-the-trial. Whether or not they detract
from his
credibility as a witness and particularly the reliability of his
evidence on the issue whether or not he informed accused
no 3 of his
relevant constitutional rights immediately after he had been
arrested, is not necessary to decide since accused no
3 was, in terms
of the evidence of Const. Nkuna as corroborated by that of Const.
Senosi, warned of his constitutional rights as
set out in exhibit ‘Z’
soon after he had arrived at the Muldersdrift Police Station on 28
November 2007; he was, in
terms of the evidence of Insp. Joubert,
shortly thereafter again warned of his right to remain silent, of the
consequences of not
remaining silent and of the right to legal
assistance; and he was, in terms of the evidence of Capt. Madibo,
warned of his constitutional
rights as set out in exhibit ‘AA’
shortly after 21h47 and before he made the confession in issue.
[140] Const. Nkuna had recorded the
time 18h00 on all three the SAP14A notices that he handed to accused
no 1, to accused no 2,
and to accused no 3 as reflecting the time
when each one of them had been informed of the rights as set out in
the forms. He conceded
that the time was incorrectly recorded on at
least two of the forms. He was unable to explain how the error
occurred, but he maintained
that he had read the time 18h00 from a
wall clock in the police station, and he proffered an explanation
that ‘…maybe
I did not look at the watch after
explaining to each person.’ He took issue with counsel’s
proposition that ‘[i]t
shows that [he] merely completed all
three forms and then handed them over to the accused persons to sign,
without explaining them.’
Const. Nkuna’s evidence that
he indeed read the constitutional rights to accused no 3 was,
however, corroborated by the
evidence of Const. Senosi, whose
evidence that he was present when Const. Nkuna read their
constitutional rights to each one of
the three accused individually
in English we accept. The little cross-examination of Const. Senosi
and of Insp. Joubert did not
in any way detract from their
credibility as witnesses or from the reliability of their evidence in
this trial-within-the-trial.
[141] The State case on the issues for
determination in this trial-within-the-trial is essentially dependent
upon the evidence of
Capt. Madibo. Approaching his evidence with the
required caution that should be applied to the evidence of a single
witness, we
have no reservation in finding that he was an impressive
and credible witness and that his evidence is satisfactory in all
material
respects and reliable. Capt. Madibo’s ability to
accurately interpret from English into Tswana was demonstrated when
he
was asked under cross-examination to interpret into the Tswana
language the right to remain silent and the consequence of not
remaining
silent as set out in para 1 on p 1 of exhibit ‘AA’.
On the evidence given by Capt. Madibo and
ex
facie
exhibit ‘AA’
there was compliance with the relevant provisions of s 35 of the
Constitution and with the requirements
of
s 217
of the
Criminal
Procedure Act for
the admission in evidence of the confession made by
accused no 3.
[142] The grounds of objection to the
admissibility of the confession in issue were
inter
alia
that it had not been
read back to accused no 3 and that he was only made to sign it. Yet,
accused no 3 made no mention thereof
in his evidence at all. Most of
the evidence given by Capt. Madibo, including his evidence that he
had read the statement back
to accused no 3 in English and translated
it to him in Tswana, that accused no 3 had confirmed that he was
satisfied that it had
been noted down correctly, and that accused no
3 had thereafter signed and placed his thumb print on each page, was
also not challenged
when he was briefly cross-examined. It was also
not suggested to him that the contents of the statement in issue do
not correctly
reflect what accused no 3 had conveyed to Capt. Madibo.
It was put to him that he did not explain the rights to accused no 3
when
he filled in the
pro
forma
or their consequences
and that he simply went through the form without thoroughly
explaining it.
[143] Accused no 3 testified that
Capt. Madibo had forced him to make the statement. He also testified
that he had been aware that
the other two suspects had been assaulted
and that he was accordingly scared that he too would be assaulted.
This version was
not foreshadowed in the cross-examination of Capt.
Madibo, nor was it raised as a ground of objection to the
admissibility of the
statement, and it was clearly fabricated.
[144] Accused no 3 testified to the
effect that at his own instance he showed Capt. Madibo that he had
been injured and that he
had told him that he was experiencing pain
from the injury in order to get help from Capt. Madibo. This version
was not put to
Capt. Madibo, and the evidence of Capt. Madibo that he
enquired from accused no 3 whether he had injuries was not challenged
when
he was cross-examined.
[145] Under cross-examination accused
no 3 denied that Capt. Madibo went through the
pro
forma
when he interviewed
accused no 3. Capt. Madibo’s evidence on this issue was not
challenged when he was cross-examined. On
the contrary, as I have
mentioned, it was put to him that he ‘simply went through the
form without thoroughly explaining
it.’
[146] In his evidence in chief,
accused no 3 testified that after Const. Kokwe had handcuffed him he
was taken to a group of police
officers who assaulted him. This was
not put to Const. Kokwe or to Insp. Joubert. It was also not
suggested by accused no 3 that
such alleged assault had induced him
to make the confession or to sign exhibit ‘AA’.
[147] Accused no 3 gave a detailed
account of how Insp. Joubert, or Insp. Joubert through Const. Senosi
as the interpreter, had
demanded that he make a statement, of his
refusal to do so, of accused 3 informing them of his rights, of him
telling them that
they were supposed to hand over to him his
s 35
rights, and of him advising them of his right and preference to make
a statement before a court in the presence of his attorney.
Not one
shred of this evidence was foreshadowed in the cross-examination of
either Const. Senosi or of Insp. Joubert, and no plausible

explanation was given for the omission. On the contrary, no issue
was taken under cross-examination of Insp. Joubert with his
evidence
that accused no 3 had elected not to be assisted by an attorney at
that stage and to make a statement to a justice of
the peace.
[148] Accused no 3 testified that
Const. Nkuna had told him that his signing of exhibit ‘Z’
was to confirm that he had
been arrested. Under cross-examination,
he testified that he observed the reference to
s 35
on the document
when he signed it. Under re-examination it further appeared that he
was not unfamiliar with a SAP14A notice and
the purpose thereof at
the time of his arrest. His evidence under cross-examination as to
why the notice was of no use to him
when a copy thereof had
eventually been handed to him after he had made the statement before
Capt. Madibo was contradictory. He
testified that by that time he
had already made the statement and that at the stage when he asked
for it he wanted to show the
police officers the rights which a
suspect enjoys. He then testified that when he read through it he
realised that he should have
been informed of the rights contained in
it before he had made the statement. But, on his own evidence, he
had been aware of his
s 35
rights before he was arrested.
[149] The evidence of the State
witnesses on the issue of accused no 3’s proficiency in the
English language, such as that
of Insp. Joubert who testified that he
and accused no 3 communicated comfortably in English, was not placed
in issue when they
were cross-examined. Yet, when he was
cross-examined, accused no 3 testified that his understanding of and
ability to communicate
in English were limited and that he would not
have understood the rights had they been explained to him in English.
[150] The State, on the totality of
the evidence, discharged the
onus
of proving beyond
reasonable doubt the requirements stipulated in
s 217
of the
Criminal
Procedure Act for
the admission in evidence of the statement that had
allegedly been made by accused no 3, which forms part of exhibit
‘AA’,
and that the disputed statement had not been
obtained in an unconstitutional manner. The confession may, in terms
of
s 219
of the
Criminal Procedure Act, only
be admitted as evidence
against him.
[151] The ruling that was made is that
the statement made by accused no 3 before Capt. MP Madibo from 21h47
on 28 November 2007
at the Muldersdrift SAPS and contained in exhibit
‘AA’, is admitted in evidence against accused no 3.
[152] The
fifth
trial-within-this-trial
concerned the admissibility of pointings out that had allegedly been
made by accused no 6 to the late Capt. Heinrich Steyn on 16
January
2008. On 7 September 2009, I held the disputed pointings out
inadmissible. These are the reasons for the ruling.
[153
] Mr
Ntlakaza, on behalf of the State, contended that the disputed
pointings out amount to admissions, and Mr Themba, on behalf
of
accused no 6, contended that they amount to a confession. The State,
however, accepted the burden of establishing the more
stringent
requirements for the admissibility in evidence of a confession.
The disputed pointings out might accordingly not be admitted,
unless they were proved to have been made by accused no 6 freely
and
voluntarily, while he was in his sober senses, and without having
been unduly influenced thereto (the requirements of
s 217
of the
Criminal Procedure Act). They
must also be excluded if they were
obtained in a manner that violates any applicable right in the Bill
of Rights and if their admission
would render the trial unfair or
otherwise be detrimental to the administration of justice (the
provisions of s 35 of the Constitution
of the Republic of South
Africa).
[154] Mr. Themba, on behalf of accused
no 6, objected to the admissibility of the disputed pointings out on
the grounds that
they were obtained in violation of the constitutional rights of
accused no 6 since his constitutional rights had not been read
or
explained to him; they were not freely and voluntarily made by him;
he had been threatened and assaulted on the day preceding
the
pointings out; he had been unduly influenced to make the pointings
out on the day of the pointings out; and the ‘contents’

of the pointings out were not his own account of ‘what exactly
happened’, but what he had been told by the police on
the day
preceding the pointings out.
Accused no 6 confirmed his grounds of objection.
[155] The State produced the death
certificate of the late Capt. Heinrich Steyn. It is common cause
that the disputed pointings
out were made to him and that he
subsequently died on 13 March 2009.
[156] The State also led the evidence
of
Insp. D
Thwalima
, who acted as
the interpreter from English into Tswana and vice versa when the
disputed pointings out were made; of Insp. CJ Britz,
who was the
photographer for the purpose of the pointings out and who took
photographs of accused no 6 and of the pointings out;
of Const. PT
Maluleke, who was the driver of the vehicle in which the late Capt.
Steyn, Insp. Thwalima, and accused no 6 travelled
to and from the
pointings out; of Const. KT Letswamotse, who assisted the
investigating officer and who was implicated by accused
no 6 as one
of the police officers who assaulted him; of Insp. Joubert, who is
the investigating officer and who accused no 6
also implicated as
one of the police officers who assaulted him; of Constables SS Nkuna
and EB Senosi, who accused no 6 implicated
as the other two police
officers who assaulted him; and of Inspectors T Mogorotsi and TS
Ramokgolo, who were the client service
centre (charge office)
commanders during the day and night on 15 – 16 January 2008,
which was the relevant period when accused
no 6 alleged that he was
assaulted. The State case was then closed. Accused no 6, Mr.
Vincent Dlamini, elected to testify and
his case was thereafter
closed.
[157
] The
first witness called by the State was Insp. Thwalima. He testified
in chief that he had accompanied the late Capt. Steyn
to the
Muldersdrift SAPS. An office was allocated to the late Capt. Steyn
where he interviewed accused no 6. Insp. Thwalima acted
as the
interpreter between the late Capt. Steyn and accused no 6. He
testified that the late Capt. Steyn had used a
pro
forma
,
which is used for pointings out, he had seen the late Capt. Steyn
‘recording’ on it, and Insp. Thwalima had also personally

signed it.
[158
] Before
the
pro
forma
was
introduced into evidence and before Insp. Thwalima was led on its
contents and therefore on the communications between the late
Capt.
Steyn, Insp. Thwalima, and accused no 6, or between any of them, the
State counsel requested permission to lead Insp. Thwalima
thereon in
order to afford the State the opportunity of attempting to establish
the relevant requirements of
s 3
of the
Law of Evidence Amendment Act
45 of 1988
and of s 34 of the Civil Proceedings Evidence Act 25 of
1965 as read with
s 222
of the
Criminal Procedure Act 51 of 1977
.
The State and defence counsel appeared to have been
ad
idem
that
the probative value of such evidence depended upon the credibility of
the late Capt. Steyn. We had not yet heard the evidence
and
counsels’ labelling of it as hearsay evidence is not
determinative of the issue. I, however, accepted that at least
part
of such evidence was likely to be of a hearsay nature since it is
generally the sum of the evidence of an interpreter that
he
interpreted correctly all that was said to him and of the person to
whom he interpreted, in this instance the late Capt. Steyn,
on what
the interpreter had said to him at the time, which qualifies it as
non-hearsay. See:
R
v Mutche
1946
AD 874
, at pp 877 – 878, and
Magwanyana
and Others v Standard General Insurance Co Ltd
1996
(1) SA 254
(D&CLD), at p 257A-G. Mr. Themba, on behalf of
accused no 6, objected to the State being permitted to lead evidence
of a hearsay
nature provisionally on the basis that the person upon
whose credibility the probative value thereof depended, was the late
Capt.
Steyn, who the court was informed would not later testify in
the proceedings. He submitted that hearsay evidence may only, in
terms of
ss 3(1)(b)
and
3
(3) of the
Law of Evidence Amendment Act, be
received provisionally if the person upon whose credibility the
probative value thereof depends will testify.
[159
] I
considered the submissions of Mr. Themba to be without merit and I
ruled the hearsay evidence to be given by Insp. Thwalima
relating to
the
pro
forma
and
the alleged communications between accused no 6, Insp. Thwalima, and
the late Capt. Heinrich Steyn to be provisionally admitted.
The
reference to Insp. Thwalima was omitted from the ruling, but was
added before any further evidence was led. Mr. Themba, on
behalf of
accused no 6, did not object to the correction.
[1
60] These
are the brief reasons for this ruling. The State did not seek the
provisional admission of hearsay evidence in terms
of the provisions
of
s 3(1)(b)
as read with the applicable provisions of
s 3(3)
of the
Law of Evidence Amendment Act. Ss
3(1)(b) and 3(3) do not, on my
interpretation of
s 3
, prohibit a court from provisionally admitting
hearsay evidence with a view to assessing and determining at an
appropriate stage
of the proceedings whether or not it should be
admitted in the interests of justice in terms of
s 3(1)(c).
This
subsection
‘…
enjoins a Court in
determining whether it is in the interests of justice to admit
hearsay evidence to have regard to every factor
that should be taken
into account, more specifically, to have regard to the factors
mentioned in
s 3(1)(c).
Only if, having regard to all these factors
cumulatively, it would be in the interests of justice to admit the
hearsay evidence,
should it be admitted.’
S v Shaik and
others
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA), para [170]. Particularly the probative value of
such evidence
(s 3(1)(c)(iv))
and any prejudice to a party which the
admission of such evidence might entail
(s 3(1)(c)(vi))
are often
only capable of assessment and determination once other evidence had
been presented.
[161
] I
was at that early stage of the proceedings unable to determine
whether the evidence to be led should be admitted in the interests
of
justice in terms of
s 3(1)(c).
Admitting the evidence provisionally
with the intention of giving ‘a clear and timeous ruling’
on the admission or
non-admission thereof at the latest before the
State closes its case in this trial-within-the-trial ‘so that
the accused
can appreciate the full evidentiary ambit he …
faces’, would not, in my judgment, have resulted in any
uncertainty
as to the ambit of the admitted evidence and it would not
have constituted the type of ‘provisional ruling’ that
may
be prejudicial to an accused or render the trial unfair. See:
S
v Ndhlovu and Others
2002 (2) SACR 325
(SCA), paras [18] – [20];
S
v Ramavhale
1996
(1) SACR 639
(A), at p 651b - g; and
S
v Molimi
[2008] ZACC 2
;
2008
(2) SACR 76
(CC), paras [36] – [44]. I accordingly
considered it appropriate to the situation to admit the evidence
provisionally
at that stage.
[
162] Immediately
after the ruling had been made, Mr. Themba, on behalf of accused no
6, orally applied for a special entry to be
made in terms of
s 317
of
the
Criminal Procedure Act 51 of 1977
. He submitted that the
provisional admission of the
pro
forma
document was irregular based on the same contention that hearsay
evidence may only, in terms of
ss 3(1)(b)
and
3
(3) of the
Law of
Evidence Amendment Act, be
received ‘provisionally’ if
the person upon whose credibility the probative value thereof depends
will testify, and
that it was known to the court that the late Capt.
Steyn would not later testify. The State opposed the application for
a special
entry on the grounds that it was not made
bona
fide
and that it was frivolous and absurd within the qualification
referred to in
s 317(1)
of the
Criminal Procedure Act.
>
[163
] The
special entry made by me on the record, after Mr. Themba had
confirmed that its terms correctly and accurately reflect the
special
entry that was applied for by accused no 6, is the following:
‘
The provisional admission of
hearsay evidence to be given by Insp. Thwalima in respect of the
document referred to by him in his
evidence in chief and in respect
of alleged communications between accused no 6, Insp. Thwalima, and
the late Capt. Heinrich Steyn
is alleged by accused no 6 to be
irregular or not according to law since
ss 3(1)(b)
and
3
(3) of the
Law of Evidence Amendment Act 45 of 1988
only permit the provisional
admission of hearsay evidence if the court is informed that the
person upon whose credibility the probative
value of such evidence
depends, will himself testify in the proceedings, and the court was,
in this instance, informed that Capt.
Steyn had died and accordingly
that he would not later testify in the trial-within-the-trial that
concerns the admissibility of
the disputed pointings out of accused
no. 6, and the irregularity, according to accused no 6, prevents
justice from being done.’
[164
] I
reserved judgment on whether or not the application for a special
entry should be granted. It should, in my view, be refused.
I need
only say that it was clearly ‘frivolous’ or ‘absurd’
or its granting ‘would be an abuse of
the process of court’
within the meaning ascribed to these qualifications in
inter
alia
the
case of
S
v Cooper and Others
1977 (3) SA 475
(TPD), at p 476D-G.
[165] Insp. Thwalima testified that,
at the commencement of the interview, accused no 6 was asked which
language he would prefer
and he elected Tswana. He also mentioned
that he understood Afrikaans and English. Insp. Thwalima is
proficient in Tswana and
in English and he interpreted to accused no
6 what the late Capt. Steyn had said and to the late Capt. Steyn what
accused no 6
had said. At times accused no 6 communicated directly
with the late Capt. Steyn in English or in Afrikaans. Insp. Thwalima
testified
that the late Capt. Steyn introduced himself. He showed to
accused no 6 his appointment certificate. He made copies of its
front
and reverse sides. All three of them signed the copies. They
were then attached to the
pro
forma
(exhibit ‘CC’).
The late Capt. Steyn asked accused no 6 whether anyone had explained
his rights to him. Accused no
6 confirmed this and he produced and
handed to the late Capt. Steyn his copy of the SAP14A notice. The
late Capt. Steyn made copies
thereof. He read out to accused no 6
the rights contained in the SAP14A form in English. Insp. Twhalima
explained the rights
to accused no 6 in Tswana. Accused no 6 was
asked whether he understood the rights that had been read out to him
and he replied
that he understood them. Accused no 6 did not seek to
exercise any of the rights. All three of them signed a copy of the
SAP14A
notice, which was then also attached to the
pro
forma
(exhibit ‘CC’).
Accused no 6 informed them that he was prepared to make the
pointings out. He gave the directions.
He made certain pointings
out. They returned to the Muldersdrift SAPS. Capt. Steyn handed to
Insp. Thwalima the
pro forma
and the notes of the pointings out. Insp. Thwalima read the
pro
forma
and the notes of the
pointings out to accused no 6 in English and he explained to him what
he had read in Tswana. Accused no 6
confirmed that he understood and
that he was satisfied with what had been read back and explained to
him.
[166] Insp. Britz of the Local
Criminal Record Centre was the photographer. He took photographs of
accused no 6 before the pointings
out, of the matters pointed out,
and again of accused no 6 after the pointings out (exhibits ‘DD’
and ‘EE’).
Const. Maluleke, who was stationed at Florida
SAPS at the time, was the driver of the vehicle in which Capt. Steyn,
Insp. Thwalima,
and accused no 6 were traveling when they went on the
pointings out. Insp. Britz used his own vehicle.
[167] The evidence of the other State
witnesses relating to the events that preceded the pointings out was
briefly the following:
The investigating officer, Insp. Joubert,
traced accused no 6, who was a suspect in the present matter at the
time, to the Johannesburg
Correctional Facility. Insp. Joubert was
assisted by Const. Letswamotse in the investigation. They attended
at the Johannesburg
Correctional Facility on 14 January 2008 where
they found accused no 6. On 15 January 2008, Insp. Joubert
instructed Const. Letswamotse
to book accused no 6 out of the
Johannesburg Correctional Facility and to take him to the
Muldersdrift Police Station for investigation.
Const. Letswamotse,
accompanied by a trainee police officer, attended at the Johannesburg
Correctional Facility. He booked accused
no 6 out. He identified
himself to him. He informed him that he was arresting him on a
charge of murder and of armed robbery.
He warned him of his
constitutional rights in English, which he read to him from his
pocket book. Accused no 6 was then transported
to the Muldersdrift
SAPS.
[168] At the Muldersdrift SAPS, Const.
Letswamotse, in the presence of the client service centre commander,
Insp. Mogorotsi, informed
accused no 6 of the reason for his
detention. He read to him his constitutional rights in English from
the SAP14A notice (exhibit
‘FF’). They both signed the
notice, and Const. Letswamotse handed a copy thereof to him. Insp.
Mogorotsi made an
occurrence book entry (exhibit ‘GG’).
The time recorded by Insp. Mogorotsi is ‘12:20’. The
occurrence
recorded is that Const. Letswamotse detained Vincent
Dlamini (accused no 6) for armed robbery and murder; that his rights
had
already been explained to him; that he understood them; that he
had contacted his next of kin; and that he had no injuries or

complaints. Insp. Mogorotsi took accused no 6 to the cells after he
had made the entry.
[169] Constables Letswamotse, Senosi,
and Nkuna were not on duty from 16h00 on 15 January 2008. Insp.
Joubert booked accused no
6 out of the cells for investigation early
that evening at about 19h00. Insp. Ramokgolo, the client service
centre commander at
the time, fetched him from the cells and handed
him over to Insp. Joubert. Insp. Ramokgolo made an occurrence book
entry (exhibit
‘HH’). The time recorded by Insp.
Ramokgolo is ’19:17’. The occurrence recorded is that
Insp. Joubert
booked Vincent Dlamini out for investigation. Insp.
Joubert interviewed accused no 6 in his office upstairs. He
explained his
constitutional rights to him in English and accused no
6 indicated that he was willing to proceed without a legal
representative.
Insp. Joubert handed accused no 6 back to the client
service centre commander after the interview. Insp. Ramakgolo again
made
an occurrence book entry (exhibit ‘HH’). The time
recorded by Insp. Ramakgolo is ‘22:20’. The occurrence

recorded by him is that Insp. Joubert had booked Vincent Dlamini back
from investigation and that he had no complaints. Insp.
Ramakgolo
took accused no 6 back to the cells. There were five persons who
were detained at the Muldersdrift SAPS cells at the
time. All of
them were in the cells once Insp. Ramakgolo had taken accused no 6
back to the cells. Insp. Ramakgolo and another
police officer
visited the cells at 23h00. Insp. Ramakgolo made an occurrence book
entry (exhibit ‘HH’) in which he
recorded the cell visit
at ’23:00’ and that the detainees had ‘no
complaints’. Early the next morning,
16 January 2008, Insp.
Joubert arranged with the late Capt. Steyn, who was from Florida
SAPS, to assist with the pointings out.
[170] By the end of the State case I
made a ruling admitting the
pro
forma
(exhibit ‘CC’)
in evidence, and admitting the statements therein contained as well
as the evidence of Insp. Thwalima
relating to the communications
between the late Capt. Steyn, Insp. Thwalima, and accused no 6, or
between any of them in evidence,
insofar as they constitute hearsay
evidence, in terms of
s 3(1)(c)
of the
Law of Evidence Amendment Act
45 of 1988
. I indicated that the reasons for the ruling would be
given at a later stage. These are the reasons.
[171] The view that I took of Capt.
Thwalima’s evidence was that it essentially depended upon his
own credibility.
Zeffert
Paizes St Q Skeen: The South African Law of Evidence
(2003), at pp 366 – 368. I nevertheless considered it
appropriate to subject the evidence to the enquiry envisaged in
s
3(1)(c).
[172] The nature of the proceedings:
Courts do have an ‘intuitive reluctance to permit untested
evidence to be used against
an accused in a criminal case.’
S
v Ramavhale
1996 (1) SACR
639
(A), at p 647j. But the true test for the evidence to be
admitted is ‘whether the interest of justice demands its
reception.’
S v Shaik
and Others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA), at p 299C.
[173] The nature of the evidence: The
evidence consists of what the late Capt. Steyn had said in English to
the interpreter, Insp.
Thwalima, and what he in turn had interpreted
to accused no 6 in Tswana; and, what accused no 6 had said to Insp.
Thwalima in
Tswana and what he in turn had interpreted to the late
Capt. Steyn in English. The
pro
forma
purports to record
such communications in the printed parts thereof and in the
manuscript recordals thereon.
[174] The purpose for which the
evidence relating to the
pro
forma
and the
communications between the late Capt. Steyn, Insp. Thwalima, and
accused no 6 was tendered by the State was to prove that
an effort
was taken to ascertain and that it was ascertained that accused no 6
desired freely and voluntarily, without undue influence,
and in his
sound and sober senses, to make the pointings out before they were
made, and that he was informed of his constitutional
rights.
[175] The probative value of the
evidence: The probative value of the evidence contained in the
pro
forma
depended on the
credibility of the late Capt. Steyn to the extent that he had read
the printed information correctly from the form
in English to Insp.
Thwalima, and that he noted correctly on the form what Insp. Thwalima
had interpreted to him at the time when
he read and noted the
information. Confirmation for the contents of the
pro
forma
was to be found in
the evidence of Insp. Thwalima. He testified that, upon their return
from the pointings out, Capt. Steyn handed
to him the
pro
forma
and the notes of the
pointings out and that he, Insp. Thwalima, had read the
pro
forma
and the notes of the
pointings out to accused no 6 in English and that he explained to him
in Tswana what he had read. He testified
that accused no 6 confirmed
that he understood and that he was satisfied with what had been read
back and explained to him.
Confirmation for the
contents of the
pro forma
was also to be found in the evidence of the various other State
witnesses, such as that accused no 6 wished to make the pointings
out
(Insp. Joubert), that he had not been assaulted (Insp. Joubert, Insp.
Mogorotsi, Insp. Ramokgolo, Const. Letswamotse, Const.
Senosi, Const.
Nkuna), and that he had no injuries (Insp. Britz, Insp. Mogorotsi,
Insp. Ramokgolo). The evidence under consideration
seemed reliable.
This conclusion was only based on the evidence presented by the end
of the State case.
[176] The reason why the late Capt.
Steyn was not called as a witness was because he had died on 13 March
2009.
[177] Any prejudice to accused no 6
which the admission of the evidence could entail: It appears from
the grounds of objection
raised to the admissibility of the disputed
pointings out and the version of accused no 6 that had been put to
the various State
witnesses that his version was that he did not make
the pointings out in issue freely and voluntarily and without undue
influence
essentially as a result of alleged brutal assaults that had
been committed upon him by Insp. Joubert and Constables Letswamotse,

Senosi and Nkuna the night before the pointings out were made. They
also allegedly told him what to say and what to point out
to a senior
official the next day. If his version were to be accepted, then the
pointings out would not have been made freely
and voluntarily and
without undue influence whether or not the late Capt. Steyn had
correctly read to Insp. Thwalima the information
contained in the
pro
forma
and whether or not
the late Capt. Steyn had correctly noted down what he had been told
by the interpreter. Accused no 6’s
counsel had the full
opportunity to cross-examine all the State witnesses on all the
events that had preceded the pointings out
and on the events that had
occurred during the interview and pointings out. Insp. Thwalima was
extensively cross-examined on the
pro
forma
and on the events and
communications at the interview and pointings out.
[178] I accordingly concluded that it
would be in the interests of justice to admit such evidence.
[179] I now give a synopsis of the
evidence of accused no 6. He testified that Insp. Joubert and Const.
Letswamotse attended at
the Johannesburg Correctional Facility on 15
January 2007 just after 7h00 when he was booked out of that facility.
Const. Letswamotse
acted as interpreter for Insp. Joubert. His
constitutional rights were not read or explained to him on this
occasion. Upon their
arrival at the Muldersdrift SAPS charge office,
Insp. Joubert, through Const. Letswamotse’s interpretation,
informed him
that he was charging him with murder and robbery. He
was assaulted by Const. Letswamotse, who slapped him with an open
hand,
when he enquired from them where the murder and robbery had
taken place. He stopped assaulting him when Insp. Joubert told him

to leave him alone since they would ‘deal with him later’.
One of the police officers brought a book. Accused no
6 was ordered
to sign in it. A page was removed from the book and handed to him.
It is common cause that this page was a copy
of the SAP14A notice
(exhibit ‘FF’). He was then taken to the cells by Insp.
Joubert and Const. Letswamotse.
[180] Insp. Joubert, Const.
Letswamotse, Const. Senosi, and Const. Nkuna fetched him from the
cells ‘during the night.’
Insp. Joubert assaulted him at
the cells by hitting him with a clenched fist in the stomach. He
tripped him, and he placed his
foot on his back when he had fallen.
He was taken to an office upstairs in the building. He was shown
photographs and told that
accused no 1 had alleged that he was in his
company when the crimes had been committed. He denied such
allegations. Const. Letswamotse
initiated an assault upon him in
which the other three officers participated. Insp. Joubert placed a
plastic tube over his head.
He was hit with clenched fists in his
stomach. This had suffocated him. He fell to the floor and lost
awareness or consciousness.
This form of assault was repeated once
more. Const. Senosi forced a firearm into his mouth. This caused an
injury inside his
mouth, which was bleeding. Const. Senosi suggested
to him that they could kill him and say that he had tried to escape.
He was
taken to a river that ‘was not far away from the police
station’. Insp. Joubert again placed a tube over his head.

His body was forced underneath the water. He lost awareness or
consciousness. He regained awareness after he had been taken
out of
the water. He was vomiting and Const. Letswamotse was administering
first aid on him. Accused no 6 then finally agreed
to agree to
everything that Insp. Joubert had told him earlier. He was taken
back to the Muldersdrift SAPS. Insp. Joubert read
a statement to
him. He was then taken on a pointings out rehearsal to his house and
to ‘the scene where the crimes had been
committed’. He
was shown what to point out. He was taken back to the Muldersdrift
SAPS. He was told repeatedly throughout
these events that he should
repeat what he had been told and point out what he had been shown to
point out to a ‘high ranking
official’, who, he was told,
would be coming the next day. He was finally taken back to the cells
by Insp. Joubert and Constables
Letswamotse and Senosi while Const.
Nkuna remained behind. Const. Letwamotse acted as English/Tswana
interpreter between Insp.
Joubert and accused no 6 throughout the
events. He was paid yet another visit in the cells by Insp. Joubert
and Const. Letswamotse
at about 8h00 the next morning, which was 16
January 2008. Insp. Joubert confirmed with him that he still
remembered what they
had told him to say and had showed him to point
out. Insp. Joubert also instructed him to take a bath. He was
unable to open
the bath tap due to his swollen hands. Insp. Joubert
opened it for him.
[181] He was thereafter fetched from
the cells by the late Capt. Steyn and by Insp. Thwalima and taken to
an office upstairs. At
the outset Insp. Thwalima said this to him:
‘I am not here to play. You must tell us what they said you
must say the previous
day.’ Insp. Thwalima spoke to him in
Tswana despite his election to speak Zulu. When accused no 6 told
him about his interview
with Insp. Joubert the previous day, Insp.
Twhalima replied by saying: ‘We are not here for that. Tell
us what you have
been told yesterday to tell us.’ Accused no 6
then narrated what he could still remember. He was asked whether he
was going
to show them the place where he stayed, and he confirmed
that he would. He was made to sign papers. Accused no 6 confirmed
his
signature on each page of the
pro
forma
and on the annexed
copies of the late Capt. Steyn’s appointment certificate and
the SAP14A notice. Photographs were taken
of him.
[182] The motor vehicle in which the
late Capt. Steyn, Insp. Thwalima, Insp. Maluleke and accused no 6
travelled for purposes of
the pointings out, followed the motor
vehicle in which Insp. Britz and another police officer were
traveling to his house and thereafter
to the first place that accused
no 6 had been told to point out. Accused no 6 did not give any
directions to his house or to that
place. Once they reached the
first place that he had been told to point out, they proceeded on
foot and he pointed out what he
had been told to point out. The
officer who accompanied Insp. Britz also showed him a place to point
out. Both vehicles were
waiting at the final point that he had been
told to point out. Insp. Maluleke drove the one there and the other
one was driven
by the officer who accompanied Insp. Britz. They
returned to the Muldersdrift SAPS and accused no 6 was taken directly
to the
cells.
[183] Accused no 6
inter
alia
denied that he had
furnished to Insp. Thwalima or to the late Capt. Steyn his copy of
the SAP14A notice; that Capt. Steyn read
the constitutional rights
from the SAP14A notice to him in English or that Insp. Thwalima
translated them to him in Tswana; that
the questions appearing on
the
pro forma
were read or interpreted to him; that he furnished the replies
recorded on the form, except those relating to his personal
particulars
and to an old injury to his wrist; that photographs were
taken of him after the pointings out; that Insp. Thwalima read back
the
pro forma
and notes of the pointings out to him in English or that he
interpreted what he had read to him into Tswana; or that he
confirmed
that he understood and was satisfied with what had been
read back and explained to him.
[184] Accused no 6 testified that the
assault on him by the four police officers and Insp. Joubert’s
instruction to him to
say and point out what they had told him to say
and had showed him to point out had induced him to make the pointings
out.
[185] Accused no 6 made an
unfavourable impression upon us in the witness stand. He was often
evasive in answering questions during
cross-examination. There were
material contradictions in his evidence and between his evidence and
what had been put by his counsel
to State witnesses. Certain
material aspects of his evidence were not put to the State witnesses
despite the fact that he and
his counsel were afforded whatever time
they required for consultations whenever it was indicated that he
wished to consult with
his counsel or whenever his counsel wished to
take instructions from him. His detailed version was put to various
State witnesses
in English and then interpreted to him. He heard it
a few times in court before he entered the witness stand.
[186] A few of many examples suffice:
Accused no 6 testified that he had suffered from an injury inside his
mouth, from pains all
over his body, that he had been unable to speak
properly, and that his whole face, eyes and mouth had been swollen as
a result
of the assault upon him by Insp. Joubert and Constables
Letswamotse, Senosi, and Nkuna. His inability to speak properly was
not
put to any of the State witnesses. His alleged injuries were
also not visible on the photographs, although it was put to some of

the State witnesses that photograph 18 (exhibit ‘DD’)
depicts his swollen face. The State witnesses, who were confronted

with accused no 6’s version that he had a swollen face on the
day of the pointings out, all denied it. Accused no 6 testified
that
Insp. Britz, the photographer, was present throughout the interview
between him and the late Capt. Steyn. This was neither
put to Insp.
Thwalima nor to Insp. Britz. Accused no 6 testified that the motor
vehicle in which he, the late Capt. Steyn, and
Insp. Maluleke
travelled
en route
to
the pointings out followed the vehicle in which Insp. Britz and
another police officer travelled. This other police officer
is an
important person in his account. He testified that this other police
officer was also present in the office to which accused
no 6 had been
taken after the assaults upon him the previous night and that he
looked at accused no 6 and conversed with Insp.
Joubert. This was
not foreshadowed in the cross-examination of Inspector Joubert or
that of Constables Letswamotse, Senosi or
Nkuna.
[187] The fact that accused no 6 is an
unreliable and untruthful witness, does not conclude the enquiry. We
must be satisfied that
the prerequisites to admissibility have been
proved beyond reasonable doubt.
[188] The State presented a strong
case on the issue whether or not the pointings out were made freely
and voluntary and without
undue influence. The State witnesses
corroborated each other on various material aspects.
[189] The State case on the issue
whether or not accused no 6 had been properly informed of his
constitutional rights in a language
that he understood, is, however,
unsatisfactory in various material respects.
[190] Const. Letswamotse testified
that, at the time when he fetched accused no 6 from the Johannesburg
Correctional Facility, he
read the constitutional rights to him in
English from his pocket book and he enquired from him in Tswana
whether he understood
the rights, which accused no 6 confirmed.
Const. Letswamotse’s pocket book was, however, not tendered in
evidence. Const.
Letswamotse referred to certain rights in his
evidence that he had read to accused no 6, but he, of his own accord,
conceded that
his recollection might not be accurate.
[191] Const. Letswamotse testified
that, upon their arrival at the Muldersdrift SAPS, he read to accused
no 6 his constitutional
rights from the SAP14A notice in English and
he explained them to him in Tswana. He contradicted himself under
cross-examination
when he testified that he did not explain the
rights to accused no 6 in Tswana, but that he only ascertained in
Tswana whether
or not accused no 6 understood the rights. Insp.
Mogorotsi, who was the client service commander at the time, was
adamant that
Const. Letswamotse did not read the rights to accused no
6 in English, but in Tswana. Const. Letswamotse testified that it
was
a station order at Muldersdrift SAPS to read the rights in
English, and if a person did not understand them, to then explain
them
in the language in which he or she would understand. But Insp.
Mogorotsi testified that the SAP14A forms were available in almost

every language, including Tswana.
[192] Insp. Joubert testified that he
warned accused no 6 of his constitutional rights in English during
the interview between them.
He testified in chief that this took the
form of explaining to accused no 6 that he had the right to remain
silent, that everything
he said would be written down and held
against him in a Court of Law, that he had the right to a legal
representative and, if he
could not afford one, to be provided with
one by the State and that he also warned accused no 6 that he did not
need to make any
confession or pointing out.
[193] The
pro
forma
(exhibit ‘CC’)
is tailor made to inform an accused person with some precision of his
or her constitutional rights and,
particularly, to make an accused
person aware of his rights to legal representation prior to his
engaging in self-incrimination.
There was no evidence that the
rights set out in the
pro
forma
had been read or
interpreted to accused no 6 prior to him making the pointings out.
On the contrary, Insp. Thwalima testified that
the only rights that
were explained to accused no 6 during the interview were those set
out in the SAP14A notice. In giving his
evidence, accused no 6
denied that most of the statements and questions contained in the
pro
forma
had been read to him
or that he furnished most of the replies that were noted on the form.
Insp. Thwalima’s evidence that
only the rights contained in
the SAP14A notice had been read and interpreted to accused no 6,
corroborates the evidence of accused
no 6 to the extent that the
rights contained in the
pro
forma
had not been read and
interpreted to him. What casts further doubt on the reliability of
the evidence contained in the
pro
forma
is the fact that
replies were noted on it in response to certain questions relating in
content to constitutional rights while others
were left blank. It
raises the question that if those specific questions were not read to
accused no 6, why were replies noted?
Although the evidence
contained in the
pro forma
was ruled admissible
against him at the close of the State case, no weight is attached
thereto, except insofar as the issues relating
to admissibility under
s 217
of the
Criminal Procedure Act are
concerned.
[194] There was no evidence that the
late Capt. Steyn read all the rights contained in the SAP14A notice
to accused no 6 in English
or that he had read them correctly. But
even if this could be inferred, and we would hesitate to do so, then,
on the State’s
version, accused no 6 elected Tswana and the
rights contained in the SAP14A were interpreted to him into Tswana by
Insp. Thwalima
in consequence of his election. Insp. Thwalima’s
inability to have interpreted the rights correctly to accused no 6
was
undeniably demonstrated when he was cross-examined. He did not
correctly interpret those with which he was confronted under
cross-examination,
and he requested ten minutes to interpret the
first one when he failed to answer promptly. There was accordingly
no reliable evidence
placed before us that immediately before the
pointings out were made, accused no 6 had been correctly and
adequately warned of
his constitutional rights before deciding
whether or not to make the pointings out or whether or not to obtain
legal assistance.
[195] Insp. Joubert, Insp. Thwalima,
and Const. Letswamotse testified that accused no 6 understood
English. Accused no 6 maintained
that he understood only ‘a
little bit’ of English and that his ability to communicate in
English was limited. His
proficiency in the English language was
probably much more than he conceded. An inference could, however,
not be drawn that whatever
understanding accused no 6 might have had
of his constitutional rights before the interview with the late Capt.
Steyn, remained
unaltered and accorded with the constitutional
provisions after Insp. Thwalima had probably interpreted them
inaccurately to him.
Compare
S
v Monyane and Others
2001
(1) SACR 115
(TPD), at pp 120d – 121c.
[196] The admission of the disputed
pointings out and accompanying statement will, in our view, taint the
fairness of the trial.
A correct exposition of the rights set out in
s 35 of the Constitution was probably not correctly interpreted to
accused no 6
before he made the incriminating pointings out. No
reliable evidence was placed before us as to what precisely was
interpreted
to him prior to the making of the pointings out. This is
in the realm of the imponderable. Whether accused no 6 nevertheless
would have made the incriminating pointings out had his
constitutional rights been correctly interpreted to him, or whether
he
would have elected to remain silent, or whether he would have
elected the assistance of an attorney before doing so, is impossible

to say.
[197] We are in the circumstances
unable to hold that the admission of the disputed pointings out will
not be prejudicial to accused
no 6, and, accordingly, will not render
the trial, as far as he is concerned, unfair. The admission of such
evidence would also
be detrimental to the administration of justice
since it would condone the materially wrong interpretation of
constitutional rights
by interpreters to accused persons prior to
them engaging in self-incrimination with significant consequences.
[198] The State accordingly failed to
discharge the onus of proving beyond reasonable doubt the
constitutional requirements for
the admission in evidence of the
pointings out that had allegedly been made by accused no 6.
[199] The pointings out and statements
made by accused no 6 to the late Capt. Steyn on 16 January 2008 were
accordingly ruled inadmissible
in evidence. The application for a
special entry by accused no 6 was refused.
[200] The
sixth-trial-within-this-trial
concerned a witness statement which Const. Dichaba Ernest Moraba
obtained from accused no 5 not long after the incident on 28 November

2007. She was at that stage a complainant and considered to be an
eye witness for the State.
[201] Before Const. Moraba was called
as a witness Mr. Mkwanazi on behalf of accused no 5 objected to the
statement on the basis
that she maintained that once the statement
had been taken by Const. Moraba it was not read back to her and the
correctness of
certain parts thereof were disputed by her. I
followed a somewhat unusual procedure and ordered that the issue
whether or not
the statement had been read back to her be determined
in interlocutory proceedings by way of a trial-within-this-trial in
order
to ensure that accused no 5 was not prejudiced in some way or
another.
[202] It was undisputed that Const.
Moraba was assigned to obtain statements from various witnesses at
Heia Safari early in the
afternoon on 28 November 2007. He had no
knowledge of the case other than that the deceased was murdered by
unknown people who
were still at large at the time. It is common
cause that Const. Moraba obtained the statement from accused no 5 at
her residence
at Heia Safari and after her also from others. Accused
no 5 explained the incident to Const. Moraba. She is Zulu speaking
and
they communicated in Zulu. He reduced her statement to writing
in English. Const. Moraba described himself as ‘good’
at
Zulu and his ability in English as ‘fair’. Accused no 5
signed each page of the statement.
[203] Const. Moraba testified that
once he had taken the statement from accused no 5, he read it back to
her in English and thereafter
interpreted or explained it to her in
Zulu. She confirmed that she understood the statement and she signed
it. She did not bring
to his attention any part of the statement
which she did not understand or dispute. Accused no 5 testified that
Const. Moraba
did not read the statement back to her once it had been
taken, he did not ask her to confirm it, and she did not confirm the
contents
or the correctness thereof. She testified that certain
parts of the statement are not correct.
[204] Under cross-examination accused
no 5 said that the statement was not read back to her because Const.
Moraba was in a hurry
and he wanted to take statements from the other
people present. She also testified that she was unable to ask him
why she was
required to sign the statement, because he was in a
hurry. Had he not been in a hurry she would have enquired this of
him. None
of this was foreshadowed in the cross-examination of
Const. Moraba. Accused no 5 said under cross-examination that they
‘were
scared’, ‘frightened’, ‘still
confused and not knowing what just happened.’ The State
advocate asked
her: ‘The parts, which you are stating to the
Court that are incorrect on the statement, is it because of the fact
that
you were confused at the time when the statement was taken?’
Her answer: ‘That is correct.’
[205] The limited evidence presented
on the issue favoured the version of Const. Moraba. A different
conclusion might be reached
once the two conflicting versions are
measured in the light of all the evidence in the main trial. The
issue further appeared
to us to be rather one of accuracy, which will
best be decided at the end of the trial.
[206] The ruling made was accordingly
that the witness statement made by accused no 5 on 28 November 2007
is admitted into evidence.
This statement was thereafter introduced
into evidence as exhibit ‘KK’.
[207] I now return to the
main
criminal trial
. The six
accused made formal admissions in terms of
s 220
of the
Criminal
Procedure Act (exhibit
‘A’)
inter
alia
relating to: the
identity of the deceased; the date and cause of his death; that he
sustained no further injuries after the
incident; the correctness of
the findings of the
post-mortem
examination conducted on
the body of the deceased (exhibit ‘B’) and the
post-mortem
photographs (exhibit ‘C’); the photographs of the scene
of the incident,
the
surrounding areas, the deceased’s motor vehicle, the deceased’s
body in it, exhibits found at the scene, and the
key thereto
(exhibits ‘D1’, ‘D2’ and ‘E’);
the correctness of certain ballistic tests and
the findings in
respect thereof (exhibits ‘F1’ and ‘F2’);
and the contents of the deceased’s will
(exhibit ‘G’).
Shortly after the admissions had been made, accused no 1 changed his
mind and put the State to the
proof of the
post-mortem
findings and of the
photographs taken at the scene of the incident and surrounding areas.
[208] The State, in the main trial,
called thirty-three witnesses. They are: Ms. G. Burgmer; Mr. M.
Mbokazi; Ms. S. Wenman;
Ms. N. Mbokazi; Mr. S.Mbokazi; Ms. K.
Ngcobo; Mr. T. Ncxolo; Mr. L. Nginda; Capt. C.H. Slaughter; Capt.
Pongum; Const.
K. Kokwe; Const. G.N. Phakula; Mr. J.J.E. Celliers;
Const. M. Sekgobela; Insp. N.J. van Niekerk; Supt. R. Ramukosi;
Dir.
P. Byleveld; Snr. Supt. L. Eksteen; Insp. N.S. Manoko; Supt.
C.J. Scherman; Const. E.B. Senosi; Capt. M. Madibo; Const. V.

Mpikashe; Mr. K. Lekalakala; Insp. J.M. Nel; Const. D.E. Moraba;
Ms. J.P. Heinecke; Ms. H. du Plessis; Mr. A.G. Boonstra;
Insp.
M.W. Mokone; Dr. H.S. Johnson; Ms. A.Z. Mzolo, and Insp. A.J.
Joubert.
[209] Ms. Burgmer, who is the daughter
of the deceased, testified that he arrived in South Africa from
Germany in 1952. He first
worked in the gold mines. He bought a
piece of land in Muldersdrift during 1970 where he established the
Heia Safari Ranch and
game reserve, which he developed into a well
known national and international tourist destination (‘Heia
Safari’).
It
inter
alia
has a commercial hotel
and a Zulu village - Phumagena Amusi – where employees who
perform Zulu dances for guests reside.
Ms. Burgmer assisted the
deceased at Heia Safari. She and her daughter, Bianca, managed the
hotel. Ms. Wenman had been the deceased’s
professional
assistant and bookkeeper since April 1992, and she was someone in
whom he confided.
[210] Ms. Burgmer testified that her
late father was passionate about Africa and his motto was ‘live
in Africa with Africa’.
She testified that ‘[h]e was a
well respected businessman and he also created a lot of jobs for
people in the community.’
An employee, Mr. Nginda, testified
that the deceased was a very good employer and very much liked by
everybody. I pause to mention
that accused no 4 also said that the
deceased was known as a good person who helped a lot of people in the
community. The deceased
turned 80 years of age on 23 October 2007.
He was ‘still a very active man’ at the time of his death
on 28 November
2007.
[201] The deceased resided in the farm
house on Heia Safari. Ms. Burgmer testified that the deceased was
widowed in 1983. He thereafter
for many years stayed on his own.
Accused no 5, Ms. Celiwe Mbokazi, was one of twenty persons whom he
recruited from a rural village
in KwaZulu Natal during 1987 and whom
he employed as Zulu dancers. The deceased and accused no 5 soon fell
in love and accused
no 5 later on moved from the Zulu kraal into the
farm house where she and the deceased resided together as husband and
wife until
his death (the ‘farm house’). These facts are
undisputed and appear from the statement of accused no 5 (exhibit
‘O’)
and the evidence of Dir. Byleveld, Ms. Burgmer, and
Ms. Nosipho Mbokazi.
[212] The deceased and accused no 5
had five children living with them in the farm house for whom the
deceased cared. They were
Nosipho, Siyabonga, Lindokuhle, Thabang,
and Bheki (‘the children’). Only Bheki, was not yet
attending school. Nosipho
Mbokazi, who is 15 years of age, testified
that accused no 5 is her aunt, but she regards her and the deceased
as her mother and
father. In her words they ‘were like a
couple’, ‘like husband and wife’, ‘like
married people’,
and they ‘brought her up’. She
was brought from KwaZulu Natal to the deceased’s house in 2004,
after she had
been involved in an accident. The deceased paid her
medical expenses. Siyabonga Mbokazi, who is 16 years of age, also
referred
to accused no 5 as his mother and to the deceased as his
‘dad’ when he testified. Ms. Burgmer and Ms. Wenman
also
referred to the children in their evidence.
[213] Ms. Wenman testified that the
monthly payment of the dancers at the Zulu kraal ‘was a
ritual’. The deceased would
first have breakfast at the hotel
at 9h00, and be ready to leave the hotel at 10h00. The children
usually accompanied the deceased
when he paid the wages at the Zulu
kraal, and, on his way out, the reception lady at the hotel would
usually phone the farm house
and say that he was on his way and that
they should wait outside for him. On this occasion the Zulu dancers
were going to be paid
on 28 November 2007. Ms. Wenman assisted in
preparing the wages in small brown self-sealing envelopes for each
employee (the ‘wage
envelopes’) and by placing all the
envelopes in a stationery box for wage envelopes with a list that was
to be signed by
each employee in confirmation of the receipt of the
wages (the ‘wages box’). The total amount of wages on
this occasion
was approximately R23 213.00.
[214] Ms. Wenman testified that on
Wednesday, 28 November 2007, the deceased ‘was running a bit
late’. He came back
from breakfast at about 10h00. He went
into his office to make a few phone calls. Ms. Wenman handed the
wages box with the filled
wage envelopes to him at about 10h20. Mr.
Terrence Ncxolo, who was employed by the deceased as a driver,
testified that he accompanied
the deceased that morning. His time
estimate was that the deceased finished breakfast at 09h55. He also
testified that the deceased
went to his office and came out with the
wages box. The deceased was driving and Terrence was seated on the
back passenger seat.
The two of them arrived at the gate of the farm
house at 10h20.
[215] Nosipho testified that she was
present when the deceased called her mother asking that they get
ready to go and pay the employees
at the Zulu kraal. She cannot
remember the time of the call, but said it was between about 9h00 –
10h00. They then washed
themselves, got dressed, and went to wait
for their ‘dad’ at the gate. Accused no 5 was with them
at the gate. The
deceased accompanied by Terrence arrived in the
Nissan game drive vehicle, which she referred to as ‘the zebra
vehicle’
(exhibit ‘E’, photographs 1, 5, and 6).
Siyabonga testified that he woke up late at about 8h00. He went
outside and
was cleaning the veranda and outside the house. His
mother, accused no 5, told him that the deceased had called and said
that
they must get ready to go to the Zulu kraal to pay the
employees. He quickly finished his cleaning duties and then went
inside
the house to get ready. He heard his ‘dad’
arriving. He hooted. They went out. Terrence also testified that
the
deceased hooted for the children to come. The children came
first and they were then followed by accused no 5.
[216] Nosipho, Siyabonga, and Terrence
testified that they drove off to the Zulu kraal. The deceased was
driving. Accused no 5
was seated next to him on the front passenger
seat. The wages box with wage envelopes was placed between them.
The children were
seated in the middle row and Terrence at the back.
Terrence estimated the time that they had left the house and drove
off to the
Zulu kraal to have been about 10h27. I pause to mention
that, according to Ms Burgmer’s unchallenged evidence, the Zulu

village was about three kilometers away from the farm house. It is
also common cause (refer to the evidence of Nosipho, Siyabonga,
and
Terrence) that the relevant part of the route from the farm house to
the Zulu kraal is the one depicted on exhibit ‘D2,
photograph
1. They travelled on the private gravelled road from the direction
of the arrow ‘K’ towards the direction
of the arrow
‘A-E’.
En
route
, at the arrow ‘J’,
was a gate (‘the gate’).
[217] Nosipho, Siyabonga and Terrence
testified that the vehicle stopped when they reached the gate.
Siyabonga and Terrence testified
that Siyabonga alighted from the
vehicle to go and open the gate. When it was opened, they drove
through the gate and waited on
its other side for it to be closed.
Terrence went to assist Siyabonga in closing the gate. Nosipho
testified that Siyabonga
and Terrence alighted from the vehicle to
open the gate. Her version accords with that of accused no 5 in
terms of her witness
statement (exhibit ‘KK’). This
discrepiency is of no moment. All of them agreed that both Siyabonga
and Terrence
were outside the vehicle to close the gate.
[218] Nosipho testified that while
they were waiting at the gate, she saw three persons approaching the
vehicle from the direction
of the trees and bushes to the left as
they were travelling. She heard one gunshot fired when the three
were approaching, and
they kept on saying ‘voertsek’.
The three went to the side of the vehicle where accused no 5 was
seated, and one of
them tried to open the front passenger door. The
deceased said to accused no 5 ‘give them money’. The
assailants
responded by saying they did not want the money, they want
the deceased. They pointed a firearm at accused no 5, opened the
door,
and pulled her outside the vehicle and pushed her to the
ground. Nosipho jumped off the vehicle. She heard a second
gunshot
fired. She ran away. She ran back to the vehicle to fetch
her mother, because she heard her screaming. She grabbed her mother

and they ran to the house of Ms. Burgmer’s daughter, Bianca,
which is next to the hotel, where they asked for help. They
returned
to the scene with the deceased’s daughter, Ms Burgmer. The
deceased was shot. Nosipho was unable to identify the
three
assailants.
[219] Siyabonga testified that, at the
stage when he was at the gate, he heard a gunshot fired in the air.
When he looked behind
him, he saw people whom he could not recognise
coming from the left hand side of the vehicle. He was unable to say
how many people
were there. He also testified that they were
screaming ‘voertsek’, ‘voertsek’. Siyabonga
and Terrence
ran away to get help.
[220] Terrence also testified that
while he was closing the gate with Siyabonga next to him, three
persons were approaching the
vehicle. All three, according to him,
were armed with firearms. Terrence heard three gunshots going off.
The shots were directed
towards the right hand side of the vehicle.
Terrence was unable to identify them, because their faces were
covered. He estimated
the time of the shooting to have been 10h30.
He ran back to the hotel where he informed the deceased’s
daughter, Ms. Burgmer,
of what had happened. He returned to the
scene with Ms Burgmer’s daughter, Bianca. On their way back to
the scene they
passed Nosipho and accused no 5 walking up towards the
hotel. Upon their arrival they found the deceased’s vehicle a
few
metres away from the gate under a tree at points F and H (exhibit
‘D2’). Terrence found the deceased still in the vehicle,

but no longer alive. The wages box with the wage envelopes was no
longer in the vehicle. The wages box was empty and lying nearby
in
the grass.
[221] In her witness statement
(exhibit ‘KK’), accused no 5 states that she saw ‘three
black male suspects’
approaching the vehicle from the left and
it seemed that the suspects had hidden themselves at the trees next
to the gate. She
states that she was ‘grabbed’ out of
the vehicle, her bag was searched, and her cell phone (Samsung D820
with number
358225006760699 and MTN number 0738493908), identity book
and handbag were taken. The suspects took money from the deceased
(the
money to pay the employees at the Zulu kraal) and ‘they’
fired three shots at him. The vehicle was pushed away to a
tree.
This statement corresponds to the undisputed evidence of Terrence
that he found the vehicle a few metres away at a tree.
We
accordingly reject her denial that she informed Const. Moraba of
this. She also states that when ‘they grabbed’
her out
of the vehicle she was instructed not to look at them. She also
states that she was unable to identify them, since they
wore
balaclavas.
[222] Mr Lindikhaya Nginda, an
employee of the Heia Safari, testified that on 28 November 2007 from
about 7h00, he, and other employees,
were working about 100 metres
away from the gate (exhibit ‘D2’ photograph 1, point
‘J1’). He heard a gunshot
when he noticed the deceased’s
vehicle going through the gate. A second gunshot went off. This
prompted him to look properly.
He noticed people at the vehicle. He
heard a third gunshot. This happened ‘at past 10h00’. He
saw four persons running
away towards a nearby bush (exhibit
‘D2’,photograph 1, point J2), which was about 50 metres
away from where Mr Nginda
was working. A security officer arrived,
and Mr. Nginda told him about the four persons who ran into the bush.
Mr.Nginda accompanied
the security officer and they were traversing
the Heia Safari premises and surrounding area by motor vehicle in
search of the fugitives.
At some stage of the search, Mr. Nginda
noticed four persons at the top of a mountain. Three of them went
down the mountain side.
The police was contacted. When they
arrived, Mr. Nginda pointed the three out to the police. They then
started to run - two
of them into a bush (exhibit ‘D2’:
the area depicted just up from the arrow ‘M’ on
photograph 2), and the
third ‘took his own direction’. A
police search ensued at the reeds area. Mr. Nginda merely assumed
that the persons
whom he subsequently noticed and pointed out to the
security officer and the police were the same as those who initially
ran into
the bush near the gate. He did not take notice of their
clothes and was not able to identify them.
[223] Mr. Celliers, who was the
manager of Drift Reaction, which is the security company that
rendered security services to Heia
Safari, testified that Drift
Reaction received a panic from Heia Safari between 10h00 and 11h00 on
28 November 2007. He and a
Mr. Rohann Treptaw were the security
officers who reacted to the panic. Police officers had not yet
arrived when they arrived
at the scene of the incident, but there
were many people present. They found the deceased’s vehicle
stationery against a
tree, and the deceased slumped forward in the
vehicle. Information received by them prompted them to go to the
reeds area.
[224] Const. Sekgobela of the
Muldersdrift SAPS attended at the scene to secure it. He too found
many people present. He
inter
alia
found the deceased
dead in the vehicle. He summoned Insp. van Niekerk to the scene.
Insp. van Niekerk, who was from the SAPS Local
Criminal Record
Centre, Krugersdorp, arrived at about 12h20. He
inter
alia
took photographs of
the points showed to him at the scene, he collected exhibits found at
the scene and he secured them in forensic
bags with serial numbers.
His later involvement included the taking of aerial photographs of
the area and the receipt or collection
by him of further exhibits.
All the exhibits remained in his safekeeping and he delivered them in
due course to the SAPS forensic
laboratories in Pretoria.
[225] The sum of the evidence of Capt.
Pongum, Capt. Slaughter, Const. Kokwe, Const. Phakula, and Mr.
Erasmus is that there was
a strong police presence at and in the
vicinity of the Heia Safari premises in the hours that followed the
incident in search of
suspects about whom information was received.
The search was particularly focused on the reeds area to which
employees directed
the members of the SAPS. This area is the
encircled area at arrow ‘M’ on photograph 2 of exhibit
D2. Const. Kokwe
and Const. Phakula each testified that they arrived
at the reeds area after about 10h00. Const. Phakula testified that
present
in the area were
inter
alia
members of the
community, members of the SAPS Dog Unit with their dogs, members of
the Florida SAPS, and members of the Muldersdrift
SAPS. Capt.
Slaughter, who was a shift commander stationed at the West Rand
Flying Squad, arrived at about 12h30. There was a
lot of noise in
the area. It was unsuccessfully searched for hours on foot and by
police helicopter. Const. Kokwe eventually
set the reeds area
alight.
[226] Once the reeds were burning,
accused no 1 emerged from the area with his hands above his head.
This happened at about 16h00.
Capt. Slaughter arrested him. Capt.
Pongum searched him and found R7, 890.00 in cash on him – R1,
500.00 inside his trousers,
R50.00 in the right rear pocket of his
trousers, R190.00 in the left rear pocket of his trousers, R4, 150.00
inside his right ‘tekkie’,
and R2, 000.00 inside his left
‘tekkie’ (exhibit ‘D1’, photographs 15, 16,
17, and 18). When Capt. Pongum
came across the R50.00 in the right
rear pocket of his trousers, accused no 1 remarked that the R50.00
was his money, which was
not his reaction when the rest of the money
was found, and Capt. Pongum gained the impression that accused no 1
did not wish him
to also confiscate the R50.00. At about 16h30,
Insp. van Niekerk collected the clothes of accused no 1 (black denim
pants and
black t-shirt), and they were sealed in a forensic exhibit
bag FSD 550048.
[227] Const. Kokwe, Mr. Celliers and
Mr. Treptow entered the reeds area and found accused no 3 hiding in a
crouched position. When
he stood up, money fell from his clothes and
onto the ground. This was an amount of R2, 000.00. He was searched
and a further
amount of R1, 530.00 was found in one of his pockets.
Accused no 3 claimed that the money belonged to him. He was arrested
by
Const. Kokwe.
[228] Accompanied by accused no 1,
certain members of the SAPS went to the Video Informal Settlement,
Nooitgedacht, where accused
no 2 was arrested by Insp. Joubert at his
shack (exhibit ‘D2’, photograph 3, shack ‘P’)
after he had been
pointed out by accused no 1. Ms Burgmer testified
that the Video Informal Settlement is not far from Heia Safari.
Insp. Joubert
searched him and confiscated a Nokia cell phone with
IMEI number 357680/01/501769/0 that he found on him (exhibit ‘1’).
[229] Information received in the late
afternoon or early evening prompted Mr. Celliers to go to the gate of
the Garden Lodge Hotel,
which he estimated to be one kilometer away
from the Heia Safari entrance. Ms. Burgmer testified that the Garden
Lodge Hotel is
adjacent to the farm house. Mr. Celliers found
accused no 4 at the gate. He told him to lie on the ground. He
searched him and
found a cellular phone in one of his pockets. He
informed accused no 4 that he was detaining him in connection with
the murder
and robbery at Heia Safari until the SAPS arrive. He
contacted the SAPS, and upon the arrival of Insp. Joubert, handed
accused
no 4 and his cellular phone over to him. Insp. Joubert
testified that he arrested accused no 4. He also seized the cell
phone.
It was a Nokia cell phone with IMEI number 359762000632630
(exhibit ‘2’).
[230] Insp. Joubert testified that
accused no 5 was initially a State witness and complainant in this
matter. Her cell phone was
taken during the incident. This also
appears from her witness statement (exhibit ‘KK’). I
pause to mention that this
was also the undisputed evidence of
accused no 5. Ms. Burgmer testified that the land line of the farm
house was connected to
the switchboard of the Heia Safari hotel and
it formed part of the same telephone system. Its extension was 5079.
This was confirmed
by Nosipho. The system generates records
reflecting the date, time, and number of each call. Telephone
records were printed
out daily for the purpose of charging guests for
their calls. Shortly after the death of the deceased, Ms. Burgmer
obtained a
printout of the telephone records for the farm house. She
noticed unfamiliar numbers that were often repeated. She accordingly

handed the records over to the investigating officer, Insp. Joubert.
He confirmed this, and testified that these records (exhibit
‘MM’)
reflect calls between the land line of the farm house where accused
no 5 resided and the cell phones of accused
no 2 and of accused no 4.
Accused no 2 implicated accused no 5 during an interview with Dir.
Byleveld on 7 December 2007 (exhibit
‘N’), and she was
arrested later the same day. Insp. Joubert subsequently caused call
data to be obtained from Vodacom
(exhibit ‘LL’) and MTN
(exhibit ‘NN’).
[231] Insp. Joubert testified that
accused no 6 remained an outstanding suspect. He traced him to the
Johannesburg Prison on 14
January 2008, and he was arrested on 15
January 2008 in connection with this case. He was implicated in the
disputed confessional
statements of accused nos 1, 2, and 3.
[232] The medical
post-mortem
examination (exhibit ‘B’) conducted by Dr. Johnson at the
Roodepoort mortuary revealed that the deceased’s death
had been
caused by multiple gunshot wounds to the chest and upper left arm.
Dr. Johnson identified three entrance wounds, although
she states in
her report, and in her evidence, that the individual tracks were
difficult to distinguish due to the multiplicity
and cross direction
of the wounds. Her opinion in this regard is, however, supported by
the finding of two spent bullets inside
the body of the deceased and
one spent bullet inside and a cartridge case outside the deceased’s
vehicle. The one track
passes from left to right and downwards from
the upper left front side of the chest just below the left collar
bone and it terminates
in the muscles of the right upper back where a
spent bullet was found. The other track also passes from left to
right and downwards
from the left upper arm into the left upper chest
cavity and it exits through the seventh rib on the right. The other
track passes
from left to right from the fourth rib space on the
outer left side of the chest and it terminates in the eighth thoracic
vertebra
where a spent bullet was lodged. The entrance wounds, in
her opinion, are to be classified as intermediate wounds, and not
contact
wounds. The deceased was, in her opinion, not shot at point
blank range, but at a distance of at least two metres. She also
expressed
the opinion that the caliber of the weapon used ‘looks
like it would have been a handheld weapon due to the nature of the

wounds.’ Dr. Johnson removed two spent bullets from the
deceased’s body (FSC459104), which were later subjected to

ballistic examination.
[233] Evidence relating to the finding
of exhibits and the ballistic analyses thereof was tendered by the
State. Relevant are exhibits
‘B’, ‘D1’,
‘D2’, ‘E’, ‘F1’ and ‘F2’
and the evidence of
the witnesses Insp. van Niekerk, Const. Mpikashe,
Mr. Lekalakala, Insp. Nel, Dr. Johnson and Insp. Joubert.
[234] On 28 November 2007, Insp. van
Niekerk attended at the scene of the incident where he
inter
alia
collected one
cartridge, which he sealed in forensic bag FSCC698755. On 29
November 2007, Dr. Johnson removed two spent bullets
from the
deceased’s body (FSC459104), which was received from her by
Insp. Joubert and he in turn handed them to Insp. van
Niekerk. On 1
December 2007, Insp. Joubert collected one spent bullet that was
found in the deceased’s vehicle (exhibit
‘E’),
which he handed to Insp. van Niekerk and it was sealed in forensic
bag FSCC698741. I have mentioned that these
exhibits remained in the
safekeeping of Insp. van Niekerk until they were delivered to the
forensic laboratory in Pretoria.
[235] Information received by Insp.
Joubert caused him to attend at the Honeydew SAPS on 14 January 2008
where he booked a firearm,
which was a .38 Special Enfield revolver
that was sealed in exhibit bag FSC458435, out of Honeydew
SAP13/1435/2007 for the purpose
of his investigation, and he booked
it into Muldersdrift SAP13/3005/2008.
[236] On 7 February 2008, the police
expert in ballistics, Insp. Nel,
inter
alia
received the two spent
bullets that were found in the deceased’s body (FSC459104), the
spent bullet that was found in the
deceased’s vehicle
(FSCC698741), the cartridge that was found at the scene of the
incident (FSCC698755), and the .38 Smith
& Wesson Calibre Enfield
revolver (‘the .38 revolver’) that was found at Honeydew
SAPS (FSC458435). He marked
the 9 mm Parabellum calibre fired
cartridge case 13542/08C. He described the spent bullets as one 9mm
caliber fired bullet, which
he marked 13542/08L, and two .38/.357
calibre fired bullets, which he marked 13542/08K and 13542/08M
respectively. He found the
latter two spent bullets unsuitable for
microscopic comparison due to damage, but no indication was given
whether both of them
were the ones found in the body of the deceased
or whether one of them was the one found in the deceased’s
vehicle. Insp.
Joubert testified that only one of the spent bullets
found in the deceased’s body was damaged. This, according to
Insp.
Joubert, was the .38 spent bullet. The other damaged spent
bullet was, according to Insp. Joubert, the one found in the
deceased’s
vehicle. The two unsuitable spent bullets were
sealed in exhibit bag FSCC860781. Insp. Nel, through a process of
microscopic
comparison, ascertained that the 9 mm cartridge and 9 mm
spent bullet were not fired from the .38 revolver. See: Exhibit
‘F1’.
[237] Acting on information that he
had received regarding another firearm, Insp. Joubert attended at the
Honeydew SAPS on 8 February
2008, where he booked this other firearm,
which was a Z88 9 mm pistol with no serial number (‘the Z88 9
mm pistol), out of
the Honeydew SAP13/1427/2007 storeroom, he sealed
it in an evidence bag FSC436785, and he forwarded it to the forensic
laboratory
in Pretoria on the same day. On 18 February 2008, Insp.
Nel, through a process of microscopic comparison, ascertained that
the
9 mm Parabellum caliber fired cartridge case that he marked
1354/08C, and the 9 mm caliber fired bullet that he marked 13542/08L,

were fired from the Z88 pistol (exhibit ‘F2’).
[238] The finding of the one cartridge
by Insp. van Niekerk at the scene of the incident (exhibit ‘C’,
photograph 1
FSCC698755), of the two spent bullets that were
recovered by Dr. Johnson from the body of the deceased (FSC459104),
of the spent
bullet collected by Insp. Joubert that was found in the
deceased’s vehicle (FSCC698741), of the .38 revolver found by
Insp.
Joubert at the Honeydew SAPS (FSC458435), and of the Z88 9 mm
pistol found by Insp. Joubert at the Honeydew SAPS (FSC436785) did

not establish any link between any of the accused and the death of
the deceased.
[239] The
post
mortem
and ballistic
evidence, however, establishes that one of the firearms with which
the deceased was shot, is the Z88 9 mm pistol and
that the three
bullets that penetrated his body are two .38 mm bullets and one 9 mm
bullet.
[240] The commission of the offences
of the robbery of the deceased with aggravating circumstances and of
the murder of the deceased
have accordingly been proved by evidence
other than the confessions that have been admitted into evidence.
[241] At the close of the State case
an
application in terms of
s
174
of the
Criminal Procedure Act 51 of 1977
was made on behalf of accused no 2, accused no 4, accused no 5, and
accused no 6 for their discharge on all the counts, which are
the
main counts of murder and of robbery or of conspiracy in the
alternative (counts 1 and 2), the unlawful possession of firearms
and
ammunition (counts 3 and 4), and, in regard to accused no 2 and
accused no 4, a corruption charge (count 5).
[242] The State, correctly in my view,
conceded the applications by accused no 4 and by accused no 5 in
regard to counts 3 and 4,
and the applications by accused no 2 and by
accused no 4 in regard to count 5, and they were accordingly found
not guilty and discharged
on those counts. The applications for
their discharge on the other counts were refused. These are the
reasons.
[243] Apart from her witness statement
(exhibit ‘KK’) and her disputed statement made before
Dir. Byleveld (exhibit
‘O’), the State presented
circumstantial evidence against accused no 5. The evidence included
evidence that the deceased
and accused no 5 were husband and wife;
she was on the payroll of Heia Safari; she, their ‘adopted’
children, and
members of her family shared in the privileges of the
deceased’s lifestyle; she was a beneficiary in terms of his
last will
and testament; she formed a relationship with accused no 4
and became pregnant by him; her attempt at aborting the unborn child

failed; she informed the deceased of her pregnancy during August
2007; he was very upset about it and he told her that she must
go
home to KwaZulu-Natal for the birth and return to Johannesburg ‘for
work with other people’; she was to leave for
KwaZulu-Natal on
16 December 2007; the monthly payment of the employees at the Zulu
kraal was ‘a ritual’ and usually
done close to month end;
payment of the employees on the 28
th
November 2007 was unusual; she knew when the employees were going to
be paid on that occasion; various calls were made between
the cell
phone of accused no 5 or from the land line of her residence and the
cell phone of accused no 2, and more particularly
one from her cell
phone to that of accused no 2 at 08h37, another from the cell phone
of accused no 5 to that of accused no 2 at
20h37 and another from
accused no 2’s cell phone to that of accused no 5 at 20h40 on
26 November 2007, and five calls from
her cell phone or land line to
the cell phone of accused no 2 from 7h51 until 9h59 on 28 November
2007; the deceased fetched her
and the children after 10h00 on that
morning; the deceased was shot minutes later while they were
en
route
to the Zulu kraal;
accused no 5 identified accused no 2 as one of the assailants
(exhibit ‘O’); and shortly after
the funeral of the
deceased she expressed an expectation of being arrested. It should
also be mentioned that her version put to
State witnesses included a
denial that she knew accused no 2 and a denial that she had ever
called him. The circumstantial evidence
had the potential of
providing proof of her guilt beyond reasonable doubt. The rules for
determining whether the circumstantial
evidence has proved her guilt
on any or all of the main counts or alternative count beyond
reasonable doubt apply at the conclusion
of the trial and not at the
conclusion of the State case. See:
S
v Cooper and Others
1976
(2) SA 875
(T), at p 890;
S
v Mpetha
1983 (4) SA 262
(C), at p 266. This finding made it unnecessary to further consider
the implication of accused no 5 in the second confession of
accused
no 2 (exhibit ‘N’).
[244] We admitted into evidence two
disputed confessions of accused no 2. The one was allegedly made to
Supt. Ramukosi on 28 November
2007 (exhibit ‘L’), and the
other one to Dir. Byleveld on 7 December 2007 (exhibit ‘N’).
It was put to
Supt. Ramukosi that the contents of exhibit ‘L’
did not emanate from accused no 2 and that he was forced to sign it.

It was put to Dir. Byleveld that accused no 2 made a deliberate false
statement to him (exhibit ‘N’). Mr. Biyana,
on behalf of
accused no 2, submitted that there are contradictions between the two
statements and inconsistencies between them
and the State evidence
that are such that there was no evidence upon which a reasonable
person might convict accused no 2. I disagreed.
Whether or not the
contents of the first confession emanated from Supt. Ramukosi or from
accused no 2 and whether or not the second
one was in content a
deliberate falsehood on the part of accused no 2 were issues that
should be determined on the totality of
the evidence at the
conclusion of the trial. Whether or not each statement was correctly
admitted into evidence, the reliability
of each, and what weight
should be attached to each were similarly matters for assessment and
decision at the conclusion of the
trial.
[245] The first confession of accused
no 2 (exhibit ‘L’) implicates accused no 4. The
confession of accused no 1 (exhibit
‘Q’), the pointings
out of accused no 1 (exhibit ‘R’), the first confession
of accused no 2 (exhibit ‘L’),
the second confession of
accused no 2 (exhibit ‘N’), and the confession of accused
no 3 (exhibit ‘AA’)
implicate accused no 6. These
statements were, of course, at the conclusion of the State case
inadmissible against accused no
4 and against accused no 6. They
would, however, become admissible if their makers elect to testify
and confirm them.
[246] In
S
v Lubaxa
2001 (2) SACR 703
(SCA), para [21], Nugent AJA said this:
‘
Whether, or in what
circumstances, a trial court should discharge an accused who might be
incriminated by a co-accused, is not a
question that can be answered
in the abstract, for the circumstances in which the question arises
are varied. While there might
be cases in which it would be unfair
not to do so, one can envisage circumstances in which to do so would
compromise the proper
administration of justice. What is entailed by
a fair trial must necessarily be determined by the particular
circumstances.
[247] A factor which is permissible to
be taken into account in granting or refusing an application for
discharge is whether there
is a reasonable possibility that the
evidence of co-accused might supplement the State case. See:
S
v Hudson and Others
1998
(2) SACR 359
(WLD), at pp 360h – 362f. Ms. Mogolane, on
behalf of accused no 4, and Mr. Themba, on behalf of accused no 6,
submitted
that the versions of accused nos 1, 2, and 3 that were put
to the relevant State witnesses all indicate that they would disavow

the confessions and pointings out should they testify. I accepted
that what had happened during the trial – also the
cross-examination
of the relevant State witnesses to whom the
confessions and pointings out were made and not only the versions of
the co-accused
that had been put to them - should also be taken into
account in evaluating whether there is a reasonable possibility of
the co-accused
or any of them repeating in evidence some or all of
what is contained in the statements. See:
S
v Mpetha and Others
1983
(4) SA 262
(K), at p 268E – G.
[248] An important consideration in
determining whether such ‘reasonable possibility’ exists
is the content of co-accused
confessions admitted into evidence.
See:
S v Hudson (supra)
.
The versions of the co-accused that had been put to the relevant
State witnesses to whom the confessions and pointings out were
made
and their cross-examination, did not, in my view, necessarily detract
from the reasonable possibility that arose from the
existence and
contents of the confessions and pointings-out.
[249] The discretion contained in
s
174
must be exercised fairly to both the accused and the State. See:
S v Hudson (supra)
.
I realised that a refusal of the discharge applications meant that
accused nos 4 and 6 would remain in custody and that they
would have
to sit out the rest of the trial, which, at the stage of the
discharge applications, was about to be postponed since
the time
allocated for the trial had run out. They have been on trial in
connection with serious crimes and the trial has been
attracting
public interest and constant media publicity. Confessional pointings
out that had allegedly been made by accused no
6 were not admitted
into evidence for the reason that his constitutional rights were
probably not properly and accurately interpreted
to him.
Incriminating statements that had allegedly been made by accused no 5
against accused no 2 and accused no 4 were also
not admitted
inter
alia
because of the risk of
false co-accused incrimination.
[250] Taking into account all the
circumstances of this case and balancing the interests of accused no
4 and of accused no 6 with
the interests of the State and the
prosecution as well as the interests of the community in the
prosecution, I concluded that the
proper administration of justice
would be compromised by discharging accused no 4 and accused no 6 on
the counts under consideration
at that stage of the proceedings.
See:
S v Lubaxa (supra)
and
S v Mondlane en Andere
1987 (4) SA 70
(TPA).
[251]
Accused
no 1
denied that he was in
any way involved in the murder or robbery of the deceased. He
testified that he, accompanied by his cousin,
accused no 3, attended
at the place of employment of another cousin of his, one Niki
America, which was a workshop on a farm, Mandevu’s
Place in
Muldersdrift, at between 14h30 – 15h00 on 28 November 2007, to
collect money that Niki owed him. Niki asked that
they wait until he
finished work. Accused no 3 and he accordingly walked down to a
nearby stream where they smoked dagga. They
noticed an approaching
police van, which prompted them to seek hiding from the police in the
reeds area since the police might
arrest a person for smelling of
dagga. The police arrived and set the area where they were hiding
alight. Accused no 1 emerged
from the area and was arrested. He
told the police that there was another person with him in the reeds.
Accused no 3 was then
arrested.
[252] The version that accused no 1
stayed in the reeds area until it was burnt for fear that he might be
arrested for smelling
of dagga despite the police presence in and
around the reeds area and despite the fact that he and accused no 3
were no longer
in possession of dagga is improbable.
[253] Accused no 1 was searched by
Capt. Pongum at the time of his arrest. Capt. Slaughter effected his
arrest. An amount of cash
totaling R7, 890.00 was found on the
person of accused no 1 when he was arrested hours after the incident
in which the deceased
was robbed of a large amount of cash. The
evidence of Capt. Slaughter and that of Capt. Pongum that the money
was found in his
trouser pockets, inside his trousers and inside his
‘tekkies’ was not challenged when they were
cross-examined. Also
see exhibit D.1, photographs 15, 16, and 17.
When he testified, accused no 1, however, denied that money was found
inside his
trousers. In his post-arrest confession, to which I
return, accused no 1 admits that the money found on his person was
the money
that he had taken from the deceased, except for the sum of
R190.00. It is not without significance that only R50.00 cash and
R190.00
cash were found in the right and left back pockets of his
trousers and the rest inside his underwear and ‘tekkies’.

Accused no 1, in his post-arrest statement, claims that the R190.00
was his own money. Capt. Pongum testified that he only claimed
the
R50.00 that was found in the right back pocket of his trousers to
have been his own. We, on the totality of the evidence,
reject
accused no 1’s denial of his post-arrest admission relating to
the money.
[254] Accused no 1 was wearing black
denim trousers which were seized by the police once he was searched
and arrested. Insp.
van Niekerk’s undisputed evidence is that
he sealed it in forensic bag FSD – 55048, which was kept in his
safekeeping.
On 4 December 2007, Insp. Joubert requested Insp. van
Niekerk to open the forensic bag as a result of information that he
had
received. It was opened at the office of Insp. van Niekerk and
in his presence. An MTN simcard with serial number 0252367202
was
found in the right pocket of the black denim trousers that belonged
to and were seized from accused no 1 after his arrest.
Insp. van
Niekerk handed the simcard over to Insp. Joubert. The simcard was
received in evidence as exhibit 3. The undisputed
evidence of
accused no 5 was that her cell phone was taken at the time of the
robbery and murder of the deceased and that the simcard,
which has
been proved to be exhibit 3, was in it. Insp. Joubert and Insp. van
Niekerk corroborate each other on all the aspects
relating to these
events. Also see: Exhibit D1. The finding of accused no 5’s
simcard that was taken during the course
of the robbery in the pocket
of the trousers of accused no 1 that he wore a few hours after the
incident is of serious incriminating
nature against him.
[255] Mr. Ncoko, on behalf of accused
no 1, put it to Insp. Joubert that accused no 1 does not know who
placed the simcard in his
trousers and when it was placed in his
trousers. Insp. Joubert replied that accused no 1 was the person who
gave him the information
about the simcard. This accused no 1 denied
when he testified. Whether or not accused no 1 told Insp. Joubert of
the simcard
in the pocket of his trousers is immaterial. It is
common cause that accused no 1 was searched at the time of his arrest
and that
the simcard was not found during such search. It is,
however, a very small item which could easily not have been detected
when
he was searched. There is no basis for suspecting that anyone
had placed the simcard in the pocket of his trousers in order to

incriminate him. We accept the evidence that the simcard of accused
no 5 that was taken at the time of the incident was found
in the
trousers of accused no 1.
[256] The disputed confession of
accused no 1 taken by Supt. Scherman on 28 November 2007 (exhibit Q)
and his disputed pointings
out to Snr. Supt. Eksteen in the afternoon
of 29 November 2007 (exhibits R and S) were held to be admissible at
the end of the
second trial-within-this-trial referred to in
paragraphs 54 - 91 above. What needs to be determined presently is
whether they
were made at all or in the terms alleged by the State.
The State led evidence relevant to these issues in both the second
trial-within-this-trial
and in this main trial. Both assessors and I
sat during all the trials-within-this-trial and it is accordingly
competent for us
to take cognisance of the evidence that was led by
the State in the second trial-within-this-trial. See:
S
v Nglengethwa
1996 (1) SACR
737
(A).
[257] It is common cause that accused
no 1 made the confession to Supt. Scherman. The terms of the
confession were not placed in
issue when she was cross-examined. It
was put to Supt.Scherman on behalf of accused no 1 that what he told
her was what he ‘overheard’.
Accused no 1 also testified
this when he gave his evidence in chief. Under cross-examination he
explained that he overheard the
information from policemen who were
talking about what had happened when they were walking ‘up and
down’ the area in
the vicinity where accused no 1 was hiding in
the reeds before his arrest. What he could remember under
cross-examination was
that they were talking about a white person who
had been robbed and killed. Under cross-examination accused no 1
adjusted this
version and his evidence in chief. He first testified
that the source of the information that he relayed to Supt. Scherman
was
also Insp. Joubert who instructed him to relay to her ‘exactly’
what Insp. Joubert had told him to say, which
inter
alia
was that he must admit
to the commission of the crime and that the people he was staying
with were the people with whom he was involved
in the crime. When
accused no 1 was cross-examined on the aspect that the persons named
in the statement were people with whom
he stayed or who were known to
him, he again adjusted his version by saying that not all the
information contained in the statement
emanated from Insp. Joubert or
from what he had overheard prior to and at the time of his arrest,
but that the names, and only
the names, emanated from him. Insp.
Joubert, according to him, assigned roles to the persons mentioned by
accused no 1. He later
adjusted this evidence too by saying that
some of the facts, such as the facts relating to his arrest, also
emanated from him.
Apart from being contradictory, the version put
forward by accused no 1 when he testified was essentially not
foreshadowed in
the cross-examination of Supt. Scherman and of Insp.
Joubert, and is in conflict with what had been put to them when they
were
cross-examined on behalf of accused no 1. It was pertinently
put to Supt. Scherman that accused no 1’s version is that what

he told her was what he had ‘overheard’. What also
counts heavily against the version of accused no 1 is that we find

Insp. Joubert and Supt. Scherman to be credible witnesses and their
evidence reliable in the light of all the evidence.
[258] At the foot of the last page of
the manuscript statement (exhibit Q) appears a sketch and names.
Accused no 1 testified that
the names appearing at the foot of the
last manuscript page of the statement were written by Supt. Scherman
and he had no knowledge
as to what was depicted on the drawing. This
again was not put to Supt. Scherman and is contrary to her
unchallenged evidence
that accused no 1 drew the sketch, that he
depicted the incident, and that he wrote the names next to it.
Accused no 1 also testified
that he informed Supt. Scherman that the
information he was relaying to her was dictated to him by Insp.
Joubert. This too, however,
was not put to Supt. Scherman.
[259] In his evidence in chief accused
no 1 testified that he made the pointings-out to Snr. Supt. Eksteen
because he was told to
show all the places that he had been to on the
day of the incident. Accused no 1 testified that he only pointed out
the place
where he stayed at Video Squatter Camp (exhibit
S.1
,
photograph 6), the place where they alighted from the taxi
(presumably when he and accused no 3 had allegedly gone to the place

of employment of his cousin Niki America) (exhibit
S.1
, photograph
7), the place where they were arrested (exhibit
S.1
, photograph 16),
and the place where Niki was employed, which place does not appear on
exhibit
S.1.
[260] Accused no 1 testified that once
he had pointed out these movements of his on the previous day, he was
then taken to Heia
Safari at the instance of Snr. Supt. Eksteen. She
asked or told him to point out all the places depicted on exhibit
S.1
, photographs 8, 9, 10, 11, 12, 13, 14 and 15, which were places
which he did not know and which did not form part of his movements
of
the previous day. Accused no 1 denied that he made the statements
that were noted down in respect of the pointings out and
he suggested
that Snr. Supt. Eksteen fabricated the pointings out as depicted on
photographs 8 – 15 of exhibit
S.1
and as described in the notes
of the pointings out (exhibit R.1). Under cross-examination he also
said that he does not know where
she got the information from.
[261] We find this version of accused
no 1 palpably false on the totality of the evidence. Snr. Supt.
Eksteen was a most impressive
witness and her evidence is totally
credible and reliable. She testified that she had no knowledge of
the case or where to go
on the pointings out. Accused no 1 informed
her that he wished to show her what happened and that is what he did.
His evidence
about the pointings out is irreconcilable with the
evidence that was given in the second trial-within-this-trial by Snr.
Supt.
Eksteen, by that of the interpreter, Const. Molefe, by that of
the photographer, Insp. Manoko, and by that of the driver, Insp.

Scott, who all corroborated the evidence of Snr. Supt. Eksteen in
various material respects.
[262] The similarities in the versions
that accused no 1 gave to Supt. Scherman and to Snr. Supt. Eksteen on
the two different occasions
are striking. The one given to Supt.
Scherman he said came from him, but was essentially what Insp.
Joubert had told him to tell
her. But the other one recorded by Snr.
Supt. Eksteen, according to accused no 1, was not what he had
conveyed and pointed out
to her, apart from the places where he
resided, where the taxi dropped him and accused no 3 off, and the
place of their arrest.
Snr. Supt. Eksteen, according to accused no
1, either made the pointings out up or they came from somebody else.
No such fraudulent
conduct involving Snr. Supt. Eksteen was even
vaguely suggested to her when she was cross-examined on behalf of
accused no 1.
[263] The State has, on the totality
of the evidence, proved beyond reasonable doubt that accused no 1
made the confession to Supt.
Scherman and the pointings out to Snr.
Supt. Eksteen in the terms in which they are recorded and
photographically depicted in exhibits
‘Q’, ‘R’,
and ‘S’. The State furthermore has proved beyond
reasonable doubt that the contents
of the confession and of the
pointings out emanated from accused no 1 only. His version that he
conveyed to Supt. Scherman what
he had overheard at the time of his
arrest and what Insp. Joubert had dictated to him to tell, and that
the contents of the pointings
out made came from either Snr. Supt.
Eksteen or from another source are, on the totality of the evidence,
false and rejected.
[264] To borrow the words of Cameron,
JA in
S v Ndhlovu and Others
2002 (2) SACR 325
(SCA),
para [34], ‘from the words of his own tongue’ accused no
1 admitted to: a pre-planning by him, Xolani, Gilbert,
and Vincent
to rob the ‘white man’ of a large amount of money that
was meant to pay the employees at Heia Safari on
28 November 2007;
the plan included for Vincent and Gilbert to approach the white man
and to point firearms at him, for accused
no 1 to then take the
money, and for Xolani not to make himself visible since he was a
former employee of Heia Safari; his awareness
that two firearms were
taken along; Gilbert, Xolani, Vincent and himself having gone to
Heia Safari on the morning of 28 November
2007; the positions they
took up at the gate where the ‘white man’ was expected to
stop for it to be opened and closed,
which was Xolani hiding in
‘bushes’ and Gilbert, Vincent and accused no 1 at trees
next to the gate; their surprise
attack once the vehicle had driven
through the gate and stopped while a passenger was closing it;
Vincent and Gilbert approaching
the vehicle on its left front
passenger side where a black lady was seated and accused no 1
following behind them; two gun shots
that had gone off and people
running away from the vehicle; the front passenger door of the
vehicle being opened, the deceased
shot, and of blood ‘coming
out of his shirt on the left side’ by the time of accused no 1
reaching the vehicle; the
deceased saying ‘take the money’
in Zulu; the tearing of the money box because the deceased held it
tight and some
of the envelopes with money falling inside the
vehicle; the taking by accused no 1 of about nine envelopes with
money; their
running away in the direction from which they came and
their splitting up; the police searching for them; the burning of
the
grass and accused no 1 emerging from his hiding place; his
disclosure to the police of accused no 3’s presence; how he
took the money from the envelopes while he was hiding and putting it
in his pants, in both his shoes, and in the pockets of his
pants;
and his pointing out of Xolani at Video Squatter camp after his
arrest. I should mention that although accused no 1 testified
that
‘Gilbert’ is accused no 3, ‘Xolani’ accused
no 2, and ‘Vincent’ accused no 6, his confession
is, in
terms of
s 219
of the
Criminal Procedure Act, not admissible
as
evidence against any of his co-accused.
[265] By his own pointings out accused
no 1 admitted the places where he and his co-perpetrators planned to
rob the deceased (photograph
6), where they were dropped off by his
uncle (photograph 7), the foot path and route they walked from where
they were dropped off
to the gate (photographs 8, 9, 10 and 11), the
points where they took hiding (photographs 12 and 13), the direction
from which
the deceased’s vehicle was approaching (photograph
14), where it stopped before the deceased was attacked (photograph
15),
and the place where accused no 1 took hiding before he was
arrested (photograph 16).
[266]
The
commission of the offences of the robbery of the deceased with
aggravating circumstances (count 1) and of the murder of the
deceased
(count 2) have been proved by evidence other than the confession and
pointings out of accused no 1.
See:
s. 209
of the
Criminal Procedure Act.
There
are also
many pieces of
confirming evidence outside his confession and pointings out which
corroborate them in material respects as is evident
from a reading of
the State case to which reference is made in paragraphs 209 - 239
earlier in this judgment. Notably, the three
bullet entrance wounds
identified by Dr. Johnson, who performed a
post-mortem
examination on the deceased
on 29 November 2007 from 9h20, which was after accused no 1 had made
the confession to Supt. Scherman,
were in the upper left front side
of the chest just below the left collar bone, in the left upper arm,
and in the fourth rib space
on the outer left side of the chest.
Accused no 1, in terms of his confession admitted that he saw blood
coming out of the deceased’s
shirt ‘on the left side’.
Furthermore, accused no 1 states in his confession (exhibit ‘Q’)
that Xolani
carried a Z88 9 mm firearm, which he later handed over to
Gilbert. The
post mortem
and ballistic evidence to
which I have referred in paragraphs 232 – 239 above, proved
that the deceased was
inter
alia
shot with a Z88 9 mm
firearm, which was only found by the investigating officer on 8
February 2008 and microscopically compared
on 18 February 2008.
[267] The confession and pointings out
of accused no 1 are, in our judgment, reliable evidence and establish
the guilt of accused
no 1 that he committed the offences of the
robbery of the deceased with aggravating circumstances (count 1) and
of the murder of
the deceased (count 2). The denials by accused no 1
of his post-arrest extra-curial confessions and the exculpatory
version put
forward by him in these proceedings are, on the totality
of the evidence, not reasonably possibly true. The circumstances
under
which he was arrested, the relative large amount of cash that
was found on his person a few hours after the robbery, and the
simcard
that was taken during the robbery and found in the pocket of
his trousers further satisfy us of his guilt beyond any reasonable

doubt.
[268] Accused no 1 shared with others
the purpose of taking the large amount of money with which the
deceased was to pay employees
at Heia Safari. He knew in advance
that two of his fellow robbers had firearms that would be pointed at
the deceased. His role
was then to follow and to take the money. He
must have envisaged the use of potentially deadly force and
reconciled himself to
the consequences of that use. Accused no 1
participated in the planning, in the execution of the plan, in the
taking of the money,
and in running away with the others or some of
them.
His
active participation is clear. His active association never stopped
and he never disassociated himself from the attack on the
deceased.
The inescapable and only reasonable inference is that accused no 1
foresaw the possibility of the deceased being killed
and performed
his acts of association with recklessness as to whether or not death
was to ensue. He had the necessary
mens
rea
to
sustain a conviction for murder. See:
S
v Ndhlovu and Others
2002 (2) SACR 325
(SCA), at paras [35] – [36];
S
v Mgedezi and Others
1989 (1) SA 687
(A)
,
at p 705I – 706C.
[269
] Taking
into account that mere knowledge that a member or members of a group
were in possession of firearms and even acquiescence
in their use of
the firearms for fulfilling their common purpose are not sufficient
to infer that the group had the intention to
exercise joint
possession of the firearms through the actual detentors and that the
actual detentors had the intention to hold
the firearms on behalf of
the group, we are not convinced that the State has proved accused no
1’s guilt of the charges of
unlawful possession of firearms
(count 3) and of ammunition (count 4) beyond reasonable doubt. See:
S
v Mbuli
2003(1)
SACR 97 (SCA), paras [71] – [72].
[270
]
Accused
no 2
did not testify in the first trial-within-this-trial to which
reference is made in paragraphs 5 – 29 and 53 above, but his

version was put to the various State witnesses who testified in that
trial-within-this-trial. I have mentioned that we were impressed
by
the State witnesses. We considered each one’s evidence as
coherent and satisfactory in all material respects. They
corroborated each other and cross-examination did not detract from
their credibility as witnesses or from the reliability of their

accounts. We found that their evidence called for an answer, and, in
the absence of rebuttal, proved beyond reasonable doubt the

requirements stipulated in
s 217
of the
Criminal Procedure Act for
the admission in evidence of the confessional statements that had
allegedly been made by accused no 2 before Supt. Ramukosi on
28
November 2007 at Muldersdrift SAPS (exhibit ‘L’) and
before Dir. Byleveld on 7 December 2007 at Brixton SAPS (exhibit

‘N’).
[271]
In
giving his evidence in the main trial, accused no 2 answered the
evidence of the various State witnesses in the first
trial-within-this-trial.
Both
assessors and I sat during that trial-within-this-trial and it is, as
I have mentioned, accordingly competent for us to take
cognisance of
the evidence that was led by the State in that
trial-within-this-trial. See:
S
v Nglengethwa
1996 (1) SACR
737
(A).
[272
]
In his evidence in this main trial, accused no 2 has given an
extensive account about the actions of the relevant police officers

against him and their assaults upon him which induced him to sign a
statement that Supt. Ramukosi had fabricated and which induced
him to
give a false statement to Dir. Byleveld. His evidence, however,
differs in many material respects from his version that
had been put
to the various State witnesses and many material aspects about which
he testified had not been put to the State witnesses
who testified in
the first trial-within-this-trial concerning the admissibility of the
two confessional statements. A few examples
will suffice.
[273
] Accused
no 2 testified that he was assaulted by Insp. Joubert, who was
assisted by two other police officers, inside a motor vehicle

immediately after his arrest. He thereafter accompanied the police
officers to his residence where Insp. Joubert and other police

officers assaulted him gruesomely and in the process placed a plastic
over his head. He was taken back into the vehicle and further

assaulted. From there they took him to what appears to be the place
where the incident occurred and they proceeded with the assaults
upon
him and they threatened to kill him if he was not going to tell the
truth. This version is essentially different to the one
that was put
to Insp. Joubert when he was cross-examined on behalf of accused no
2. It was put to him that from the scene of arrest
he took accused
no 2 to the scene of the alleged incident and that he assaulted
accused no 2 on the way there, and from there ‘he
was taken to
a place that he did not know, where his clothing were taken.’
[274
] Insp.
Joubert’s undisputed evidence was that he interviewed accused
no 2 early the evening on 28 November 2007, that accused
no 2 started
to make some admissions during this interview, and that accused no 2
indicated to him that he was willing to give
the information and to
make a statement to a police officer who was a justice of the peace.
This is why Insp. Joubert requested
Supt. Ramukosi to take a
statement from accused no 2. Accused no 2 now disputes that Insp.
Joubert had this interview with him.
[275
] The
undisputed evidence at the first trial-within-this-trial was also
that Const. Senosi guarded accused no 2 until Supt. Ramukosi
arrived
to interview him and that when Supt. Ramukosi arrived, Const. Senosi
handed accused no 2 over to him. It was pertinently
put to Supt.
Ramukosi that when Constable Senosi left accused no 2 with him, he,
Supt. Ramukosi, instructed accused no 2 to write
down all that had
happened. Yet, when he testified, accused no 2 came up with a new
version. He testified that Insp. Joubert
took him to Supt. Ramukosi,
who told him that he was there to make a statement, and he
pertinently denied that Const. Senosi took
him there.
[276
] I
have referred in paragraphs 20 and 21 of this judgment to the version
of accused no 2 that was put to Insp. Joubert about a
visit that
Insp. Joubert, accompanied by Const. Letswamotse, had paid him on 5
December 2007, and to the somewhat different and
more elaborate
version that was put to Const. Letswamotse. The versions underwent
further changes when accused no 2 testified.
An example suffices.
He testified that Const. Letswamotse threatened him that he would get
‘a heavy sentence of life’
because he refused to write
down what Const. Letswamotse had said he must write. Now both Insp.
Joubert and Const. Letswamotse
assaulted him. He testified that they
‘were not aiming blows at [his] face, but [at] his body –
all over the rib cage
and stomach.’ He claimed that what
rescued him was the appearance of another police officer. The
assault then stopped.
[277
] Insp.
Joubert testified that he was at the High Court on the day of the
incident and that he only arrived at the scene at about
15h30. There
were already detectives at the scene and he was not yet assigned as
the investigating officer. He phoned and requested
Supt. Ramukosi to
take a statement from accused no 2 after he had had the interview
with accused no 2 early that evening. Supt.
Ramukosi was from a
different unit, namely the Provincial Serious and Organised Crime
Unit in Germiston. He testified that he
had nothing to do with the
investigation of this case and no knowledge of the merits thereof.
He merely agreed to assist in taking
a statement from ‘a person
who wants to give a statement’. In these circumstances and on
the totality of the evidence
we find it highly improbable that Supt.
Ramukosi would have acted in the way in which accused no 2 testified
he did by telling
accused no 2 that he ‘was forcibly going to
make a statement’, by writing one out for him, and by
assaulting him to
sign it.
[278
] Reference
to what was put to Dir. Byleveld and to Insp. Shezi when they were
cross-examined is made in paragraph 27 of this judgment.
When he
testified an elaborate account was given by accused no 2 about
threats and grievous assaults that preceded and induced
him to
succumb and to give a fabricated confessional statement to Dir.
Byleveld. Many aspects thereof were not put to Dir. Byleveld
or to
Insp. Shezi when they testified. Notably, accused no 2 testified
that Dir. Byleveld shoved a firearm into his mouth whereas
the
version put to Dir. Byleveld was that he took out his firearm. This
is an essential aspect of accused no 2’s alleged
inducement to
make the statement. It was also not suggested to Const. Senosi when
he was cross-examined that he had in any way
been involved or present
when any of the alleged events occurred. Yet, accused no 2 testified
that Const. Senosi was present when
Insp. Shezi showed him a number
of photographs depicting blood stains on a wall and threatening him
that he would be like the blood
marks if he were not going to tell
the truth. This was also not foreshadowed in the cross-examination
of Insp. Shezi. Other
aspects of his evidence also differ from the
versions that were put to Dir. Byleveld and to Insp. Shezi.
[279
]
On
the totality of the evidence we remain satisfied that the State
discharged the onus of proving beyond reasonable doubt the
requirements
stipulated in
s 217
of the
Criminal Procedure Act for
the admission in evidence of both confessional statements
(exhibits ‘L’ and ‘N’), and that they had not
been obtained in an unconstitutional manner. We find accused
no 2’s
version on the disputed issues to be a falsehood.
[280
] Accused
no 2 denied that he made any statement to Supt. Ramukosi. He
testified that Supt. Ramukosi told him that he, Supt. Ramukosi,
had
all the names of those who had been arrested, he had full information
about them, and he had information about everything.
Supt. Ramukosi
then wrote out a statement. He thereafter gave it to accused no 2
saying to him ‘this is your statement,
sign!’ Accused no
2 refused to sign it. Supt. Ramukosi assaulted him and he
accordingly signed the statement. Acccused
no 2 testified that he
did not know what was contained in the statement. His only
participation was to sign it. Accused no 2
also testified that the
statement that had been taken by Dir. Byleveld was made by him,
accused no 2, but its content was a fabrication
on the part of
accused no 2.
[281
] Both
statements refer to: employees at Heia Safari who were going to be
paid on 28 November 2007; a prior meeting which accused
no 2 had
with his friends Vincent, Gilbert, and Johnson at Video Centre
Squatter Camp; the four of them who went to the Heia Safari
premises
on the morning of 28 November 2007; Vincent, Gilbert and Johnson who
took hiding underneath a tree next to the gate or
at a nearby tree;
the ‘old man’ or ‘white man’ who arrived at
the gate; a passenger who got out of the
vehicle to open the gate;
the vehicle driving through the gate; Gilbert, Johnson and Vincent
emerging from hiding at the nearby
tree or jumping out of the bushes;
Vincent and Gilbert being armed with firearms; an attack upon the
‘old’ or ‘white’
man and the firing of gun
shots; Johnson taking the money; and to the four of them running
away after the completion of the incident.
[282
] It
is, in our judgment, inconceivable that accused no 2 could have
fabricated a statement so similar to the one that was allegedly

written by Supt. Ramukosi. Accused no 1’s denial of having
made the confessional statement to Supt. Ramukosi is, in our

judgment, false beyond a reasonable doubt for the reasons given
hereinbefore and for those I have given in respect of the
admissibility
of such. We are also quite satisfied that so is his
version that he was compelled or influenced to make a false statement
to Dir.
Byleveld.
[283
] The
reliability of the confessions was attacked on the basis of
inconsistencies between them and the proven facts and contradictions

between them. Notably, the one made to Supt. Ramukosi refers to an
approach which was made to accused no 2 by Ronnie (accused
no 4) to
rob the owner of the hotel, and the one made to Dir. Byleveld refers
to an approach made to accused no 2 by one Thobila,
who within the
context of the statement is the wife of the ‘old man’ or
‘owner of the hotel’ and therefore
probably a reference
to accused no 5, ‘to make a plan to murder her husband so that
she could be the owner of the hotel.’
[284
] The
two confessions, in our judgment, do not contain ‘material
untruths’. See:
S
v Khumalo
1983
(2) SA 379
(A), at p 383G-H. It is common cause that accused no 4
and accused no 5 were lovers at the time and that accused no 5 was
made
pregnant by him. Evidence which is inadmissible against accused
no 4 indeed raises a strong suspicion of his complicity in the

commission of the crimes under consideration. Accused no 2 was also
instrumental in his arrest. The evidence contained in the
cell phone
records shows many calls between the land line and cell phone of
accused no 5 and the cell phone of accused no 2 from
2 November 2007
until about half an hour before the deceased was robbed and killed.
Accused no 2 and accused no 5 denied that
they knew each other or
that they ever contacted each other. Accused no 2 was, however,
unable to proffer any plausible explanation
for the calls between the
land line or cell phone of accused no 5 and his own cell phone. I
return to this later on in this judgment.
[285
] The
plan implemented in terms of both confessions, whether or not it was
initiated by an approach from ‘Thobila’ or
one from
‘Ronnie’ or one from both of them, was the same, namely a
surprise attack on the deceased during which he
was robbed when he
was on his way to pay employees of Heia Safari at about 10h30 on 28
November 2007. Other inconsistencies that
were pointed out in
evidence and in argument between the two confessions and between each
confession and the proven facts, are,
in our judgment, not material
untruths and do not make any one of them false in its essence. Such
inconsistencies, in our judgment,
do not render a conviction of
accused no 2 unsafe. The essential features of both confessions are,
as I have mentioned in paragraph
281 of this judgment, materially
similar.
[286
] I
have mentioned that the commission of the offences of the robbery of
the deceased with aggravating circumstances (count 1) and
of the
murder of the deceased (count 2) have been proved by evidence other
than the confessions of accused no 2. There are also
many
pieces of confirming evidence outside the confessions of accused no 2
which corroborate them in material respects as is evident
from a
reading of the State case to which reference is made in paragraphs
209 – 239 earlier in this judgment.
[287] We are satisfied beyond a
reasonable doubt that the confessions are reliable irrespective of
any inconsistencies that there
are. To mention a single example of
evidence with a high degree of confirmatory value of the confessions:
the one made to Supt.
Ramukosi on 28 November 2007 (exhibit ‘L’)
refers to Vincent and Gilbert who had firearms and to both of them
firing
shots at ‘the white man’. The confession made to
Dir. Byleveld on 7 December 2007 (exhibit ‘N’) refers
to
Vincent and Gilbert who were armed with a 9 mm pistol and a .38
revolver. Three spent bullets were found, two in the deceased’s

body and one in his vehicle. One was of 9 mm calibre and two of .38
calibre. One 9 mm fired cartridge case was found at the scene

outside the deceased’s vehicle.
[288] The denials by accused no 2 of
his two post-arrest extra-curial confessions and the exculpatory
version put forward by him
in these proceedings are, on the totality
of the evidence, not reasonably possibly true. The confessions are,
in our judgment,
reliable evidence and we are satisfied beyond a
reasonable doubt as to the guilt of accused no 2 of the offences of
the robbery
of the deceased with aggravating circumstances (count 1)
and of the murder of the deceased (count 2).
[289] Accused no 2 shared with others
the purpose of taking an amount of money from the deceased. He knew
in advance that two of
his fellow robbers had firearms. He chaired
the pre-planning, he was at all times present, and from his hiding
place he had a
view of everything that was happening. He must have
envisaged the use of potentially deadly force and reconciled himself
with
the consequences of that use. Accused no 2 actively
participated in the planning, in the execution of the plan, and in
running
away with the others once the plan was executed.
His
active association never stopped and he never disassociated himself
from the attack on the deceased. The inescapable and only
reasonable
inference is that accused no 2 foresaw the possibility of the
deceased being killed and performed his acts of association
with
recklessness as to whether or not death was to ensue. He had the
necessary
mens
rea
to
sustain a conviction for murder. See:
S
v Ndhlovu and Others
2002 (2) SACR 325
(SCA), at paras [35] – [36];
S
v Mgedezi and Others
1989 (1) SA 687
(A)
,
at pp 705I – 706C.
[290
] Mr.
Ntlakaza, on behalf of the State, conceded that the State failed to
prove accused no 2’s guilt on the charges of the
unlawful
possession of firearms (count 3) and of ammunition (count 4). This
concession was, in our view, correctly made. The
State has not
established facts from which it can be properly inferred that the
group had the intention to exercise possession
of the firearms and
ammunition and that those who are mentioned in accused no 2’s
confessions as the actual detentors had
the intention to hold the
firearms and ammunition on behalf of the group. See:
S
v Mbuli
2003
(1) SACR 97
(SCA), paras [71] – [72].
[291] Immediately before the close of
the State case, Mr. Ntlakaza, on behalf of the State, applied that
certain statements that
had allegedly been made by accused no 5 in
exhibit ‘O’ be admitted as evidence against accused no 2
and against accused
no 4 in terms of
s 3(1)(c)
of the
Law of Evidence
Amendment Act 45 of 1988
. I refused to admit the statements against
accused no 2 or against accused no 4. I return to such application
and to the reasons
for my ruling later on in this judgment.
[292]
Accused
no 3
denied that he was in
any way involved in the murder and robbery of the deceased. His
exculpatory explanation when he testified
is similar to that of
accused no 1. They went to Niki America’s place of employment
and thereafter to the vicinity of the
reeds area where they smoked
dagga. The presence of police officers made them take hiding since
the police arrest people for smelling
of dagga.
[293] Accused no 3 stayed in the
burning reeds for longer than accused no 1. When Const. Kokwe called
his name he tried to crawl
away. On his own version he was no longer
in possession of dagga. The explanation proffered by him, namely his
alleged fear that
he might be arrested for smelling of dagga, is
untenable.
[294] The undisputed evidence of
Const. Kokwe was that R2, 000.00 in cash fell off the person of
accused no 3 when he got up. A
further R1, 530.00 was found on his
person. When he was cross-examined, accused no 3 said that all the
money, which on his version
amounted to R3, 650.00 was in his wallet
that was in his pocket, and he disputed that money fell off his
person. This denial that
the money fell off his person is in
conflict with the unchallenged evidence of Const. Kokwe. The
circumstances of his arrest and
the relatively large amount of cash
that fell off his person and that was found on his person are
incriminating of his complicity
in the commission of the offences
under consideration.
[295] The admissibility of a disputed
confession made by accused no 3 before Capt. Madibo during the
evening on 28 November 2007
(exhibit ‘AA’) was the
subject-matter of the fourth trial-within-this trial referred to in
paragraphs 126 – 151
earlier in this judgment. As was the case
in all the other trials-within-this-trial, both assessors and I sat
during the one concerning
the admissibility of the disputed
confession that had allegedly been made by accused no 3 and, I have
mentioned before that it
is accordingly competent for us to take
cognisance of the evidence that was led by the State in the fourth
trial-within-this-trial.
See:
S
v Nglengethwa
1996 (1) SACR
737
(A).
[296] When he testified in this main
trial accused no 3 said that what prompted him to make the statement
to Capt. Madibo was that
Capt. Madibo frowned and demanded a
statement from him. The statement was not read back to him and he
signed it, because he was
‘not supposed to ask questions’
and was ‘told what to do.’ This version of accused no 3
was not put to
Capt. Madibo when he testified in the fourth
trial-within-this-trial nor when he testified in this main trial and
is clearly, on
the totality of the evidence, a fabrication.
[297] Accused no 3 further denied that
the confession correctly reflects what he had told Capt. Madibo. He
testified that only
certain parts of the statement emanated from him
and others not. Those that did not come from him, according to
accused no 3,
came from Capt. Madibo’s ‘own head’
and was furnished to him by ‘one person, Joubert.’ He
suggested
that Capt. Madibo and Insp. Joubert had a meeting where
they ‘discussed how to implicate’ accused no 3. This
version
of accused no 3 was also not foreshadowed in the
cross-examination of either Capt. Madibo or of Insp. Joubert and is,
in our judgment,
clearly an afterthought. The undisputed evidence in
the fourth trial-within-this-trial was that when
Insp.
Joubert interviewed accused no 3 early in the evening on 28 November
2007, he started to make admissions and he indicated
his willingness
to give the information and to make a statement to a justice of the
peace. This is why Insp. Joubert requested
Capt. Madibo to take a
statement from accused no 3. Const. Senosi guarded him until Capt.
Madibo interviewed him. Capt. Madibo
had no knowledge of the matter
when he took the statement from accused no 3. The improbability of
Capt. Madibo not having recorded
the statement of accused no 3
correctly and having tried to implicate him is
inter
alia
demonstrated by his recordal in the statement of accused no 3’s
version that the large amount of cash that was found on his
person at
the time of his arrest was his own and that he had won it when he was
gambling.
[298
] We
applied the caution applicable to the evidence of a single witness to
the evidence given by Capt. Madibo in the fourth
trial-within-this-trial
and we found him to have been an impressive
and credible witness and his evidence to have been satisfactory in
all material respects.
He was hardly cross-examined in that
trial-within-this-trial or in this main trial. We make the same
finding with regard to him
as a witness and his evidence given in the
main trial. Accused no 3’s denial of his post-arrest statement
is, in our judgment,
untruthful.
[
299] Accused
no 3’s denial that the statement does not correctly reflect the
version given by him to Capt. Madibo is, we are
quite satisfied,
false beyond a reasonable doubt for the reasons I have given in
respect of the admissibility of the statement
and for the reasons
given in this judgment.
[
300] The
commission of the offences of the robbery of the deceased with
aggravating circumstances (count 1) and of the murder of
the deceased
(count 2) have been proved by evidence other than the confession of
accused no 3. M
any
pieces of confirming evidence outside his confession also corroborate
it in material respects as is evident from a reading of
the State
case to which reference is made in paragraphs 209 – 239 earlier
in this judgment. Some examples are the ‘game
reserve bakkie’
driven by the deceased, the gate where the surprise attack was made,
the ‘money box’ between
the front seats, and the like.
[301] The ‘words of his own
tongue’ are, in our judgment, reliable evidence and we are
satisfied beyond reasonable doubt
that they establish the guilt of
accused no 3 that he committed the offences of the robbery of the
deceased with aggravating circumstances
(count 1) and of the murder
of the deceased (count 2).
[302] In his confession accused no 3
admits to: preceding discussions between Johnson, Xolani, Vincent
and him at Video Squatter
Camp about collecting salaries that would
be paid out at Heia Safari; an agreement between them to take the
money; Johnson, Xolani,
Vincent and himself having gone to Heia
Safari on the morning of 28 November 2007; Vincent and him being
armed with firearms;
position taken up by them at the gate; their
attack on the ‘game reserve bakkie’ at the gate; he and
Vincent pointing
firearms at the driver; ‘the money box
between the front seats’ of the vehicle; the driver saying to
them in Zulu
‘take the money’; Vincent who opened fire
at the driver when he ‘tried to catch Vincent’ when
‘Vincent
wanted to grab the money’; Vincent having fired
two shots; the four of them running away and them all meeting at a
point;
the sharing of the money between Vincent and Johnson at that
point in the presence of accused no 3; his hiding ‘at the
bushes’ after they had seen the helicopter and the security;
the burning of the place where they were hiding and their arrest.
[303] Accused no 3 attempted to
exculpate himself by stating that the agreement was ‘…that
we only took money, we don’t
kill’ and by stating that he
asked Vincent what he was doing when he opened fire. However,
accused no 3, by his own admission,
was armed and he knew beforehand
that one of his co-robbers had a firearm. It follows that, at the
very least, he contemplated
the use of force if necessary. ‘Such
force when threatened with a firearm is always potentially deadly.’
See:
S v Ndhlovu and
Others
2002 (2) SACR 325
(SCA), para [35]. Accused no 3 must have reconciled himself with the
‘deadly consequences’ of the use of the firearm.
[304] Accused no 3, similar to our
findings in respect of accused no 1 and accused no 2, participated in
the planning, in the execution
of the plan, and in running away with
the others once the plan was executed.
His
active participation is also clear. His active association never
stopped and he never disassociated himself from the attack
on the
deceased. The inescapable and only reasonable inference is that
accused no 3 foresaw the possibility of the deceased being
killed and
performed his acts of association with recklessness as to whether or
not death was to ensue. He too had the necessary
mens
rea
to
sustain a conviction for murder. See also:
S
v Mgedezi and Others
1989 (1) SA 687
(A)
,
at p 705I – 706C.
[305
] By
his own admission accused no 3 was in possession of a firearm which
was handed to him by Vincent. The only inference to draw
is that his
possession was unlawful. He should accordingly also be convicted of
count 3, which is the charge that he unlawfully
possessed a firearm.
Only he and Vincent, were, in terms of his confession, armed with
firearms. I have mentioned that Dr. Johnson
found three bullet
entrance wounds in the body of the deceased. Two spent bullets were
found in the body of the deceased and one
in his vehicle. Two of the
spent bullets, as I have mentioned, were of .38 calibre and one of 9
mm calibre. By ineluctable inference
accused no 3 must therefore
have been in possession of ammunition. He should accordingly also be
found guilty of the unlawful
possession of ammunition (count 4).
[306
] In
conclusion on
accused
no 1
,
on
accused
no 2
,
and on
accused
no 3
with regard to the the charges of robbery with aggravating
circumstances and of murder, I should mention that all the State
witnesses
whose evidence is relevant to these charges insofar as
accused nos 1, 2, and 3 are concerned, were, in our judgment, good
and credible
witnesses. Each one’s evidence was coherent and
satisfactory in all material respects. We, on the totality of the
evidence,
consider their evidence to be reliable. Together they
sketched the picture or created the mosaic, and the individual
confessions
of accused no 1, of accused no 2, and of accused no 3,
each completed the picture or mosaic perfectly.
[307]
Accused
no 4
was a most
unimpressive witness and his evidence untruthful and unreliable
throughout. He was evasive or he adjusted his evidence
when the shoe
pinched. I elaborate on some of these aspects later on in this
judgment. It also requires mention that it is trite
that lies in
themselves or improbabilities in an accused’s version do not
establish the guilt of an accused [see:
S
v Steynberg
1983 (3) SA 140
(A);
S v Mtsweni
1985 (1) SA 590
(A);
S v
Shackell
2001 (2) SACR 185
(SCA)]. The question is whether there is proof beyond a reasonable
doubt that accused no 4 was also involved in the commission
of the
serious crimes with which all the accused are charged. He denied any
involvement. His explanation of his movements on
the day in question
is the subject of contradiction.
[308]
I
have mentioned that immediately before the close of the State case,
Mr. Ntlakaza applied that the following statements relating
to
accused no 2 and/or accused no 4 contained in the written statement
that was allegedly made by accused no 5 to Dir. Byleveld
on 11
December 2007 (exhibit ‘O’), be admitted as evidence
against accused no 2 and against accused no 4
in
terms of
s 3(1)(c)
of The
Law of Evidence Amendment Act 45 of 1988
:
‘
On the 27
th
of November 2007 Ronnie phoned me on my cell phone during the
morning wanted to know (asked when we are going to get paid in

Zulu). My response to him was that we are going to get paid on
Wednesday 28
th
November 2007 at about 10:00.’
‘
I further
wanted to add on the 2007/11/28 Ronnie arrived at 7:00 and used my
cell phone and speak to Dumisani.’
Referring to the attack: ‘I
knew Dumisani between the three suspects.’
A concluding remark: ‘Ronnie
and Dumisani planned to kill the old man.’
I refused to admit
the said statements as evidence against accused no 2 (Dumisani) or
against accused no 4 (Ronnie). These are
the reasons.
[309
] These
being criminal proceedings in nature I was mindful of the caution
that ‘a Judge should hesitate long in admitting
or relying on
hearsay evidence which plays a decisive or even significant part in
convicting an accused, unless there are compelling
justifications for
doing so.’ Per Schutz, JA in
S
v Ramavhale
1996
(1) SACR 639
(A), at p 649d – e.
[310
] The
nature of the evidence relates to incriminatory statements concerning
accused no 2 and accused no 4 that accused no 5 allegedly
made in her
extra-curial exculpatory statement to Dir. Byleveld a few days after
her arrest. I should mention that her version
foreshadowed in the
cross-examination of Dir. Byleveld is a denial that she made the
statements in issue.
[311
] The
purpose for which the State sought the admission of the statements in
issue was essentially to incriminate accused no 4 in
the commission
of the crimes of murder and robbery or of conspiracy to aid or
procure or commit murder and robbery. The first
of the disputed
confessions of accused no 2, which implicates accused no 4, may not
feature directly, indirectly, or in the chain
of inferences against
accused no 4, unless accused no 2 elected to testify and repeat its
content under oath. There was by the
end of the State case
essentially no other evidence against accused no 4.
[312
] The
probative value of the statements in issue depends on the credibility
of accused no 5 at the time when she made the statements,
if she made
them. The allegations against accused no 2 and against accused no 4
emanate from a self-exculpatory statement a few
days after her arrest
and a motive to have implicated accused no 4 falsely is real. The
incident that led to the death of the
deceased occurred at about
10h30 – 11h00 on 28 November 2007. Accused no 5 was not a
suspect but a complainant and State
witness at the time. Accused no
2 was arrested during the afternoon and accused no 4 during the early
evening on 28 November 2007.
Later that evening, accused no 2 made
a confession to Supt. Ramukosi wherein he
inter
alia
implicated
accused no 4 as the person who contacted and ‘advised’
him to rob the deceased on 28 November 2007. The
investigating
officer, Insp. Joubert, testified in the first
trial-within-this-trial that he received a printout of the Heia
Safari
telephone system on 5 December 2007, which data show calls
between the cell phone of accused no 2 and the land line of accused
no 5. He accordingly requested Dir. Byleveld to assist him with an
interview of accused no 2. Dir. Byleveld interviewed accused
no 2 on
7 December 2007 when he made a further confession wherein he
implicated a certain Thobila, who, in context is probably
a reference
to accused no 5, who asked him to make a plan to kill her husband so
that she could be the owner of the hotel. Insp.
Joubert testified
that after the interview Dir. Byleveld requested him for an interview
with accused no 5 when she is arrested.
She was arrested on the same
day after accused no 2 had made this confession. On 11 December
2007, she was taken to Dir. Byleveld
when she made an exculpatory
statement, but in which she, in turn, implicated accused no 2 and
accused no 4.
[313
] The
statement that accused no 4 arrived at 7h00 and used her cell phone
to speak to accused no 2, is contradicted by the State
evidence
relating to the cell phone data, which show a total of five calls
between either the cell phone or land line of accused
no 5 to the
cell phone of accused no 2 from 7h51 until 9h59 on 28 November 2007.
[314
] The
risk that accused no 5 falsely implicated accused no 4 outweighed the
probative value of the statements in issue. Common
sense dictated
that those statements should be treated with caution and that
corroboration and guarantees of their reliability
be found. The
compelling justification ‘… that must always be sought
if hearsay evidence is to play a decisive or
even significant part in
convicting an accused’ was absent.
S
v Ndhlovu
2002
(2) SACR 325
(SCA), para [47].
[315
] The
reason why the evidence was not given by accused no 5 upon whose
credibility the probative value of the evidence depends,
was obvious.
The application for the admission of the disputed statements was
appropriately made before the close of the State
case in order for
accused no 2 and accused no 4 to appreciate the full evidentiary
ambit of the cases against them.
[316
] The
inevitable prejudice to particularly accused no 4 if the hearsay was
admitted was another consideration in this instance that
militated
against its admission. If accused no 5 would elect to testify and
repeat the statements in issue in her testimony,
then different
considerations would apply. Her evidence would not be hearsay, and
she could obviously be cross-examined thereon.
[317
] I
concluded that the statements in issue made by accused no 5 out of
court incriminating accused no 2 and accused no 4 must be
disregarded
as against accused no 2 and accused no 4.
[318
] The
confession which accused no 2 made before Supt. Ramukosi implicates
accused no 4. Accused no 2 testified and he did not confirm
his
confessions. They are, in terms of
s 219
of the
Criminal Procedure
Act, accordingly
not admissible as evidence against accused no 4.
[319
] The
evidence contained in the cell phone records of numerous calls
between the cell phones of accused no 2 and of accused no 4
prior to
and after the incident in which the deceased was robbed of money and
lost his life does not create a sufficient basis
upon which to
convict accused no 4. The State presented this evidence
inter
alia
to
establish accused no 4’s association with someone who was
proved to have participated in the commission of the murder and

robbery, namely accused no 2. The participation of accused no 2 in
the actual commission of the robbery and of the murder, however,
only
appears from his confessions and from those of accused nos 1 and 3.
There is as far as accused no 4 is concerned no evidence
of the guilt
of accused no 2 sufficient to support his conviction outside his
confessions. The confessions may, however, not legally
be used
against accused no 4 to establish an essential part of the chain of
inference leading to his conviction, which is that
accused no 2 had
taken part in the murder and robbery. See:
R
v Baartman & Others
1960
(3) SA 535
(A), at p 542D.
[320
] When
the confessions are not used either directly or indirectly against
accused no 4, then an inference that the association between
accused
no 2 and accused no 4 was a criminal one based on the evidence that
they spoke to each other before and after the commission
of the
crimes is not consistent with the proven facts which are admissible
against accused no 4, and such inference is not the
only reasonable
one that may be drawn from those facts. See:
R
v Blom
1939
AD 188
at pp 202 – 203. It must on the totality of the
evidence be accepted that accused no 2 and accused no 4 came from the
same
village in Eshowe, Kwa-Zulu Natal and that they have known each
other for many years. Accused no 4 testified that he relocated
to
Johannesburg during 2003 and that he worked at Heia Safari for a
period of about two weeks. Accused no 2 testified that he
relocated
to Johannesburg at the beginning of 2006 and that he was employed at
Heia Safari from February until May 2006. They
often called and
visited each other.
[321
] The
state has, in our judgment, failed to prove beyond reasonable doubt
the guilt of accused no 4 on the charges of robbery (count
1), of
murder (count 2) or of the alternative charge of conspiracy to rob
and kill the deceased and accused no 4 must therefore
be found not
guilty on these charges. The State counsel, Mr. Ntlakaza, also
correctly in our view conceded this.
[322
]
It
is perhaps appropriate to refer to the following passage from the
judgment of the Constitutional Court
per
Nkabinde J in
S
v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
CC, para [50]:
‘
It is a cardinal principle of
our criminal law that when the State tries a person for allegedly
committing an offence, it is required,
where the incidence of proof
is not altered by statute (and it is not in this case), as is the
case in this matter, to prove the
guilt of the accused beyond
reasonable doubt. That standard of proof, ‘universally
required in civilized systems of criminal
justice, is a core
component of the fundamental fair trial right that every person
enjoys under
s 35
of the Constituion. In
S
v Zuma and Others,
this
court,
per
Kentridge AJ, held that it is always for the prosecution to prove the
guilt of the accused person, and that the proof must be beyond

reasonable doubt. The standard, borrowing the words used by Plasket
J in
S v T
,
‘is not part of a charter for criminals and neither is it a
mere technicality.’ When the State fails to discharge
the onus
at the end of the case against the accused, the latter is entitled to
an acquittal.’
(I have omitted the references to
footnotes in the quoted passage).
[323]
Accused
no 5
denied any involvement
in the robbery and murder of the deceased. She testified that she
did not know why the deceased was murdered.
[324] The disputed statement of
accused no 5 taken by Dir. Byleveld on 11 December 2007 (exhibit ‘O’)
was held to be
admissible in evidence against her at the end of the
first trial-within-this-trial to which reference is made in
paragraphs 5 –
53 of this judgment. Accused no 5 denied that
the statement correctly reflected in all respects what she had told
Dir. Byleveld.
She testified that certain parts of the statement did
not emanate from her. The State led evidence relevant to this issue
in
both the first trial-within-this-trial and in this main trial and,
as I have mentioned, it is competent for us to take cognisance
of the
evidence that was led by the State in that trial-within-this-trial
since both assessors and I sat during it. See:
S
v Nglengethwa
1996 (1) SACR
737
(A).
[325] What was placed in issue as not
having emanated from accused no 5 in the statement when Dir. Byleveld
was cross-examined was
that accused no 5 did not inform or tell Dir.
Byleveld that: Ronnie had phoned her on 27 November 2007 and
enquired from her
when they were going to be paid; accused no 4
phoned Dumisani on 28 November 2007; she knew Dumisani amongst the
three suspects
who attacked them; and Ronnie and Dumisani planned to
kill the old man.
[326] The version of accused no 5 put
to Dir. Byleveld was that he had informed her that she phoned
Dumisani on the morning of 28
November 2007. This she denied, and
upon Dir. Byleveld enquiring from her ‘who then used her phone
on that morning’,
she answered that Ronnie had used her phone
that morning. It was put to him that the statement was not read back
to her after
it had been written down and that, had it been read back
to her, ‘she would have been able to correct what had been
highlighted
in this court today.’ Dir. Byleveld insisted that
he had correctly recorded her statement. He referred to an instance
where
he even corrected the wrong spelling of the deceased’s
name from ‘Mr Richard’ to that of ‘Mr Richter’

at the instance of accused no 5. Her counsel, Mr. Mkwanazi,
thereupon took instructions from her and put it to Dir. Byleveld that

she agreed that she had rectified the spelling of Mr Richter’s
name in the statement.
[327] Contrary to what was
specifically admitted immediately after her counsel had taken
instructions from her, accused no 5 denied
under cross-examination
that the spelling of the deceased’s name was corrected at her
instance. She also denied that she
had informed Dir. Byleveld of
matters contained in her statement that were not challenged when he
was cross-examined on her behalf.
[328] Under cross-examination, accused
no 5 was adamant that accused no 4 had never told her whom he was
calling whenever he used
her cell phone or land line and that she
never knew whom he was calling on such occasions. When she was
confronted with her statement
to Dir. Byleveld that Ronnie, on 22
November 2007, had asked her to use the land line ‘to phone his
mother in Natal’,
she disavowed any knowledge of that statement
too.
[329] It is recorded in the statement
that ‘[t]he old man was very upset due to the fact that I was
pregnant.’ Under
cross-examination she conceded that she had
told Dir. Byleveld that she had mentioned to the deceased that she
was pregnant, but
she denied the rest saying that she had mentioned
to Dir. Byleveld that as her live-in partner the deceased ‘was
unhappy
that it was not his child.’
[330] It is recorded in the statement
that accused no 5 ‘wanted to go for an abortion at Nigel and
[she] was given some tablets
but it (
sic
)
didn’t work.’ This statement was also disputed when she
was cross-examined and it contradicts the evidence of her
sister, Ms.
Khanyisile Ngcobo, that accused no 5 attempted to abort her unborn
child.
[331] Accused no 5 also testified
under cross-examination that Dir. Byleveld ‘had a pile of
papers in front of him’
when he interviewed her and that he
confronted her with her cell phone records. Such version was not
foreshadowed in the cross-examination
of Dir. Byleveld in this main
trial and his unchallenged evidence in the first
trial-within-this-trial was that he was not ‘in
possession of
any document’ when she was brought to his office.
[332] We are satisfied that accused no
5’s denial that the statement does not correctly reflect the
version given by her to
Dir. Byleveld in certain respects is false
beyond a reasonable doubt for the reasons I gave in respect of the
admissibility thereof
and for the reasons given in this judgment.
Her denial of certain parts of her post-arrest statement made to Dir.
Byleveld is
untruthful and an
ex
post facto
attempt at
supporting her palpably false denials that she knew accused no 2
before the incident, that she communicated with him
until shortly
before the deceased was robbed and killed, and that she identified
him as one of the assailants. She is assisted
in this attempt by
accused no 2 and by accused no 4. I elaborate on this later on in
this judgment.
[333] We, on the totality of the
evidence, accept the evidence of Dir. Byleveld that he correctly
recorded what had been conveyed
to him and that of Insp. Shezi that
he interpreted from English into Zulu and
vice
versa
whatever was said by
Dir. Byleveld and whatever was said by accused no 5. They
corroborate each other that the statement was read
back and
interpreted to accused no 5 and that it contains what she had said.
They were credible witnesses and their evidence is
reliable.
[334] Apart from the ‘words of
her own tongue’ as contained in her post-arrest statement
(exhibit “O’),
the implication of accused no 5 is based
on circumstantial evidence. By way of introduction I refer to the
summary of the circumstances
given in paragraph 236 of this judgment.
I elaborate on them hereafter.
[335] It is common cause that accused
no 5 was one of twenty dancers whom the deceased had recruited from
their rural village in
KwaZulu Natal during 1987 to be employed at
Heia Safari as Zulu dancers. She initially stayed at the Zulu kraal
on the premises.
The deceased and accused no 5 formed a love
relationship and she, on her undisputed version (exhibit ‘O’),
moved from
the Zulu kraal into the farm house during 1995. Her twin
brother, Mcelwa Mbokazi, who became employed as a dancer at Heia
Safari
during 1988, testified that the relationship between accused
no 5 and the deceased was apparent.
[336] The undisputed evidence of
accused no 5’s sister, Ms Khanyisile Ngcobo, of her twin
brother, Mr Mcelwa Mbokazi, and
of her ‘daughter’,
Nosipho, is that the deceased and accused no 5 lived together as
husband and wife. This was also
the evidence of accused no 5. The
undisputed evidence of Mcelwa is that the deceased and accused no 5
were married by customary
union. The deceased, during the 1990’s,
paid lobola for accused no 5.
[337] Accused no 5 and their five
‘adopted’ children - Nosipho, Siyabonga, Thabang, Bheki,
and Lindokuhle shared in
the privileges of the deceased’s
lifestyle. See the evidence of Ms. Burgmer, Nosipho, Siyabonga, and
Mcelwa. Ms. Burgmer’s
undisputed evidence was that accused no
5 was on the payroll of Heia Safari. Apart from their common home at
Heia Safari, the
deceased had built accused no 5 a house in her rural
village. The deceased also gave her father Christmas presents in
the form
of cattle. This is confirmed in the statement of accused no
5 (exhibit ‘O’).
[338] It is common cause that the
deceased executed a last will and testament on 10 July 2007, which
was a little more than four
months before he met his untimely death.
Ms Wenman was one of two witnesses who attested and signed it. This
will (exhibit ‘G’)
is admitted (exhibit ‘A’,
para 10). Accused no 5 and the five children, who are referred to
as ‘orphans’,
are beneficiaries in terms of the will.
[339] A testamentary trust is created
for accused no 5 in terms of the will. The trust money is the amount
of R1 million. The
income, and if insufficient, the capital, is to
be applied for the maintenance of accused no 5 (‘the
acquisition or provision
of a residence, medical treatment and
advice, travel, reasonable pleasures, the payment of taxes and
general welfare and benefits’),
and for the provision, free of
charge, of daily meals and beverages to her as she had received at
the date of the death of the
deceased from the Heia Safari Hotel or
otherwise. A similar testamentary trust with a trust amount of R500,
000.00 is created
for the five children. Accused no 5 is further the
beneficiary of a life usufruct over the farm house and the expressed
intention
of the deceased is that she should use it as a personal
residence for herself and the orphans. The will provides that she
‘shall
in no circumstances be required or obliged to pay to any
beneficiary any consideration or compensation for her rights of
occupation,
use and enjoyment of the residence’, and it obliges
the deceased’s estate ‘to bear all costs of maintaining
and
keeping the Residence in good order and condition and shall
promptly and faithfully pay all assessment rates and other levies and

imposts raised in respect of the ownership of the Residence and also
any insurance premium relating to any insurance cover in respect
of
the Residence.’
[340] Ms Wenman testified that the
deceased had told her that he was leaving R1 million to accused no 5
so that she could stay on
the property and Ms. Wenman said that he
had mentioned this to accused no 5 to give her peace of mind, because
he was not always
in good health. It is to be noted that Dr.
Johnson, who conducted the medical
post-mortem
examination, found a heart
pacemaker in place in the body of the deceased. Ms. Wenman testified
that the deceased did not know
legal technicalities and he did not
explain to her that the R1 million was left to accused no 5 in the
form of a trust. The evidence
about what the deceased had told Ms
Wenman was, with the consent of all the parties provisionally
admitted on condition that the
State make application for the
admission thereof before the close of the State case. The State did
not to make such application
and at the end of the State case I
accordingly ruled that such hearsay would not be taken into account.
[341] Whether or not accused no 5 was
aware of the fact that the deceased had made her and the children
beneficiaries in terms of
his will, is a matter that should be
decided on the totality of the evidence without taking into account
the hearsay of Ms. Wenman
on the issue. The version put to Ms.
Burgmer on behalf of accused no 5 was that she did not know about the
will ‘before’
the death of the deceased and that she only
became aware of it while she was incarcerated at the Johannesburg
Prison after her
arrest. The circumstances in which accused no 5
became aware were not disclosed despite Ms. Burgmer’s reaction
of astonishment
saying: ‘Well I am not aware of who now sent
her a copy to the prison.’ The version put to Ms. Wenman,
however, was
without qualification that accused no 5 did not know
anything about the will. Also in her evidence in chief, accused no 5
testified
that she was unaware of the will. She testified that she
did not at any stage know that the deceased had made a will and that
he had never informed her of anything.
[342] We, on the totality of the
evidence, find it highly improbable that the deceased would not have
told accused no 5 that she
and the children would, in terms of his
will, be looked after in the event of his death. They lived together
as a family. Accused
no 5 was his wife. It is evident on the
evidence before us that the deceased very much cared for the children
and that they, or
at least Nosipho and Siyabonga, loved him as their
father. The affection with which Nosipho and Siyabonga referred to
the deceased
when they testified was noticeable.
[343] Accused no 5 did not dispute her
statement (exhibit ‘O’) that she met accused no 4 during
September 2006, that
she had fallen in love with him, that she became
pregnant by him, and that the deceased was unaware of this. See the
evidence
of Dir. Byleveld. This also accords with the version of
accused no 5 that was foreshadowed in the cross-examination of her
sister,
Ms. Khanyisile Ngcobo. Nosipho testified that she had
noticed that her mother was pregnant, but she was unable to say when
she
noticed it. The unchallenged evidence of accused no 4 was that
he and accused no 5 had commenced a love affair during 2006 and
that
it is continues to this day. He was aware of her pregnancy and she
had told him that he was the father of the child. Accused
no 5 also
acknowledged the relationship between her and accused no 4 throughout
her testimony.
[344] Accused no 4’s
unchallenged evidence, which accords with his version that was put to
State witnesses, was also that
the relationship between the two of
them had been kept a secret and that the deceased did not know of it.
He and accused no 5
used to meet secretly in the tool shed on the
premises where accused no 5 resided, when no one else was present.
The unchallenged
evidence of accused no 5’s sister, Ms.
Khanyisile Ngcobo, was that accused no 5 was scared that the deceased
would ‘kill
her if he realised that she was pregnant’ and
that she accordingly attempted to abort the unborn child. The
attempt failed.
Her evidence also accords with the statement of
accused no 5 (exhibit ‘O’) on this issue. In terms of
her statement
accused no 5 was scared to inform the deceased about
her pregnancy. Her statement is further to the effect that her
attempt at
aborting the unborn child had failed. This was denied by
accused no 5 when she testified, but her denial is clearly false in
the
light of the unchallenged evidence of Ms. Khanyisile Ngcobo and
of Dir. Byleveld.
[345] According to her statement
(exhibit ‘O’), accused no 5 informed the deceased during
August 2007 of her pregnancy.
This accords with the evidence of Ms.
Amanda Mzolo that accused no 5 had told her that she had informed the
deceased that she
was pregnant and also the unchallenged evidence of
accused no 4 on this aspect that accused no 5 had told him that she
had informed
the deceased of her pregnancy during August 2007. In
her statement accused no 5 states that the deceased was very upset
about
her pregnancy. I have mentioned that this statement was not
challenged when Dir. Byleveld was cross-examined. We reject accused

no 5’s attempt at watering it down when she testified to mere
unhappiness on the part of the deceased ‘that it was
not his
child.’ Accused no 5’s undisputed statement was that
the deceased had told her that she ‘must go home
to Natal to
give birth to the child and [she] must come back to Johannesburg for
work with other people.’ She was to leave
for KwaZulu-Natal on
16 December 2007.
[346] I have mentioned Ms. Wenman’s
undisputed evidence that the monthly payment of the employees at the
Zulu kraal was ‘a
ritual’ when accused no 5 would
inter
alia
be required to get the
children ready so that they could accompany the deceased. Ms.
Wenman’s undisputed evidence was further
that payment of the
employees at the Zulu kraal on the 28
th
November was unusual and that the dancers at the Zulu kraal were
normally paid close to month end. Ms. Wenman was aware of the

intended date of their payment since Monday, 26 November 2007, and
the preparation of the wages was completed by Tuesday afternoon,
27
November 2007, for payment of the employees on Wednesday morning, 28
November 2007. Accused no 5 stated in her statement (exhibit
‘O’)
that the deceased had told her before the 28
th
that they were going to be paid on the 28
th
November 2007 at about 10h00. This was not disputed by accused no 5.
I have referred to the unchallenged evidence of Nosipho
and of
Siyabonga that earlier on during the morning on 28 November 2007,
they had made ready to accompany the deceased: Nosipho,
because she
was present when the deceased called her mother asking that they get
ready, and Siyabonga, because accused no 5 had
told him that the
deceased had called and had said that they must get ready.
[347] Ms. Amanda Mzolo, who is 22
years of age, testified that about a week after the funeral of the
deceased, accused no 5 mentioned
to her that she was concerned and
afraid that she would be arrested. The fear that she expressed to
Ms. Mzolo is contrary to what
one would expect of a complainant and
state witness which accused no 5 was at that time. Accused no 5’s
denial of this conversation
is rejected. Accused no 5 was a mother
figure to Ms. Mzolo and they were close. This was not disputed when
she was cross-examined
on behalf of accused no 5. No acrimony
between them was suggested to her nor any motive on the part of Ms.
Mzolo to get her into
trouble. Yet, when she testified, accused no 5
said that she only knew Ms. Mzolo by sight and had never spoken to
her. She also
denied that she had seen Ms. Mzolo at her place of
residence after the death of the deceased. Accused no 5’s
counsel, Mr.
Mkwanazi, however, put it to Ms. Mzolo that ‘[a]ccused
5 will confirm that at some stage you came to her place while she was

still grieving the death of the deceased.’ We accept the
evidence of Ms. Mzolo.
[348] The State introduced into
evidence the cell phone records of calls made from, and received by,
the cell phones of accused
no 2 (exhibit ‘LL’) and of
accused no 5 (exhibit ‘NN’). Ms. Petro Heineke, who is
the Forensic Liaison
Manager at Vodacom and responsible,
inter
alia
for the supply of
information and call data on the Vodacom Network, testified about the
call data pertaining to the cell phone of
accused no 2 (exhibit
‘LL’). Ms. Heineke’s undisputed evidence was that
data is electronically generated without
human intervention except
for the person dialling and for the person receiving the call. The
system stores historical information
of all activity involving a
simcard and a handset that is used on the network. The data produced
in evidence was raw data and
was printed by her directly from the
system. It had not been tampered with or manipulated in any way.
Ms. Hilda du Plessis, who
is employed by Mobile Telecommunications
Network (‘MTN’) in the capacity of Forensic Data
Specialist and responsible,
inter
alia
for the extraction of
data from the MTN Network, testified about the call data pertaining
to the cell phone of accused no 5 (exhibit
‘NN’). She
extracted the data, which was automatically generated, from the
Network. When regard is had to the factors
listed in
s 1
5(3) of the
Electronic Communications and Transactions Act 25 of 2002
, and when
the data contained in each of exhibits ‘LL’ and ‘NN’
are compared and correlated, we are satisfied
with the reliability of
the data relevant to the issues in this case.
[349] Capt. A.G. Boonstra, who is
stationed at the SAPS Provincial Head Office and attached to the
Crime Management Center in the
capacity of Operational Analyst,
testified about a report that he had prepared (exhibit ‘OO’)
at the request of the
investigating officer, Insp. Joubert. The
report contains an analysis of the call records through the use of
computer software.
His report and evidence are based on call records
beyond those admitted into evidence (exhibits ‘LL’ and
‘NN’),
and no reliance is accordingly placed on his
analysis. When Ms. Heineke was cross-examined by Mr. Biyana on
behalf of accused
no 2, he, without objection from all the parties
concerned, produced the data of the land line of the residence of
accused no 5
into evidence (exhibit ‘MM’). This is the
data that Insp. Joubert had obtained from Ms. Burgmer shortly after
the
death of the deceased.
[350] It is not disputed that the call
data (exhibit ‘LL’) relate to the use of accused no 2’s
cell phone number
079 0442171 with simcard number 655010430036954
(‘IMSI’) and his Nokia 1110i handset with serial number
35768001501769
(‘IMEI’) (exhibit ‘1’). It
is also not disputed that the call data (exhibit ‘NN’)
relate
to the use of accused no 5’s cell phone number 073 849
3908 with sim card number 0252367202 (exhibit ‘3’) and

her Samsung D820 handset with serial number 358225006760690 (‘IMEI’).
It is not disputed that the land line telephone
number 011 919 5000
was that of the farm house residence of the deceased and of accused
no 5. It is also not disputed that the
cell phone number 073 276
1455 belonged to accused no 4.
[351] The cell phone data show the
following cell phone and land line contact between the cell phone or
land line of accused no
5 and the cell phone of accused no 2, which,
to use the words of Griesel AJA in
Nxumalo
v The State
(450/2008)
[2009] ZASCA 113
(23 September 2009), is the ‘guilty’
cell phone:
- on 2 November 2007, a call at 14h30
lasting 138 seconds made from the land line of accused no 5’s
residence to the cell
phone of accused no 2;
- on 22 November 2007, a call at 08h13
lasting 13 seconds made from the land line of accused no 5’s
residence to the cell
phone of accused no 2;
- on 25 November 2007, a call at 13h42
lasting 127 seconds from accused no 5’s cell phone to that of
accused no 2;
- on 26 November 2007, a first call at
08h37 lasting 14 seconds from accused no 5’s cell phone to that
of accused no 2, a
second one at 20h37 from accused no 5’s cell
phone to that of accused no 2 lasting one second; and a third one at
20h40
lasting 105 seconds from accused no 2’s cell phone to
that of accused no 5;
- on 28 November 2007, one at 7h51
lasting 53 seconds from accused no 5’s cell phone to that of
accused no 2; a second one
at 09h20 lasting 46 seconds from accused
no 5’s cell phone to that of accused no 2; a third one at
09h36 lasting 26 seconds
made from the land line of accused no 5’s
residence to accused no 2’s cell phone; a fourth one at 09h39
lasting 13
seconds made from the land line of accused no 5’s
residence to accused no 2’s cell phone; and a fifth one at
09h59
lasting 36 seconds from accused no 5’s cell phone to that
of accused no 2.
[352] The versions of accused no 5 and
of accused 4 are that it was accused no 4, and not accused no 5, who
called his friend, accused
no 2, on many occasions from accused no
5’s cell phone or from her land line. Accused no 5’s
version is that she never
called the cell phone number of accused no
2, she did not know ‘the owner of cell number 079 044 2171’,
which is the
cell phone number of accused no 2, and that she has
never communicated with accused no 2. She testified that she did not
know
accused no 2 before her arrest and that she only became aware of
his name ‘here in court.’ Accused no 2 denied that
he
knew accused no 5, that she had ever made a call to him or that he
had ever made a call to her cell phone or to her land line.
[353] The exculpatory version that
accused no 5 gave in her statement to Dir. Byleveld (exhibit ‘O’)
is that ‘on
the 2007/11/28 Ronnie arrived at 7:00 and used my
cell phone and speak to Dumisani and we later went into the house
because my
airtime was finished, and asked if he could use the land
line to speak further to Dumisani which he did.’
[354] In his plea explanation, which
accused no 4 at the time confirmed was correctly read into the
record, he stated that on 27
November 2007 he slept in the tool room
at Heia Safari Lodge. On 28 November 2007, he received three ‘please
call me’
text messages from accused no 2. He had no airtime
and he accordingly asked accused no 5 to borrow her cell phone, but
‘she
had no airtime too.’ He then ‘ended up using
the land line in the house at the Heia Safari Lodge.’ The call

related to a request by accused for a loan of R300 from accused no 4,
which he promised would be repaid by his brother, Bhekinkosi
Xulu, in
December 2007.
[355] Nosipho testified that she had
been at home on the morning of 28 November 2007, and had not see
accused no 4. The version
of accused no 4 put to Nosipho was that on
the morning of 28 November 2007, he went to accused no 5’s
house; on his arrival
he spoke to accused no 5 while he was outside
the fence; he sought her permission to use her cell phone whereupon
she informed
him that she did not have sufficient airtime on her cell
phone; he then sought her permission to use the land line inside the
house; and when he then used the land line no one else was present.
It was put to Nosipho on behalf of accused no 5 that when
accused no
4 came to use the land line Nosipho was still in the house but busy
washing herself.
[356] Siyabonga testified that he had
slept late until about 08h00 on the morning in question. It was put
to him that ‘accused
number 4’s version was that he came
into the house very early in the morning to make a phone call.’
It was put to
him that it ‘was about 07:00 in the morning’
and that Siyabonga could therefore not dispute that fact since he had
been sleeping, which, of course, Siyabonga readily conceded. It was
put to Siyabonga on behalf of accused no 5 that she confirmed
the
version of accused no 4. When he woke up, Siyabonga went to clean
outside on the veranda until he was told by his mother to
get ready
to go to the Zulu Kraal. He did not see accused no 4.
[357] A somewhat different version of
accused no 4 was put to Capt. Boonstra. The version was that on the
morning of 28 November
2007 he had ‘made an attempt to phone
accused 2 using the cell phone of accused 5’ and ‘since
he had made an
unsuccessful attempt to call accused 2 using the cell
phone he ended up using the land line at the deceased’s house.’

The ‘contact’ from accused no 4 to accused no 2 was put
to him to have been ‘at about 07:00’. It was
further put
to him that accused no 4 ‘dialed’ accused no 2’s
number using his cell phone at about 10:54 (the
cell phone data show
a call of one second from the cell phone of accused no 4 to that of
accused no 2 at 10:53:03) and that accused
no 2 contacted accused no
4 later ‘[i]nforming accused 4 that he would no longer meet
with accused 4’ (the cell phone
data show a call of 13 seconds
from the cell phone of accused no 2 to that of accused no 4 at
15:21).
[358] Counsel on behalf of accused no
4 put to Dir. Byleveld that on 28 November 2007 he had received three
‘please call me’
messages from accused no 2; accused no
4 did not have enough airtime; he sought permission from accused no
5 to use the land
line at Heia Safari; and when he called accused no
2 he ‘only asked for a loan of R300 … with a promise
that it would
be repaid at a later stage.’
[359] Counsel on behalf of accused no
4 also put to accused no 2 that accused no 2 had sent accused no 4
three ‘please call
me’ messages on 28 November 2007, that
accused no 4 had realised that his cell phone had insufficient
airtime, that he requested
to use accused no 5’s cell phone
which also did not have sufficient airtime, and that he ended up
using the land line of
accused no 5.
[360] By way of interpolation it will
be noticed that I have quoted what was put on behalf of the
respective accused without mentioning
each time the answer. The
reason is that in assessing the veracity of the accused’s
respective versions, it was what was
put on their behalf that gives
the lie to their versions, not the response thereto.
[361] The problem for accused no 5
with the versions that were put to particularly Nosipho and to
Siyabonga is the following: although
those versions explain why
Nosipho would not have seen accused no 4 using the land line (because
it happened while she was washing
herself) and why Siyabonga would
not have seen it (because it happened at about 7h00 while he was
still asleep) those versions
remain irreconcilable with the evidence
emanating from the cell phone data. Firstly, five calls and not only
one call were made
from the land line and cell phone of accused no 5
to the cell phone of accused no 2. Secondly, the calls were made
from 7h51 until
09h59 and not at about 7h00. Thirdly, not one but
two land line calls were made. Fourthly, the first land line call
was preceded
by two cell phone calls from the cell phone of accused
no 5 to that of accused no 2. Fifthly, the two cell phone calls were
much
longer in duration than the two land line calls (53 seconds and
46 seconds as opposed to 26 seconds and 13 seconds) and there could

accordingly not have been an insufficiency of airtime on the
cellphone of accused no 5 for accused no 4 to have made a call to

accused no 2. Sixthly, the two land line calls were followed by a
final call lasting 36 seconds at 09h59 from the cell phone of
accused
no 5 to that of accused no 2.
[362] When accused no 4 testified, he
proferred versions which contradicted each other and which
contradicted what had been put
to the State witnesses and to accused
no 2. His version was no longer that accused no 5 had informed him
that she did not have
sufficient airtime on her cell phone and that
he accordingly made a call to accused no 2 from the land line of
accused no 5 at
about 7h00. He had no recollection of the time when
he arrived at the farm house or of the duration that he spent there
or of
the time when he left. He asked for her cell phone, because
his had no airtime. She gave it to him and he kept it until the
deceased
came to fetch accused no 5 and the children. He checked it
for airtime and he ascertained that it had airtime equivalent to
about
R4.00 – R5.00. She did not inform him that the cell
phone had insufficient or no airtime. He called accused no 2 from
the
cell phone of accused no 5 and he spoke to him. While speaking
to him he realised that the cell phone had insufficient airtime
for a
lengthy conversation and he accordingly ended the conversation and he
then made a call to accused no 2 from the land line
of accused no 5.
His evidence was also that he did not remember how many calls he had
made to accused no 2 from the cell phone
of accused no 5 before he
called him from the land line. After he used the land line, he again
phoned accused no 2 from the cell
phone of accused no 5, only to tell
him that he should meet accused no 4 at the no. 1 bus stop where
accused no 4 would give him
the money, since that bus stop was on the
way to accused no 4’s place of work. When he was confronted
with the fact that
two calls had been made from the land line of
accused no 5 to the cell phone of accused no 2, he replied thus: ‘If
the evidence
shows that accused no 2 was called twice on the land
line I will admit I called him twice.’ When he was confronted
with
the three calls made from the cell phone of accused no 5 to that
of accused no 2 he claimed to have called accused no 2 three times

from the cell phone of accused no 5. He also testified that he had
‘made a few calls’, ‘had a chat with her’,

and ‘then left’. He ‘did not take notice’ or
he ‘is not sure’ how many calls he had made to
accused no
2, but he used the land line and her cell phone. Statements in
conflict with his evidence were put to accused no 5
when she was
cross-examined on behalf of accused no 4.
[363] Accused no 2 and accused no 4
also contradicted each other on the issue of the calls that had
allegedly been made between
them on 28 November 2007. Accused no 2
testified that he had only sent text messages to accused no 4 on that
day and accused no
4 had called him three times. Accused no 2 sent
accused no 4 ‘please call me’ text messages early in the
morning.
Accused no 4 called him and accused no 2 asked him for
R300.00. Accused no 4 told him that he first needed to go somewhere
else
before he could go to accused no 2 and that accused no 2 should
wait at the taxi stop for him. Accused no 2 waited at the taxi
stop,
but accused no 4 did not arrive. Accused no 2 sent a text message to
accused no 4 at about 9h00 – 10h00. Accused
no 4 called him
and told him that he was ‘just delayed’, and accused no 2
should wait for him. Accused no 4 did not
arrive. Accused no 2 sent
another text message to accused no 4 after 15h00. Accused no 4
called him and said accused no 2 should
wait for him and he would see
him when he arrived. Accused no 2 ultimately left and went back to
Moses’ place to watch DVD’s.
Accused no 2 was unable to
proffer any plausible explanation for the five calls that were made
from the cell phone and land line
of accused no 5 on the morning in
question.
[364] Accused no 4 testified that
early in the morning on 28 November 2007 he went from his residence
at Honeydew Informal Settlement
to that of accused no 5 at Heia
Safari. The reason why he did so was because he had left an amount
of R1000.00 at her place and
he needed R50.00 to board a taxi ‘to
go to work’. He called accused no 2 in response to the text
messages which he
had received from accused no 2, and he promised to
take R300.00 to accused no 2 at a certain bus or taxi stop that was
on the way
to his place of employment. He left accused no 5’s
residence to go via the Garden Lodge to his place of employment,
which
was a company called Interactive. On his way to his place of
employment he was informed by a certain Mzo Khanyile that the
deceased
had been robbed and murdered. Accused no 4 did not go to
his place of employment (despite the fact that he allegedly
specifically
went to accused no 5 to get R50.00 to pay for a taxi to
go to work) nor did he go to the bus or taxi stop where his very
good
friend of many years’ standing was allegedly patiently
waiting for him (despite the allegedly many calls between them to
arrange it and despite the fact that he received R300.00 of his own
money from accused no 5 to give to accused no 2) nor did he
inform
accused no 2 that he was not going to meet him at the taxi stop nor
did he inform accused no 2 of the death of the deceased.
[365] The version which accused no 4
proferred also materially contradicts his statement to Const. Senosi
on 2 December 2007 (exhibit
‘U’) and it is significant
that the allegations that he had gone to accused no 5’s
residence on the morning in
question and that he had called accused
no 2 from the cell phone and from the land line of accused no 5 do
not appear anywhere
in that statement (exhibit ‘U’).
Accused no 4’s denial that the statement correctly reflects the
version and
answers given by him to Const. Senosi is, we are quite
satisfied, false beyond reasonable doubt for the reasons I have given
in
respect of the admissibility of the statement and for the reasons
given in this judgment. We are satisfied that Const. Senosi was
a
credible witness and his version reliable. The statement of accused
no 4 is an exculpatory one. Accused no 4 explained his
movements on
the day in question to Const. Senosi. Const. Senosi made no attempt
to implicate accused no 4 in the statement.
We find it improbable
that Const. Senosi’s recording of the statement was a
fabrication as counsel on behalf of accused no
4 put it to him or
that the movements of and calls made by accused no 4 immediately
before the incident would not have been recorded
in the statement had
accused no 4 indeed told Const. Senosi thereof as he claims he did.
According to that statement, accused
no 4 was coming from his brother
in Soweto at about 08h00 on 28 November 2007. Accused no 2 had
called him at about 10h40 to see
where he was, and he called accused
no 2 at about 13h00 to tell him what had happened to the deceased.
It is noteworth that there
was no mention whatsoever of his earlier
visit to the residence of accused no 5. Accused no 4’s
statement to Const. Senosi
was, of course, made before the land line
and cell phone records became available to the investigating officer.
[366] The version of accused no 5
about the events of the morning on 28 November 2007, which
essentially only emerged during her
cross-examination by the State
counsel, was that she was about to take a bath when accused no 4
‘knocked on a certain pole
at [her] residence.’ Nosipho,
Siyabonga, and the other children were still asleep. She went to
accused no 4 where he was
waiting outside the fence of the premises
where accused no 5 resided. He informed her that he was there to
fetch money that he
had asked her to keep for him. He also asked to
use her cell phone. She went back into the house to fetch her cell
phone. She
returned to where accused no 4 was waiting and she handed
her cell phone to him. Nothing was said about airtime and she did
not
check how much available airtime it had. Accused no 4 remained
outside the premises. She was not present when accused no 4 used
her
cell phone. She had gone back into the house to take a bath. Once
she had taken a bath, accused no 4 ‘knocked again’.
She
went outside the premises to him. He asked ‘to make a call
from the land line.’ He did not tell her why he wanted
to use
the land line or whom he wanted to call and she did not ask him why
he wanted to use it. Siyabonga had woken up earlier
and was sweeping
outside the house at this stage. Accused no 5 left accused no 4
outside the premises without saying anything
to him and went back
into the house in order to see whether the children were still
asleep, because she and accused no 4 were having
a secret love affair
and she did not wish the children to see accused no 4. She noticed
that Nosipho and the other children, Thabang
and Bheki, had just
woken up. Siyabonga had just gone back into the house. He was also
in the bedroom with the other children.
Nosipho and Siyabonga and
the other children all went into the bathroom to take a bath.
Nosipho and Siyabonga went into the bathroom
to wash the younger
children, because that was what they used to do. Accused no 5 went
to fetch accused no 4 since the children
would not see him while they
were in the bathroom. Accused no 4 entered the house and used the
land line telephone which was
in the dining room. Accused no 5 went
into the kitchen to prepare food for the children and was not with
accused no 4 when he
used the land line nor could she hear with whom
he was speaking. When he had finished, accused no 4 called her and
indicated that
he wanted to go outside. She went to see whether the
children were still in the bathroom. They were and she accordingly
saw to
accused no 4 leaving the house. He went outside and she did
not take notice where he was. After a while he ‘knocked again’

and handed back her cell phone.
[367] Accused no 5 testified that her
cell phone was with accused no 4 at the time of each cell phone call
that was made between
it and that of accused no 2 on the morning of
28 November 2007. She was also completely unable to give any
indication or estimation
whatsoever of the time that accused no 4
spent at her premises. She said she was concentrating on what she
was doing and later
on during her cross-examination that she did not
have a watch.
[368] Accused no 5 testified that
Nosipho and Siyabonga did not see accused no 4, because they were in
the bathroom. This, of course,
is not what was put to Siyabonga. To
him it was suggested that he did not see accused no 4, because he was
asleep until about
8h00. Siyabonga testified that he also did not
see accused no 4 when he was outside the house cleaning. Accused no
5 suggested
in her evidence that this is so, because the premises are
big. But this was also not suggested to him when he was
cross-examined.
[369] When confronted with the various
calls that were made on 2, 22, 25, and 26 November 2007 between her
land line or cell phone
and the cell phone of accused no 2, she
denied that she had been a party to any of the calls. She said that
accused no 4 used
to borrow her cell phone and she allowed him to use
it without ever enquiring from him what he wanted to do with it or
whom he
wanted to call. She testified that accused no 4 used to use
her cell phone most of the time. In ‘most cases’ he used

to borrow her cell phone and kept it with him. This was disputed on
behalf of accused no 4, and when Ms. Mogolane was afforded
a further
opportunity to cross-examine accused no 5, she put it to accused no 5
that accused no 4 had his own cell phone and he
only used the one of
accused no 5 on occasions when he had insufficient or no airtime, she
first replied that she had no comment
and then that it was true. In
her evidence in chief accused no 5 testified that she sometimes lent
the deceased’s cell phone
to accused no 4. This was also
disputed on behalf of accused no 4, and his denial thereof was put to
her when she was initially
cross-examined on behalf of accused no 4.
These contradictory versions of both accused no 5 and of accused no 4
demonstrate their
lack of credibility and reliability.
[370] The undisputed evidence as I
have mentioned was that the relationship between accused no 4 and
accused no 5 had been kept
a secret. Nosipho testified that she knew
accused no 4. She used to see him when he was visiting his brother
at the Zulu kraal.
Nosipho testified that she did not know about the
relationship between accused no 5 and accused no 4. It was put to
her by counsel
for accused no 4 that there had been a relationship
between them, and she replied that it must have been a secret. This
was not
disputed. On the contrary, accused no 4 testified that the
relationship between him and accused no 5 was a secret. Siyabonga

also testified that he knew accused no 4. He used to see him in
town. In exhibit ‘O’ accused no 5 also states that
she
and accused no 4 had sexual intercourse at the kraal and, referring
to the occasion when accused no 4 allegedly used the land
line during
the afternoon of 22 November 2007, that she was afraid to talk to
accused no 4 in the deceased’s house. These
statements by
accused no 5 were not disputed when Dir. Byleveld was cross-examined
by her counsel. We accordingly also find it
overwhelmingly
improbable that accused no 5 would have permitted accused no 4 to
have visited her at the farm house for about two
hours and ten
minutes from 7h51 until 10h00 on the morning in question or that she
would have permitted him to have used the land
line at 9h36 and at
9h39 while the children were inside and around the house and while
the deceased was on his way to fetch them.
We also find it
improbable that Nosipho and Siyabonga would not have seen him if he
had spent about two hours and ten minutes
from about 07h51 until
09h59 at or near the farm house and from 9h36 – 9h39 inside the
farm house.
[371] The totality of the evidence, in
our judgment, proves the explanations proffered by accused no 4 and
accused no 5 for the
calls between the cell phones of accused no 5
and of accused no 2 and the calls between the land line of accused no
5 and the cell
phone of accused no 2 to be false. The evidence
proves beyond any reasonable doubt that the calls were indeed made
between accused
no 5 and accused no 2. The versions of accused no 4
and of accused no 5 twisted and turned during the course of this
trial in
an obvious attempt to meet the State case as far as accused
no 5 was concerned.
[372] Accused no 5 is charged with
murder and robbery or in the alternative with conspiracy under s
18(2)(a) of the Riotous Assemblies
Act 17 of 1956. Any person who
conspires with another person to aid or procure the commission of or
to commit any offence, whether
of common-law or of statutory origin,
is guilty of an offence in terms of this statutory provision. See
generally on conspiracy:
S
v Cooper and Others
1976
(2) SA 875
(TPD), at pp 878H – 880G;
S
v Twala and Others
1979 (3)
SA 864
(TPD), at pp 871G – 873G.
[373] A concise and accurate summary
of the judgment of Hefer, JA in
S
v Khoza
1973 (4) SA 23
(O)
appears in the headnote, which reads:
‘
The clear intention in
sub-section 2(a) of section 18 of the Riotous Assemblies Act , 17 of
1956, is that the act which is punishable
thereunder is the
conspiracy
to
aid in or procure the commission of the offence. The conspiracy as
such is the actual
actus
reus
– aiding or
procuring the commission of an offence is only the objective towards
which the conspiracy is directed. A person
who conspires with
another to commit an offence or to aid in its commission, may
eventually have nothing to do with and render
no aid in the
commission thereof. Nevertheless the section is clearly still
applicable to him. Should he, however, in execution
of the
conspiracy proceed to the deed and commit the offence or assist in
committing it, he is punishable as principal or accessory
in the
offence itself. In such cases it is then also usual practice not to
charge him with the conspiracy.’
[374] Conspiracy ‘is generally a
matter of inference deduced from certain acts of the parties accused,
done in pursuance of
a criminal purpose in common between them’.
‘[E]verything done by any one of the conspirators in
furtherance of the
common purpose is evidence against each and all of
the parties concerned, whether they are present or absent and whether
or not
they were individually aware of what was taking place …’.
Per Boshoff, J in
S v
Moumbaris and Others
1974
(1) SA 681
(TPD), at p 687A – G.
[375] On the question of the degree of
proof required in matters of conspiracy, Van Winsen, J, in
R
v S
1959 (1) SA 680
(CPD),
at p 683 B – E, quoted and relied upon the following passage in
an unreported judgment of Bloch, J in that division
in the matter of
R. v. Ruper and Jane Lewis
:
“
Conspiracy to commit a crime
requires an agreement on the part of two or more accused to commit
the criminal act (see
R. v.
Solomon,
15 S.C. 107
, and
R. v. Dhlamini,
1941
O.P.D. 154).
Mere intention is insufficient: there must be an
actual concurrence of minds in an agreement to do the act in
question. Such
concurrence need not necessarily be by way of
explicit, spoken words, for the agreement to commit a crime, as any
other agreement,
can be arrived at tacitly and by conduct (see e.g.
R. v. B.
,
1956 (3) S.A. 363
(E) at p 365). Where, however, the agreement is
sought to be inferred solely from the conduct of the alleged
conspirators such
inference must, on the cardinal rules of logic
enumerated in
R. v. Blom,
1939 A.D. 188
at pp. 202 and 203,
be
consistent with all the proved facts, and the proved facts in turn
must be such that they exclude every reasonable inference
from them
save the one sought to be drawn.’
Also see:
R
v W and Another
1960 (3) SA
247
(ECD), at p 251 D – G.
[376] The following statement of
accused no 5 in her post-arrest statement (exhibit ‘O’)
is presently relevant:
‘
On the 22
nd
of November 2007 during the afternoon Ronnie then asked to use the
land line phone to phone his mother in Natal. He did phone
his
mother.
…
On the 27
th
of November Ronnie phoned me on my cell phone during the morning
wanting to know (asked when we going to get paid in Zulu). My

response to him was that we are going to get paid on Wednesday 28
th
November 2007 at about 10:00. Before the 28
th
the old man told me that we are going to get paid on the 28
th
November as well as the time.
…
On Wednesday the 28
th
November 2007 at about 6:45 the old man left for work. At about 9:00
the old man phoned the house and said to me I must be ready
with the
children. At 10:00 he come and pick us up.
…
He arrived at 10:30 pick us up to the
Zulu Kraal to pay the employees. On our way there is another gate to
be entered before the
Zulu Kraal. At the gate, the driver and my
sister’s little boy climbed out of the car to open the gate.
We went through
the gate with the old man in the car. Before we
could close the gate we were attacked by three males.
I
knew Dumisani between the three suspects
.
The old man asked me to give them the money and told me not to look
at them. I gave them the money. They pushed us out of the
car
together with the children. I ran to the hotel
due
to the fact I know that they going to rob the old man
.
After the first shot they seem to fire in the air, and a second shot
hit the old man. I wasn’t nearby.
…
I further want to add on the
2007/11/28 Ronnie arrived at 7:00 and used my cell phone and speak to
Dumisani and we later went into
the house because my airtime was
finished, and asked if he could use the land line to speak further to
Dumisani, which he did.
…
Ronnie and Dumisani planned to kill
the old man
.’
(Italics added)
[377] The statement of accused no 5
that she ‘
knew
Dumisani between the three suspects
’
is reliable and accepted. This statement is supported by the
ineluctable inference to be drawn from the evidence emanating
from
the cell phone data that show contact between the cell phone or land
line of accused no 5 with accused no 2’s ‘guilty’

cell phone on 22, on 25, on 26, and on five occasions on 28 November
2007. The last contact having been made a mere half an hour
or so
before the deceased, in the company and presence of accused no 5,
drove into a surprise attack where he was robbed of a large
amount of
cash and lost his life. It is probable that one or more calls were
made to the cell phone of accused no 2 from the cell
phone or land
line of accused no 5 by accused no 4, but not those made on 28
November 2007. They, we are satisfied, have been
proved beyond
reasonable doubt to have been made by accused no 5.
[378] Accused no 5 identified accused
no 2 as someone who had participated in the commission of the
offences. The fact that the
attackers wore balaclavas, as accused no
5 stated in her witness statement (exhibit ‘KK’), or that
they concealed their
faces, as she testified, which aspect is
corroborated by the evidence of Terrence, who testified that their
faces were covered,
is no bar to accused no 5’s ability to have
identified accused no 2 as a participant at the scene of the
incident. It is
not known when the balaclavas were put on. Accused
no 5 appears to have seen more than any of the other eyewitnesses.
To her,
in terms of her undisputed statement in her witness statement
(exhibit ‘KK’), it seemed that the suspects had hidden

themselves at the trees next to the gate. Nosipho testified that she
had seen three persons approaching the vehicle from the direction
of
the trees and Terrence also testified that he had seen three persons
approaching the vehicle. Mr. Nginda saw four persons running
away
towards a nearby bush. Facial features are not the only features by
which an assailant can be identified. Accused no 5 identified

someone who was known to her.
[379] Although it is probable that
Ronnie (accused no 4) planned with Dumisani (accused no 2) to kill
the deceased as was stated
by accused no 5 in her statement (exhibit
‘O’), the State did not prove this beyond a reasonable
doubt by means of
admissible evidence against accused no 4. The
State, in our judgment, however, proved beyond reasonable doubt that,
amongst others,
accused no 5
‘and
Dumisani planned to kill the old man’
through the mechanism of the robbery. This inference, in our
judgment, is consistent with all the proved facts and those facts
are
such that they exclude every other reasonable inference but the one
drawn.
[380] ‘From the words of her own
tongue’ accused no 5 admits that she knew that accused no 2,
amongst others, had been
involved in planning to kill the deceased.
She also knew that the deceased was going to be robbed after a shot
had been fired
into the air and after she had already handed the
money over to the attackers. This is why she said she ran away.
[381] Nosipho testified that she heard
one gunshot fired and the three assailants kept on saying ‘voertsek’
when they
were approaching. Siyabonga also testified that he heard a
gunshot fired in the air and the shouting of the word ‘voertsek’.

The only inference to draw on the evidence before us is that the
shouting of the word ‘voertsek’ was directed at the
other
passengers of the vehicle and they or many of them complied and ran
away. Nosipho testified that when the deceased told
accused no 5 to
give them the money, the assailants responded by saying that they did
not want the money but the deceased. Terrence
testified that shots
were directed at the right hand side of the vehicle. It is common
cause that the deceased occupied the right
driver’s seat of the
vehicle. The
post-mortem
evidence also shows three
gunshot wounds to the chest and upper left arm of the deceased.
[382] It is not disputed that payment
of the employees on the 28
th
November 2007 was unusual and that the date and time when they were
going to be paid fell within the knowledge of accused no 5.
The
inevitable and only inference is that the robbers would not have been
able to embark upon the ambush if they had not been
informed when to
strike and that such information was conveyed by accused no 5 to
accused no 2. She accompanied the deceased on
the fatal journey.
The only inference is that she thereby maintained the appearance of
normality to the monthly ‘ritual’.
To use the comparison
used by Harms JA in
S v
Nglengethwa
1996(1) SACR
737 (A), at p 743a – b, her position is comparable to someone
who has planted a bomb and looks on as it goes
off.
[383] A reasonable explanation for the
constant contact between accused no 5 and accused no 2 during the
hours that immediately
preceded the robbery and murder of the
deceased is absent. Instead, accused no 5 falsely denied that she
knew accused no 2, or
that they had ever communicated. She also
denied her participation in the commission of the offences. The cell
phone evidence
relating to the contact between accused no 5 and
accused no 2 is severely incriminating of her and no inference other
than an adverse
one is to be drawn that her denials were false.
[384] The only reasonable inference
which can be drawn from all the circumstances of this case is that
the State has proved beyond
reasonable doubt that there was, at least
on the morning of 28 November 2007, a conspiracy between accused no 5
on the one hand
and accused no 2 on the other. A concurrence of
minds is readily inferred from their conduct. Accused no 5 conspired
with accused
no 2 to commit the offences of murder and robbery of the
deceased or to aid in their commission.
[385] Applying the cardinal rules of
logic referred to in
S v
Blom (supra)
, the State has
shown beyond reasonable doubt that accussed no 5 in the execution of
the conspiracy assisted in the commission of
the offences of murder
and robbery. A common purpose to rob and kill the deceased with
which accused no 5 had actively associated
herself, and the ultimate
execution of the purpose has been proved beyond a reasonable doubt.
She and accused no 2 shared that
purpose and they acted in concert.
See:
R v Kahn
1955
(3) SA 177
(AD), at p 184A.
[386] Even if accused no 5 only made
common cause in the commission of the robbery of the deceased, she
must have contemplated the
use of force, if necessary, and that such
use might be potentially deadly taking into account the nature and
size of the envisaged
robbery. The inescapable and only reasonable
inference is that she, at the very least, foresaw the possibility of
the deceased
being killed and that she actively associated herself
therewith, reckless as to whether or not death was to ensue. She
has, in
our judgment, the necessary
mens
rea
to sustain a conviction
for not only robbery, but also for murder.
[387] The guilt of accused no 5 of the
robbery of the deceased with aggravating circumstances (count 1) and
of the murder of the
deceased (count 2) has on the totality of the
evidence been proved beyond reasonable doubt. Accused no 5 did not
impress us as
a witness and her denial of her involvement in the
commission of the offences is on the totality of the evidence false.
Dir. Byleveld,
Insp.Shezi and all the other State witnesses who
testified in this main trial, except for Mr. Lakalakala whose
evidence has no
bearing on the guilt of accused no 5, were good and
credible witnesses. We are on the totality of the evidence satisfied
that
they each gave evidence which is satisfactory in all material
respects and is reliable.
[388] Pointings out that had allegedly
been made by
accused no 6
to the late Capt. Steyn on 16 January 2008 were ruled inadmissible at
the end of the fifth trial-within-this-trial to which reference
is
made in paragraphs 152 – 199 of this judgment. They may
accordingly not be used against accused no 6.
[389] Evidence relating to the finding
of exhibits and the ballistic analyses thereof were presented by the
State
inter alia
to
establish a link between accused no 6 and the commission of the
crimes in issue. This appears from paragraph 7 of the State

Advocate’s address in terms of
s 150(1)
of the
Criminal
Procedure Act.
[390
] At around 22h00 on 2 December
2007, while they were patrolling the streets of Zandspruit, Honeydew,
Mr. Kenneth Lekalakala and
other members of the community policing
forum picked up a firearm that was silver in colour after they had
given chase to a person
who had a firearm in his possession. The
person apparently dropped the firearm and got away. They took the
firearm to the Honeydew
SAPS on 3 December 2007, where Insp. Joubert
subsequently found it. See the evidence of Mr. Lekalakala, Const.
Veronica Mpikashe,
and Insp. Joubert. This is the Z88 9 mm pistol to
which I have referred in paragraphs 235 – 236 earlier on in
this judgment.
It was subsequently through a process of microscopic
comparison ascertained that this firearm is one of the firearms with
which
the deceased was shot. Mr. Lekalakala testified that the
person who dropped the Z88 pistol was known to him and that he was
able
to identify him. He then identified a prison warden, who was
sitting in the public gallery immediately behind the accused. The

finding of the three spent bullets, one cartridge, and the Z88 pistol
did not establish any link between accused no 6 and the robbery
and
death of the deceased. This, in our view, was also correctly
conceded by Mr. Ntlakaza on behalf of the State.
[391] The confession of accused no 1
(exhibit ‘Q’), the pointings out of accused no 1 (exhibit
‘R’), the
first confession of accused no 2 (exhibit ‘L’),
the second confession of accused no 2 (exhibit ‘N’), and

the confession of accused no 3 (exhibit ‘AA’) all
implicate accused no 6 in the robbery and murder of the deceased.

These confessions are all inadmissible against accused no 6 since not
one of their makers confirmed any one of them when they
testified.
[392] The State has, in our judgment,
accordingly failed to prove beyond reasonable doubt the guilt of
accused no 6 on any one of
the charges with which he is charged in
this criminal trial. This too was in our view correctly conceded by
Mr. Ntlakaza on behalf
of the State.
[393] What remains is the
corruption
charges
against
accused
no 1
and against
accused
no 3
(count 5). It is
alleged that they contravened
s 11(2)(b)(iv)
of the Prevention and
Combating of Corrupt Activities Act 12 of 2004. The part of this
section that is presently relevant, provide
in essence that any
person who, directly or indirectly, agrees or offers to give any
gratification to any other person with the
intent to cause or induce
any person to conceal a police docket with the intent to impair the
availability of such police docket
for use at the relevant trial, is
guilty of the offence of ‘corrupt activities relating to
witnesses and evidential material
during certain proceedings’.
[394] The State’s evidence
consists of that of Insp. Mokone and of Insp. Joubert. Insp. Mokone
is a court orderly at the
Krugersdorp Magistrates’ Court and
Insp. Joubert is the investigating officer.
[395] Insp. Mokone testified that he
was on duty as the court orderly for Court D at the Krugersdorp
Magistrate’s Court on
30 November 2007. Accused nos 1, 2, and
3 were brought to the Krugersdorp Magistrate’s Court for their
first appearance.
He fetched them at the main cell in order to take
them to the court cells for Court D and from there into Court D. On
the way
to the court cells, accused no 3 asked him ‘Father
(meaning Officer) can you make a plan. You see Officer, if you can
steal
the docket for us, we will pay you an amount of R15, 000.00.’
Accused no 3 explained that he was referring to ‘a murder

docket’. Insp. Mokone agreed. Accused no 3 called accused nos
1 and 2, who were already in the court cell since they walked
ahead
of Insp. Mokone and accused no 3. Accused no 3 told accused no 1
that Insp. Mokone is the officer who will make a plan for
them.
Insp. Mokone testified that accused no 2 did not participate in the
conversation and that he only listened attentively.
Insp. Mokone
locked them in the court cell and went to call the magistrate into
court. Their matter was postponed to 10 December
2007. Insp. Mokone
testified that the agreement reached between accused nos 1 and 3 and
him was that Insp. Mokone would steal
the docket; accused no 1 would
arrange his cash payment from his brother, Moses; and, they would
‘finish the deal’
at their next appearance in court,
which was scheduled for 10 December 2007. Insp. Mokone testified
that he informed the investigating
officer, Insp. Joubert, about the
approach that had been made to him. This was corroborated by Insp.
Joubert. He testified that
Insp. Mokone informed him that the
accused approached him to buy the docket in this case from him for
R15, 000.00. Insp. Joubert
obtained a digital recorder from the
SAPS technical support unit for Insp. Mokone to record the
conversation between them on 10
December 2007. This is confirmed by
the evidence of Insp. Mokone.
[396] Insp. Mokone was not on duty as
the court orderly for Court D on 10 December 2007. He went to the
cells for Court D and found
accused nos 1, 2, 3, and an additional
suspect, who was accused no 4, in one of the court cells. Accused no
3 enquired from him
how they were going to deal with the matter and
Insp. Mokone insisted that the money be paid first. Accused no 3
asked accused
no 1 to let Insp. Mokone phone his brother Moses,
‘because he is the person who is supposed to bring the money.’
Accused
no 1 called Moses with Insp. Mokone’s cell phone and
inter alia
said
to him that the inspector will help them once he got the money.
Accused no 1 informed Insp. Mokone that Moses was delayed
in Randburg
and he handed the cell phone back to Insp. Mokone to also speak to
Moses. Insp. Mokone informed him that when he arrives
he should
contact him. It never happened. Insp. Mokone testified that he used
the recording device during their discussions on
this occasion. He
handed it back to Insp. Joubert and he confirmed to him that he had
made a recording regarding the buying of
the docket. This is
confirmed by Insp. Joubert, who also testified that the conversations
recorded could not be transcribed due
to the poor quality of the
recording.
[397] Accused no 1 denied that any
offer was made to Insp. Mokone in exchange for the disappearance of
the docket. He testified
that Insp. Mokone approached them and
created an impression that he was an attorney, although he did not
tell them that he was
one. He said to them that he would assist them
so that they could be released. Accused no 1 testified that Insp.
Mokone did not
specifically speak to him directly on 30 November
2007. He and Insp. Mokone only had a conversation at the time when
Insp. Mokone
handed him his phone to make arrangements for the
payment of his fee, which was on 10 December 2007. On that occasion,
Insp. Mokone
told him that he ‘should phone people outside so
that they can arrange an amount of R20, 000.00.’ Accused no 1
told
him that he believed his family could only afford an amount of
R10, 000.00.
[398] The evidence of accused no 1 is
a far cry from his version that was put to Insp. Mokone. It was put
to Insp. Mokone that
he, on 30 November 2007, informed accused no 1
that he was an attorney (accused no 1 denied under cross-examination
that Insp.
Mokone said this), that ‘this was a difficult case,
that he ‘has helped many people outside’, and he
indicated
that his fee was R20, 000.00. It was put to him that on 10
December 2007, he again went to the holding cells and demanded
payment
of the R20, 000.00 and that accused no 1 informed him that he
had been in custody since his arrest and that Insp. Mokone needed
to
contact his relatives. Under cross-examination accused no 1 conceded
that Insp. Mokone did not demand R20, 000.00 when he arrived
at the
cells on 10 December 2007.
[399] Accused no 3 denied that he
approached Insp. Mokone with the request that he ‘should make
the case disappear.’
He testified that Insp. Mokone approached
him at the court cells on the occasion of his first appearance on 30
November 2007.
Insp. Mokone told him that he could see that the
matter for which he had been arrested was a serious one and he
offered to assist
him to be released on bail so that he could attend
his trial while he was not in custody. He told accused no 3 that he
had helped
many people before. Accused no 3 enquired how much his
assistance would cost them, and Insp. Mokone requested R20, 000.00.
Accused
no 3 told him that it was too much and Insp. Mokone thereupon
reduced the amount to R15, 000.00. This amount also, accused no 3

told him, was too much and accused no 3 called accused no 1 so that
he could give Insp. Mokone the telephone numbers of people
with whom
Insp. Mokone could make arrangements. On 10 December 2007, when
Insp. Mokone approached him again, they only had a brief
discussion.
Accused no 3 told him that he should phone the ‘people outside’
since there was nothing they could do
while they were in custody.
That was the end of their dealings. Accused no 3 testified that he
was under the impression that
Insp. Mokone was an attorney. He
testified that Insp. Mokone only approached him on the two occasions
and that he was wearing
civilian clothing on both occasions. I pause
to mention that Insp. Mokone testified that he was dressed in
civilian clothing on
30 November 2007 and in uniform on 10 December
2007.
[400] The evidence of accused no 3 is
irreconcilable with his version that was put to Insp. Mokone, which
was that Insp. Mokone:
approached him saying that he could ‘help
with the case’ and that he could ‘make this whole matter
disappear’;
approached him on four occasions when the matter
was discussed; was dressed in civilian clothes on the first three
occasions;
was dressed in uniform on the fourth occasion when he
also opened cells for people to go to court D and accused no 3 then
realised
that he was a policeman.
[401] Approaching the evidence of
Insp. Mokone with the necessary caution that should be applied to
evidence of a single witness
[
S
v Sauls and Others
1981 (3)
SA 172
(A), at pp 179G – 180G], we are on the totality of the
relevant evidence satisfied that his evidence is satisfactory in
every
material respect and reliable. The evidence of accused no 1
and of accused no 3 in support of their denials is in every respect

obviously and palpably false. The evidence as a whole establishes
the guilt of accused no 1 and of accused no 3 on the charge
of
corrupt activities (count 5) beyond a reasonable doubt.
[402] In the result:
Accused No. 1
,
Mr. Johnson Tshepo Chirwa, is found:
guilty as charged on the main count
of count 1 - the charge of the robbery of the deceased with
aggravating circumstances;
guilty as charged on the main count
of count 2 - the charge of murder of the deceased;
not guilty on count 3 - the charge
of unlawful possession of firearms;
not guilty on count 4 - the charge
of unlawful possession of ammunition; and
guilty as charged on count 5 - the
charge of corrupt activities.
Accused No. 2
,
Mr Dumisani Sibusiso Xulu, is found:
guilty as charged on the main count
of count 1 - the charge of the robbery of the deceased with
aggravating circumstances;
guilty as charged on the main count
of count 2 - the charge of murder of the deceased;
not guilty on count 3 - the charge
of unlawful possession of firearms; and
not guilty on count 4 - the charge
of unlawful possession of ammunition.
Accused No. 3
,
Mr Gilbert Mosadi, is found:
guilty as charged on the main count
of count 1 - the charge of the robbery of the deceased with
aggravating circumstances;
guilty as charged on the main count
of count 2 - the charge of murder of the deceased;
guilty on count 3, that he was in
unlawful possession of a firearm;
guilty on count 4, that he was in
unlawful possession of ammunition; and
guilty as charged on count 5 - the
charge of corrupt activities.
Accused No. 4
,
Mr Ronnie Mazwi Khumalo, is found:
not guilty on count 1 - the charge
of the robbery of the deceased with aggravating circumstances;
not guilty on count 2 - the charge
of murder of the deceased; and
not guilty on the alternative count
to counts 1 and 2 - the charge of conspiracy.
Accused No. 5
,
Ms Celiwe Mbokazi, is found:
guilty as charged on the main count
of count 1 - the charge of the robbery of the deceased with
aggravating circumstances; and
guilty as charged on the main count
of count 2 - the charge of murder of the deceased.
Accused No. 6
,
Mr Vincent Dlamini, is found:
not guilty on count 1 - the charge
of the robbery of the deceased with aggravating circumstances;
not guilty on count 2 - the charge
of murder of the deceased;
not guilty on the alternative count
to counts 1 and 2 - the charge of conspiracy.
not guilty on count 3 - the charge
of unlawful possession of firearms; and
not guilty on count 4 - the charge
of unlawful possession of ammunition.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
5
March 2010