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[2010] ZAWCHC 601
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S v Tongo (SS 59/2010) [2010] ZAWCHC 601 (5 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE PROVINCIAL DIVISION)
Case
no: S
S 59/2010
THE STATE
versus
ZOLA ROBERT
TONGO
INDICTMENT
The State
alleges that the accused is guilty of the crimes of:
1.
KIDNAPPING;
2.
ROBBERY WITH AGGREVATING CIRCUMSTANCES;
3.
MURDER; AND
4.
OBSTRUCTING THE ADMINISTRATION OF JUSTICE.
COUNT
ONE: KIDNAPPING
In that on or
about 13 November 2010 and at NY112 Street, Gugulethu, in the
district of Wynberg, in the jurisdiction of the Western
Cape
Provincial Division, the accused, together with persons known to the
State, and in the furtherance of a common purpose, unlawfully
and
intentionally deprived Anni Dewani, nee Hindocha, an adult female, of
her liberty, by threatening her with a firearm, forcing
her thereby
to remain in the motor-vehicle with registration CF 160944 in which
she was a passenger and taking her against her
will from NY112,
Gugulethu to Sinqolamthi Street, Ilitha Park, Khayelitsha.
AND THAT
the provisions of section 51(1) of the Criminal Law Amendment Act,
Act 105 of 1997 are applicable to the aforesaid charge in that
the
charge of Kidnapping is listed in Part IV of Schedule 2, if the
accused had with him at the time a firearm, which was intended
for
use as such, in the commission of such offence.
COUNT
TWO: ROBBERY WITH AGGRAVATING CIRCUMSTANCES
In
that on or about 13 November 2010 and at NY112 Street, Gugulethu, in
the district of Wynberg, in the jurisdiction of the Western
Cape
Provincial Division, the accused, together with persons known to the
State, and in the furtherance of a common purpose, unlawfully
assaulted Anni Dewani, nee Hindocha, by threatening her with a
firearm and intentionally used such force to induce submission by
the
aforesaid person, and took and stole from her the items listed below,
being her property or in her lawful possession, and thus
robbed her
of same.
AND THAT
the provisions of section 51(1) of the Criminal Law Amendment Act,
Act 105 of 1997 are applicable to the aforesaid charge in that
the
charge of Robbery is listed in Part II of Schedule 2, more
particularly, in paragraph (a) under Robbery, to wit, when there
are
aggravating circumstances.
List
of Items:
A Giorgio
Armani ladies wristwatch;
a white gold
and diamond bracelet;
a ladies
handbag;
and a
Blackberry cellular telephone.
Total
estimated value: R90 000
COUNT
THREE: MURDER
In that on or
about 13 November 2010 and at Sinqolamthi Street, Ilitha Park,
Khayelitsha, in the district of Khayelitsha, in the
jurisdiction of
the Western Cape Provincial Division, the accused, together with
persons known to the State, and in the furtherance
of a common
purpose, unlawfully and intentionally killed Anni Dewani, nee
Hindocha, an adult female, by shooting her with a firearm.
AND
THAT the provisions of section 51(1) of the Criminal Law Amendment
Act, Act 105 of 1997 are applicable to the aforesaid charge
in that
the charge of Murder is listed in Part I of Schedule 2, more
particularly, in paragraph (a) and (d) under Murder, to wit
that the
murder was planned or premeditated and committed by a person, group
of persons or syndicate acting in the furtherance
of a common purpose
of conspiracy.
COUNT
FOUR: OBSTRUCTING THE ADMINISTRATION OF JUSTICE
In that on or
about 13 and 17 November 2010 and at the Gugulethu police station and
the Organised Crime offices of the police in
Bellville respectively,
in the districts of Wynberg and Bellville, in the jurisdiction of the
Western Cape Provincial Division,
the accused unlawfully and
intentionally deposed to two affidavits in which he made the
following allegations:
1. that the
accused had been hijacked by two unknown men in Gugulethu;
2.
that the unknown men had threatened the accused and his two
passengers, to wit: Shrien Dewani and his wife,
the deceased Anni
Dewani, with a firearm and had thereby robbed the accused of his
motor-vehicle, to wit: a silver VW Sharan with
registration CF
160944;
3. that the
hijackers had ejected the accused by force from the motor-vehicle;
4. that the hijackers had
thereafter driven off with Shrien Dewani and the deceased, in
furtherance of the hijacking.
WHEREAS
in truth and in fact the abovementioned allegations were, to the
knowledge of the accused, false, in that:
1.
the alleged hijacking was in fact not a hijacking, but part of a plan
of subterfuge which Shrien Dewani, the
husband of the deceased and
the accused had designed to conceal the true facts, to wit: that the
deceased was murdered at the instance
of her husband;
2. the plan
was executed together with persons known to the State, in the
furtherance of a common purpose;
3. threatening
the accused and Shrien Dewani with a firearm was a mere pretence, and
thus that the so-called hijackers
had not thereby robbed the accused
of his motor-vehicle;
4.
the hijackers had ejected the accused by consent from the
motor-vehicle, in accordance with the pretence of
force, and not
actually by force;
5. the
hijackers had thereafter driven off with the deceased and Shrien
Dewani with Shrien Dewani's consent, in
accordance with the pretence
of force, and not in furtherance of kidnapping and robbing him.
AND IN
THAT
, by deposing to
the false affidavits as above, the accused unlawfully and
intentionally caused the police falsely to investigate
his and Shrien
Dewani's complaint of kidnapping and robbery, and to continue their
investigations into the kidnapping, robbery
and murder of the
deceased Anni Dewani on the basis that the accused's allegations were
true, when in fact they were not;
AND
IN THAT
the
accused thereby obstructed the administration of justice.
R
J DE KOCK
DIRECTOR
OF PUBLIC PROSECUTIONS
WESTERN
CAPE PROVINCIAL DIVISION
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE PROVINCIAL
DIVISION)
Case no:
In
the matter between:
THE STATE
versus
ZOLA ROBERT
TONGO
LIST
OF STATE WITNESSES IN TERMS OF SECTION 144(3) (a) OF ACT 51 OF 1977
The
names and addresses of the State witnesses have been withheld in
terms of
section 144(3)
(a) (ii) of the
Criminal Procedure Act, No.
51 of 1977
as amended.
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE PROVINCIAL
DIVISION)
Case no:
In
the matter between
THE STATE
versus
ZOLA
ROBERT TONGO
SUMMARY »F
SUBSTANTIAL FACTS IN TERMS OF SECTION 144 (3)(a) ©F ACT 51 OF
1977
On
12 November 2010 Shrien Dewani and Anni Dewani, nee Hindocha, the
deceased, arrived in Cape Town at the Cape Town International
Airport. Shrien Dewani approached the accused, who operates a shuttle
from the airport with his VW Sharan motor vehicle, to convey
him and
the deceased to the Cape Grace Hotel in the Waterfront.
After
their arrival at the Cape Grace, Shrien Dewani approached the accused
with a request to procure a hitman to have a woman killed
for a fee
of R15000.00. On a subsequent occasion the accused and Shrien Dewani
discussed how this had to be done.
The
accused set the process in motion by contacting a friend of his who
put him (the accused) in touch with Mziwamadoda Qwabe. Qwabe,
in
turn, introduced the accused to Xolile Mngeni.
On
the afternoon of Saturday 13 November 2010 the accused met with
Mziwamadoda Qwabe and Xolile Mngeni to plan how the killing would
be
executed. Amongst others, they arranged that Mziwamadoda Qwabe and
Xolile Mngeni would wait at a predetermined place in Gugulethu.
On
Saturday evening, the accused collected Shrien Dewani and the
deceased at the Cape Grace, as had been agreed earlier in the day
with Shrien Dewani.
The
accused drove to Gugulethu with the Dewanis, but Mziwamadoda Qwabe
and Xolile Mngeni were not at the place they agreed on. The
accused
then drove to the Strand, where the Dewanis had supper.
The
accused agreed with Mziwamadoda Qwabe to return to the predetermined
place in Gugulethu when they left the Strand.
On
their return from the Strand, the accused drove to Gugulethu where
Xolile Mngeni and Mziwamadoda Qwabe 'hijacked' the motorvehicle,
as
had been agreed upon.
The
deceased was then kidnapped, robbed of her possessions and murdered
by being shot with a firearm. The deceased's body was subsequently
found in Ilitha Park, Khayelitsha.
The
accused, Shrien Dewani, Xolile Mngeni, Mziwamadoda Qwabe and a person
known to the State had conspired to have the deceased
kidnapped,
robbed and murdered following a simulated hijacking in order to
conceal the fact that the deceased was in fact kidnapped,
robbed and
murdered in the furtherance of a common purpose.
The
post mortem report confirmed the cause of the deceased's death as a
'gunshot wound to the neck and therefore unnatural.'
ooooo
IN THE HIGH COURT OF SOUTH
AFRICA WESTERN CAPE PROVINCIAL DIVISION
C
ase
No:
SS 59/2010
In
the matter between -
THE STATE
versus
ZOLA ROBERT
TONGO
Accused
AGREEMENT IN TERMS OF SECTION
105A OF ACT 51 OF 1977
A. PREAMBLE
WHEREAS:
1.
The accused is charged with committing the following crimes:
Count
1: KIDNAPPING;
Count 2:
ROBBERY with aggravating circumstances;
Count 3:
MURDER.
Count
4: OBSTRUCTING THE ADMINISTRATION OF
JUSTICE
2.
Adv Rodney James de Kock, Director of Public Prosecutions ("the
Director"), has been duly authorised, as required by
Section
105A of the Act 51 of 1977, to negotiate and enter into an agreement
with the accused.
3. The
Director and the accused, who is represented herein by attorney Mr
William Da Grass, have negotiated and
entered into this agreement in
respect of a plea of guilty by the accused to the offences of which
he may be convicted, as well
as a just sentence to be imposed by this
Honourable Court.
4. The accused
has been informed of the following rights referred to in section
105A(2)(a) of Act 51 of 1977:
4.1. To be presumed innocent
until proved guilty beyond reasonable doubt;
4.2. To remain silent and not to
testify during the proceedings;
4.3. Not to be compelled
to give self- incriminating evidence;
4.4 That he is not obliged
to enter into this agreement, but that if he enters into this
agreement, the contents thereof will
be made known to the Court which
may convict and sentence him in terms of the agreement or may refuse
to accept the agreement,
in which case the agreement will be null and
void and the State will not be able to use or present such agreement
against him as
evidence in a criminal trial.
5.
The
Director has duly complied with the requirements of Section
105A(1)(b) of Act 51 of 1977, in the following respects:
5.1 The
investigating officer, Capt Paul Hendrikse, has been consulted. He is
satisfied with the terms of the agreement, including
the sentence, as
appears from his affidavit, attached as Annexure A;
5.2.
Due regard has been given to the circumstances prescribed in Section
105A(1)(b)(ii) of Act 51 of 1977;
5.3.
The father of the deceased, Mr. Vinodkumar Hindocha, has been
consulted by the Director regarding the content of the agreement
as
appears from Annexure B.
6. The accused
has been informed that this agreement cannot bind the Court not to
exercise its discretion to make
a specific order or conduct a
specific enquiry, in which event the accused will be entitled to
follow any direction(s) given by
the Court or abandon the agreement.
7. The accused
makes the following admissions relevant to the circumstances of his
entering into this agreement:
7.1. that he understands the
charges against him as set out in the charge sheet;
7.2. that he was in no way
unduly influenced or threatened to plead guilty nor were any promises
made to him should he plead guilty,
other than the terms of this
agreement;
7.3that he is in his sound and
sober senses while entering into this agreement.
7.4that
he understands English, and so the terms of this agreement is
expressed in English.
8. The
accused, represented and assisted by the abovementioned legal
representative, admits guilt in respect of
the charges, as mentioned
above, and pleads guilty thereto on the basis set out below.
9. The
Director is prepared to accept such plea of guilty.
10. It is recorded that the
accused has deposed to a separate affidavit for the purposes of the
police investigation, in which the
events relating to the matter are
set out in more detail.
11.The substantial facts and
admissions stated below are considered necessary and appropriate for
the purposes of this agreement.
They are not intended to be the
exhaustive account of all the details of the relevant events.
NOW
THEREFORE
the
Director and the accused, as represented herein by Mr William Da
Grass have negotiated and reached the following agreement
with the
following terms in respect of a plea of guilty by the accused as well
as a just and fair sentence to be imposed by this
Honourable Court.
B.
PLEA OF GUILTY AND ADMISSIONS
12.
The accused pleads guilty to
each of the charges and makes the following formal admissions, stated
by the accused in the first person:
Count
1: Kidnapping
13.
On or about 13 November 2010 and
at or near NY112, Gugulethu and/or Khayelitsha, in the jurisdiction
of the Western Cape Provincial
Division, I, together with the husband
of the deceased (Shrien Dewani), Monde Mbolombo, Xolile Mngeni and
Mziwamadoda Qwabe, and
in furtherance of a common purpose, unlawfully
and intentionally deprived Anni Dewani, an adult female, of her
liberty by threatening
her with a firearm, forcing her thereby to
remain in my motor-vehicle with registration CF 160944, in which she
was a passenger
and taking her against her will from NY112, Gugulethu
to Sinqolamthi Street, Ilitha
Park, Khayelitsha.
Count
2: Robbery with aggravating circumstances
14. On or about 13 November 2010
and at NY112, Gugulethu in the jurisdiction of the Western Cape
Provincial Division, I, together
with the husband of the deceased
(Shrien Dewani), Monde Mbolombo, Xolile Mngeni and Mziwamadoda Qwabe
and in furtherance of a common
purpose, unlawfully and intentionally
assaulted Anni Dewani, an adult female, by threatening her with a
firearm and intentionally
used such force to induce submission by the
aforesaid person, and took and intentionally stole from her the items
listed below,
being her property or in her lawful possession, and
thus robbed her of same.
List of Items:
A Giorgio Armani ladies
wristwatch;
a white gold
and diamond bracelet;
a ladies
handbag;
and a
Blackberry cellular telephone.
Estimated Total Value: R90
000.00 (ninety thousand rand)
15. I admit that aggravating
circumstances were involved in the robbery in that a firearm was
used.
Count
3: Murder
16.
On or about 13 November 2010 and at or near Sinqolanthi Street,
llitha Park, Khayelitsha in the jurisdiction of the Western
Cape
Provincial Division, I together with the husband of the deceased
(Shrien Dewani), Monde Mbolombo, Xolile Mngeni and Mziwamadoda
Qwabe
and in furtherance of a common purpose, unlawfully and intentionally
killed Anni Dewani, an adult female, by shooting her
with a firearm.
17. In addition, the accused
makes the following formal admissions relating to Count 3:
_
17.1
The deceased was at all material times correctly
identified as ANNI
DEWANI, being the person mentioned in the indictment.
17.2
Dr Janette Verster conducted the post-mortem on
the body of the
abovementioned deceased on 15 November 2010.
17.3
The body of the deceased suffered no further injuries
from the time
of the offence up to the time that the postmortem was conducted
on the body of the deceased.
17.4
Dr Janette Verster correctly noted her findings
on the post mortem
report.
17.5
The cause of the deceased's death as indicated
on the post mortem
report was 'a gunshot wound to the neck and therefore unnatural'.
Count
4: Obstructing the administration of justice
18.
On or about 13 and 17 November 2010 and at the Gugulethu police
station and at the Organised Crime offices in Bellville respectively,
in the jurisdiction of the Western Cape Provincial Division, I
unlawfully and intentionally deposed to two affidavits in which
I
made the following allegations:
18.1
that I had been hijacked by two unknown men in Gugulethu;
18.2
that the unknown men had threatened me and my two passengers,
to wit:
Shrien Dewani and his wife, the deceased Anni Dewani, with a firearm
and had thereby robbed me of my motor-vehicle, to
wit: a silver VW
Sharan with registration CF 160944;
18.3
that the hijackers had removed me by force from the motor-vehicle;
18.4
that the hijackers had thereafter driven off with Shrien Dewani
and
the deceased, in furtherance of the hijacking.
19. In truth and in fact the
abovementioned allegations were, to my knowledge, false, in that:
19.1
the alleged hijacking was in fact not a hijacking, but part
of a plan
of subterfuge which the husband of the deceased (Shrien Dewani) and I
had designed to conceal the true facts, to wit:
that the deceased was
murdered at the instance of her husband;
19.2
the plan was executed together with Shrien Dewani, Monde Mbolombo,
Xolile Mngeni and Mziwamadoda Qwabe, in the furtherance of a common
purpose;
19.3
threatening me and Shrien Dewani with a firearm was a mere
pretence,
and thus that the so-called hijackers had not thereby robbed me of my
motor-vehicle;
19.4
the hijackers had ejected me by consent from the motor-vehicle,
in
accordance with the pretence of force, and not actually by force;
19.5
the hijackers had thereafter driven off with the deceased
and Shrien
Dewani with Shrien Dewani's consent, in accordance with the pretence
of force, and not in furtherance of kidnapping
and robbing him.
20. By deposing to the false
affidavits as above, I unlawfully and intentionally caused the police
falsely to investigate my and
Shrien Dewani's complaint of kidnapping
and robbery, and to continue their investigations into the
kidnapping, robbery and murder
of the deceased Anni Dewani on the
basis that my allegations were true, when in fact they were not.
21.I
thereby obstructed the administration of justice.
General
admission of culpability relevant to all the charges
22. I furthermore knew that my
actions were unlawful and that I was intentionally committing murder,
kidnapping, robbery with aggravating
circumstances and obstructing
the administration of justice.
23. I understand the terms
unlawfully and intentionally, which have also been explained to me by
my attorney.
24.
I knew that the offences that I
was committing were punishable in a
court of law.
C.
THE SUBSTANTIAL FACTS
25.
The
accused admits the following substantial facts relevant to
this
matter stated hereunder by the accused in the first person.
25.1
I am in formal employment but I also freelance as a
shuttle operator
from the Cape Town International Airport. For this latter purpose I
make use of my private motor vehicle bearing
registration number CF
160944, a silver grey Volkswagen Sharan.
25.2
On 12 November 2010, I was waiting for fares at the
airport when
approached by Shrien Dewani, who requested me to convey him and his
wife, Anni Dewani (the deceased), to the Cape
Grace Hotel (the hotel)
in the Victoria and Alfred Waterfront.
25.3
After we arrived at the hotel, Shrien Dewani approached
me alone and
asked me if I knew anyone that could 'have a client of his taken off
the scene'. After some discussion with him I
understood that he
wanted someone, a woman, killed. He said he was willing to pay an
amount of R15000.00 (fifteen thousand rand).
Shrien Dewani said he
had US dollars and could pay in US dollars. He also asked if I knew
of a place where he could exchange US
dollars for rands without
producing his passport and could get at a better exchange rate than
the Bureau De Change gave clients.
25.4
Later the same day, on 12 November 2010, I went to a
friend of mine,
Monde Mbolombo (Monde) to enquire whether he could assist me in
sourcing anyone prepared to carry out the killing
as requested by
Shrien Dewani. Monde put me in contact with Mziwamadoda Qwabe
(Qwabe). This person is currently in custody awaiting
trial in
respect of these offences. I informed Monde that there would be
R15000.00 (fifteen thousand rand) for the job. Monde said
that he
wanted R5000.00 (five thousand) for organising the hitman and that we
should pay the hitman R10000.00 (ten thousand rand).
25.5
On Saturday 13 November 2010 Shrien Dewani contacted
me to meet him
at the hotel. At approximately 12h00 I met Shrien Dewani. He asked me
to take him to a place where he could exchange
US dollars. I took him
to a place off Greenmarket Square in Cape Town. I entered the shop
with him although I did not witness the
transaction since he went
into a room in the rear of the shop.
25.6
After leaving the shop I took Shrien Dewani back to
the hotel. On the
way back to the hotel he told me how he wanted the offence to be
committed.
25.7
Shrien Dewani and I agreed that the offence would be
perpetrated by
enlisting the assistance of other parties to conceal the true nature
of the offence. We would make it appear as
if we were the victims of
a random armed hijacking of my motor vehicle, committed with a
firearm. The "hijacking" would
be simulated. The agreement
was that after the 'hijacking' of the vehicle, both Shrien Dewani and
I would be ejected from the vehicle
unharmed, after which the
deceased would be kidnapped and robbed, before she was murdered. The
kidnapping and robbery were part
of the plan to make it appear that
this was a random criminal act, unconnected to Shrien Dewani. For my
assistance I would be paid
R5000.00 (five thousand rand).
25.8
During the course of the afternoon of Saturday 13 November
2010, I
met with Qwabe and Xolile Mngeni (Mngeni) in Khayelitsha. Mngeni is
also in custody awaiting trial in respect of this matter.
25.9
During this meeting which took place in my motorvehicle,
we planned
how the simulated armed 'hijacking' would take place. We agreed that
Shrien Dewani and I would be ejected from the vehicle
and that the
female occupant had to be killed. I informed Qwabe and Mngeni that
they would receive R15000.00. Qwabe said that we
had to leave the
R15000.00 in the cubby hole of the vehicle and that they would also
take my cellular telephone during the 'hijacking'.
25.10
I had arranged with Shrien Dewani that I would pick him up at the
hotel at 19h30, in order to commence with the plan we had agreed
upon.
25.11
On the evening of the 13 November 2010, due to other commitments that
I had, I was late in collecting Shrien Dewani and the deceased. I
arrived at the hotel some time after 20h00 and by that time Shrien
Dewani had already called me in an agitated state to find out where I
was and the reason for the delay.
25.12
After collecting Shrien Dewani and the deceased I took them around
some
city sights before I proceeded in the direction of Gugulethu.
The agreement with Mngeni and Qwabe was that they would meet us at
the intersection of NY 112 and NY108 in Gugulethu.
25.13
I drove to the agreed location but when I arrived there I noticed
that
Qwabe and Mngeni were not present. I then proceeded to the N2
motorway in the direction of Somerset West.
25.14
I then drove to Surfside restaurant in the Strand. Shrien Dewani and
the deceased had supper in the restaurant. Prior to entering the
restaurant Shrien Dewani asked me what was happening and said
he
wanted the job done that night.
25.15
While the Dewanis were having supper, Qwabe called me and confirmed
that he and Mngeni had just missed me when I drove into Gugulethu. I
told him I was on my way to Somerset West. I had to cut the
call
since there was a police vehicle driving next to me.
25.16
Monde then contacted me and asked me what was happening. Subsequently
I spoke to Qwabe who confirmed that they would be waiting at the
previously agreed location.
25.17
Shrien Dewani contacted me and wanted to know if I had arranged for
the guys. I confirmed to Shrien Dewani that everything had been
arranged.
25.18
Shrien Dewani and the deceased returned to my vehicle and we drove on
the N2 motorway in the direction of Cape Town.
25.19
While driving, either on the way to Somerset West or on our way back,
I sent a text message to Shrien Dewani not to forget about the money.
He answered by way of a text message that the money was in
an
envelope in a pouch behind the front passenger seat.
25.20
I turned off the N2 in the direction of Nyanga and at the first set
of robots I turned right towards Gugulethu. I then drove to the spot
we had agreed earlier at the intersection with NY112 and NY108.
25.21
It was at that stage that Mngeni and Qwabe approached the stationary
vehicle. Mngeni positioned himself in the front of the vehicle and
Qwabe was at my door pointing a firearm at me. I was instructed
to
open the doors, which I did by unlocking the vehicle's central
locking.
25.22
Qwabe got in at the driver's side and Mngeni got in at the back. The
Dewanis were made to lie down on the back seat and Qwabe drove off.
Shrien Dewani and I continued to pretend that we were being
'hijacked' by Mngeni and Qwabe.
25.23
Qwabe travelled for a short distance before he stopped near the
police
barracks in Gugulethu, where I was ordered to get out of the
vehicle. They then drove off with Shrien Dewani and the deceased
still
in the vehicle.
25.24
I knew that Mngeni and Qwabe would not harm Shrien Dewani and that he
would be dropped off at some further point. I also knew that the
deceased would be kidnapped, robbed and murdered by Qwabe and
Mngeni,
after Shrien Dewani had been ejected from the vehicle in accordance
with the plan.
25.25
Although I was not present, I understand and admit that the deceased
was subsequently murdered, by being shot, as we had all planned, in
my motor vehicle with registration CF 160944, at or near Sinqolanthi
Street, llitha Park, Khayelitsha.
25.26
Subsequent to the deceased's death I met with Shrien Dewani at the
hotel
on 16 November 2010 where I received R1000, 00 as payment for
my role in orchestrating the murder, robbery and kidnapping of the
deceased.
D.
AGREEMENT IN RESPECT OF A JUST SENTENCE
It is agreed that the following
is a just sentence in the circumstances of the charges mentioned
above.
THE AGREED SENTENCE
Count One: Kidnapping
"Five (5) years
imprisonment which will run concurrently with the sentence on count
three".
Count Two: Robbery with
aggravating circumstances
"Fifteen (15) years
imprisonment which will run concurrently with the sentence on count
three".
Count Three: Murder
"Twenty five (25) years
imprisonment of which seven (7) years are suspended for five (5)
years on condition that the accused
is not convicted of murder or any
crime involving the infliction of violence on another person,
committed during the period of
suspension, and for which the accused
is sentenced to imprisonment without the option of a fine".
Count Four: Obstructing the
administration of justice
"Five (5) years
imprisonment which will run concurrently with the sentence on count
three".
FACTORS
TAKEN INTO ACCOUNT FOR SENTENCE
26. The seriousness of the
offences of which the accused was convicted, the interests of the
community as well as the personal
circumstance of the accused were
all considered and taken into account by both parties.
27. The aggravating
factors are:
27.1
The crime of murder is a grave offence. The circumstances
of the
present murder are particularly aggravating, in that the accused
agreed for monetary reward to become part of a plot to
murder an
innocent, recently married young woman, who was previously a stranger
to him.
27.2
The accused, for venal monetary gain, made common cause
with the
deceased's husband to murder his bride of mere weeks, under
circumstances that her murder was a grave betrayal of his
recent
marriage vows.
27.3
The accused was prepared to accede positively to the
deceased's
husband's request to find hired killers to execute the plan. The
accused went to some trouble to employ the assistance
of Monde
Mbolombo for this purpose. The accused continued actively to assist
in employing and managing Mziwamadoda Qwabe and Xolile
Mngeni.
27.4
The accused persisted with his plan over a period of
time, during
which the accused had the opportunity both to reflect on what he had
agreed to do and to desist from doing it.
27.5
The accused, as a local driver to foreigners in our
country, had
placed himself in a position of trust, which he betrayed.
28.
The mitigating factors are :
28.1
The accused was born on 14 November 1979 and is 31 years
of age.
28.2
The accused's highest level of education is Grade 12
obtained at
Malibu High, Blue Downs.
28.3
The accused is the father of five (5) minor and dependent
children
aged ten (10) years, five (5) years, five (5) years, three (3) years
and four (4) months.
28.4
The accused and his younger sister were raised primarily
by his
grandmother, whilst his mother was in full time employment.
28.5.
The accused was in the throes of severe financial difficulty when
approached by Shrien Dewani, who exploited his socio-economic
position.
28.6
The accused has, until the commission of the offence,
been a
productive member of the community and was employed over the last few
years as an insurance consultant, taxi driver, building
site
inspector, shuttle driver and since 2010 a shuttle operator.
28.7
The accused supplemented his mother's meagre income
as a domestic
worker and contributes materially to the support of his younger
sister, presently aged fourteen (14) years old.
28.8
The accused's business has now collapsed as a result
of his
involvement in the commission of these offences.
28.9
The accused is a first offender and has showed sincere
remorse by
pleading guilty.
28.10
The accused voluntarily handed himself over the police.
28.11
The accused has since shortly prior to his arrest cooperated
with
the Police and indicated his willingness to testify in any
subsequent criminal prosecution instituted in regard to this
conspiracy.
28.12
The accused, by pleading guilty, hopes to minimize the potential
trauma
which a trial may have on the family of the deceased.
28.13
The conclusion of the present matter by way of Section 105A of Act 51
of 1977 has spared the Court and the State the expense and
inconvenience of a protracted trial involving the accused.
28.14
By pleading guilty he is taking full responsibility for his actions.
29. The substantial and
compelling circumstances in terms of Section 51(3) (a) of the
Criminal Law Amendment Act, Act 105 of 1997
that justify the
imposition of a sentence less than the prescribed minimum sentence of
life imprisonment in respect of Count 3
are the cumulative effects of
the mitigating circumstances mentioned above.
SIGNED
at CAPE TOWN on this 5
th
day of DECEMBER
2010
RODNEY JAME S DE KOCK
DIRECTOR
OF PUBLIC PROSECUTIONS
WESTERN
CAPE PROVINCIAL DIVISION
SIGNED
at BELLVILLE on this 5
th
day of DECEMBER 2010
ZOLA ROBERT TONGO W. DA GRASS
ACCUSED ATTORNEY FOR THE
ACCUSED
LINGELETHU-WEST CAS
200-11-2010
AFFIDAVIT
PAUL
HENDRIKSE
RSA ID: 6209185100089
States
under oath in English :
THE FACTS
CONTAINED IN THIS AFFIDAVIT ARE TRUE TO THE BEST OF MY KNOWLEDGE AND
BELIEF. I AM AWARE THAT I MAKE MYSELF LIABLE TO PROSECUTION
WERE I
WILFULLY TO STATE ANYTHING THEREIN THAT I KNOW TO BE FALSE OR DO NOT
BELIEVE TO BE TRUE.
I
am a Detective Captain in the South African Police Service (SAPS)
with service number 0444963-1 and stationed at The Directorate
for
Priority Crime Investigations Unit: A J West Street : Bellville with
telephone number 021-918 3160 and cellular telephone number
082 411
2089.
I
am currently the investigating officer in Lingeletu-West Cas
200-11-2010 murder and Guguletu Cas 405-11-2010 Armed Robbery (
Vehicle Hi-Jacking). On 2010-11-13 at approximately 23:00 Miss Annni
Hindocha who is a Swedish citizen and her husband Shrien Dewani
who
is a British Citizen were Hi Jacked in Guguletu at C/O of NY108 and
NY112. They were on honeymoon and staying at the Cape Grace
Hotel.
They arrived on Friday 2010-11-12 at Cape Town International Airport
at approximately 12:00.
On their
arrival Mr Dewani alleges that he approached a unknown Taxi driver
who was waiting for clients outside the entrance of
the airport. This
Taxi driver has now become j known as Mr Zola
Tonga. He further alleges that on Saturday 2010-11-13
he made contact
with Mr Tonga, and requested that Mr Tonga fetch him from the Hotel
as he and his wife wanted to go eat out that
evening.
The
couple was collected by Mr Tonga and taken to Somerset West. On their
return to the Cape Grace hotel they were taken on a tour
through
Guguletu (apparently it was the suggestion of Miss Hindocha). At the
c/o NY112 and NY108 the vehicle they were travelling
in, driven by Mr
Tonga was Hi- Jacked by two unknown black males. Mr Tonga was
allegedly forced out the Vehicle in NY111 and the
suspects continued
their
:
journey with the couple still captive.
Mr Dewani was
allegedly forced out the vehicle sometime later in the area of
Harare. Miss Hindocha was still kept captive. The vehicle
a Silver
Grey VA/V Sharun with registration number CF16094 was found abandoned
in Sinqonamthi Street Lita Park Khayelitsha. The
body of Miss
Hihdocha was found spread out on the back seat. She was deceased and
had sustained a single gunshot wound to the neck
(Confirmed by post
mortem).
During
the course of my investigation it has been established that the
Hi-Jacking and murder was planned by the perpetrators. Mr
Zola Tonga
has subsequently been arrested and the state has entered into a plea
agreement with Mr Tongo Accused number three in
this case. I have
been present during all discussions with the legal representative of
Mr Tongo, Mr William De Gras and the Director
Of Public Prosecutions,
Mr Rodney De Kock and I agree to the agreement and have no objections
to acceptance thereof.
I
KNOW AND UNDERSTAND THE CONTENTS OF THIS DECLARATION.
I HAVE NO
OBJECTION TO TAKING THE PRESCRIBED OATH.
I
CONSIDER THE PRESCRIBED OATH TO BE BINDING TO MY CONSCIENCE.
BELLVILLE
2010-12-05
13:40
PAUL
HENDRIKSE
RSA
ID:
I CERTIFY
THAT THE ABOVE STATEMENT WAS TAKEN BY ME AND THAT THE DEPONENT HAS
ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS
OF THIS
STATEMENT. THIS STATEMENT WAS SWORN TO BEFORE ME AND DEPONENT'S
SIGNATURE WAS PLACED THEREON IN MY PRESENCE AT 13:40 AT
BELLVILLE ON
THIS 05th DAY OF DECEMBER 2010.
COMMISSIONER OF OATHS
MICHAEL
ANTHONY BARKHUIZEN
S.A.
POLICE SERVICE: DIRECTORATE FOR
PRIORITY CRIME INVESTIGATIONS
UNIT: A J
WEST
STREET
BELLVILLE
: CAPE TOWN
DETECTIVE/
COLONEL
EX-OFFICIO
: RSA
LINGELETHU-WEST
CAS 200-11-2010
VINODKUMAR
HINDOCHA
D.O.B. 1949-01-14
States
under oath in English
THE FACTS
CONTAINED IN THIS AFFIDAVIT ARE TRUE TO THE BEST OF MY KNOWLEDGE AND
BELIEF. I AM AWARE THAT I MAKE MYSELF LIABLE TO PROSECUTION
WERE I
WILFULLY TO STATE ANYTHING THEREIN THAT I KNOWT0 BE FALSE OR DO NOT
BELIEVE TO BE TRUE.
I am an adult
male aged 61 yrs of age (D.O.B 1949-01-14) and reside at
Johnhedinsvag 11, 54243 Mariestad Sweden. Contact details
Home
+4650177546 and Mobile +46705470788. I am self-employed as an
Electrical Engineer.
I
am the biological father of Anni Ninna Hindocha. Although she was
married to Shrien Dewani she was still legally Hindocha as their
marriage was a traditional Hindu marriage. Therefore I remain her
next of kin.
My daughter
was kidnapped and murdered on 2010-11-13 in Cape Town South Africa
while on honeymoon with her Husband Shrien Dewani.
On Friday
2010-12-03 I attended a meeting with The Director Of Public
Prosecutions Mr Rodney De Kock, at his office in Cape Town.
At this
meeting I was informed about the progress of the investigation into
the murder of my daughter.
I
was further informed by The Director Of Public Prosecutions that
there was a decision to be made concerning a Plea Agreement between
the State and accused number three. The reasons for their decision
and the consequences there after was explained to me in great
length
and I fully understand the reason and implications.! have no
objections and agree that the Plea be accepted.
I KNOW AND
UNDERSTAND THE CONTENTS OF THIS DECLARATION.
I HAVE NO
OBJECTION TO TAKING THE PRESCRIBED OATH.
I CONSIDER
THE PRESCRIBED OATH TO BE BINDING TO MY CONSCIENCE.
BELLVILLE
2010-12-05
10:46
V HINDOCHA
I
CERTIFY THAT THE ABOVE STATEMENT WAS TAKEN BY ME AND THAT THE
DEPONENT HAS ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS
OF THIS STATEMENT. THIS STATEMENT WAS SWORN TO BEFORE ME AND
DEPONENT'S SIGNATURE WAS PLACED THEREON IN MY PRESENCE AT BELLVILLE
AT 10:46 ON THE 05thof DECEMBER 2010.
COMMISSIONER
OF OATHS.
PAUL HENDRIKSE
DIRECTORATE
OF PRIORITISED CRIMINAL INVESTIGATIONS
A.J WEST
STREET BELLVILLE
DETECTIVE
CAPTAIN
EX-OFFICIO:
RSA