S v Panayiotou and Others (CC26/2016) [2017] ZAECPEHC 53; [2018] 1 All SA 224 (ECP) (2 November 2017)

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[2017] ZAECPEHC 53
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S v Panayiotou and Others (CC26/2016) [2017] ZAECPEHC 53; [2018] 1 All SA 224 (ECP) (2 November 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: CC 26/2016
In
the matter between:
THE
STATE
And
CHRISTOPHER
CONSTANTINOU PANAYIOTOU
Accused
No. 1
SIZWEZAKHE
PRINCE
VUMAZONKE
Accused
No. 2
SINETHEMBA
NEMEMBE
Accused
No. 3
ZOLANI
SIBEKO
Accused
No. 4
Coram:
Chetty J
Heard:
11 October 2016 – 01 December 2016; 21 April 2017 – 05
May 2017; 12 June 2017 – 30 June 2017; 26 September 2017
–
29 September 2017; 16 October 2017 – 17 October 2017; 26
October 2017; 31 October 2017
Delivered:
2 November 2017
JUDGMENT
Chetty
J:
[1]
Uxoricide, an amalgam of the Latin
Uxor
,
meaning wife, and, conjoined by the suffix
cide
,
from
caedere
,
meaning “
to cut”
,
“
to kill”
is a word, aeons old, which connotes the murder of a wife by her
husband. This is the quintessence of this trial in which
Christopher
Constantinou Panayiotou
is principally
charged with the murder of his spouse, the deceased,
Jayde
Lyn Panayiotou
.
[2]
The indictment cites four (4) persons as the accused viz,
Christopher Constantinou
Panayiotou,
Accused
No.1
Sizwezakhe Vumazonke,

Accused No. 2
Sinethemba Nemembe, and

Accused No. 3
Zolani Sibeko.

Accused No. 4
Prior
to the commencement of the trial accused no. 2 died but his demise
has however not precipitated an amendment to the enumeration
of the
individual accused. To aid the narrative, I shall, in the course of
this judgment, refer to the remaining accused as per
the citation,
the deceased interchangeably as
Jayde
or the deceased and the witnesses by surname. The accused are charged
on multiple counts, to wit, conspiracy to commit murder (in

contravention of Section 18(2)(a) of the Riotous Assemblies Act, Act
17 of 1956) (count 1); robbery with aggravating circumstances
as
envisaged in section 1(1)(b) of Act 51 of 1977 (count 2); kidnapping
(count 3); murder (count 4); unlawful possession of a firearm
(in
contravention of Section 3 read with sections 1, 103, 117, 120(1)(a),
and section 121, and also read with schedule 4 of the
Firearms Act,
Act 60 of 2000, and further read with section 250 of the Criminal
Procedure Act, Act 51 of 1977) (count 5); unlawful
possession of
ammunition (in contravention of Section 90 read with sections 1, 103,
117, 120(1)(a), and section 121, and also read
with schedule 4 of the
Firearms Act, Act 60 of 2000, and further read with section 250 of
the Criminal Procedure Act, Act 51 of
1977) (count 6). Accused no. 1
faces an additional charge (count 7) of defeating and obstructing the
course of justice. The gravamen
of the charges in respect of each
count is tabulated as follows: -
Count 1 - WHEREAS the
accused associated with each other, Luthando Siyoni, and other
persons unknown to the State in a common design
and/or enterprise to
kill JAYDE LYN PANAYIOTOU, an adult female;
AND WHEREAS the accused
so associated themselves with and/or joined in such conspiracy or
enterprise at various places at or near
Port Elizabeth and/ or
Uitenhage in the districts of PORT ELIZABETH and/ or UITENHAGE and
committed various crimes and/or acts
or omissions in furtherance of
the said conspiracy or enterprise
NOW THEREFORE the accused
are guilty of the offence of contravening Section 18(2)(a) of Act 17
of 1956
In that during the period
September 2014 to 21 April 2015, and at various places at or near
Port Elizabeth and/ or Uitenhage in
the districts of PORT ELIZABETH
and UITENHAGE, the accused, the one, the other or all of them acting
in concert and in the execution
of a common purpose did unlawfully
and intentionally conspire with each other and with others to kill
JAYDE LYN PANAYIOTOU, an
adult female.
Count 2 - In that, on or
about 21 April 2015, and at Stellen Glen Complex, Deacon Road, Kabega
Park, in the district of PORT ELIZABETH,
the said accused, the one,
the other or all of them acting in concert and in the execution of a
common purpose, did, unlawfully
and with intent to induce her
to submit , do violence to JAYDE LYN PANAYIOTOU, an adult female ,
and then and there by means
of such force and violence take and steal
from out of her immediate care and possession, certain property, to
wit
•
A number of rings;
•
A cellular phone;
•
A bag containing a
wallet with bank cards and/ or other credit cards;
•
A laptop; and
•
R3,500-00 in cash
the property of JAYDE LYN
PANAYIOTOU, and/or in the lawful possession of JAYDE LYN PANAYIOTOU,
and did rob her of the same.
Count 3 - In that, on or
about 21 April 2015, and at Stellen Glen Complex, Deacon Road, Kabega
Park, in the district of PORT ELIZABETH,
the said accused, the one,
the other or all of them acting in concert and in the execution of a
common purpose did unlawfully and
intentionally deprive JAYDE LYN
PANAYIOTOU, an adult female, of her liberty by using force to place
her in the trunk of a motor
vehicle.
Count 4 - In that, on or
about 21 April 2015, and in close proximity to the Rooihoogte Road,
KwaNobuhle, in the district of UITENHAGE,
the said accused, the one,
the other or all of them acting in concert and in the execution of a
common purpose did unlawfully and
intentionally kill JAYDE LYN
PANAYIOTOU, an adult female by shooting her with a firearm.
Count 5 - In that, on or
about 21 April 2015, and at various places between Stellen Glen
Complex, Deacon Road, Kabega Park, in the
district of PORT ELIZABETH
and the Rooihoogte area, KwaNobuhle, in the district of UITENHAGE,
the accused did unlawfully have in
their possession a 9mm
semi-automatic pistol, without holding a license, permit or
authorization issued in terms of Act 60 of 2000
to possess the said
firearm.
Count 6 - In that, on or
about 21 April 2015, and at various places between Stellen Glen
Complex, Deacon Road, Kabega Park, in the
district of PORT ELIZABETH
and the Rooihoogte area, KwaNobuhle, in the district of UITENHAGE,
the accused did unlawfully have in
their possession ammunition, to
wit an unknown quantity of 9mm caliber rounds of ammunition, without
being the holder of a license
in respect of an arm capable of
discharging the said ammunition; a permit to possess the said
ammunition; a dealer’s, manufacturer’s
or gunsmith’s
license; an import, export, in-transit or transporter’s permit;
or without being otherwise authorized
to do so.
Count 7 - In that, on or
about 29 April 2015, and at various places in the district of PORT
ELIZABETH, accused 1 did unlawfully
and with the intent to defeat or
obstruct the course of justice:
•
instruct and/ or
encourage Luthando Siyoni to flee Port Elizabeth in order to evade
being arrested by the South African Police Service
for the murder of
JAYDE LYN PANAYIOTOU;
•
pay an amount of
R4 450-00 to Luthando Siyoni in order to assist him fleeing from Port
Elizabeth in order to evade being arrested
by the South African
Police Service for the murder of JAYDE LYN PANAYIOTOU;
•
instruct and/ or
encourage Luthando Siyoni to destroy evidential material to wit
cellular phone sim-cards used in communications
between certain of
the accused and Luthando Siyoni;
•
furnish the South
African  Police Service with false information regarding the
whereabouts of Luthando Siyoni and/or withhold
vital information from
the South African Police Service regarding his contact with Luthando
Siyoni; and in so doing accused 1 did
defeat or obstruct the course
of justice.
[3]
The accused pleaded not guilty to the various counts. In
amplification of his plea, accused no. 1 tendered a prolix document

incorporating not only his defences to the charges, but his
assessment of the state’s anticipated testimony, hearsay,
extracts
from the case docket, a judgment, police standing order 252
and a collection of photographs of Mr
Luthando
Siyoni
(
Siyoni
),
the central figure of his plea
in limine
which
he articulated thus: -
“
I will request
this Honourable Court to order a trial-within-a-trial on the basis
that the evidence obtained following the removal
of State witness
Luthando Siyoni (LS) from Infinity Pub and Grub at approximately
20h15 on Monday 27 April 2015 is inadmissible.
All the evidence
following his removal and thereafter is tainted as a result of the
police assaulting, intimidating and unlawfully
pressurising LS to
implicate me. Therefore the evidence obtained against me was
unlawfully and unconstitutionally obtained by the
State with the
result that my right to a fair trial has been violated.”
[1]
His
plea on the merits was enumerated as follows:-
“
9.1 I deny the
allegations that the State has made against me;
9.2 I deny specifically
ever approaching (LS) and requesting / ordering/ asking him to find a
hitman / hitmen to have my wife, the
deceased, Jayde Panayiotou
(“Jayde”), killed;
9.3 Jayde and I had been
married for just over 2 years at that point in time and, as far as I
was concerned, we were happily married;
9.4 I loved my wife,
Jayde and, in February of 2015, we made a decision to buy a house in
Lovemore Park for approximately R2.2 million
in which we were going
to move in together and hopefully spend the rest of our lives
therein;
9.5 By the time this
incident occurred, the necessary bond fees and deposit has already
been paid and it was just a matter of the
two of us moving in.”
[2]
Prologue
[4]
Jayde
and accused no.
1 were married to each other and resided in a gated town house
complex situate at […], Kabega Park, Port
Elizabeth. He was
and is a businessman and, she, during her lifetime, a junior teacher
at Riebeek College Girls High School in
Uitenhage.
Jayde
and her colleague, Ms
Cherise Taylor Swanepoel
(Ms
Swanepoel
) were
accustomed to travel together to Uitenhage each day by car,
alternating between the usage of their respective motor vehicles

weekly. Ms
Swanepoel
lived at […], Glen Hurd and each would be collected from their
respective homes by the other. To facilitate
Jayde’s
pick-up, Ms
Swanepoel
was accustomed to send her a text message when leaving her home and
then collect her at the gate of the complex. This was the scheduled

arrangement except that on 21 April 2015, Ms
Swanepoel
had texted
Jayde
to
enquire whether, by reason of the inclement weather, she should not
drive into the complex and collect her from her home. The
reply
received was that she would walk to the gate. On Ms
Swanepoel’s
arrival at the entrance however, there was no sign of
Jayde
and her text message to announce her arrival went undelivered.
[5]
The uncontroverted evidence is that the message was sent at 06h33.
Perplexed thereby, Ms
Swanepoel
dialled
Jayde’s
landline but it too went unanswered. Sensing that something was
amiss, she telephoned accused no. 1 on his cell phone and, when
he
answered, enquired about
Jayde’s
whereabouts. His riposte was that she had gone to work. The upshot of
the conversation was that accused no. 1 opened the automated
gate to
let Ms
Swanepoel
in.
It is furthermore common cause that accused no. 1 and Ms
Swanepoel
drove out of complex and along its periphery to look for
Jayde
but to no avail. Fortuitously they encountered a police vehicle along
the way and thus began the search for
Jayde
.
A number of people including accused no. 1, participated in the hunt
for
Jayde
in various
locations within Port Elizabeth, Uitenhage and its environs that day.
She however remained unaccounted for. Having widened
the parameters
of the search area the next day, a police tracking unit discovered
her body later that morning on an open field
close to a gravel road
which dissects Wincanton Road on the outskirts of Uitenhage, The area
was secured and a police forensic
unit dispatched to the scene. The
events which unfolded subsequent to
Jayde’s
discovery was narrated by a number of witnesses. What follows is a
précis and, where necessary, an appraisal of their testimony.
[6]
Dr
Kevin
Fourie
(
Fourie
), the head of the
clinical unit, Forensic Pathology Services (PE), conducted a
post-mortem examination on the cadaver on 23 April
2015 and concluded
that the cause of death to be consistent with bullet wounds to the
head and chest. His chief post-mortem findings
were recorded on the
medico-legal post-mortem report (exhibit “L”) as follows:
-
“
-
Perforating bullet wound of the skull and brain
-
Perforating bullet wound of the chest involving
the left lung
-
Perforating bullet wound of the chest involving
the spinal column, spinal cord and the right lung. This wound track
can be aligned
to a bullet track through the right upper limb
-
Bilateral haemothorax”
He
recorded the external appearance of the body and condition of the
limbs as:-
“
4. EXTERNAL
APPEARANCE OF THE BODY AND CONDITION OF THE LIMBS:
1. There is a 8mm
circular penetrating lacerated wound with a 2mm collar of abrasion
more prominent infero-laterally, over the left
lateral head, 13cm
from top of the head and 3,5cm from the tragus of the left ear.
2. There is a 1,5cmx2cm
stellate penetrating laceration wound with everted wound edges over
the right parieto-occipital region;
5cm from the top of the head.
3. Bilateral peri-orbital
haematomas.
4. There is a 7mm
circular penetrating lacerated wound with a 2mm collar of abrasion
over the left posterior chest, 14cm from the
midline and 10cm below
the shoulder line
5. There is a 1,5cmx7mm
irregular penetrating lacerated wound over the left anterior chest,
5cm from midline 11cm below the shoulder
line.
6. There is a 6mm
circular penetrating wound with a wide 5mm crescent of abrasion
laterally over the left posterior chest; 4cm from
midline and 11cm
from the shoulder line.
7. There is a 20mmx10mm
gaping penetrating lacerated wound in the right mid-axillary line 2cm
below the axilla.
8. There is a 15mmx9mm
penetrating lacerated wound with a wide collar of abrasion of the
left upper limb anteriorly; 18cm above
the right elbow. There is come
confluent contusion of the right upper limb associated with this
wound.
9. There is a 14mmx11mm
irregular penetrating lacerated wound with everted wound edges over
the right upper limb posteriorly, 12cm
above the right elbow.
10. There is a 6mm
laceration over the ring finger at the 2
nd
interphalangeal
joint.
11. There is a 5mm
laceration over the base of the right thumb anteriorly at the wrist.
12. There is a 3mm
abrasion over the right wrist posteriorly, 26 cm below the elbow.
13. There are no ligature
impression marks around the wrists or ankles.”
[7]
Captain
Gideon Olivier
(
Olivier
), a ballistic
expert attached to the forensic services laboratory attended the
scene prior to the removal of the cadaver on 22
April 2015 and again
before the post-mortem examination on 23 April 2015. On the former
occasion he retrieved three cartridge cases
and on the latter,
unearthed a spent bullet embedded in the ground directly below where
he had observed the deceased’s head.
From his observations at
the scene, the post-mortem examinations and the pathologist’s
findings, he concluded that
- the first shot fired at
Jayde
entered her back and exited her chest; the second, that which
lacerated the spinal cord and paralysed her from the waist down and

the third, the shot to the head.
Olivier
opined that given the trajectory of the latter bullet tract, the
shooter would have been standing on her left hand side with his
arm
outstretched pointed in the direction of her head when he fired. It
is common cause that gun powder residue was discovered
on the
deceased’s hand and the inference can thus properly be made
that in her final moments,
Jayde’s
outstretched hand entreated mercy. That act of supplication however
elicited a bullet to her head.  The medical and ballistic

findings compel the conclusion that this was an execution style
murder.
[8]
The discovery of
Jayde’s
body and confirmation that she had been murdered reverberated far and
wide and evoked a media frenzy. Brigadier
Gary
Dale McLaren (McLaren),
the provincial head
of the Eastern Cape Detective Services based in East London,
recounted being contacted by an informant on the
Wednesday following
the discovery of
Jayde’s
body. Although he could not recall the exact date it is clear that it
was the very day upon which
Jayde
was discovered. He duly interviewed his snitch and, accompanied by
Colonel
Rowan (Rowan),
left East London and proceeded to KwaNobuhle on further investigation
prior to returning to East London. Fortified by the intelligence

gathered, he returned to Port Elizabeth the same afternoon where he
met with members of the Directorate for Priority Crime Investigation

(DPCI) and established a task team under the leadership of Captain
Rhynhardt Swanepoel
(
Swanepoel
)
to spearhead the investigation.
[9]
The breakthrough in unmasking key figures to assist in the
investigation occurred on Monday, 27 April 2015 when Captain
Willie
Mayi
(
Mayi
),
the head of the Vehicle Hijacking Division of the South African
Police Services in Port Elizabeth, received a call from an informant.

It is not in issue that
Mayi
was on investigative duties in Alice when he received the call. He
hastened to Port Elizabeth to meet with his informer. This meeting

provided the impetus for
Mayi
to search for
Siyoni
at his gym and, when he could not be located there, to the home of
his girlfriend
Babalwa
Breakfast (Breakfast)
and thence to the Infinity Club.
[10]
Siyoni’s
involvement in the conspiracy to murder
Jayde
was extensively expounded upon in the summary of substantial facts
which, juxtaposed alongside the plea explanation, establish
that he
is, paradoxically, the nucleus of accused no. 1’s defence and a
key witness for the state.  Given his centrality
to accused no.
1’s defence, it is apposite to fully consider the legitimacy of
the quest to have his testimony determined
as a separate issue,
colloquially referred to as a trial within a trial. The contention
that it so be determined was vigorously
pursued by both Mr
Price
and Mr
Daubermann
in
argument before me. I interpolate to say that although counsel for
the state was initially seduced by the superficial attractiveness
of
the proposed course, overnight deliberation exposed its flaws and he
opposed the application. As I shall elaborate upon, it
is
unprecedented, an exercise in opportunism and a disingenuous attempt
to exclude otherwise admissible testimony. I dismissed
the
application and indicated that my reasons would be incorporated in
the judgment and these now follow.
[11]
A trial within a trial, is as Streicher JA trenchantly alluded to in
Director
of Public Prosecutions, Transvaal v Viljoen
[3]
–
“
a
trial held while the main trial is in progress in order to determine
a factual issue separately from the main issue”
The
factual issues contended for by the defence was the voluntariness of
Siyoni’s
testimony inclusive of his extra curial statements and pointings out
to various officers. The gravamen of their attack on its
admissibility is the contention that
Siyoni’s
fundamental rights were violated to such an extent that all the
evidence consequentially procured is inadmissible against the
accused.  Leaving aside for a moment the question whether
Siyoni
was in fact
“
tortured”
as alleged, a
matter I shall in due course consider, the fallacy of the argument
advanced is the conflation of
Siyoni
and an accused person.
Siyoni
is, notwithstanding his designation as such by both Messrs
Price
and
Daubermann
,
not an accused person. He is a state witness, whom counsel for the
state intimated, when called to the witness stand, that he
be warned
pursuant to the provisions of s 204 of
the
Criminal Procedure Act
(the Act).
[12]
In his address, counsel for accused no. 1 was, given the excogitated
nature of the application constrained to concede the absence
of any
authority for the submissions advanced. The
raison
d’etre
for the dearth thereof is evident – it is a procedural device
available only to an accused person and no other. A succinct

exposition of its genealogy was articulated by Nicholas AJA in
S
v De Vries
[4]
as follows: -
“
Section 217(1)
of
the
Criminal Procedure Act 51 of 1977
provides for the
admissibility of evidence of a confession made by any person in
relation to the commission of any offence
'if such confession is
proved to have been freely and voluntarily made by such person in his
sound and sober senses and without
having been unduly influenced
thereto...'.
There had been similar
provisions in s 273(1) of the Criminal Procedure and Evidence Act
1917 and in Act 56 of 1955. In
R v Gumede and
Another
1942 AD 398
at 412 - 13, Feetham JA
mentioned that the provision first appeared in South African
legislation as part of s 28 of Cape Ordinance
72 of 1830 and added:
'There can, I think, be
no doubt that the proviso as included in the 1830 Ordinance was
intended to apply to the Cape Colony the
common law of England
as then understood in regard to the burden of proof resting on the
prosecution when asking a criminal
court to admit a confession
alleged to have been made by an accused person.'
The rule of the English
common law had by 1830 become well established and was of long
standing. (See
Gumede's
case
supra
at 413
in fin
.)
It was described by Innes CJ in
R v Barlin
1926 AD 459
at
462:
'... (T)he common law
allows no statement by an accused person to be given in evidence
against himself unless it is shown by the
prosecution to have been
freely and voluntarily made - in the sense that it has not been
induced by any threat or promise proceeding
from a person in
authority.'
The rule is a rule of
policy. In
Gumede's
case
supra
at 413 Feetham  JA
quoted from the judgment of Lord Sumner in
Ibrahim v R
[1914]
AC 599
at 610:
confession forced from
the mind by the flattery of hope, or by the torture of fear, comes in
so questionable a shape, when it is
to be considered as evidence of
guilt, that no credit ought to be given to it.
Rex
v Warwickshall
(1783, 1 Leach 263). It is not
that the law presumes such statements to be untrue, but, from the
danger of  receiving such
evidence, Judges have thought it
better to reject it for the due administration of justice.
Rex
v Baldry
(1852 2 Den Cr C 430, at 445).'
If the policy is to be
effectuated, it is of primary importance that an accused person
should feel completely free to give evidence
of any improper methods
by which he alleges a confession or admission has been extracted
from him. Unless he gives evidence
himself he can rarely challenge
its admissibility. (Cf
R v Brophy
[1982] AC 476
at 481.) See the judgment of Lord Hailsham of St
Marylebone in the Privy Council case of
R v
Wong Kam-ming
[1980] AC 247
(PC) at 261B - C:
'... (A)ny civilised
system of criminal jurisprudence must accord to the judiciary some
means of excluding confessions or admissions obtained
by
improper methods. This is not only because of the potential
unreliability of such statements, but also, and perhaps mainly,

because in a civilised society it is vital that persons in custody or
charged with offences should not be subjected to ill-treatment
or
improper pressure in order to extract confessions. It is therefore of
very great importance that the courts should continue
to insist that
before extra-judicial statements can be admitted in evidence the
prosecution must be made to prove beyond reasonable
doubt that the
statement was not obtained in a manner which should be reprobated and
was therefore in the truest sense voluntary.
For this reason it is
necessary that the defendant should be able and feel free either by
his own testimony or by other means to
challenge the voluntary
character of the tendered statement.'
It is accordingly
essential that the issue of voluntariness should be kept clearly
distinct from the issue of guilt. This is achieved
by insulating the
inquiry into voluntariness in a compartment separate from the main
trial. In England the enquiry into voluntariness
is made at 'a trial
on the
voir dire'
, or,
simply, the
voir dire
,
which is held in the absence of the jury. In South Africa it is made
at a so-called 'trial within the trial'.
Where
therefore the question of admissibility of a confession is
clearly raised, an accused person has the right to have that
question
tried as a separate and distinct issue. At such trial, the accused
can go into the witness-box on the issue of voluntariness
without
being exposed to general cross-examination on the issue of his guilt
.
(See
R v Dunga
1934 AD
223
at 226.) The prosecution may not, as part of its case on the
main issue, lead evidence regarding the testimony given by the

defendant at the trial within the trial.”
(Emphasis
added)
[13]
It will be gleaned from the aforegoing and in particular the
highlighted portion from the quoted judgment that the procedure
is
available only to an accused person.
Siyoni
is, despite assiduous clamour by the defence representatives not an
accused person. The fact that he had been arrested and initially

charged with
Jayde’s
murder is entirely irrelevant – he was a state witness –
caedit quaestio
.
[14]
Dismissive of my ruling that the proposed procedure was
ill-conceived, Mr
Daubermann
nonetheless launched a fresh application the following morning
contending that authority vouchsafed the granting of the application.

Neither the cases nor the journal article cited establish the
principle contended for and I dismissed the renewed application.
The
attempt to persuade me to revisit my earlier ruling was misguided and
to be deprecated.
[15]
The rationale for the concerted endeavour to exclude
Siyoni’s
testimony from the conspectus of evidential material soon manifested
itself. As presaged in the summary of substantial facts, the
state’s
case was that
Siyoni
was intimately involved in securing the assassin and it was evident
from the factual matrix encapsulated therein that it constituted,
inter alia,
a précis
of his statement(s) to the police. Its acceptance, p
rima
facie
, heralded dire consequences for the
accused, and in particular accused no. 1 and the stratagem devised
for its exclusion obviously
required his collusion. The full extent
of his connivance soon manifested itself as I shall advert to
hereinafter. It is abundantly
clear, notwithstanding the gratuitous
imputations levelled against Mr
Stander
,
that the latter had been deceived by
Siyoni
into believing that he would adhere to the content of his statements
to the Investigating Officer,
Swanepoel
.
This appears clearly from the concluding email from his attorney, Mr
Ngqeza (Ngqeza)
, to Mr
Stander
on 4 October
2016.
[16]
The aforementioned email, and a raft of earlier missives, was
introduced into the trial by Mr
Price
during his ostensible cross-examination of
Siyoni
.
Although it is permissible to put leading questions during
cross-examination, no weight whatsoever can be attached to any of
Siyoni’s
affirmative responses. The cossetted questioning designed to
establish that
Siyoni
was not the author of the content of the statements to
Swanepoel
which bore his signature and his acquiescence to the insinuation that
counsel for the state had, notwithstanding, knowingly called
him,
established the extent of
Siyoni’s
collusion with accused no. 1. As for
Ngqeza
,
the least said about him, the better. His advice to
Siyoni
that he should not answer any incriminating questions is in direct
conflict with legal precedent. As Ackermann J remarked in
Nel
v Le Roux NO and Others
[5]
:-
“
[4] In view of
the transactional indemnity and use immunity provisions in s 204(2)
and (4) respectively of the
Criminal Procedure Act, the
applicant
could not validly (and did not) object to answering
self-incriminating questions.”
[17]
It is apparent from the last email from
Ngqeza
to counsel for the state (4 October 2016) wherein he stated
“
our
client remains a
s 204
witness and does not have any intention to
deviate from such, unless your office reject him as such”
,
that Mr
Stander
was
thereby duped into believing that
Siyoni
would testify in conformity with the version chronicled in his
statements. Subsequent events soon established the extent of the

collusion not only between himself,
Breakfast
and those family members called to corroborate his version but it
moreover compels the conclusion that
Ngqeza
was party to the deception practiced on the prosecution.
[18]
It is common cause that in consequence of information obtained,
Mayi
,
after a fruitless search for
Siyoni
at his home and gym departed to
Breakfast’s
home where, after interviewing her, she accompanied him and directed
him to Infinity where
Siyoni
was taken into questioning prior to them being taken to the
KwaNobuhle detective offices. Although
Breakfast
would later decry having deposed to written statements to
Mayi
,
her denial is patently false. Her revelations to
Mayi
validated the information obtained from his snitch and I accept that
when later confronted therewith,
Siyoni
admitted his complicity in the conspiracy to murder
Jayde
.
Mayi’s
evidence
concerning the amiable interaction between himself,
Breakfast
and
Siyoni
required
remedial action to conform with the version advanced by accused no. 1
in his plea explanation and
Breakfast’s
cross-examination by Mr
Price
was thus structured to achieve that result, as appears from the
following extract from the transcript: - .
“
. . . On the 27th
of April when the police came to your house, that was Captain Mayi
and other police officers, correct? --- That
is correct so.
And you have told us that
it was decided that one of your brothers will go with you and if I
understand you correctly, it was to
ensure that you were okay, that
you were safe? --- That is correct so, M’Lord.
And can I accept you
wouldn’t have been comfortable to go with these police officers
if your brother wasn’t allowed
to go with you? --- Yes, M’Lord,
because those people were unknown to me and I saw them for the first
time that evening.
Now, my understanding of
your evidence is that you weren’t asked to accompany them, you
were ordered to accompany them. ---
They came in; they said they are
looking for Babalwa.
Yes, listen carefully; I
am not fighting with you, just listen carefully.  I am saying to
you they didn’t ask you nicely
if you would go with them; they
told you come with us. --- My mother responded to them and then I got
up.
Yes, I don’t think
you are listening to me.  Would you have gone if they hadn’t
told you to go with them, let me
ask you that? --- No, M’Lord.
You felt you were obliged
to go with them? --- Because they said they wanted to ask me some
questions [interrupted].
Listen carefully, listen
carefully; you went because you, you didn’t go because you
wanted to go, you went because they told
you to go? --- Yes,
M’Lord.”
[6]
[19
It will be gleaned from the aforegoing that the assertions made to
Breakfast
and which
were subsequently put as a fact to
Mayi
did not emanate from
Breakfast
at all. Her acquiesce in the propositions put to her by Mr
Price
clearly establishes her partisanship and compels the conclusion that
she had been suborned to recant her police statements.
[20]
As adverted to in the preceding paragraphs, during
Mayi’s
cross-examination, this erroneous rendition of the true facts was
perdured with by the following proposition put by Mr
Price
:
–
“
So, then you will
not dispute her evidence in this court that she feared you and your
group and it was a decision to take her brother
with so that he could
look after her best interests.”
And Later,
“
Now,
could you just explain to me why you took Babalwa’s brother
back to the house before you went to KwaNobuhle? --- There
was no
reason; I just took him back home because we found Thando home, we
went to look for him at Algoa Park.
Yes, but Babalwa was
going to show you where Thando was, why did you take her brother
back? --- Her brother had nothing to do with
all this.
Of course except he might
have been a witness to you beating people up and threatening people;
that is why he was taken back. ---
No, I don’t think so.
If we were aware that we would also require a statement from him, we
would have taken him along
but because he had nothing to do with the
case at that stage; that is why he was dropped off at his home.
Well, Babalwa told this
court that she wanted him there as protection for herself and that
she was unhappy when you dropped him
off back at the home; she wanted
him to go with them to wherever you were going. --- I hear this for
the first time here in court
because she never ever requested her
brother to be taken along to KwaNobuhle or display any discontent by
the fact that he was
dropped off at home.
It was your decision to
drop him off. --- That is correct so; I did inform Babalwa we are
going to drop off your brother now.”
[7]
[21]
It became clear during
Breakfast’s
examination in chief that she had recanted her police statement, a
fact confirmed by counsel for the state.  Thus as a precursor
to
requesting that she be declared hostile, Mr
Stander
,
having established that her signature was indeed appended to each of
the two police statements, exhibits “V25” and
“V26”,
proceeded to question her thereanent. In response to a question as to
the circumstances under which she signed
the statements, she
proffered the answer that she was merely given a piece of paper to
sign and duly complied with the instruction.
To prove that she was
indeed the author of the statement, Mr
Stander
proceeded to read the statement to her to elicit her confirmation.
The regurgitation of the statement, sentence by sentence yielded
the
stock answer that its content did not emanate from her. I interpolate
to say that
Mayi
was
subsequently called to testify that he minuted both statements which
she signed in his presence.
[22]
The procedure adopted by Mr
Stander
finds legislative sanction in s 190 of the Act. It provides as
follows: -
“
190
Impeachment or support of credibility of witness
(1) Any party may in
criminal proceedings impeach or support the credibility of any
witness called against or on behalf of such
party in any manner in
which and by any evidence by which the credibility of such witness
might on the thirtieth day of May, 1961,
have been impeached or
supported by such party.
(2) Any such party who
has called a witness who has given evidence in any such proceedings
(whether that witness is or is not, in
the opinion of the court,
adverse to the party calling him), may, after such party or the court
has asked the witness whether he
did or did not previously make a
statement with which his evidence in the said proceedings is
inconsistent, and after sufficient
particulars of the alleged
previous statement to designate the occasion when it was made have
been given to the witness, prove
that he previously made a statement
with which such evidence is inconsistent.”
[23]
When counsel for the state solicited the details surrounding the
money found in
Siyoni’s
gym bag and which were encapsulated in exhibit “V25”, it
triggered a marked attitudinal change in
Breakfast
and, as the further questioning unfolded, her demeanour indicated
open hostility towards the prosecution. The inference can properly
be
made that she had misled counsel for the state into believing that
she would testify in conformity with her police statements.
Her
deception, attitude and behaviour demonstrated her implacability and
a declaration of hostility seemed meet. I interpolate
to say that the
objection raised by Mr
Daubermann
to my declaration is without any merit whatsoever and requires no
further elucidation. Under cross-examination by Mr
Stander
,
it became abundantly clear that her denial of being the author of the
statements’ contents is patently false. I accept that
she was
the source of the information recorded in exhibits “V25”
and “V26”. I shall in due course, in conjunction
with
Siyoni’s
extra
curial statements, determine their probative value, but proceed first
to the aftermath of her revelations to
Mayi
.
[24]
It is not in issue that
Siyoni
was interrogated at the KwaNobuhle detective offices by
Mayi
.
In his evidence in chief
Siyoni
described the assault perpetrated upon him by
Mayi
and a number of other policemen, as
“
torture”
.
It is unnecessary to delineate the nature and extent of the alleged
battering for the simple reason that his evidence thereanent
is, upon
a holistic appraisal of the evidence, a cocktail of lies, perjury and
contrivances designed to advance accused no. 1’s
defence.
Whilst it is correct that
Siyoni’s
eye was swollen, I accept
Mayi’s
testimony that the injury was sustained during the scuffle when
Siyoni
resisted being
handcuffed. It is highly improbable, given the unprecedented outcry
and media frenzy which accompanied
Jayde’s
murder that
Mayi
, or
any other member of the initial investigation team would have been so
foolhardy to jeopardise the investigation by perpetrating
an assault
on
Siyoni
,
particularly in light of the revelations by
Breakfast
of his direct involvement. The probabilities favour
Mayi’s
version that after being confronted with
Breakfast’s
revelations,
Siyoni
admitted his complicity in
Jayde’s
murder and directed the police to various places where the money was
eventually retrieved. In his address, Mr
Price
submitted that Sergeant
Mncedi Gcukumana
(
Gcukumana
) did not
support Mayi’s version and that an adverse inference should be
drawn from the failure to call the policemen who
were present on the
night in question. The fact that
Gcukumana
was unable to recall having heard
Siyoni’s
consenting to point out the money does not avail the defence. The
import of his evidence fully corroborates
Mayi’s
and there was accordingly no need for the state to call
supererogatory witnesses.
[25]
The fact that he thereafter exclaimed having been assaulted amounts
to sheer opportunism and merely establishes his guile.
The injury
provided the visible manifestation of his claim and was a mechanism
whereby he could subsequently impugn
Mayi’s
credibility and seek to avoid the consequences of his admissions to
him. A classic example of his penchant to prevaricate and lie

occurred when questioned about the money found in his gym bag later
that evening. It elicited a convoluted prolix explanation that
it was
money entrusted to accused no. 1 for safekeeping which he had
retrieved to recompense
Sizwezakhe
Vumazonke (Vumazonke)
who had sourced weights for his gym.
[26]
That account of its derivation corresponded in broad outline with
Breakfast’s
viva
voce
explanation
tendered prior to her being discredited and remarkably also broadly
conforms to accused no. 1’s plea explanation
as to its source.
At the conclusion of the hearing on that day, i.e. Friday, 11
November 2016, that remained his version.
[27]
Siyoni’s
weekend
sojourn at the awaiting trial cells had a profound effect on his
powers of recollection. When he was recalled to the witness
stand on
Monday morning, 14 November 2016, he made a complete
volte-face
and stated that the money was the pilfered portion of the R80 000.00
he had received from accused no. 1 destined to
Vumazonke
as payment for
Jayde’s
contract killing.
[28]
This veracious account of the source of the R31 000. 000 accords
with
Breakfast’s
narrative in her police statements (“V25” and “V26”)
albeit that she had not, on her version, counted the
money which she
placed in the socks. Arithmetically, it amounted to R31 000.00.
[29]
As I shall in due course further detail,
Siyoni’s
evidence is, with one exception (i.e. the R80 000), fabricated
and falls to be rejected. His malleability was most pronounced
during
his ostensible cross-examination by Mr
Price
. Having been
suborned to recant his extra curial statements his acquiescence to
the plethora of leading questions put to him accentuates
the
deception whereby he inveigled the prosecution into calling him as a
witness.
[30]
This is best illustrated when, after being cajoled into validating
Breakfast’s
claim to blindness, he readily assented to a multitude of
propositions
, inter alia
,
that he had not only been assaulted, browbeaten into submission,
forced to accompany the police to search his home and the place
where
the R31 000.00 was recovered, ill-treated but forced to append
his signature to prepared statements. Whilst it is correct
that the
right of full cross-examination includes the employment of leading
questions, the weight of the evidence thus procured
is minimal where,
as here,
Siyoni’s
partisanship is glaring. I accept that the true account of what
transpired between accused no. 1 and
Siyoni
is the version encapsulated in the statement (exhibit “AY1”)
which he deposed to
Swanepoel
on 3 May 2015. The same considerations apply to
Breakfast’s
statements made to
Mayi
on the evening of 27 April 2015. Notwithstanding the fact that the
content of exhibit “AY1” was extensively covered
with
Siyoni
when
cross-examined by Mr
Stander
and
the document handed in as an exhibit, an objection was raised when a
portion of its content was canvassed with Ms
Chanelle
Coutts (Coutts)
during
her cross-examination. The contention that the statement had not been
proved is spurious. When
Swanepoel
was led, he detailed the circumstances which led to him minuting the
statement, adverted to the meeting between
Siyoni’s
then attorney Mr
van der Spuy (van der Spuy)
,
and the eventual signing of the statement by
Siyoni
.
Swanepoel’s
evidence that
Siyoni
appended his signature to exhibit “AY1” proves that he
made it.
[31]
The question whether the contents of the aforementioned statements,
which, as I have adverted to, were disavowed by both
Siyoni
and
Breakfast
when they were called to testify, constitute admissible evidence, has
received the imprimatur of the Supreme Court of Appeal in
S
v Rathumba
[8]
.
Such evidence is, as the court correctly categorised, hearsay
evidence. Its reception is regulated by s 3 (1) of the
Law
of Evidence Amendment Act
[9]
which provides as follows: -
“
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless-
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings;
or
(c)
the
court, having regard to-
(i)   the
nature of the proceedings;
(ii)   the
nature of the evidence;
(iii)   the
purpose for which the evidence is tendered;
(iv)   the
probative value of the evidence;
(v)   the
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence
depends;
(vi)   any
prejudice to a party which the admission of such evidence might
entail; and
(vii)   any
other factor which should in the opinion of the court be taken into
account,
is of the opinion that
such evidence should be admitted in the interests of justice.”
[32]
In holding that the evidence of the witnesses who had disavowed their
police statements had been properly admitted in evidence
by the trial
court, the Court of Appeal reasoned as follows: -
“
[10] Section 3
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 and, more specifically, to
have regard to the factors mentioned in s 3(1)
(c)
.
This court in
S v Ndhlovu and Others
2002
(2) SACR 325
(SCA)
(2002 (6) SA 305
;
[2002] 3 All SA 760)
considered
the provision of s 3 and at para 31 held that:
'The
probative value of the hearsay evidence depends primarily on the
credibility of the declarant at the time of the declaration,
and the
central question is whether the interests of justice require
that the prior statement be admitted notwithstanding
its later
disavowal or non-affirmation. And though the witness's disavowal of
or inability to affirm the prior statement may bear
on the question
of the statement's reliability at the time it was made, it does not
change the nature of the essential inquiry,
which is whether the
interests of justice require its admission.'
In amplification, in para
33, it was stated that:
'The
probative value of the accused's statements to the police did not
depend on their credibility at the time of the trial —
which
the Court rightly found totally lacking — but on their
credibility at the time of their arrest. And the admissibility
of
those statements depended not on the happenstance of whether
they chose to testify but on the interests of justice.'”
[33]
This is precisely the type of case where the interests of justice
imperatively call for the admission and the substantive use
of the
statements of both
Siyoni
and
Breakfast
as
admissible evidence. In her first statement to
Mayi
(exhibit “V25”)
Breakfast
recounted the events as follows: -
“
Somewhere between
January and February 2015 I was at Thando’s place and we were
in his room that is situated outside the main
house. While we were in
the room Thando informed me that he has been approached by his
employer called Chris.
According to Thando Chris
wanted him to kill his wife (Chris’ wife) and that he told him
that he can not do that but he can
organise people that can do that
for him.
Soon after that Thando
told me that he tried to organise people from Zwide and New Brighton
but they all failed him. In April, but
I am not sure of the date,
Thando has again informed me that he has found a guy that he called
Sizwe who told him that he will
kill the said lady for him.
According to Thando the
person that would successfully do the job for Chris would be paid an
amount of fifty (R50 000-00) thousand
rand. I did not see the
said Sizwe that promised to kill the lady for Thando and Chris. The
said lady was said to be the wife to
Chris but I did not know or was
never told as to what the reason of killing her was.
On Monday night
2015-04-20 I am not sure of the time, I was at Thando room with him
when he received a call on his phone. The called
told him that “we
have finished this and we want our money”. After that call
Thando waked up and went outside. As I
was hearing what was being
said I then decided to take his phone to see as to who was phoning
him. On paging the phone I noticed
that the caller was Sizwe who was
saved on his phone as Sizwe.
After that he came back
and joined me on the bed. After that Chris, the employer of Thando
arrive there driving a double cab bakkie,
I think that the colour is
silver grey and that he did not come into the house but Thando went
out to attend him.
After that Thando came
back telling me that I must phone my brothers Mabhuti and Toto to
come and fetch me at his place. Thando
and Chris have then left me
there waiting for my brothers. At about 23:00 my two brothers arrived
and we walked home.
I then met Thando the
following morning when he came to my place. He phoned me to meet him
outside. On meeting him he told me that
he did get the money from
Chris to pay Sizwe.
I would like to state
that on arrival of Chris first before he went out with Thando, Thando
came back from Chris and have a black
bag that had money in it, he
then requested me that while waiting for my brothers I must please
count fifty thousand rand (R50 000-00)
out of the money in the
bag I did not count it. I then placed the said fifty thousand rands
in the bag and kept the other one aside.
I was then told by Thando
that I must take the bag with the fifty thousand rand with and I did
that.
Whilst I was sleeping at
home Thando phoned me to meet him outside with the money. I then took
the bag and went outside. It is then
that I noticed that he was
driving with Sizwe in Sizwe’s white car that he use to drive. I
then went to bed again. That is
all that I know of this incident.”
[34]
At the time
Mayi
minuted the statement from
Breakfast
there was a dearth of information surrounding the death of the
deceased and the suggestion that
Mayi
was the author of exhibit “V25’s” content is
nonsensical. The attention to detail and identification of key
players attests to
Breakfast’s
truthfulness at the time of making the statement. It is apparent from
the aforegoing detailed factual exposition that
Siyoni
,
having been appraised of
Breakfast’s
revelations to
Mayi
would, as
Mayi
testified, have realised the quandary he was in and set in motion a
process to broker a deal with the police and prosecuting authority.

In his s 204 statement he narrated the circumstances under
which he began employment with accused no. 1 and the approach
made to
him by the latter to find an assassin and his attempts to do so. He
then narrated its
sequelae
as follows: -
“
Later that year
round about August, September, October 2014 while I was on duty Chris
asked to me accompany him to his vehicle.
As we were nearby his
vehicle he asked me if you (me) knew someone who can and then he man
a sign with this hands across his throught
which meant to me that if
I knew someone whom can kill someone. I remember that this
conversation could not took place next to
the car or inside the car
as Chanelle was already sitting in the car. I reply that I will look
for someone. Nothing further was
discussed. I do not know at that
stage who was to be killed.
I then started to look
for someone. I was interested in this plan as I believed that there
was financial gain for me in it. I first
went to a guy that I know by
the name of Lama of Motherwell. I believed that Lama himself would
not kill the person but was hoping
that he would know someone. I told
Lama that my boss was doing the request. I was not suppose to tell
Lama that it was my boss
as Chris request me not to do so as he
wanted to protect his identity. Lama requested a meeting with Chris.
A few days later I
introduced Chris to Lama. We met nearby the Dan
Qeqo Stadium in the parking area of Nqabane tavern. I was not allowed
to listen
to the conversation as Chris instructed me to wait outside
the car. Lama was evading me after this meeting and I did not spoke
to him afterwards. Nothing came from this Lama/Chris meeting. Chris
then started to put me under pressure to find someone else.
I then went to another
person I knew “Trompie”. I also know “Trompie”
as a person whom would not kill the
person himself but would get
someone to do the job. “Trompie” was interest in the
proposal. He also requested to met
with Chris. I arrange a meeting
between them and they met at Infinity. I was not present when the
discussion took place. This meeting
with Trompie took place about two
weeks after the meeting with Lama. The result was about the same as
with Lama. Nothing came from
it. Chris was putting me under more
pressure now. This was the first time that he told me that the person
he wanted to be killed
was indeed his wife. He told me that it must
happen before the school holidays because once the school holidays
begun it would
not be so easy as his wife would not be so easy to be
found. The only reason he explain to me was that his wife spent too
much
money while he that is Chris must work long hours for his money.
He furthermore told me that a vehicle he had, a Renault Megane,
he
had to sell because of financial problems. He told me furthermore
that he then had to fix the double cab bakkie and then sell
it. He
said he then sold it for R50 000 and paid the money to the bank.
Therefore this who vehicle deal thing resulted in
a huge financial
loss for him. Furthermore he told me either his parents or his wifes
parents was forcing him to buy a home when
he did not want to do so.
He became more adement by the day to find someone to do the killing
of his wife.
I then tried another
person by the name of Andile of Ace. He just came out of prison at
the time. I met him and he coloured friends.
But nothing came from
this just as in the case of Lama, Trompie. The school holidays had
long since past until February this year
(2015) I met a person Sizwe
Vumazonke I knew in Gqoko’s Tavern. I knew Sizwe from club 9
Yards. I knew that he know people
who could do the job. He as
approached in the same way I approached the other people. He said
that he was interested in the job
and we exchanged numbers. He would
then contacted me later. A few days later he contacted me. We met at
Infinity a few days later.
I was suppose to show him the places where
he could find Chris’s wife. Sizwe told me that he would come
tomorrow. He did
came that tomorrow. At that time Chris had already
shown me where he stayed. The next day Sizwe did turn up and I went
to show
him. It was going now towards March. Sizwe disappeared. I was
back to square one now. I started looking for other persons again
at
this time Chris was almost panicking.
I made contact with my
neighbour at my gym, a guy called “Touch”. He introduced
me to colourds. However nothing came
from this again as a result of
finance. I contacted Sizwe on facebook and informs him that the prize
for the hit was not R40 000.
He replied that I must SMS my
number to him which I did. A few days later Sizwe pitch up at my gym.
He requested me that I must
informed the two persons what was going
on I did just that. The persons wanted a rented car to do the job. I
then phoned Nthando’s
car hire. I phoned on my phone and the
amount was R6000 for a rented vehicle. I borrowed money of R1500, and
gave R1500 of my own
money and Chris eventually came and drop R3000
at the gym. I then handed the R6000 to Sizwe. This was early April
2015 just before
the schools open. The vehicle was a white Toyota
small car. A plan was put in motion. The plan was for Chris to bring
his wife
for a Sunday Dinner to Infinity in her car. I would have
been at the place where I would then show the vehicle a Fiesta white
in
colour to Sizwe and his friends from where they would then
followed her as they could not kill her in front of the club. The
plan
was however cancelled as the wife did not want to come to
Infinity. Chris then decided to show me another possibility where she

could be taken out. The possibility he showed me was the friend’s
home with whom she was driving. The school opened the Monday
after
the holiday. I learnt from Sizwe that they wanted to do the job that
one of the mornings and followed her. As it was raining
and was bad
weather they did not succeed. By that time a already shown Sizwe one
night where the lady friend stayed. I also provided
Sizwe with the
vehicles of her registration number which I got from Chris. The
information that she was driving I got from Chris.
Because Sizwe did not
succeed that week Sizwe came back to me requesting that I must asked
Chris to let him into the complex and
the home. Chris replied that he
could not do that as the complex were to secured and that a policeman
was staying opposite him
in any case. He would not be able to answer
all the questions. Chris insisted that it must look like a robbery
outside the gate
or a hijacking. As Sizwe’s plan could not work
according to Chris he told that he will make another plan. He told me
that
on the Monday during the day on the Tuesday morning to eight I
got a call from Sizwe telling me that the job was done and that he

wants his money. I then went on foot to Infinity. The arrangement
that stood from the previous week with regards to the money was
that
I would collect it from the office. There was an arrangement that
Chris would leave money with Knox. When I got to Knox there
was no
money. I did not phone Chris was I did not want any telephonic link
with him. While I was with Knox the news broke on facebook
that
Chris’s wife was missing. I went outside and phoned Sizwe
informing him that I could see what he told me was true. I
also
informed him that I was looking for the money from Chris. That whole
day I received only one call from Chris. He was using
Infinity’s
landline number, he did not say much as you could hear that he was
with people. I eventually went home. That night
I went to sleep with
my girlfriend at my home. That night very late I got a call from
Chris. He asked me I stayed and I met him
in Ntongeni Road. I got
into his car, his white Golf. Once inside the Golf he asked me where
the guys put her. I could not answer
that question. He gave me a
plastic bag containing money when we were in front of my house. I
went inside my house. I gave my girlfriend
the plastic bag and left
again. I got into Chris’s car and we drove. We at like we were
driving around looking for possible
suspects. We met with some of his
family friends at KFC Njoli Square. He took me to Babalwa’s (my
girlfriend) house.  I
have instructed earlier for Tato
(Babalwa’s brother) to fetch Babalwa and we would then meet at
Babalwa’s house. We
then counted the money for Sizwe. It was
R40 000. The time now about was to 01:00 on Wednesday morning. I
told him that he
can come and fetch his money. I left the money with
Babalwa and walk home. Minutes later Sizwe stop at my home. He hooted
for me
and I went outside. I saw that it was Sizwe. I got into the
car and we drove to Babalwa’s house.
At Babalwa’s house
I knock and she opens the door. At the time Sizwe was standing at the
back of me. Babalwa brought the money
to the kitchen door. Sizwe
greeted Babalwa. Myself and Sizwe then drove KFC Njoli square where I
bought KFC. He then took me home.
Sizwe told me earlier that he did
not do the job with the people I met with him earlier. Sizwe informed
me therefore that should
I met with those guys I should tell them
Sizwe did not went ahead with the job. On the Friday Sizwe called me
telling me that the
people whom did the job wanted more money. He was
now driving another car. Not the white Toyota anymore. I conveyed
that message
to Chris. Chris later told me to get rid of my cell
phone and simcard. He gave me R1000 to replace my cellphone and
simcard. I
took the money but did not destroy the cellphone and
simcard.
On Sunday the 26
th
of April 2015 I was arrested and made a confession. It became clear
to me that I was in deep trouble and decided to co-operate
with the
police. On request I made a few telephone calls to Chris which
resulted in a meeting in a vehicle that I was told would
been
recorded. This statement was made in the presence of my lawyer. This
is all I can declare.”
(
sic
)
[10]
[35]
The lawyer referred to in the penultimate paragraph of the
aforementioned statement was
van der Spuy
,
an attorney attached to the local Justice Centre. During the course
of this trial his integrity was assailed by Mr
Price
.
The besmirchment of his character is scandalous and merits this
court’s opprobrium. I accept
Swanepoel’s
testimony that he enlisted
van der Spuy’s
professional assistance to assist
Siyoni
and that the latter’s disavowal of having been properly advised
by him is false.
[36]
Siyoni’s
admission that accused no. 1 had orchestrated
Jayde’s
murder finds further corroboration from the most unlikely source,
accused no. 1 himself. In the antepenultimate paragraph of his
s 204
statement,
Siyoni
adverted to a meeting in a vehicle with accused no. 1. It is common
cause that it took place during the evening of 29 April 2015
outside
a Steers fast food outlet in an unmarked police vehicle equipped with
listening and filming devices and that their conversation
and
interaction had been recorded in both audio and video format. This
activity finds legislative sanction in s 252A of the Act.
Under the
rubric,
“
Authority to make use of
traps and undercover operations and admissibility of evidence so
obtained”
,
it
provides as follows:-
“
(1) Any law
enforcement officer, official of the State or any other person
authorised thereto for such purpose (hereinafter referred
to in this
section as an official or his or her agent) may make use of a trap or
engage in an undercover operation in order to
detect, investigate or
uncover the commission of an offence, or to prevent the commission of
any offence, and the evidence so obtained
shall be admissible if that
conduct does not go beyond providing an opportunity to commit an
offence: Provided that where the conduct
goes beyond providing an
opportunity to commit an offence a court may admit evidence so
obtained subject to subsection (3).”
Subsection
(3) in turn provides that: -
“
(3)
(a)
If a court in any criminal proceedings finds that in the setting of a
trap or the engaging in an undercover operation the conduct
goes
beyond providing an opportunity to commit an offence, the court may
refuse to allow such evidence to be tendered or may refuse
to allow
such evidence already tendered, to stand, if the evidence was
obtained in an improper or unfair manner and that the admission
of
such evidence would render the trial unfair or would otherwise be
detrimental to the administration of justice.
(b)
When
considering the admissibility of the evidence the court shall weigh
up the public interest against the personal interest of
the accused,
having regard to the following factors, if applicable:
(i)   The
nature and seriousness of the offence, including-
(aa)
whether
it is of such a nature and of such an extent that the security of the
State, the safety of the public,
the maintenance of public order or
the national economy is seriously threatened thereby;
(bb)
whether,
in the absence of the use of a trap or an undercover operation, it
would be difficult to detect, investigate,
uncover or prevent its
commission;
(cc)
whether
it is so frequently committed that special measures are required to
detect, investigate or uncover it
or to prevent its commission; or
(dd)
whether
it is so indecent or serious that the setting of a trap or the
engaging of an undercover operation was
justified;
(ii)   the
extent of the effect of the trap or undercover operation upon the
interests of the accused, if regard
is had to-
(aa)
the
deliberate disregard, if at all, of the accused's rights or any
applicable legal and statutory requirements;
(bb)
the
facility, or otherwise, with which such requirements could have been
complied with, having regard to the circumstances
in which the
offence was committed; or
(cc)
the
prejudice to the accused resulting from any improper or unfair
conduct;
(iii)   the
nature and seriousness of any infringement of any fundamental right
contained in the Constitution;
(iv)   whether
in the setting of a trap or the engagement of an undercover operation
the means used was proportional
to the seriousness of the offence;
and
(v)   any
other factor which in the opinion of the court ought to be taken into
account.”
[37]
Thus, as a precursor to adducing testimony to prove the admissibility
of the evidence so obtained, Mr
Stander
requested that I order that a trial within a trial be held to
determine the issue as provided for in ss (7). Mr
Price
,
whilst of the view that he was
“
not
entirely ad idem as exactly what the grounds are for the trial within
a trial”
, was constrained to
concede that in terms of the directory language of s 252A (7) of the
Act, it would be
“
preferable to
determine the issue in a trial within a trial”.
The subsection provides as follows: -
“
(7) The question
whether evidence should be excluded in terms of subsection (3) may,
on application by the accused or the prosecution,
or by order of the
court of its own accord be adjudicated as a separate issue in
dispute.”
[38]
Notwithstanding the ambivalent stance adopted by Mr
Price
regarding the procedural device for determining the admissibility of
the evidence uncovered during the undercover operation, it
is
implicit from the terms of the section, however much its directory
language, that where such evidence is sought to be excluded,
the
appropriate avenue to determine admissibility is the procedure
contemplated by subsection (7). This approach was specifically

endorsed by the Supreme Court of Appeal in
S
v Matsabu
[11]
as
follows: -
“
[8] Some point was
made in the heads of argument about the magistrate's refusal to hold
a trial-within-a-trial when his legal representative
twice objected
to the admissibility of the trap evidence and asked
that admissibility be tried as a separate issue. During
argument
reliance on that ground was all but abandoned. Such uncertainty as
remains should be dispersed.
Our courts have
long accepted that it is both desirable and necessary, to the end of
achieving a fair trial, to try issues of the
voluntariness of
extra-curial statements or conduct of accused persons separate from
the merits of the case
:
R
v Dunga
1934 AD 223.
When a ruling is
made without hearing the defence evidence, the defence is entitled to
withhold its further testimony where
that could only be given on
terms which may prejudice the trial of the merits: ibid at 227. See
also
S v De Vries
1989
(1) SA 228
(A) at 232G - 234E;
S v Yengeni and
Others (3)
1991 (1) SACR 387
(C) at 391
b
- 392
a
;
S
v Ntzweli
2001 (2) SACR 361
(C) ([2001]
2 All SA 184
at 362
i
-
365
c
.
In
general terms s 252A is also concerned with voluntariness of conduct
as the measure of whether an accused's conduct is induced
by the
circumstances of or methods employed in the operation rather than
resulting from his own desire to commit the offence.
In principle I do not think that there is any material distinction
between the accepted categories of cases where the separation of

admissibility and merits is insisted upon and s 252A. Both enquiries
seem to take account of and provide for the same inherent
risks, such
as discouraging an accused from speaking openly when the trial of the
merits may be influenced if he does so and the
likelihood that
failure to deal with admissibility properly and promptly will leave
an accused in    limbo in relation
to the vital questions
of whether he needs to testify and the substance of the case that he
has to answer. So also the prosecutor
must know the limits of his
case both for the purpose of leading further evidence and for
cross-examination of the accused. For
all these reasons the holding
of a trial-within-a-trial will usually be appropriate to decide
admissibility under s 252A.”
(emphasis
added)
[39]
Consequently, where a trial within a trial is so ordered, the proviso
to ss (6) obliges an accused person, in peremptory terms,
to
“
furnish the grounds on which the
admissibility of the evidence is challenged. . .”
In response to a direct question by me hereanent, Mr
Price
stated as
follows: -
“
M’Lord, it
is difficult for me to address you on that but particularly because
it is not our view that Section 252A is applicable
here but in short,
M’Lord, I think if you look at our plea explanation, what we
have said all along, we say that our client’s
right to a fair
trial was decimated
ab
initio
and this is just part of that decimation.  In other words, we
are, I think that is about as clear as I can put it to Your

Lordship.  We are relying very strongly, M’Lord, as you
know on the Mthembu and the Tandwa cases.”
[12]
[40]
This nuanced response limited the admissibility challenge to the
alleged assault on
Siyoni
and, a fortiori, a violation of the accused’s fair trial
rights. After the adduction of evidence by the state, the accused

elected not to testify but called three witnesses,
Siyoni’s
mother, brother and the mother of
Breakfast
.
It was however agreed upon by the state and the defence that in
determining admissibility I could have regard to the testimony
of
Siyoni
and
Breakfast
.
It is trite law that during a trial within a trial, a court is
entitled to have regard to evidence already led in the main trial.

See
S v Muchindu
2000 (2) SACR 313
(W)
at
(a)-(c). After hearing argument, I ruled that the video and audio
recording between accused no. 1 and
Siyoni
was admissible as evidence against accused no. 1 and intimated that
my reasons would be incorporated in the judgment. These now
follow.
[41]
The decision to engage in the undercover operation was engendered by
the interview
Swanepoel
had with
Siyoni
on 28
April 2015 at the Directorate for Priority Crimes’ (the unit’s)
offices. It is common cause that by then
Swanepoel
was in possession of
Siyoni’s
confession made to the magistrate the previous day. The state’s
version of the events which unfolded during and after the
interviews
he had with
Siyoni
on
28 and 29 April 2015 is, on an appraisal of the evidence adduced, the
only credible factual account of the circumstances which
ultimately
led to the meeting between accused no. 1 and
Siyoni
on the evening of 29 April 2015.
Swanepoel’s
testimony is corroborated in all material respects by his underlings,
Warrant Officer
Shane Bosch
(
Bosch
), Warrant
Officer
Leon Eksteen
(
Eksteen
), Sergeant
Aldre Koen
(
Koen
),
and the unit’s head, Brigadier
Till
.
Accused no. 1’s version, on the other hand, was confined to the
concurring affirmations by
Siyoni
to a raft of propositions put to him by Mr
Price
.
This appears clearly from the following exchanges where Mr
Price
,
with reference to the transcript of the recorded conversations
between
Siyoni,
accused
no. 1  and the members of the unit during 28 and 29 April 2015,
(exhibit “BG5”), put the following scenarios
to
Siyoni
:
-
[A] “Now, I am just
going to summarise very quickly what our case is on the 28th, what
happened at Organised Crime on the
28th and we are going to show it
is true by reference to documents.  Based on our instructions
and the documents that we are
going to refer His Lordship to, you
were forced, you were threatened, you were insulted and to put it
very simply, you were overwhelmingly
pressurised to phone Christopher
and try and implicate him.  Is that correct? --- That is correct
so.
You didn’t phone
Christopher of your own accord. --- That is correct so, M’Lord.
And in fact, the
allegations, which undoubtedly will come out when the police come
that you actually volunteered to phone Christopher
because you said
you didn’t want to fall, you didn’t want to sit for his
crimes; that is rubbish. --- Yes, that is
a lie.
And your instructions,
and we will show that shortly, were unequivocal if you do not succeed
in getting Christopher to implicate
himself, you are going to go to
jail for the rest of your life or for a long period of time; that was
said to you, not so? ---
Yes, that is correct so.
In fact, I am going to
argue, I am going to show you, that they were so cold hearted that
one hour after Christopher buried Jayde,
they got you to phone him.
And in fact, Christopher in that call said to you Thando, I have just
buried my wife.  Do
you remember that? --- Yes, he said that.
“
[13]
[B]   “Can
I then accept, to move off the 29
th
of April, that when
you went to Algoa Park to meet Christopher, firstly that was an idea
put into your head by the police, it had
nothing to do with
Christopher’s decision? --- That is correct so.
And up until then,
if we look at that telephone conversation, that recorded conversation
that we have been looking at, Christopher
had not made any admission
or even suggested that he knew what you were talking about when you
said the police were after you;
am I right? --- No, he was not even
aware what I was talking about.”
[14]
And
[C]   “And
amazingly after you had done the recording with Chris, suddenly you
get a lawyer.  Now, I want to
put something to you; it appears
to me that your request for lawyers fell on deaf ears because they
realised that if you used a
lawyer, you would not cooperate with
them, am I right? --- That is correct so because at the stage that I
was at Kabega Park, I
already asked for the assistance of an attorney
then they said to me there is nothing that I will be able to do.
I am going to take
it further.  You repeatedly asked for an attorney and you were
told you will not get an attorney until you
implicate Chris. --- That
is correct so.
And after the
meeting in the car, suddenly you got your lawyer. --- That is correct
so.”
[15]
[42]
The aforegoing excerpts mirror the technique employed throughout
Siyoni’s
questioning by Mr
Price
– the answers upheld the proposition. A moment’s
reflection on his responses establish
Siyoni’s
partisanship to accused no. 1’s cause, and the exercise
conducted hardly passes muster as cross-examination. It constitutes
a
plethora of leading questions designed to elicit affirmative answers
from a suborned, compliant witness and the answers furnished
have, in
my judgment, no evidential value whatsoever. I unreservedly accept
the state’s evidence that at the outset of his
interrogation at
the unit’s offices,
Siyoni
,
mindful of the dilemma he found himself in, expressed a willingness
to fully cooperate with the police and entreated
Swanepoel
to facilitate an audience with accused no. 1, for obvious reasons,
viz. to ameliorate the consequences of his own actions. In
considering the admissibility of the recorded conversation between
Siyoni
and accused no.
1, the former’s concocted version must be disregarded and the
matter determined solely on the evidence adduced
by the state, to
which I now turn. I interpolate to say that the evidence adduced from
his mother, brother and
Breakfast’s
mother that he had been assaulted, is in conformity with his own, a
complete and utter fabrication and falls to be rejected.
[43]
It is common cause that the exchanges between
Siyoni
and the unit’s members concerning the attempts to telephone
accused no. 1 and the actual conversations between him and accused

no. 1 were recorded. The transcript was, as adverted to hereinbefore
introduced into the proceedings as exhibit “BG5”
and
featured prominently in the cross-examination of
Swanepoel
and the unit members.
[44]
As adumbrated hereinbefore, the sole ground initially advanced by Mr
Price
for the exclusion of the video and audio footage was the alleged
ill-treatment of
Siyoni
by the unit and the police members involved in his earlier
interrogation. During the course of
Bosch’s
cross-examination however, the exclusionary ground was suddenly
widened to now include the scenario postulated by s 252 A (2) (e).
It
was put to
Bosch
and later to
Swanepoel
that the plethora of telephone calls to accused no. 1 on the 28
th
and 29
th
of April 2015 inexorably induced him to succumb and meet with
Siyoni
and that this degree of persistence fell foul of the provisions of s
252 A. During
Swanepoel’s
cross-examination, the ambit of the challenge was further extended to
now include the scenario postulated by ss (h). It was put
to him that
the calls made exploited accused no. 1’s emotional state to
such an extent that he was impelled to meet with
Siyoni
.
It is indeed so that several calls were made to accused no. 1 but it
is common cause that only a few were answered. In any event,
accused
no. 1 is the only person who could have told us what effect the calls
had on him. Notwithstanding the protection afforded
to an accused
person by the trial within a trial procedure, accused no. 1 chose not
to give evidence. That conscious decision has
consequences.  As
Leach JA remarked in
Hohne
v Super Store Mining (Pty) Ltd
at
[49]
[16]
:-
“
Moreover, there is
no evidence that the appellant in fact acted under duress.
Objectively viewed, in the light of what I have said
above, there is
no threat of any unlawful evil being done to him if he did not
co-operate with the respondent. His Counsel had
stated in
cross-examination of the respondent’s witnesses that the
appellant would deny that he had made the admissions freely
and
voluntarily, and would testify that during breaks in the recording he
had been further threatened and told that his and his
family’s
lives, including those of his parents who were employed by the
respondent, would be destroyed, and that if he did
not admit to
provide the information required he would be imprisoned for life.
However, notwithstanding this and despite the unusual
protection
afforded by the trial-within-a-trial procedure that was adopted, the
appellant failed to give evidence. That, too, was
a decision he was
entitled to take. But actions have consequences, and one of the
consequences that flows from the respondent’s
failure to
testify is the inference that his evidence was likely to damage his
case.”
[45]
The reliance on the content of exhibit “BG5” as
evidencing impermissible conduct on the part of
Swanepoel
and his team is entirely misplaced and an exercise in opportunism. An
objective analysis of exhibit “BG5” establishes
not only
that
Siyoni
was willing and cooperative but that the decision to meet rested with
accused no. 1. His pre-meeting utterances to
Siyoni
indicate quite clearly that he recognised that the cat was almost out
of the bag and the decision to meet was to ensure that it
remained
inside.  As adumbrated hereinbefore, accused no. 1 elected not
to testify during the trial within a trial. Mr
Price
nonetheless submitted that such omission was of no consequence
whatever. Given the assertions made to
Siyoni
and referred to in paragraph [41] hereinbefore, the submission is an
astounding one. I say so for two reasons, - firstly, during
Swanepoel’s
cross-examination he was referred to the provisions of s 252(A)(2)(e)
and (h) of the Act and the point was sought to be made that
accused
no. 1 succumbed to the incessant telephone calls and met with
Siyoni
.
Up until then it was never accused no. 1’s case that the
decision to meet with
Siyoni
was in any way actuated by the calls made to him. When I initially
invited Mr
Price
to indicate the grounds upon which the admissibility of the evidence
was being challenged, no reference whatsoever to the circumstances

enumerated in sub-paragraphs (a) to (m) of s 252 A (2) was made. The
challenge was, as adumbrated hereinbefore, limited to the
generalised
defence
ex
facie
the s 115 statement. Secondly, what I was asked to do was to infer
that accused no. 1 in fact succumbed to the incessancy of the
calls
made to him and met with
Siyoni.
The
invitation to do so must be declined for it is based entirely on
conjecture.  As Boshoff, J, pertinently pointed out in
S
v Cooper and Others
[17]
“
There can be no
inference unless there are objective facts from which to infer the
other facts which it is sought to establish.
In some cases the other
facts can be inferred with as much practical certainty as if they had
been actually observed. In other
cases the inference does not go
beyond reasonable probability. But if there are no positive proved
facts from which the  inference
can be made, the method of
inference fails and what is left is mere speculation or conjecture:
Caswell
v.
Powell
Duffryn Associated Collieries Ltd
.,
1940 A.C.
152
at p. 169;
(1939) 3 All E.R. 722
at p. 733. As pointed out by
DENNING, L.J., in
Smithwick
v.
The National Coal Board
,
(1950) 2 K.B. 335
at pp. 351 and 352, the dividing line between
conjecture and inference is often a very difficult one to draw, but
it  is just
the same as the line between some evidence and no
evidence. One often gets cases where the facts proved in evidence -
the primary
facts - are such that the tribunal of fact can
legitimately draw from them an inference one way or the other, or,
equally legitimately
refuse to draw any inference at all. But that
does not mean that when it does draw an inference it is making a
guess. It is only
making a guess if it draws an inference which
cannot legitimately be drawn; that is to say, if it is an inference
which no
reasonable man could draw.”
[46]
The “
facts
”
which Mr
Price
relies upon in support of his submission is the contrived version of
Siyoni
. The real
reasons appear clearly from “BG5”. All that
Siyoni
told accused no. 1 was that he was extremely worried because the
police were looking for him, he wanted an audience with him and
he
needed money. The argument advanced conveniently ignores the import
of exhibit “BG5” from which it is apparent that
accused
no. 1 met with
Siyoni
of his own volition and with his own agenda. Although the heads of
argument are replete with suggestions that
Siyoni
was coerced into influencing accused no. 1
“
to
implicate himself in Jayde’s murder”
a
plain reading of exhibit “BG5” establishes the
inexactitude of the insinuation.
[47]
It is not in issue that exhibit “BG5” is an accurate
memorial not only of the telephonic interaction between accused
no. 1
and
Siyoni
on 28 and
29 April 2015 but moreover the exchanges between
Siyoni
and members of the unit. It was put to the unit’s members that
exhibit “BG5” establishes that
Siyoni
was browbeaten into initiating telephonic contact with accused no. 1,
and that the latter was induced to meet with
Siyoni
and incriminate himself. It is indeed so that
ex
facie
exhibit “BG5”
Eksteen
told
Siyoni
that St
Albans prison was no bed of roses and that he faced a possible
sentence of 25 years imprisonment. It was put to both
Eksteen
and
Swanepoel
that
such intimation constituted a threat and coerced
Siyoni
into making the calls. The assertion made is devoid of all merit and
the utterance by
Eksteen
,
contextually read, amounts to no more than a reminder to
Siyoni
of the seriousness of the situation he found himself in.
[48]
An objective analysis of exhibit “BG5” establishes that
Siyoni
was not only
the initiator, but a willing and active participant in the undercover
operation. This appears clearly from call 5
on 28 April 2015 and the
exchanges between him and the unit members after call 7 when
Siyoni
,
of his own accord reminds them, “
you
don’t understand, Chris is clever.”
Siyoni’s
aforementioned categorisation of accused no. 1 finds corroboration in
the exchange between the latter and
Eksteen
during the afternoon of 29 April 2015, where, during the course of
their discussion, accused no. 1, on several occasions, expressed
his
anxiety at being called by
Siyoni
and begs the question why. This show of reticence was feigned and his
conduct dramatized to induce
Eksteen
to believe that there was no connectivity between himself and
Siyoni
.
[49]
A holistic appraisal of the evidence adduced and the content of
exhibit “BG5” establishes that accused no. 1’s

reluctance to initially either return
Siyoni’s
calls or to engage fully in conversation with him on 28 April 2015
was actuated by his belief that
Siyoni
had in fact been arrested by the police and was calling him at their
instigation.
Eksteen’s
uncontroverted evidence was that whilst at the unit’s offices
in Shirley Street, he received a telephone call from accused
no. 1 to
meet, agreed thereto and that a discussion took place in his own
office at 3
rd
Avenue, Newton Park. It is common cause that
Eksteen
recorded this conversation, as appears from “my recording 13”
on page 25 of exhibit “BG5”. It is apparent
therefrom
that accused no. 1’s primary motive for the meeting was to
establish whether
Siyoni
had been arrested. The inference can thus properly be made that
fortified by
Eksteen’s
deception that he had not, he initiated further telephonic contact
with
Siyoni
during the
course of 29 April 2015 which eventuated into the meeting between
them later that evening. Exhibit “BG5”
furthermore
establishes, not only that the choice of venue emanated from accused
no. 1 but that he proceeded thence with money
to hand to
Siyoni
,
and later, blatantly lied to
Koen
concerning
Siyoni’s
intended destination.
[50]
During
Swanepoel’s
cross-examination, the ambit of the challenge to the admissibility of
the recorded conversation between accused no. 1 and
Siyoni
was once more widened to now include the scenario postulated by ss
2(a) of s 252A. It was put to him, quite erroneously, that
Bosch
had testified that accused no. 1 had been entrapped and that under
those circumstances permission would have had to be obtained
from the
Director of Public Prosecutions. The assertion made is misleading in
the extreme. The only mention of entrapment by
Bosch
occurred in the following exchange between himself and Mr
Price
,
where, in response to the question,
“
Now,
the section 17, you know what section 17 is?”
he
answered,
“
Is that with regard to the
entrapment?”
Bosch’s
rhetorical answer was then elevated to an admission that
Siyoni
had been used as a trap. This appears clearly from the following
question put to him,
“
Bosch, when he
testified, said that the purpose was to entrap Panayiotou; I am using
his own words.  Is that correct? --- There
would have been
conversations between the two, M’Lord; we didn’t know
what to expect, we were just hoping for what
to expect.
Nee,
dit verstaan ek; ek dink nie u verstaan my vraag nie.  Look, you
have already obtained permission to make the calls, now
you phone him
again; was that call’s purpose only to go a step further to now
record him in the car? --- That is correct,
M’Lord.
Mr
Bosch referred to that as the entrapment of Mr Panayiotou; do you
agree? --- If that is the wording of Mr Bosch; that is his.

Mine is that we were going to get permission to record Panayiotou.
You
realise that if the court were to find that this was an entrapment
then you would have first got the permission under Section
252A?”
.
As
a matter of law, s 252A placed no such obligation on
Swanepoel
.
As Wallis AJA remarked in
S
v Kotze
[18]
:
-
“
[22] The section
deals with both traps and undercover operations. Whilst these usually
go together there will be cases where an
undercover operation may
involve no element of a trap. Thus, for example, the infiltration of
an undercover agent into a gang planning
a bank robbery, a
cash-in-transit heist or the overthrow of the government will not
necessarily involve any element of a trap,
but may merely be an
exercise in obtaining information. Nonetheless it may involve
infringements of rights to privacy - as with
the use of a telephone
tap or some other form of listening device - and could potentially be
subject to constitutional challenge.
The section explicitly
addresses that situation and provides that such actions are
permissible. It also recognises that undercover
operations may have
elements of a trap and hence treats the two together. The present
case is a classic instance of an undercover
operation that also
involves the use of a trap.
[23] The section lays
down two approaches to the admissibility of evidence obtained as a
result of the use of a trap. Evidence is
automatically admissible if
the conduct of the person concerned goes no further than providing an
opportunity to commit the offence.
If the conduct goes beyond that
the court must enquire into the methods by which the evidence was
obtained and the impact that
its admission would have on the
fairness of the trial and the administration of justice in order to
determine whether it should
be admitted.
[24] It must be stressed
that the fact that the undercover operation or trap goes beyond
providing the accused person with an opportunity
to commit the
crime does not render that conduct improper or imply that some taint
attaches to the evidence obtained thereby.
All that it does is create
the necessity for the trial court to proceed to the enquiry mentioned
in the previous paragraph.
I stress this because there was a
misconception in this regard at the trial. At various places in the
cross-examination of Terblanche
it was put to him that the section
imposes constraints upon what may be done pursuant to a trap and
this suggestion is repeated
before us in the heads of argument
for Kotzè. In summarising the argument in his practice note
counsel said: 'Die getuienis
van die lokvink behoort as ontoelaatbaar
gereël te word aangesien die optrede van die lokvink verder
gegaan het as die blote
skepping van geleentheid om misdryf te pleeg
.' This is a misconception as to the effect of s 252A(1) and it is as
well therefore
to lay it to rest.  Section 252A(1) does not
purport to prescribe the manner in which undercover operations or
traps are to
be conducted by the police. It merely distinguishes, on
the basis of the manner in which the trap is conducted, between
instances
where the evidence thereby obtained is automatically
admissible and instances where a further enquiry is called for before
the
question of admissibility can be determined.
[25] Section 252A(1)
prescribes a factual enquiry into whether the conduct of the trap
goes beyond providing an opportunity to commit
an offence. Section
252A(2) describes a number of features that may indicate to a trial
court that the undercover operation or
trap went beyond
providing an opportunity to commit an offence. It was conceded by the
prosecution and held by both the magistrate
and the court below that
the conduct of Terblanche and this undercover operation went beyond
merely providing the opportunity for
the commission of the offence.
Unfortunately the findings of both courts on this aspect were not
fully reasoned. A closer examination
of the provisions of
sections 252A(1) and (2) is therefore desirable.
[26] The starting point
is that, in each case where the evidence of a trap is tendered and
its admissibility challenged, the trial
court must first determine as
a question of fact whether the conduct of the trap went beyond
providing an opportunity to commit
an offence. It does that by giving
the expression its ordinary meaning and makes its decision in the
light of the factors
set out in ss (2). I accept that if one simply
peers at the language of s 252A(2) there appears to be an anomaly
arising from the
fact that some matters logically anterior to the
conduct of the trap itself are to be taken into account in
considering whether
it went beyond providing an opportunity to
commit an offence. However, there are always dangers in such a
linguistic
analysis removed from the context of the section as a
whole and the potential anomaly may on closer examination be more
apparent
than real. Thus the fact that the trap was set without the
authority of the Director of Public Prosecutions or that the
conditions
set by the Director were disregarded may well indicate
that the trap went beyond providing an opportunity to commit
an offence.
Otherwise they will be irrelevant. The fact that the
offence in question is of a minor nature may indicate that the effect
of the
trap is to place disproportionate temptation in the path of
the accused, so that it went beyond providing an opportunity to
commit
an offence.”
[51]
In considering the question whether the unit’s conduct went
beyond providing an opportunity to commit an offence a court
is
enjoined to have regard to the raft of features adumbrated in s
252A(2) (a) to (n) where applicable. It is apposite, given the

confusion surrounding the first of the features enumerated in the
subsection, to dispel the notion that the authority of the Director

of Public Prosecutions is a prerequisite for engaging in an
undercover operation by a law enforcement officer. The Act imposes
no
such duty,
caedit question
.
As adverted to earlier, S 252A, did not oblige
Swanepoel
to obtain the Director Public Prosecutions’ consent to conduct
the undercover operation.
[52]
There is furthermore no suggestion that other techniques were
available to unmask
Jayde’s
murderer. It is common cause that
Jayde’s
murder had unleashed a media frenzy. It, together with the
informant’s revelations and confirmed by
Siyoni
,
impelled the adoption of the strategy employed by the unit and their
modus operandi
is not
open to critique. An objective assessment of exhibit “BG5”
establishes that accused no. 1 was not induced into
meeting with
Siyoni
. It was his own
self-preservation which caused him to make the calls which in fact
precipitated the meeting. The mere fact that
the initial calls were
made at the instance of the unit is entirely irrelevant. The fact of
the matter is that the majority went
unanswered, and, when regard is
had to the import of the actual conversation between accused no. 1
and
Siyoni
prior to
the actual meeting, it is clear that no exploitation as envisaged in
ss 2(h) in fact occurred. It is furthermore clear
that the evidence
procured established accused no. 1’s complicity in
Jayde’s
murder and there is no room to contend that the unit acted in bad
faith. I am satisfied that the unit’s conduct did not go
beyond
providing an opportunity to commit an offence.
[53]
But even on the assumption that it could conceivably, upon an
entirely subjective critique of the unit’s conduct be contended

that it went beyond providing an opportunity to commit an offence,
the evidence garnered would in my view nonetheless be admissible
for
its admission is neither unfair nor detrimental to the administration
of justice – rather, its effacement would be inimical
to the
interests of justice. The aforegoing constitutes my reasons for
ruling the audio and video recordings (exhibit “CB”)

admissible in evidence.
[54]
During his final address however, Mr
Price
entreated me to revisit my ruling, contending that evidence adduced
during the defence case justified its reconsideration. It is
indeed
so, given the interlocutory nature of rulings on the admissibility of
evidence, that a court is entitled to reconsider its
earlier rulings,
but the argument advanced is spurious, proceeding as it does from the
misconception concerning a law enforcement
official’s power to
engage in an undercover operation. As adumbrated hereinbefore, S 252A
imposes no obligation on a police
officer to obtain the Director of
Public Prosecutions’ consent to engage in such activity, and
the adduction of testimony
by advocates
Gounden
and
Goberdan
from the
office of the Director of Public Prosecutions was, despite the
fanfare, entirely irrelevant, and so too the guidelines.
Whilst these
may apply to members of the prosecutorial services, they are clearly
not binding upon members of the South African
Police Services.
[55]
The import of the aforementioned dialogue between
Siyoni
and accused no. 1 establishes his complicity in
Jayde’s
murder beyond all reasonable doubt. Its admission into the
smorgasbord of testimony against accused no. 1 nonetheless evoked an

assault on the authenticity of both the video presentation and the
transcript of the recording. Warrant Officer
Kellemane
,
attached to the electronic surveillance unit of the South African
Police Services was responsible for downloading the video recording

from the SD card onto his computer. He burned a dvd, received in
evidence as exhibit “CB”, and the transcript of the

conversation as exhibit “CB1”. During cross-examination
by Mr
Price
, it was
suggested to him that both the video and the audio presentations
could have been manipulated. Whilst it is correct that
Kellemane
assented to this speculative hypothesis, the attack soon dissipated
and was abandoned. Nonetheless the attempt to impugn its genuineness

was imprudent and symptomatic of the malaise which afflicts the
defence case.
[56]
The video and audio recording provides a graphic account of the
interaction between
Siyoni
and accused no. 1 and posits the latter as the pre-eminent villain.
The transcript is unsusceptible to paraphrase and its reproduction

into this judgment is imperatively called for particularly in light
of accused no. 1’s disavowal of any complicity in
Jayde’s
murder and the unwarranted and scurrilous imputations of dishonesty
directed by the defence against several witnesses called by
the
state. It reads as follows:
§
““
TS
(referring to accused 1) – Things aren’t right now.
§
CP (referring to the
applicant) – Why?
§
TS - Babalwa called
me and said the police was there at my house. Everything is changing
now.
§
CP  – But
why are the police after you?
§
TS  – I
don’t know. I think here is an informer somewhere, somehow.
§
CP – Did these
guys blit?
§
TS – Which
ones?
§
CP – Your
friend.
§
TS – Sizwe.
§
CP – Did they
tell anything?
§
TS – No, even
them they are on the run.
§
CP – Oh.
§
TS – I told
them they must not be here.
§
CP – Where
they going to?
§
TS – They
didn’t tell me. I changed my sim-card.
§
CP – Yes, but
you need to change it again now.
§
TS – After
this we ……..I’m going to call you.
§
CP – What.
§
TS – I’m
going to call you on my new number.
§
CP – No you
are not. You just missed call me. Don’t phone me or sms me.
§
TS – What’s
going on boss?
§
CP – I don’t
know bru.
§
TS – Hey, this
thing I didn’t see it was going to be like this.
§
CP – Here.
§
TS – What is
this?
§
CP - Plus minus 5
(reference to R5,000-00). Where are you going to now?
§
TS – I’m
going back to Jeffreysbay. I’m worried about my family. Boss
this thing I did’t know it was going
to be like this. I thought
it was going to be easy.
§
CP – Yes but
why did they say to you when they fetched you the other day.
§
TS – They
fetched me and then they asked me questions.
§
CP – And…What
did they ask you?
§
TS – Fucking
questions.
§
CP – Hey ….
§
TS – Nothing
serious boss.
§
CP - Tell me. Did
they ask you if you were involved.
§
TS – Yes sort
of something like that.
§
CP – So what
did you say.
§
TS - ……those
are the stupid ones.
§
CP – So where
did they take you?
§
TS – They took
me me the police station and there they took my statement, but in my
mind …. You mos told me we will
be investigated.
§
CP – Yes.
§
TS - So I was ready
for that, but I was not ready.
§
CP – So why
are you running away?
§
TS – They keep
coming to my house.
§
CP – Did you
take your phone anywhere?
§
TS – Ja.
§
CP – No, your
other phone.
§
TS – I
destroyed it.
§
CP - Did you?
§
TS – I told
them to destroy it and then I destroyed it.
§
CP – Yeah and
the sim-card and everything. Did you throw it away?
§
TS – Yes. I’m
not using the old number. I’m using this number.
§
CP – OK. So
they didn’t ask anything about me?
§
TS – No.
§
CP – Or if I’m
involved with anything?
§
TS – No. Ja…
but haven’t they asked you?
§
CP – Yes they
have asked me, but now, but now you’ve been phoning me all day
and they have been tracing my phone.
§
TS – The thing
is, who could I call? I had no-one to call.
§
CP – I know,
but now you have to destroy that phone. I have to tell them that you
phoned me otherwise they are going to think
that I am involved.
§
TS – Ja.
§
CP – So you
need to destroy that phone now. The phone and the sim-card my boy,
both.
§
TS – Ja.”
I
interpolate to say that at this juncture the video shows accused no.
1, seated on the front seat of the vehicle, turning around
and
frisking
Siyoni
.
§
“
TS – “I
don’t trust you now.
§
CP – I’m
just checking.
§
TS – Even me
I’m not trusting you now, just the thing of the police that are
coming to my house.
§
CP – I swear
on my life I didn’t say anything, but they are obviously seeing
who I have been phoning. They are taping
my phone and my every number
I phone, they are investigating my family too.
§
TS – ……..
§
CP – Somebody
said something.
§
TS – Ja,
because it’s like murder thing now it’s not like a
robbery or something.
§
CP – But
that’s what I said to you. It became kidnapping and and a
murder instead of just making it a robbery outside
the house.
§
TS - ……
I think about my family now. I think about Siyanda. I think about the
two little girls. I think about my gym.
§
CP – They went
to search you house says Siyanda.
§
TS – Siyanda
says so? You see.
§
CP – But
there’s nothing there about it so stop stressing.
§
TS - …….
You know why I’m actually stressing. I’m not safe
anymore, because I have to run away even from
Sizwe because I told
you mos what Sizwe said. That money was too little because now they
running away too.
§
CP – Yes, but
it is because of them Thando. They made it the way they did. They
made it so big, but they have run away hey?
How many of them?
§
TS – I don’t
know. I only know Sizwe.
§
CP – Is it
black guys or coloured guys.
§
TS – Sizwe is
a black guy.
§
CP – And the
others?
§
TS – I don’t
know if hmm…the others, but I know Sizwe. I was communicating
with Sizwe.
§
CP – Hmm.
§
TS – But I
don’t know if Sizwe was walking alone.
§
CP – OK.
Listen to me. I am going to report that you phoned me now.
§
TS – And then
you going to call me?
§
CP – No, but
you are going to destroy the phone.
§
TS – So you
are going to give them my number.
§
CP – Hmm, yes,
I have to tell them. They investigating me. If I lie to them they
going to take me in. So I’m telling
you. In half an hour I am
going to phone the investigating officer. He was at my house now now,
that’s why I can’t
talk to you all the time, and my uncle
is all around me. So I’m going to tell them, hmm, that you came
to see me wanting
to borrow money because people took you for
questioning for steroids. You need to go and hide in Jeffreys for a
while and keep
quiet.
§
TS –………..
Siyanda ……………… and what
about the rent for the gym.
§
CP – Yes, but
I can’t do anything because I’m under investigation so I
can’t just give over money all the
time, so don’t worry
me and Siyanda will talk.
§
TS – Yeah.
§
CP – OK. Are
you going to hide out that side in Jeffreys.
§
TS – Yeah I’m
going to stay a while there or maybe some ……
§
CP – OK so I’m
going to say, you must destroy your phone now and the sim-card, and
I’m going to say you said you
going to East London.
§
TS – …..
OK…..
§
CP – Yeah I am
going to be OK as long as they never know about us Thando. I never
ever, I only ever helped you with the gym,
I never did anything with
you. I’ll sort out your family, you hide low OK.
§
TS - …..
§
CP – You need
to be gone for a few months till this thing calms down.
§
TS – If I need
you I will missed call you.
§
CP – No! Not
on this number.
§
TS – On what
number.
§
CP – You going
to missed call me once and then you are going to wait until I get
another phone and sim-card.
§
TS – Ja.
§
CP – OK.
Allright. OK. There is about five there you sort yourself out.
§
TS – Yes.
§
CP – OK,
because I am all out now. This thing has cost me a lot of money. The
family is also looking at me.
§
TS – Serious?
§
CP – Yes. OK.
§
TS – This
thing is not right now.
§
CP – No, these
boys made it big. I told you to let them do it outside the house and
take the bags and the rings and then they
didn’t take the watch
or anything.
§
TS – They just
left.
§
CP – They just
left everything there. You see, so it looks like a hit now. So they
are after me, and that’s why I can’t
just meet you in
front of people like this Thando.
§
TS – OK.
§
CP – OK. Don’t
phone me and don’t sms, they are watching the sms’s
because you said.
§
TS – Ja, but I
sms you and you don’t reply, me at the other side I’m
hiding and then.
§
CP – No, but
you need to give me time. So from now you just give me one missed
call on this number first time and never again.
Don’t ever
phone me or sms me to this number because they are listening to us.
§
TS – Even now?
§
CP – Well yes,
but I put it off. When you are talking on the phone they are
listening that’s why I have to report this
now. OK. Allright. I
am going to say you are going to East London.
§
TS – OK. …..
§
CP – OK. OK
cheers.
§
TS – So I need
to missed call you.
§
CP
– Yes, but then you wait for me to phone you back. "
[19]
[57]
It will be gleaned from the aforegoing and the video footage that
after accused no. 1 frisked
Siyoni
,
there is a discernable attitudinal change in the interaction between
them. His initial circumspection all but vanishes and the
intricacies
of their murderous conspiracy are laid bare by accused no. 1’s
forewarning, -
“
Somebody said
something. Ja because it’s a murder thing now, it’s not
like a robbery or something . . . it became a
kidnapping and a murder
instead of just making it a robbery outside the house.”
The aforegoing unsolicited utterances and admissions by
accused no. 1 vouchsafe the truthfulness of the narrative in both
Breakfast
and
Siyoni’s
police statements and demystifies his concocted defence. Particularly
telling is accused no. 1’s comment
“
.
. .  I told you to let them do it outside the house and take the
bags and the rings and they they didn’t take the watch
or
anything.”
It is not in dispute
that when
Jayde’s
body was discovered in the veld, her watch was still on her left
wrist (slide 45, exhibit “A1”) and her bracelet on
her
right wrist (slide 54, exhibit “A1”). The presence of
these items of jewellery no doubt perturbed accused no. 1
hence his
earlier comment,
“
because . . . its
not like a robbery or something.”
His
language usage clearly imparts his displeasure at their modus
operandi for, as he remarked,
“
its
like murder thing now.”
An analysis
of the conversation furthermore establishes that accused no. 1 had
direct knowledge of
Vumazonke’s
involvement in
Jayde’s
murder. This is evident from
Siyoni’s
comment –
“
. . . because I told
you mos what Sizwe said. That money was too little . . .”
Whilst it is correct that they were not
privy to the identity of
Vumazonke’s
fellow villains, accused no. 1 was acutely aware that
Vumazonke
had not acted alone.
[58]
The aforegoing startling admissions of accused no. 1’s
complicity in
Jayde’s
murder held dire consequences for him and a strategy had accordingly
to be devised. Into this breach stepped
Mthembu
[20]
,
the case referred to in accused no. 1’s plea explanation.
However, in order to successfully raise the defence adverted to
in
Mthembu
,
a victim of torture had to be sourced and
Siyoni
,
a nefarious individual who bore the mark of an ostensible assault,
was earmarked as the ideal candidate to be moulded into the
battered
victim of torture in
Mthembu
.
It is no surprise therefore that when
Siyoni
was led, his description of the alleged assault on him was “
I
was tortured
”
.
Accused no. 1’s entire case is predicated upon
Siyoni’s
alleged torture and during the course of the trial and in argument I
was regaled with sonorous accounts of the decimation of his

fundamental rights. This vituperative assault on the integrity of the
police officials and the prosecutor was to be expected given
the
absence of any valid defence to the charge. As adumbrated
hereinbefore,
Siyoni
is an unadulterated liar and the salutary remarks enunciated in
Mthembu
find no application in this matter.
[59]
At an earlier stage of this judgment I referred to
Siyoni’s
volte face
concerning
the origins of the R31 000. 00 which the police found in his gym
bag and his demure admission that it constituted
the balance of the
R80 000. 00 which he had received from accused no. 1 destined to
Vumazonke
for the
contract killing.  In exhibit “AY1”
Siyoni
recounted a visit from accused no. 1 late the evening when the latter
handed him a bag containing money. In exhibit ‘V25”
Breakfast
likewise
narrated the circumstances under which
Siyoni
came into the house and asked her to count the money. It is common
cause that accused no. 1 went to
Siyoni’s
home during the late evening of 22 April 2015. The exculpatory
assertions made apropos this nocturnal visit are nonsensical –

its purpose, first and foremost was to deliver the money demanded by
Vumazonke
.
[60]
A substantial portion of the trial was devoted to establishing the
origins of the money but once the debris is removed, it
is clear that
accused no. 1 retrieved it from his business premises at the time he
disabled the alarm system. It is thus wholly
unnecessary to embark
upon an evaluation of the evidence of the host of witnesses who were
called hereanent.
Siyoni’s
sanitised version of its source and destination renders that exercise
unnecessary.
Siyoni’s
evidence hereanent was, given its earlier non-incriminatory
character, a shot out of the blue. In his revised version of the
circumstances
under which he came into possession of the R31 000.
00, he recounted going to his place of employment with
Vumazonke
and whilst the latter remained behind in the vehicle. He entered the
premises and then narrated how accused no. 1 came into Infinity
at
some unspecified time, sent
Vuyokazi
to call him and then handed him the money with instructions to hand
to
Vumazonke
. This
shocking revelation was inimical to accused no. 1’s claim to
innocence but, as the adage goes – even liars tell
the truth
sometimes.
[61]
Siyoni’s
disclosures, not unexpectedly, raised the ire of Mr
Price
who sought its expungement on the grounds of hearsay but I allowed
the evidence to stand. During his cross-examination, Mr
Price
was thus constrained to exercise damage control which he sought to
achieve by the following assertion –
“
I
am not saying you are lying please. I am saying you are making a
mistake when you say that Christopher gave you R80 000.00
at
O.K. Grocer to give to Vumazonke.”
Siyoni’s
riposte was
“
I am not
making a mistake
.”
[62]
In evaluating the revised version of the source and destination of
the R80 000, 00, it is apposite to refer to exhibit
“AY1”
where
Siyoni
recounted
having received the money whilst in a car outside his home on the
evening of
Jayde’s
murder. In exhibit “V25”,
Breakfast
confirmed that when
Siyoni
entered the house after meeting accused no. 1 outside, he had a bag
of money and asked her to count it and leave R50 000,
00 in the
bag and the balance to one side.
Siyoni’s
viva
voce
evidence thus provides substantial corroboration for the content of
both exhibits “V25” and “AY1” and proves

beyond any reasonable doubt that accused no. 1 knew who the recipient
of the money was. Further corroboration is to be found in
the
conversation between accused no. 1 and
Siyoni
on the evening of 29 April 2015 where he says: -
§
“
TS - …….
You know why I’m actually stressing. I’m not safe
anymore, because I have to run away even from
Sizwe because I told
you mos what Sizwe said. That money was too little because now they
running away too.
§
CP
– Yes, but it is because of them Thando. They made it the way
they did. They made it so big, but they have run away hey?
How many
of them?”
[21]
[63]
It is difficult to conceive of a situation where
Siyoni
could be mistaken about the source and the destination of the
R80 000. 00. It was never put to him that he was being
deliberately
untruthful and yet, other witnesses had been castigated
as liars for their testimony concerning money left at O.K. Grocer.
The
underlying reason for Mr
Price’s
mild mannered disposition towards
Siyoni
is self-evident. He was complicit in accused no. 1’s concocted
defence and could accordingly not be rebuked for his
faux
pas
concerning the R80 000. 00. As
adumbrated hereinbefore this is the only aspect of
Siyoni’s
evidence which I accept as truthful and it, coupled to the absence of
any rebutting evidence by accused no. 1, perfects the mosaic
of the
state’s case against him.
[64]
There is no dispute concerning the precise location where the
deceased’s body was discovered. That she had been conveyed

there in a vehicle from her home in Port Elizabeth however admits of
no doubt. The evidence adduced by the state, and detailed
hereafter
conclusively establishes that prior to 21 April 2015
Jayde
and her colleague, Ms
Swanepoel’s
movements, places of abode and employment had been monitored and kept
under surveillance as from 9 April 2015. As I shall in due
course
detail, the data retrieved from the Cartrack tracking device
installed in a white Toyota Etios (the Etios) bearing the
registration letters and numbers FYM 661 EC provide irrefutable proof
that it was the instrument whence the monitoring and surveillance

referred to was conducted and wherein the kidnapping and ferrying of
the deceased on 21 April 2015 was effected.
[65]
The first inkling that the Etios had been used to transport the
deceased arose quite fortuitously when Warrant Officer
Johannes
Jacobus
Botes (Botes)
,
one of the members of the unit, interviewed the owners of the
vehicle. Before I analyse and evaluate that evidence however it
is
apposite to dispel the notion that testimony incriminating the
erstwhile accused no. 2,
Sizwe
Vumazonke
with the
offences preferred against the accused was inadmissible. Prior to the
resumption of
Botes’
evidence in chief vis-à-vis the movement of the Etios on the
morning of the deceased’s disappearance, both Mr
Price
and Mr
Daubermann
objected to the reception of such testimony. The objection by Mr
Price
was formulated
thus:-
“
MR PRICE
M’Lord, since yesterday we have been taking instructions from
the family and we have spoken to very senior counsel throughout
the
country because something has been worrying us from the word go and I
need to address it with Your Lordship right now.
M’Lord,
we feel that we are being ambushed; I am not talking about ambushed
in the sense that we are getting very poor statements.
I am not
referring to that at all.  But from the word go, apart from Mr
Ndedwa, M’Lord, we have just had witness after
witness after
witness testifying about Sizwe Vumazonke’s role in this case.
M’Lord, Sizwe Vumazonke is not before
you and what makes it
exceptionally difficult for us representing Mr Panayiotou here, Mr
Daubermann can speak for himself, is we
are feeling obliged to ask
questions about a witness who is not before this court, about a
witness from whom we cannot take instructions.
Now, Ms Bakker
and his attorney, we have obviously consulted with them and they have
very strong and at times in my opinion pretty
good instructions to
challenge various witnesses, for example the cell phone expert
etcetera but we are not in that position, M’Lord.
And
what is happening there is that we are being forced to defend
Vumazonke when he is not before this court and when we cannot
defend
him.  Now, M’Lord, my instructions are to ask Your
Lordship one of two things.  One, that this evidence
relating to
Vumazonke and any further evidence relating to Vumazonke’s role
in this matter should be disallowed; he is not
before this court, he
is not an accused.  If that [interrupted].”
[22]
Aligning
himself with the objection raised Mr
Daubermann
submitted that: -
“
The difficulty,
M’Lord, is that the State is going to seek to rely on evidence
against an erstwhile co-accused who is not
before the court, which I
am basically not able to test properly during the trial.  The
State relies on the doctrine of common
purpose and also alleges a
conspiracy with that particular accused who is no longer before you,
M’Lord, and who is not represented
here.  So, in essence,
accused no. 3 and accused no. 4 basically just have to accept
whatever evidence is placed before Your
Lordship in relation to that
accused.  We simply are unable to test the evidence and we have
to face that evidence blindly.
So, in those circumstances, the
question arises whether that evidence should be ruled admissible or
not, M’Lord, and
just for the sake of formality, I am going to
object to that evidence being adduced, the evidence relating to
accused no. 2, M’Lord.
And I am going to ask Your
Lordship to make a ruling now on that issue, whether that evidence
should be allowed.  So, I note
my objection, M’Lord, on
that basis; as Your Lordship pleases.”
[66]
I overruled the objection and allowed the further adduction of
Botes’
testimony. The general rule is that all relevant testimony is
admissible unless excluded by a specific rule in the law of evidence.

This inclusionary aspect of the relevant criterion was explained by
Innes C.J almost a century ago in
R
v Trapedo
[23]
as follows –
“
The general rule
is that all facts relevant to the issue in legal proceedings may be
proved. Much of the law of evidence is concerned
with exceptions to
the operation of this general principle, as for example the exclusion
of testimony on grounds of hearsay and
remoteness. But where its
operation is not so excluded it must remain as the fundamental test
of admissibility.”
[67]
One of the myriad of issues which fall for adjudication in this
matter relates to the question how
Jayde
,
destined to be driven by Ms
Swanepoel
from her home in Deacon Street in Port Elizabeth to Riebeek College
in Uitenhage ended up in the veld on the outskirts of KwaNobuhle.
The
evidence which the state adduced initially by
Botes
was directed at establishing that she had been transported thence in
the Etios which had been hired from Zems.
Botes
had established from Mrs
Zulfa
McCarthy (McCarthy)
,
Zems’ owner, that
Vumazonke
had hired that vehicle. Such evidence was clearly admissible, and as
I shall in due course elaborate upon, crucial. The objections
raised,
with much hullabaloo to obfuscate the real issue, had, as its object,
the suppression of such testimony. I know of no exclusionary
rule
that where more than one accused person is charged and, prior to the
commencement of the trial one dies, testimony implicating
him/her in
the commission of the offence(s) charged is thereby rendered
inadmissible and to be excluded from the conspectus of
evidential
material.
[68]
It is not in issue that the manhunt for
Vumazonke
was triggered by the revelations made by
Siyoni
whereafter a tracking team which included
Sergeant
Thapelo Mabija
(
Mabija
),
Siyabulela
Manakaza
(
Manakaza
),
and
Botes
set off on a
fruitless search of him to Cape Town. It is apparent from their
testimony that
Vumazonke
had however been forewarned of the police’s hot pursuit and had
returned to Port Elizabeth. The tracking team followed certain
leads
and observed him at a party in KwaNobuhle.
Vumazonke
left and proceeded to a tavern surreptitiously followed by the
tracking unit.
Mabija
recounted that he (
Vumazonke
)
stopped, alighted and spoke to an unidentified person who ran away
when the tracking unit’s members approached his vehicle.
Vumazonke
, who at that
stage was seated in the vehicle, opened the door in an attempt to
flee and in the process of them trying to prevent
his escape, he hit
his head against the side floor panel.
Vumazonke
was arrested and transported to the Kabega Park police station. His
possessions, including three cell phones found in the vehicle,
were
booked into the SAP13 to wit, a Blackberry 8520 model, IMEI No.
361257045459562, a battery, MTN sim card, no. 2869929960,
a 26B micro
SD card, a white Samsung cell phone, IMEI No. 353420063290590, one
battery and a Cell C sim card no. 892707601141067634
and an Ipad with
serial no FSWLFYOAF196.
Mabija
recalled that the vehicle which
Vumazonke
had been driving was a Silver Grey VW Polo sedan bearing the
registration letters and numbers CAW 34942. The thrust of
Mabija’s
cross-examination by Mr
Price
related to the injury sustained by
Vumazonke
and the alleged violation of his rights. Its aim was to establish a
pattern of conduct by the police to corroborate
Siyoni’s
evidence that he had been assaulted. The remainder of his testimony
went unchallenged.
[69]
It is not in issue that the unidentified male who fled the scene
immediately prior to
Mabija
and the tracking team descending upon
Vumazonke’s
vehicle was his distant relative one, Mr
Ntsikelelo
Leon Gqirana (Gqirana)
.  During the
course of that evening he had borrowed the vehicle from
Vumazonke
and had plugged his cell phone charger and cell phone in the
cigarette lighter portal. When he eventually met with
Vumazonke
and left the SK2 tavern with
Vumazonke
and his girlfriend,
Vumazonke
had surreptitiously, and for reasons not germane to this judgement,
handed his cell phone to him. When the vehicle stopped and
shots rang
out which caused him to flee the scene, he did so whilst still in
possession of
Vumazonke’s
cell phone. As I shall in due course advert to, this is the very
phone which
Vumazonke
accused the police of having stolen after his arrival at the Kabega
Park police station.
Gqirana’s
evidence concerning the circumstances in which he came to be in
possession of
Vumazonke’s
cell phone was assailed by Mr
Daubermann
as untruthful but the criticism is unfounded and borne of
desperation.
Gqirana’s
testimony establishes that the number of the cell phone handed to him
by
Vumazonke
was 0832
691 1994. Its relevance will in due course crystallise.
[70]
Mabija’s
testimony concerning the futile manhunt for
Vumazonke
in Cape Town was corroborated by
Botes
,
who had been assigned to the tracking team by Brigadier
McLaren
,
the Provincial Head of the Detectives Services in the Eastern Cape.
Botes
narrated that he
first saw
Vumazonke
at
approximately 3 a.m. on 3 May 2014 and observed that his right eye
was swollen. In his evidence in chief, he adverted to his
role in
returning the VW Polo to its owners during the course of that
afternoon.
Botes
had
already established that the vehicle had been hired from Zems Car
Hire on 21 April 2014. During that telephonic discussion
he had
arranged that he would deliver the vehicle to them and duly did.
McLaren
, though not
physically present at the scene of
Vumazonke’s
arrest, was in the area and it was to him that the tracking team
proceeded on the arrest of
Vumazonke
.
[71]
Botes
narrated that
during the discussion with
McCarthy
,
the owner of Zems, he, perhaps presciently, asked her whether
Vumazonke
had not
previously hired vehicles from her. A perusal of the records (exhibit
“U”) revealed that
Vumazonke
had hired a white Toyota Etios bearing the registration letters and
numbers FYM 661 EC for an initial period of 2 days but subsequently

extended until 23 April 2015. Upon being appraised that that vehicle
had been fitted with a tracking device
Botes
asked her whether she would be able to retrieve the data relating to
the vehicle’s movements on 21 April 2015.
Botes’
account of the data displayed on the computer screen and which would
later be corroborated in all material respects by
McCarthy
was as follows: -
“
Then I requested
her to switch on her computers for me.  I also informed her she
is not compelled to show me that and then
we switched on the tracker
record of that vehicle, FYM 661 EC, we switched that on, the tracking
record of the 21st, the day on
which Mrs Panayiotou was murdered and
that was just from after 06h00.  Then we followed the record of
the tracker from KwaNobuhle,
that was to KwaZakhele, now we did it
live, the short distances that he was driving and it showed us pieces
and bit by bit but
it did not show anywhere where he stopped for a
long time.  Then at the residence of the deceased, it was red
lines as he
was driving around in that area.  He did not drive
away directly from the residence but it was in the vicinity, within
the
area of her residence.
Now, if I can just
interrupt you, at that stage you were aware where the deceased was
residing, is that correct so? --- Yes, M’Lord.
Goed en van daar
af? --- Now, where they allegedly picked up the deceased, they drove
around a road that went through the back;
that is through Rocklands.
Then Mrs Skonara said to me perhaps he is going to turn into the
right in KwaNobuhle.  Then
I said to her no.  Then we
followed the route further up to the first gravel road where he
turned into, to the left.
And Mrs Skonara at that stage got
very emotional.  Then at the farm where the deceased was
murdered, I said now he is going
to turn into, right.  Mrs
Skonara started crying at that stage, saying that my car has been
used to murder the deceased.
Then I tried to calm her down and
I said ma’am, just please come on, it is just plus minus 400 to
500 metres and then we
will be done.  Then we followed the red
line and precisely where the deceased was murdered, there were two
yellow spots; that
was where the car made a turn.
You are also aware
as to where the deceased was found? --- Yes, I was aware, M’Lord.
And is that the
place where the vehicle came to a standstill? --- I cannot say
precisely because that is from a GPS card that I
followed, I cannot
say with precision where it stopped but it was just according to the
knowledge to my avail that I said that
it was going to follow 400 to
500 metres before it turned around and according to me that is where
the car turned back.
So, was that
sufficient information at your avail to draw the inference that the
car was used in committing the murder? --- Yes,
M’Lord.”
[72]
That answer concluded
Botes’
evidence in chief and Mr
Price
was then called upon to cross-examine him. It failed to materialise
on that day and the first salvo was fired of what was to become
a
constant lament throughout the trial viz., that
“
this
is a trial by ambush”
. It is
apposite at this juncture to state that this constant and repeated
complaint is without any substance whatsoever and a deliberate
ploy
to obfuscate the issue.
[73]
The cartrack data referred to above was introduced into the
proceedings by Mr
Lorenz Stoger (Stoger)
,
an employee of Cartrack. During his prefatory testimony in chief, he
adverted to his experience in the tracking industry for the
preceding
twenty years and knowledge of tracking devices. He identified the
installation certificate of the tracking device installed
in the
Etios (exhibit “AB”) and described its operating system
as follows -
“
The fleet
management unit fitted to this vehicle uses what we call GPS
technology to accurate pinpoint the position of the vehicle.

The product type of the unit will be prompted to position from the
time that the vehicle’s ignition is turned on up until
the time
the vehicle’s ignition is switched off.  The phone ware on
the unit will update at a series of events, which
we call a trip;
this information is calculated at every five degree direction turn of
the vehicle every three kilometres in a straight
line and lastly, in
the event of an exception.  An exception is generated through
the accelerometer which is fitted to the
unit.  These exceptions
allow us to manage driver behaviour; these measure G-forces.
Typically, you would notice exceptions
such as harsh braking,
acceleration and turning.  I would also at this time like to
make it clear for the court how this technology
is used to accurately
pinpoint the position of a vehicle.  GPS or global positioning
system is a worldwide recognised technology.
The technology was
developed by the United States Military back in the seventies and the
purpose therefor was to manage and monitor
their assets around the
globe.  In the nineties, I think it was the late nineties; this
technology was released to the public,
which allows us, anybody today
with a smartphone or a GPS device to track your position and navigate
your way around.  This
positioning is achieved via a process of
trilaterisation.
MR INTERPRETER
Repeat again.
MR STANDER
Trilaterisation. --- Yes.  Basically, at any given
point there are 30 satellites circumnavigating the globe and the GPS
receiver
will lock onto a minimum of three satellites to accurately
position the vehicle or smartphone or TomTom or Garmin device or any

device that is fitted with a GPS receiver.”
Its
reliability and integrity is, despite initial hubbub, not open to
challenge and clearly admissible. It is not in issue that
the raw
data recovered from the fleet management unit is reflected on exhibit
“AA”, a detailed travel report of the
movement of the
Etios from 13h25:05 on 9 April 2015 to 25 April 2015.
[74]
At the conclusion of
Stoger’s
examination in chief both Messrs
Price
and
Daubermann
sought
leave to consult their own experts as a precursor to cross-examining
the witness. When he was recalled for that purpose,
Mr
Daubermann
raised an objection to the evidence tendered by him in chief on the
basis that, “. . .
he has not been
qualified properly as an expert and that my learned friend was
therefore not entitled to lead that evidence, which,
the opinion
evidence, which is irrelevant and not admissible in those
circumstances.”
I overruled the
objection and counsel for the state sought leave to put further
questions to him concerning the unit’s accuracy.
This request
elicited a further objection, ostensibly on the supposition that
Stoger
would now
expand upon his expertise. Mr
Stander
however refrained from any further examination in chief.
[75]
The objection raised to the admissibility of
Stoger’s
testimony is entirely without merit. It is abundantly clear, both
from his prefatory discourse and evidence adduced concerning
the
operating system of the unit that he is eminently qualified to
express an opinion. As Mthiyane JA adverted to in
S
v Mlimo
[24]
:
“
In my view a
qualification is not a sine qua non for the evidence of a witness to
qualify as an expert. All will depend on the facts
of the particular
case. The court may be satisfied that despite the lack of such a
qualification the witness has sufficient qualification
to express an
expert opinion on the point in issue. It has been said:
It is the
function of the judge [including a magistrate] to decide whether the
witness has sufficient qualifications to be able
to give assistance.
The court must be satisfied that the witness possesses sufficient
skill, training or experience to assist it.
His or her qualifications
have to be measured against the evidence he or she has to give in
order to determine whether they are
sufficient to enable him or her
to give relevant evidence. It is not always necessary that the
witnesses's skill or knowledge be
acquired in the course of his or
her profession - it depends on the topic. Thus, in R v Silverlock it
was said that a solicitor
who had made a study of handwriting could
give expert evidence on the subject even if he had not made any
professional use
of his accomplishments. (See DT Zeffertt, AP
Paizes & A St Q Skeen The South African Law of   A
Evidence (2003) at
302; see also Lirieka Meintjies-Van der Walt,
'Science friction: The nature of expert evidence in general and
scientific evidence
in particular'
(2000) 117 SALJ 771
at 773 - 4.)”
[76]
In my view, the evidence adduced conclusively establishes that the
vehicle used during
Jayde’s
kidnapping and conveyance was the Etios. It had been hired from
McCarthy
, the owner of
Zems on 9 April 2015 for an initial period of 2 days and thereafter
extended until it was finally returned on 22
April 2015. It had been
rented from her by
Vumazonke
and paid for by him for both the initial and subsequent periods. I
interpolate to say that the suggestion made that a white Opel
Corsa
could have been the vehicle in which
Jayde
had been ferried from her home is clearly based upon an erroneous
description of the vehicle by Ms
Smith
and speculative in the extreme.
[77]
Warrant Officer
Phillip Rudolph Bekker
(
Bekker
), attached to
the Provincial Crime Scene Investigating Unit, is an undoubted expert
in his discipline with over 25 years’
experience. The
preponderance of his testimony went unchallenged, the
cross-examination by Mr
Daubermann
being confined, in the main, to assertions that the data retrieved
from Cartrack’s computing systems could have been tampered

with. This speculative hypothesis has no factual basis and can
readily be discounted. The evidence adduced established its
inviolability.
Utilising the GPS coordinates which he himself
had taken and the cartrack data, exhibit “AA”,
Bekker
connected the various waypoints and compiled a trip map (exhibit
“AG”). The picture which emerges from these maps prepared

by
Bekker
establish a
plethora of reconnaissance missions to
Jayde’s
house, that of her colleague and her workplace. It is apparent from
exhibit “AG” that the mapped journey which commenced
at
05:24:46 on 21 April 2015 is the precise route which
Botes
and
McCarthy
viewed.
[78]
It is evident from the exchange between accused no. 1 and
Siyoni
as reflected in exhibit “CB1”, although both were aware
that
Vumazonke
had recruited others to assist him in the reconnaissance of and the
eventual murder of the deceased, the identities of his collaborators

was not known. Their uncloaking was achieved through a painstaking
analysis of cell phone billings, cellular extractions, sms messages

and cellular phone plotting. Prior to the inception of the trial the
state sought admissions from accused no.’s 3 and 4 that
they
used cell phones with numbers 060 […], and 078 […]
respectively.  That request was denied for
reasons which will
become obvious in due course. The quest to prove that accused no. 3
used the number 060 […] commenced
with the evidence of
Captain
Stephanus
de Bruin
(de Bruin),
who, in an entirely unrelated matter, interviewed accused no. 3’s
father as to his whereabouts and telephonic connectivity.
The
information sought to be elicited, viz accused no. 3’s cellular
number, was objected to on the basis that it constituted
hearsay. I
ruled that the evidence sought to be adduced was admissible in terms
of s 3(1)(c) of the
Law
of Evidence Amendment Act
[25]
i.e. that its reception was in the interests of justice.
[79]
The attempt to prove that the number furnished was indeed that of
accused no. 3 was once more thwarted when objection was taken
to the
evidence of Mr
Sameer September (September)
,
the manager of Student Records at the Nelson Mandela University. The
objection to the divulgence of accused no. 3’s personal
details
captured on the Universities’ data base by
September
proceeded from the assumption that, in as much as the subpoena had
been issued to
September’s
understudy, Ms
Beverley
Brickells (Brickells)
,
accused no. 3’s constitutional rights to privacy would be
infringed should
September
produce the requested information. The objection raised was spurious,
and, once more, a blatant attempt to suppress otherwise admissible

evidence.
September
was called as a witness, appeared of his own accord and not pursuant
to any subpoena. As adumbrated hereinbefore he was the person
in
charge of Student Records in the Universities administration and as
such entitled to access such information. The privacy contended
for
was that because the subpoena had not been directed at him, he was
not authorised to disclose the information sought. The argument

advanced is simplistic and untenable.
[80]
It is in any event clear from the terms of the subpoena that the
information sought,
inter alia
,
accused no. 3’s contact details, including any documentation
wherein he had furnished the number 060 […] was
sought to
be elicited from the University, and
Brickells
was merely its proxy. The information had in
any event, in compliance with the subpoena, been furnished to the
investigating officer.
The underlying import of s 205 is to vest the
state with machinery to pursue its legitimate interest in
investigating and preventing
crime and where, as in
casu
,
the information sought by the police is voluntarily produced, it is
admissible in evidence.
[81]
The task of identifying an individual with the cell number of
interest, 078 […] was assigned to
Bosch
by
Swanepoel
. By the
simple expedient of dialling the number and informing the answerer
that the number had been randomly chosen in a competition
to win
R500. 00 the recipient furnished his name as
Zolani
Sibeko
and his address as […], Zwide.
Bosch’s
enquiries at the address the following morning led him to […]
in Greenbushes where
Bosch
introduced himself and enquired about accused no. 4’s
whereabouts. He sought permission to search the premises, and, armed

with the requisite authority, he searched the house and found a male
person in a main en suite bedroom who identified himself as
Zolani
Sibeko
. Having ascertained his name,
Bosch
informed him of his rights and asked him where his cell phone was. It
could not be found. It appears from his testimony that one
of the
occupants, having eavesdropped on their conversation, had secreted
the phone on her person. Its attempted concealment however
failed
when
Swanepoel
, having
dialled the number, observed the lit up screen through accused no.
4’s abettor’s clothing and retrieved it
from her.
[82]
Bosch’s
evidence
that the name furnished by the answerer viz,
Zolani
Sibeko
(
Sibeko
)
was challenged on the basis that it constituted hearsay evidence and
should accordingly be ruled to be inadmissible. It is evident
from
Bosch’s
evidence
that the spontaneous declaration by accused no. 4 of his personal
particulars was triggered by the euphoria of his windfall
and to
contend that such evidence is inadmissible is simply untenable. The
further submission, that it had not been proved that
the secreted
phone was that of accused no. 4 proceeds from an entirely skewed
appraisal of the evidence.  It is not in dispute
that when the
police enquired about accused no. 4’s whereabouts, it yielded
the answer from his mother that she did not allow
him at her house.
His discovery in the bedroom thereafter establishes her deceit and
explains the conduct of the person who secreted
the phone. It is not
correct to submit, as Mr
Daubermann
did that
Bosch
did not
search for a phone. It is apposite to refer to that evidence: -
“
I searched the
premises and then found Mr Sibeko standing in the main bedroom
en-suite, M’Lord.  I identified myself
to him and warned
him of his rights.  I then requested him to allow me to search
him, as I was looking for a cellphone, M’Lord;
I could not find
a cellphone on his possession and he informed me that he had left his
phone in the bedroom that he was sleeping
in.  When I got to the
bedroom, M’Lord, there was an elderly lady busy making up the
bed in the room, M’Lord.
I did not find any cellphones in
that room, M’Lord.  I then requested Captain Swanepoel to
phone the number so that
we could see where this phone is.  As
Captain Swanepoel was phoning the number, M’Lord, the Xhosa
lady attempted to
leave the room.  I asked her where she is
going to, M’Lord; she then turned around, she had a gown on,
M’Lord.
She turned around and opened the gown like this,
showing us that she has got nothing in her possession.  As she
opened the
gown, M’Lord, you could see a cellphone’s face
lighting up in her gown pocket.  That phone was then handed over

to us, M’Lord, and we identified it as the phone that we were
looking for that Mr Sibeko was using at the time.”
A
cursory examination of the aforegoing tittle of evidence establishes
the want of the submission.
[83]
As presaged in the further particulars furnished to accused no.’s
3 and 4, the state’s case against them is based
upon cellular
phone billing and plotting and the car track data. Thus in order to
establish that there was contact between the
cellular numbers of
accused no.’s 3 and 4 and
Vumazonke
,
the state called Mr
Dharmesh
Kanti
(
Kanti
),
a manager in the Law Enforcement Agency Liaison Services of MTN.
Kanti
had deposed to an affidavit pursuant to the provisions of s 15(3) and
(4) of the
Electronic
Communications and Transactions Act
(
ECTA
)
[26]
and, when referred thereto in chief, confirmed its correctness and
expanded thereon with reference to certain cell phone towers.
His
cross-examination by Mr
Daubermann
stood over to afford the latter to consult his own experts and when
the matter resumed the next day he sought a declaration that
s 15(4)
of
ECTA
was unconstitutional by reason of what he termed were its reverse
onus provisions. After hearing the parties I handed down a written

judgment, dismissing the application by reason of its procedural
deficiencies.
[84]
The ruling precipitated a further challenge to the admissibility of
the cell phone records on the basis that
“
there
is no authority in s 205 which authorises a person who is prohibited
from divulging merely because that person has been subpoenaed
in
terms of s 205 . . .”
Finding
succour in the judgment of the Constitutional Court in
Nel
v Le Roux N.O. and Others
[27]
and the provisions of the
Regulation
of the
Interception
of Communications and Provision of Communications Related Information
Act
[28]
(RICA)
,
he submitted that neither
Kanti
nor any other proxy of a cell phone service provider had authority to
divulge the contemplated information. The submissions advanced

misconstrue entirely the judgment in
Nel
,
the non-applicability of
RICA
to the issue raised and ignores the express provisions of
ECTA
which regulates the admissibility and evidential weight of data
messages.
[85]
Section 15 of
ECTA
provides as follows: -
“
15
Admissibility
and evidential weight of data messages
(1) In any legal
proceedings, the rules of evidence must not be applied so as to deny
the admissibility of a data message, in evidence-
(a)
on
the mere grounds that it is constituted by a data message; or
(b)
if
it is the best evidence that the person adducing it could reasonably
be expected to obtain, on the grounds
that it is not in its original
form.
(2) Information in the
form of a data message must be given due evidential weight.
(3) In assessing the
evidential weight of a data message, regard must be had to-
(a)
the
reliability of the manner in which the data message was generated,
stored or communicated;
(b)
the
reliability of the manner in which the integrity of the data message
was maintained;
(c)
the
manner in which its originator was identified; and
(d)
any
other relevant factor.
(4)
A
data message made by a person in the ordinary course of business, or
a copy or printout of or an extract from such data
message certified
to be correct by an officer in the service of such person, is on its
mere production in any civil, criminal,
administrative or
disciplinary proceedings under any law, the rules of a self
regulatory organisation or any other law or the common
law,
admissible in evidence against any person and rebuttable proof of the
facts contained in such record, copy, printout or extract.”
and
it is against this backdrop that the evidence to which I have
hitherto adverted is to be assessed. Although various propositions

had been put to
Kanti
,
Johanna
Petronella
Heynecke (Heynecke)
and
Hilda
Du
Plessis
(
Du Plessis
),
concerning the range of the towers and transmitters, the accuracy of
the information gathered thereby and the maps generated
utilising
such information, their testimony stands uncontroverted.
[86]
The aforegoing testimony ushered in Ms
Thereza
Heather May Botha
(
Botha
),
an investigative analyst who compiled a comprehensive report
detailing her analysis of the communications between the key figures

involved. Her report, exhibit “EB” contains copious
references to cell phone towers depicted on a raft of maps. The

precise location of MNT and Vodacom base stations and towers
respectively was adverted to by
Kanti
and
Heynecke
with
reference to further maps (exhibits “DQ” and “DR”)
and the import of their evidence was that there
is no overlapping of
base stations – connectivity is dependent upon proximity
thereto. Under cross-examination by Mr
Price
,
Kanti’s
riposte
to the proposition purportedly emanating from an expert that
“
we
are at present We are at present using a cellphone expert who has
testified all over and she tells us that it does make a difference.

If Tower A which is the nearest tower doesn’t pick up a call
and the next nearest is Tower B, is it your evidence that Tower
A
cannot pick it up for whatever reason, Tower B will pick it up?--- It
will not pick up that Tower B because we don’t; we
have now
stopped the overlapping of base stations.
I
am not sure what you are saying. --- Okay, back in 2007 we had 5274
base stations countrywide; today we have 159 000 base stations

countrywide, so hence the coverage area, if a base station goes down,
you are not going to pick up signal, it is not going to move
or
bounce over to the next nearest base station to give you a
connection.  You have to be closer to that base station, Base

Station B, in order to connect to that base station.  If you are
in the strongest coverage area of Base Station A, you are
not going
to pick up coverage if that Base Station A is down.
How
long has this been like this? --- We have now stopped it since 2011.
There
is a reported court case in America which I am going to put before
this court, it is a murder of a person where the American
cellphone
expert, and I can assure you, far more qualified than you are, made
calls that one of the calls was picked up by a tower
a hundred miles
from where he was phoning.  On your version, is that impossible?
--- I cannot comment on the way the base
stations are set up in
America.
But
in this country it wouldn’t happen like that? --- It wouldn’t
happen like that.”
[87]
Heynecke’s
evidence hereanent mirrored that of
Kanti
and her cross-examination by Mr
Daubermann
was directed at establishing the possibility of overlap. Given the
argument advanced it is perhaps apposite to reproduce the relevant

extracts from the record, where, in response to the question
“
Do
tower coverage areas not sometimes overlap?”
she
responded as follows: -
“
They do,
M’Lord, indeed; that is why you are able to hand a call over
from one footprint to another footprint.
So,
what would happen if you are in such an area and your cellphone can’t
connect to the closest tower, what happens; won’t
it connect to
the other tower? --- Your call will be dropped, M’Lord.
No,
but if you are not getting a signal from the one tower, even though
it is within that tower’s area but you are receiving
a signal
from another tower in an overlapping area, what will happen? --- No,
M’Lord, if you are in transit and you move
from one, out of the
range of one base station, your signal will be handed over to the
neighbouring station but it is not a question
if you are trying to
make a call and this base station cannot cater for your call that the
neighbour will be so kind to take the
call for you; that does not
happen.  If you are in an area, a recipience area, or the
circumference of a base station and
you are not able to make a call
due to any technical reason, congestion or whatever, you will not be
able to make a call.”
[88]
The response was anathema to accused no.’s 3 and 4’s case
and her cross-examination stood down to enable Mr
Price
and Mr
Daubermann
to
consult their own experts, no doubt to dispute her evidence. The end
result of this exercise was the somewhat belated acknowledgement
at a
later stage of the proceedings, after her cross-examination stood
over, that her further attendance was wholly unnecessary.
It would
appear that whatever experts were consulted, their opinions were in
harmony with that expressed by
Kanti,
Heynecke and du Plessis
.
That this is so is exemplified by the conscious decision by Messrs
Price
and
Daubermann
not to cross-examine
Du Plessis
who had provided corroborative evidence.
[89]
Notwithstanding the abandonment as aforesaid, at the inception of his
address Mr
Daubermann
handed up from the bar a bound volume, entitled
“
Accused
No. 3 and 4’s Bundle”
incorporating a
bibliography of two papers by Professor R.P. Coutts and Shelby and a
book by one Larry Daniel. In developing his
argument that the
evidence adduced by the state from
Kanti
,
Heynecke
and
du
Plessis
carried no evidential weight whatsoever he quoted extensively
therefrom notwithstanding the fact that none of the cited passages

had been put to any of the witnesses. The articles and book are not
evidence before me and its introduction, through the backdoor
cannot
be countenanced. As Steyn CJ remarked in
R
v Harris
[29]
:
-
“
The contention
raised in this Court is that, the whole of the article not being in
evidence, it was an irregularity to rely on passages
therein not
approved or assented to by any witness, in arriving at a conclusion
unfavourable to Prof. Hurst's views, and to do
so without affording
him an opportunity of dealing with them.
In my opinion there is no
answer to this contention. Its correctness has to be conceded. The
present case appears to be indistinguishable
in principle from R v
Mofokeng and Another,
1928 AD 132.
In that case the allegation was
that the accused had strangled the deceased. The district surgeon,
however, had found no signs
of violence whatsoever on the body of the
deceased and expressed the opinion that the death of the deceased
could not have been
caused in that way. A passage from Taylor on
Medical Jurisprudence was put to him. The passage was to the effect
that there is
nothing to justify a witness in saying death has
proceeded from strangulation if there is no appearance of lividity or
other violence
about the neck. He agreed with this. In his summing up
to the jury the presiding Judge, after stating that counsel for the
defence
had represented Taylor to the district surgeon as an
authority and that the latter had accepted him as such, mentioned
another
passage in the same book to the effect that it is possible
that strangulation may leave no visible signs of violence. That
passage
had not been put to any witness. This Court held that what
the presiding Judge had done was undoubtedly irregular. STRATFORD,
J.A.,
remarked (at p. 136):
'The
opinion of this writer on this subject or on any subject was not and
could not be evidence in the case. It is only possible
to read such
opinions to a witness and to ask him whether he agrees or disagrees
with it. If he does the opinion becomes the evidence
of the witness.
If he does not, there is no evidence before the jury supporting the
opinion. This is trite law stated in the text-books
on the subject.'”
[90]
It is against this backdrop that the evidence adduced against accused
no.’s 3 and 4 falls to be assessed. The cell phone
records
establish that prior to 7 April 2015, there was no communication
whatsoever between
Vumazonke
,
accused no.’s 3 and 4. As adverted to earlier, the video and
audio footage demonstrates quite unequivocally that it was
in the
contemplation of accused no. 1 that
Vumazonke
would solicit support to execute his mandate. After hiring the Etios
from Zems on 9 April 2015, there are no fewer than five (5)

communications between
Vumazonke
and accused no. 4, eight (8) communications between him and
Khusta
and four (4) communications with accused no. 3. The inference can
thus properly be made that this was the assemblage to execute
the
diabolical plan. Thereafter a pattern of reconnaissance and
surveillance emerges, commencing with the trail from
Vumazonke’s
residence in KwaNobuhle to Ms
Swanepoel’s
residence in […] Street on 13 April 2015. The Etios leaves
Vumazonke’s
residence at 05:11 en route to Ms
Swanepoel’s
residence.
Vumazonke
communicates with accused no. 4 on no fewer than five (5) occasions
between 05:28 and 05:53. The reason for the reconnaissance
thence is
apparent from exhibit “AY1” where
Siyoni
narrates having pointed out Ms
Swanepoel’s
residence to
Vumazonke
as a possible locale where the deceased could be executed. It was, on
the evidence adduced, one of several possibilities where
she could be
killed.
[91]
14 April 2015
–
The undisputed evidence establishes that accused no. 4 phoned
Vumazonke
on no fewer
than five (5) occasions and received two (2) calls from him. This
collaborative effort, now with the inclusion of
Siyoni
appears clearly from
Siyoni’s
cell phone records. The data extracted from the cell phone records
and the car track data pertaining to 14 April 2015, demonstrates
the
collusive nature of the relationship between
Vumazonke
,
accused no. 4 and
Siyoni
.
The car track data reveals that the Etios stopped outside
Siyoni’s
gym in Tonjeni Street, New Brighton at 09:52. At 10:01 it leaves New
Brighton and at 10:09 turns into Deacon Street. At 10:56 it
is
positioned in North Street, where
Jayde
taught at Riebeek College.
Siyoni’s
cell phone records establish that he was in the Etios. Between 10 and
11 that very morning,
Vumazonke
communicated with accused no. 4 and the purpose could only have been
to keep him abreast of the reconnaissance.
[92]
15 April 2015 commences with no fewer than nine (9) communications
between
Vumazonke
and
accused no. 4, the first in the early hours of the morning i.e.
04:33, whilst
Vumazonke
was still at his residence in KwaNobuhle. After the Etios leaves at
04:54,
Vumazonke
communicates with accused no. 4 on five (5) occasions and once with
accused no. 3. The billings establish that the three (3) calls

between 04:33 and 05:01 was made by accused no. 4 to
Vumazonke
.
What happens thereafter is illuminating. The car track data shows the
Etios leaving
Vumazonke’s
residence at 04:54. At 05:23 it stops and the ignition is switched
off at Njoli Street, Port Elizabeth. The cell phone data establishes

that at that time both
Vumazonke
and accused no. 4 received reception from the Elundi towers. At the
time of the cell phone communication between accused no. 4
and
Vumazonke
at 06:22,
the Etios is in Van der Stel Street, in close proximity to
Jayde’s
home. Immediately after his call, the car track data records the
Etios’ speed at 74 km/h followed by heavy braking and turning

into Deacon Street. It then travels to Ms
Swanepoel’s
residence in Glen Hurd and thence to Riebeek College. The absence of
any cell phone communications between accused no. 4 and
Vumazonke
impel the inference, as the only reasonable one, that after 06:20 and
until 08:47, they were co-occupants of the Etios.
[93]
The aforementioned data establishes a similar pattern on 16 April
2015. The Etios departs from
Vumazonke’s
residence at 04:11. It arrives at
Siyoni’s
gym at 05:15, departs and returns a short while later before leaving
New Brighton and travelling to the deceased’s home.
On its
journey between 04:26 and 05:11 there are no less than twenty (20)
communications between accused no. 4 and
Vumazonke
.
At 06:20 both their phones received reception from the Linton Grange
tower and a call is made
inter partes
.
The inference may properly be drawn that accused no. 4 entered the
Etios whilst in that reception area and was an occupant throughout

the evening’s events. Immediately thereafter, the Etios starts
up, travels to Deacon Road and thence to Ruth Street where
it arrives
at 06:29 before returning to Deacon Street. The Etios then travels to
Maqanda Street and, lo and behold, accused no.
4 receives a call
whilst in the reception area of the Maqanda tower. The irresistible
inference is that accused no. 4 travelled
thence in the Etios.
[94]
Although the car track data establishes that the Etios was not in the
vicinity of the deceased’s house on 17, 18 or 19
April 2015,
its previous sojourns in the immediate environs is suggestive of the
fact that the surveillance had yielded the required
information as to
the deceased’s precise movements and the intelligence garnered
set the stage for the
coup de grace
on 21 April 2015.
[95]
The fact that the data does not establish that accused no. 4 was
present on 21 April 2015, does not inure to his benefit nor
does the
absence of any direct evidence implicating him in those events avail
him. In the preceding paragraphs I have adverted
to the
circumstantial evidence against him and it is apposite to restate the
proper approach to its evaluation, articulated thus
in
S
v Reddy and Others
[30]
:
-
“
In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to subject
each individual piece
of evidence to a consideration of whether it excludes the reasonable
possibility that the explanation given
by an accused is true. The
evidence needs to be considered in its totality. It is only then that
one can apply the oft-quoted dictum
in R v Blom
1939 AD 188
at 202-3,
where reference is made to two cardinal rules of logic which cannot
be ignored. These are, firstly, that the inference
sought to be drawn
must be consistent with all the proved facts and, secondly, the
proved facts should be such 'that they exclude
every reasonable
inference from them save the one sought to be drawn'. The matter is
well put in the following remarks of Davis
AJA in R v De Villiers
1944 AD 493
at 508-9:
'The Court
must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference
to be drawn from
each one so taken. It must carefully weigh the cumulative effect of
all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.'
Best on Evidence 10th ed
297 at 261 puts the matter thus:
'The
elements, or links, which compose a chain of presumptive proof, are
certain moral and physical coincidences, which individually
indicate
the principal fact; and the probative force of the whole depends on
the number, weight, independence, and consistency
of those elementary
circumstances.
A number of
circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt
of the fact which
they tend to establish. . . . Not to speak of greater numbers, even
two articles of circumstantial evidence,
though each taken by itself
weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone. . . . Thus,
on an indictment for uttering a bank-note, knowing it to be
counterfeit, proof that the accused uttered
a counterfeit note
amounts to nothing or next to nothing; any person might innocently
have a counterfeit note in his possession,
and offer it in payment.
But suppose further proof to be adduced that, shortly before the
transaction in question, he had in another
place, and to another
person, offered in payment another counterfeit note of the same
manufacture, the presumption of guilty knowledge
becomes strong. . .
.'
Lord Coleridge, in R v
Dickman (Newcastle Summer Assizes, 1910 - referred to in Wills on
Circumstantial Evidence 7th ed at 46 and
452-60), made the following
observations concerning the proper approach to circumstantial
evidence:
'It is
perfectly true that this is a case of circumstantial evidence and
circumstantial evidence alone. Now circumstantial evidence
varies
infinitely in its strength in proportion to the character, the
variety, the cogency, the independence, one of another, of
the
circumstances. I think one might describe it as a network of facts
cast around the accused man. That network may be a mere
gossamer
thread, as light and as unsubstantial as the air itself. It may
vanish at a touch. It may be that, strong as it is in
part, it leaves
great gaps and rents through which the accused is entitled to pass in
safety. It may be so close, so stringent,
so coherent in its texture,
that no efforts on the part of the accused can break through. It may
come to nothing - on the other
hand it may be absolutely convincing.
. . . The law does not demand that you should act upon certainties
alone. . . . In our lives,
in our acts, in our thoughts we do not
deal with certainties; we ought to act upon just and reasonable
convictions founded upon
just and reasonable grounds. . . . The law
asks for no more and the law demands no less.'”
[96]
Accused no. 4 chose not to testify and his failure to do so must
redound to his detriment. As adumbrated hereinbefore, the
evidence
adduced establishes beyond any reasonable doubt that in order to
execute his mandate
Vumazonke
was perforce obliged to recruit others. Thus count 1 alleged a
conspiracy to commit murder in contravention of s 18(2)(a) of the
Riotous
Assemblies Act
[31]
.
It is therefore instructive to emphasize its essential terms,
succinctly articulated by Boshoff J in
S
v Cooper and Others
[32]
as
follows: -
“
A conspiracy
normally involves an agreement, express or implied, to commit an
unlawful act. It has three stages, namely, (1) making
or formation,
(2) performance or implementation and (3) discharge or termination.
When the conspiratorial agreement has been made,
the offence of
conspiracy is complete, it has been committed and the conspirators
can be prosecuted even though no performance
has taken place. But the
fact that the offence of conspiracy is complete at that stage does
not mean that the conspiratorial agreement
is finished with. It is
not dead. If it is being performed, it is very much alive. So long as
performance continues, it is operating,
it is being carried out by
the conspirators, and it is governing or at any rate influencing
their conduct. The conspiratorial agreement
continues in operation
and therefore in existence until it is discharged (terminated) by
completion of performance or by abandonment
or frustration or
whatever it may be; per  Lord PEARSON in Director of Public
Prosecutions v. Doot and Others,
(1973) 1 All E.R. 940
(H.L.) at p.
951. While the conspiratorial agreement is in existence it may be
joined by others and some may leave it. The person
who joins it is
equally guilty; R. v. Murphy, (1837) 8 C. & P. 297 at p. 311
[1837] EngR 1120
;
(173
E.R. 502
at p. 508). Although the common design is the root of a
conspiracy, it is not necessary to prove that the conspirators came
together
and actually agreed in terms to have the common design and
to pursue it by common means and so carry it into execution. The
agreement
may be shown like any other fact by circumstantial
evidence. The detached acts of the different persons accused,
including their
written correspondence, entries made by them, and
other documents in their possession, relative to the main design,
will sometimes
of necessity be admitted as steps to establish the
conspiracy itself. It is generally a matter of inference deduced from
certain
acts of the parties concerned, done in pursuance of a
criminal purpose in common between them. R. v. Briscoe and Scott,
(1803)
4 East 164 at p. 171
(102 E.R. 792
at p. 795). If the
conspirators pursued, by their acts, the same object, often by the
same means, some performing one part of the
act and others another
part of the same act, so as to complete it with a view to the
attainment of the object which they were pursuing,
the conclusion may
be justified that they have been engaged in a conspiracy to effect
that object. The question to be answered
is, had they a common design
and did they pursue it by a common means? R. v.  H Murphy,
(1837) 8 C. & P. 297 at p. 310
[1837] EngR 1120
;
(173 E.R. 502
at p. 508); R. v
Blake, (1844)6 Q.B. 126 (66 R.R. 311)
(115 E.R. 49)
; Mulcahy v. R.,
(1868) L.R. 3 H.L. 306
at p. 317; R. v. Whitaker,
(1914) 3 K.B. 1283
(10 Cr. App. R. 245); R. v. Meyrick, R. v. Ribuffi, (1929) 21 Cr.
App. R. 95 at pp. 99 and 101. It is to be noted, however, that,
when
the object of the conspiracy has been agreed upon, it is not
necessary that any particular means or devices for attaining
the
object be agreed upon; R. v. Gill and Henry, (1818) 2 B. & Ald.
204
[1831] EngR 272
;
(106 E.R. 341)
; R. v. Kenrick,
(1843) 5 Q.B. 49
(114 E.R. 1166)
;
R. v.”
[97]
The data to which I have adverted establishes a course of conduct
directed to the achievement and pursuance of one criminal
design. The
sheer audaciousness of their mandate required a collaborative effort
and their presence in and about the deceased’s
home and places
frequented by her attest to the common purpose shared by them, viz to
kill the deceased. Accused no. 4’s
continued presence with
Vumazonke
over the three (3) days ineluctably compels the
conclusion as the only reasonable one, that he was privy to the
conspiracy, had
reconciled himself therewith and shared in the common
design. The fact that there is a dearth of evidence proving that he
was at
Jayde’s
place of execution is entirely irrelevant
– the offence of conspiracy continues and is in existence until
the common design
is discharged.
[98]
Mr
Stander
however submitted that given the common design of the collaborators,
the proper verdict should be one of murder. The case
[33]
cited by him in support of his submission however provides no
authority for the proposition advanced. The facts are wholly
distinguishable.
The fact that it cannot be proved that accused no. 4
was present during the shooting is however entirely irrelevant. Count
1 encompasses
a charge of conspiracy to murder and, as I have alluded
to, the facts objectively establish the conspiratorial agreement to
found
a conviction on count 1.
[99]
The car track data establishes that the Etios left
Vumazonke’s
home at 05:24 on 21 April 2015 and travelled to New Brighton in close
proximity to accused no. 3’s residence.  This
was no mere
coincidence. At 05:24
Siyoni
and
Vumazonke
were in
telephonic contact. During the course of the previous evening there
was communication between
Vumazonke
and accused no. 3 and thereafter
Khusta
.
After leaving New Brighton, the Etios travels towards the deceased’s
residence and circles the complex three (3) times.
Between 06:13 and
06:17
Vumazonke
communicates with
Khusta
on five (5) occasions and at 06:26 and 06:27 there are two (2)
further communications between accused no. 3 and
Vumazonke
,
the latter calling the former. At the exact time of the call, when
both receive reception from the Linton Grange tower, the Etios
is in
Oscar Street. It then travels to Deacon Street where, on the
probabilities, the deceased was bundled into the vehicle before
it
sped off.
[100]
The only reasonable inference to be drawn from the data is that
Vumazonke
alighted
from the vehicle whilst accused no. 3 drove off, no doubt not to
arouse suspicion. The turning and braking of the vehicle
shortly
thereafter and the increase in speed to Deacon Street attests to
Vumazonke
observing
the deceased hence the call to accused no. 3 to return to the
complex. Accused no. 3’s presence in the vehicle
is furthermore
established by the reception received from the Rocklands Hatchery
tower vis-à-vis the call at 07:04. The
aforegoing negates any
suggestion that accused no. 3 was not on the scene when the deceased
was shot. The evidence furthermore
establishes that he was at
KwaNobuhle when money was withdrawn from
Jayde’s
account and that he returned to Port Elizabeth in the Etios, leaving
Vumazonke
behind in
KwaNobuhle.
[101]
Vumazonke’s detailed billing establishes that he remained
behind in KwaNobuhle and this finds corroboration from his
aunt,
Zoleka
Zekani
(Zekani)
, who narrated the circumstances
surrounding his arrival at her home on the morning of 21 April 2015.
The cell phone billings furthermore
establish that between 11:04 and
11:24, accused no. 3’s phone received reception from the
Kwazakhele Dect tower whilst the
car track data establishes that the
Etios travelled from KwaNobuhle to New Brighton where it stopped at
Boqo Street and the ignition
switched off. The data further records
that at 11:24 the Etios was switched off in Parliament Street, in
close proximity to the
Spilkin Building tower whence accused no. 3
received a call at 11:33 a.m. The data thus conclusively establishes
not only his association
but occupation of the Etios at all relevant
times after leaving the scene of
Jayde’s
murder. The aforegoing analysis of the data, extrapolated from the
tracking unit and the cell phone billings prove accused no.
3’s
complicity in
Jayde’s
murder beyond any reasonable doubt.
Zekani’s
evidence that accused no. 4 resided at 35 Mxenge Street, KwaNobuhle
was sought to be excluded on the basis that I had ruled her
entire
body of evidence to be inadmissible. This misconception requires
correction. What was ruled inadmissible was that portion
of
Zekani’s
testimony relating to the actual words conveyed to her by
Vumazonke
which the state had sought to have admitted in terms of s 3 of the
Act. Her remaining evidence including that relating to accused
no.
2’s residential address was not disputed and stands.
[102]
The methodology employed to arrive at the verdict has obviated the
need to consider and evaluate the testimony of the majority
of the
witnesses called by the state. It is however incumbent upon me to
record that whilst the effluxion of time may, in certain
instances
have jaded their memories, I have no reason to doubt either their
honesty and accept that they gave a truthful account
of matters
within their province.
[103]
Before I conclude this judgment it behoves me to commend the
investigating team for their meticulous efforts in unmasking
Jayde’s
murderers. The criticism directed at them and the prosecutor is
unfounded.
[104]
Mr
Stander
has
properly not sought a conviction on all the counts preferred against
the accused and. In summation, I am satisfied that the
evidence
adduced proves the guilt of the accused on the charge(s) specified
hereunder beyond any reasonable doubt.
Accused no. 1 is found
guilty of murder on count 4 and not guilty on the remaining counts.
Accused no. 3 is found
guilty of robbery with aggravating circumstances on count 2, guilty
of murder on count 4 and not guilty on
the remaining counts.
Accused no. 4 is found
guilty of conspiracy to murder on count 1 and not guilty on the
remaining counts.
_________________________
D.CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State: Adv M. Stander
National
Director of Public Prosecution
North
End, Port Elizabeth
Obo
Accused No. 1: Adv T.N. Price SC
Obo
Accused No.’s 3 and 4: Mr P. Daubermann
[1]
Exhibit “C1” at par 8
[2]
Exhibit “C1” at par 9
[3]
2005 (1) SACR 505 (SCA)
[4]
1989 (1) SA 228
(A) at 232H-234A
[5]
1996 (1) SACR 572 (CC)
[6]
Record at p 645
[7]
Record at pp 1519, 1539 and 1540
[8]
2012 (2) SACR 219
(SCA) at para [10].
[9]
Act No, 45 of 1988
[10]
Exhibit “AY1”
[11]
2009 (1) SACR 513 (SCA)
[12]
Record at p 1683
[13]
Record at p1421 line 23 – p 1422 line 23
[14]
Record at p 1443
[15]
Record at p 1446
[16]
[2017] 1 ALL SA 681 (SCA)
[17]
1976 (2) SA 875
(T) at 889A-C
[18]
2010 (1) SACR 100
(SCA) at [22] - [26]
[19]
Exhibit “CB1”
[20]
S v Mthembu
2008 (2) SACR
407 (SCA)
[21]
Exhibit “CB1”
[22]
Record at p 513
[23]
1920 A.D 58
@ p62.
[24]
[2008] ZASCA 7
;
2008 (2) SACR 48
at para
[13]
[25]
Act No, 51 of 1997
[26]
Act No, 25 of 2002
[27]
1996 (1) SACR 572 (CC)
[28]
Act No, 70 of 2002
[29]
1965 (2) SA 340
(A) at p 344 D-H.
[30]
1996 (2) SACR 1
(AD) at p 8 (c) to p 9 (e)
[31]
Act No, 17 of 1956
[32]
1976 (2) SACR 875
(T) at p879B-H
[33]
S v Nduli and Others
1993
(2) SACR 501
(A)