S v Bantom and Others (CC39/17) [2019] ZAECPEHC 64 (16 August 2019)

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[2019] ZAECPEHC 64
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S v Bantom and Others (CC39/17) [2019] ZAECPEHC 64 (16 August 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL  DIVISION,  PORT ELIZABETH)
Case
No: CC39/17
THE
STATE
and
ATHENKOSI
BANTOM

Accused No 1
SIVUYILE
NXELE

Accused No 2
NKOSIYABO
MALI

Accused No 3
Neutral
citation:
Coram:
Swanepoel AJ
Heard:
30 and 31 July 2019, 1, 2, 5, 6, 7, 8, 12 and 13 August
2019
Judgment
delivered:
16
August 2019
JUDGMENT
[1]
In this matter, the three accused, all
from the Uitenhage area, are charged with having committed the crimes
of robbery with aggravating
circumstances, murder and unlawful
possession of a firearm. These charges arise from an attack on an
off­ duty policeman, one
Lulamile Stanley Pase ("Pase"),
who succumbed to his injuries soon after the attack which occurred
during the early hours
of the morning on 29 August 2016 at or near
Mqolomba Street, Kwanobuhle, Uitenhage.
[2]
The indictment originally also included
another  accused,  one  Thulani Knockpaal
("
Knockpaaf' ),
but the said Knockpaal
has since died, necessitating an amendment  of the indictment
at the commencement  of the
hearing  which I granted.
[3]
The State, represented by Mr Makasana,
alleges that the accused, as well as  the said Knockpaal, acted
" in concert and in the
execution of
a
common
purpose"
in unlawfully and
intentionally robbing the said Pase (hereinafter referred to as
"Pase")  and two females, one Emma
Sauls  and
her sister,  Xoliswa  Nanto.  With  respect
to the robbery charge, it is alleged
by the State that the accused by
force robbed Pase, Sauls and Nanto from two cellphones; a wallet; an
unknown  amount
of money  and  the 9mm pistol of
Pase. It is further alleged that aggravating circumstances  as
described
in section 1(1) of the Criminal Procedure Act 51 of 1977
("the
CPA")
were present, in that the accused wielded dangerous weapons, namely
knives, to inflict grievous bodily harm on Pase.
With respect to the
murder charge, it is  alleged  that Pase was stabbed
by knives. The third charge relates to
the alleged  possession
of the official firearm  of the late Pase.
[4]
All three accused were legally
represented . The first accused was represented by Adv Theron; the
second accused by Adv Skepe and
the third accused by Dr Erasmus.
[5]
With respect to the second accused, it
was common cause that at the time when the incident occurred he was a
few months short of
the age of eighteen. After informing him of his
right to be assisted by a parent or a guardian, he intimated that he
had no one
that  could  assist  him  and
was  satisfied  that  Adv  Skepe,  a
counsel
with substantial experience in criminal law with Xhosa
as his first language, would competently represent him. At the time
of the
trial, accused 2 was already an adult, and  was
informed  in  plain  language  of  the

allegations  against  him  and  of his
constitutional rights. The court was satisfied, in the interests of

justice, that the trial could proceed without any prejudice to
accused 2 or the administration of justice and accordingly dispensed

with the requirement of accused 2 being assisted by a parent,
appropriate adult or guardian.
[6]
All three the accused pleaded not guilty
to all the charges, and all three declined to provide any explanation
to the court of their
pleas of not guilty. Their legal
representatives indicated that their versions would be put to the
state witnesses .
[7]
The court was informed by Mr Makasana
that all three accused were  prepared to make formal admissions
in terms of section 220
of the CPA. By agreement, I was accordingly
provided with three similarly worded written documents containing
formal admissions,
respectively exhibits "C", "D"
and "E" prepared on behalf of the accused. In terms of
their admissions,
the accused agreed to the introduction of the
post-mortem report and its content, marked as exhibit "A"
and to the introduction
of a photograph album, the contents and the
key thereto, which had been prepared by a police official, which was
identified as
exhibit "B".
[8]
In their formal admissions, the three
accused all admitted that Pase was a 36 year old male person who had
died on 29 August 2016
at the
"crime
scene".
During the hearing,
evidence was adduced that Pase had made an attempt to drive his
vehicle after having been critically injured
in the attack to which I
shall revert hereafter, and I accordingly sought confirmation from
counsel that the concept
"crime
scene"
referred to the
description of the area known as
"Fan
Park"
where the attack had
occurred .  It  was  confirmed   that Pase
was   only
able   to
travel   a   very  short distance with his
Corsa motor vehicle, before
colliding with a tree planted by the
municipality at Fan Park where he then passed away shortly after
medical personnel arrived.
[9]
All three accused further. made formal
admissions regarding the  cause  of  death of Pase.
The post-mortem was performed
by Dr Jan Anthonie  de
Beer,  who  was called to testify at the hearing. It was
undisputed that the  fatal
wound  which caused the
death of Pase, was "a
stab wound
to the chest, abdomen and spleen, associated with substantial blood
loss".
Dr De Beer testified
that the amount of blood found in the peritoneal cavity and also in
the left  chest  cavity
comprised  approximately
2.5 litres of blood. The post-mortem report recorded that Pase had
sustained  the following
wounds:
"1.
1 cm wound left side of the neck; penetrating into the neck muscles

only
2.
2
cm wound left shoulder; not penetrating
3.
5
cm
wound left chest posterior; wound is in posterior  axillary
line  and  16 cm  below the armpit;
omentum
protruding  through  wound.  Tract  of
wound  goes from left to right and towards
the front; it enters
the left chest cavity between the 9th and 1(jh ribs left
postero-lateral; it misses the left lung; it then
goes through the
diaphragm into the abdominal cavity and ends in the spleen
4.
3 cm wound left buttock
5.
0,
5
cm burst laceration on chin
6.
1 cm wound on back of the head;
wound is in a gland  in the scalp; looks like  a
burst laceration; not penetrating
the skull
7.
2 cm burst laceration top of head
on right; not penetrating through the skull
8.
Superficial wound on left thumb
9.
Scratch marks on fore-arm".
[10]
Dr De Beer further referred to various contusions that had been found
on the scalp of Pase.
There was bleeding present in muscles on the
left side of the neck.
One
of the stab wounds had caused blood in the left chest cavity, but the
lung had not been penetrated.
[11]
The
photographs in  the photograph   bundle,
[1]
which   was   handed   in by
agreement, showed that the area known as
"Fan
Park'
is
a  relatively  flat  area  situated in Mqolomba
Street, Kwanobuhle. It was known as a Fan Park, because,
according to
the evidence, a large television screen had  been  erected
at the
"Fan
Park'
during
the soccer World Cup 2010 held in South  Africa.  The
area  was  thereafter known by this  description.
[12]
It became clear during the evidential
process that Pase lost his life during an opportunistic, vicious
attack carried out during
the early hours of 29 August 2016. The
attack was not pre-planned, but was decided upon shortly before the
attack started. The
synchronised manner in which the perpetrators
carried out their attack, causing Pase to lose his life, unfolded in
court, and largely
became common cause.
[13]
Two different introductory storylines
developed, until a fateful overlap of the two sets of roleplayers.
The three accused, together
with the said Knockpaal, who was slightly
older than the other three accused, were accompanied by one Siyatanda
Daniels
("Daniels")
on
the evening preceding the attack. Daniels was called by the State as
a section 204 witness. The three accused, Knockpaal and
Daniels met
at a tavern during the early evening. According to Daniels, they were
all armed with knives because they were going
to go to Kwanobuhle, an
area which was described by him as
"rough".
According to him they all had knives
on that occasion and showed each other their knives. After
drinking  alcohol
at  the  tavern,  with
some  of  them smoking
"dagga"
or inhaling
"tik',
they allegedly decided to go home.
Such  route to be followed by the three accused, Daniels and
Knockpaal would take them past
the area  known  as
"Fan
Park".
[14]
In the meanwhile, one Emma  Sauls
("Sauls")
previously
had  an  affair  with Pase. On the evening in
question, Sauls and her sister, one Xoliswa Nanto
("Nanto")
also went to a tavern. At this
tavern, telephonic contact was established  with Pase  who
wanted to meet up with them.
It appears that Sauls was interested in
re­ establishing  a relationship  with Pase.
[15]
After initially partaking of some
alcohol at the first tavern, they proceeded to another tavern, where
they purchased additional
alcohol.  It  was
agreed  at  the second tavern between Pase, Sauls and Nanto
that  they would
rather  proceed  to
"Fan
Park”
where they intended to
listen to music and enjoy their drinks there. When they arrived at
"Fan Park”',
Pase
and Sauls got  out  of  Pase's  vehicle
and  moved some distance away from Pase's vehicle whilst
Nanto,
the sister of Sauls, proceeded   to play music on her
cellphone from the vehicle. The alcohol  was
either
in  the  vehicle, or on top of the vehicle. Every now and
then Pase and  Sauls  would  be
"topped
up"
at the vehicle by
Nanto, according  to  Nanto.
[16]
And this is where the two storylines
met, with tragic consequences for Pase and his two female companions.
When the accused, Knockpaal
and Daniels saw Pase's vehicle parked at
"Fan Park”,
with
Nanto inside the vehicle listening to music on her lit cellphone, and
with Pase and Sauls relaxing some distance away from
the vehicle,
consuming alcohol, they all simultaneously decided to carry out a
robbery. Knockpaal and Daniels, the section 204
witnesses, promptly
proceeded to rob Nanto in the vehicle, taking not only cellphones
from the vehicle, but Knockpaal also took
Pase's official 9mm Beretta
firearm from under the front seat of the motor vehicle. The three
accused, led by accused 1, then moved
towards Pase and Sauls, where a
melee ensued with fatal consequences for Pase.
[17]
Although
it became apparent from the evidence that even though the particular
robbery had not been pre-planned, those taking part
in the robbery
all reconciled themselves with such an objective to carry out such
robbery in circumstances where they were armed
with knives,
[2]
which could forseeably cause death or serious bodily injuries. They
all played active but different parts.
[18]
The first two witnesses called by the
State, Sauls and Nanto, were unable to identify any of their
assailants. The version of Sauls,
who was called first, was to the
effect that the attack was sudden and unexpected. Accused 3 was a
main protagonist after accused
1 had initiated the attack on Pase. A
fight ensued with Pase, in order to overpower him. The assailants
attacked strategically.
Knockpaal and Daniels proceeded to the
vehicle in which Nanto was sitting in order to rob her, whilst the
other three accused proceeded
to attack Pase and Sauls. The element
of surprise was on their side, over and above the obvious fact that
Pase, Sauls and Nanto
hardly stood any real chance of meaningful
resistance against five assailants, acting together.
[19]
Nanto maintained that she was shocked
when there was initially a knock on the driver's side of the car.
When she tried to flee by
getting out on the passenger side, she
found that she was confronted on that side by Daniels. According to
Nanto, she then lost
consciousness having been hit over the head by
someone with a blunt object. She could not say who had hit her. She
testified that
her bra had been disturbed where her own cellphone was
hidden. Her cellphone was missing after the attack. Another cellphone
of
her sister which had been lying on the dashboard of the vehicle
had also been taken. She maintained that she was unable to identify

any of her attackers, because the one attacker had allegedly,
according to her, partly obscured his face.
[20]
The witness Daniels denied that he had
hit Nanto, but confirmed that Knockpaal had removed a firearm from
under the seat. It cannot
be ruled out that it might have been
Knockpaal who had hit Nanto over the head, causing her to temporarily
lose consciousness.
[21]
Some distance away from the car, the
other melee was starting to turn vicious. Sauls, a frightened,
helpless onlooker ran back to
the car, screaming at the same time,
whilst Daniels and Knockpaal rushed to the aid of those that were
carrying out the attack
on Pase.
[22]
The evidence established that accused 3
attempted to incapacitate Pase after Pase had already been kicked to
the ground by accused
1. At some stage, according to Daniels, Pase
and accused 3 were grappling with a knife, which was pointing upwards
towards the
abdomen of the assailant accused 3, who was at that stage
on top of Pase. Accused 3 called for help, because Pase was fighting
back. The first accused and accused 2 started kicking Pase to assist
accused 3 to overpower Pase.
[23]
Accused 3's counsel put it to Daniels
that Pase allegedly also had a knife, but this was clearly made up.
It is apparent that accused
3, in his attempt to stab Pase, wrestled
with Pase who was frantically fighting for his life until he was
overpowered, not only
as a result of him being kicked or hit by
accused 1 and 2, but also as a result of Knockpaal joining the fight.
Knockpaal hit Pase
violently over his head with Pase's own firearm
which Knockpaal had stolen from the stationary Corsa.
[24]
The severity and viciousness of the
blows which the deceased had to sustain are borne out by the
post-mortem report and the description
of the wounds described and
explained by Dr De Beer. The scalp injuries sustained are consistent
with the blows  to  the
_head  as  described
by  Daniels,  and  confirmed  by  the
accused  and
commented on by Dr De Beer. Photographs of
the stab wounds and injuries which the deceased sustained also bear
out the nightmarish
violence which he had to endure.
[25]
The prosecution was confronted by a lack
of identification of the assailants by the witnesses Sauls and Nanto.
This was exacerbated
by an absence of any plea explanations which
placed any of the three accused at the scene. This evidential hurdle
was surmounted
when the State called Daniels as a section 204
witness. Daniels was duly warned in terms of
section 204
of the
Criminal Procedure Act. The
court also allowed a legal
representative, Mr Saziwa of Legal Aid, to assist the
section 204
witness. Once Mr Daniels started testifying, identifying the three
accused as well as Knockpaal as having been participants in
the
attack , the accused were faced with a dilemma. They now had to
extricate themselves from the incriminating evidence of Daniels.

During their own testimonies, they all placed themselves at the
scene, but each one of the three accused attempted to diminish
their
own individual roles in the attack. Their attempts were unconvincing.
[26]
Accused 1, through his counsel, admitted
that he had
" bumped or pushed'
Pase, causing Pase to fall over,
before accused 3 started to  attack  Pase.  He
persisted however, in contending
that he did not initially kick Pase,
as if this form of violence somehow lessened the seriousness of his
unlawful conduct
in the context  of  a group attack.
[27]
On behalf of accused 2, his legal
adviser, Adv Skepe, put it to Daniels that accused 2 did kick Pase,
but attempted to portray such
violence less harshly, by suggesting
that this occurred after accused 3 had  called  for
assistance,  because
Pase was in the process of overpowering
accused  3.
[28]
On behalf of accused 1, it was
even  suggested  to  Daniels  that  Pase
had started to
"assault”'
accused 1 and accused 3! Accused 1
admitted that Pase  was fighting for his life in the face of a
collective attack. He not
only joined in, but actively assisted the
third assailant,  accused 3, who was in the process of fighting
for control
of a knife which was seen to be
"between"
accused  3 and Pase. He helped
accused   3 to overpower Pase. Accused 1 maintained that
he  only
saw  that a firearm  came into play
when he saw Knockpaal starting to hit Pase with the firearm.
[29]
The version of accused 2 was put to
Daniels by  Adv  Skepe.  Accused  2
confirmed that he participated
in the attack on Pase, in order to
assist accused 3. He further asserted unequivocally through his
counsel that he did not deny
that he had kicked
"
the old man, Tata" .
He also
confirmed that Knockpaal repeatedly hit Pase violently with the
firearm. According to accused 2, during the process of Knockpaal

hitting Pase with the firearm over the head, one of these blows
injured  accused  2's  own leg, impairing
his
mobility to run away, because he was  limping  as a result
of   the injury that he sustained. This invariably
placed
him  right  next to Knockpaal,  or  also on top
of Pase, if Knockpaal was violently hitting
Pase  over
the head  at the  time. Accused 2 also denied that he had
seen the stolen wallet of
Pase.
[30]
With respect to the attack itself, it
was  put  to  Daniels  on  behalf  of
accused  3
that Pase had his own knife. Accused 3
confirmed the description of the attack generally, but maintained
that he had sustained
a stab wound on his left hand. He confirmed
that Pase had fought back, which necessitated him calling for help
from Knockpaal
and Daniels in order to overpower  Pase.
[31]
It was further put to Daniels by Dr
Erasmus that whilst accused 3 admits that he did have a knife with
him, that knife was still
in his pocket and that he did not use his
own knife on the evening in question. Dr Erasmus further put it to
Daniels that his client,
the said accused 3, confirmed that during
the scuffle he had taken control of the knife allegedly of Pase,
implicitly conceding
that he had used
a
knife to subdue Pase.
[32]
It was rather evident that Daniels's
evidence had to be treated with a degree  of caution when his
foot chains had to be removed,
at the instance of Mr Sasiwa of Legal
Aid, whom the court allowed to assist Daniels. Daniels disclosed that
he was incarcerated
for house breaking. However, the version that he
disclosed to the court was substantially corroborated when the
versions of the
three accused were put to him by their respective
counsel.
[33]
According to Daniels, on the night
in question,  he was  in the  company  of the
three accused and Knockpaal,
since deceased. They were all armed with
knives, an aspect to which I shall return below. In the early
hours  of
the  morning,  having  smoked
"
tik'
and dagga, they had to proceed
past
" Fan  Park'.
They
noticed  the parked vehicle of the late Pase, with one passenger
inside, who turned out  to be  Nanto.
They also noticed the
late Pase and a female,  who turned  out to be Sauls,
some distance from the vehicle. They
spontaneously  decided to
carry out a  robbery.
[34]
He and Knockpaal decided to see what
they could find in the vehicle and if needs be, to rob the passenger
inside the vehicle, whilst
the other three proceeded to Pase and
Sauls. He testified that Knockpaal opened the driver's door whilst he
proceeded to the passenger
door, causing considerable shock to Nanto
when she found that she was cornered. He testified that he then took
two cellphones from
the dashboard. He saw Knockpaal finding a firearm
under the driver's seat, which subsequently turned out to be Pase's
Pietro Beretta
9mm service pistol with serial number H952247, as
identified in the indictment.  He  also  testified
that
Knockpaal took an additional cellphone from Nanto, but was
unable  to  say  whether  he  had taken it
off her person or not. At this stage, he noticed that accused 3 and
accused 1 were engaged in a scuffle with Pase. According to
him, he
saw that accused 3 and Pase were struggling with each other
about  possession  of a knife.  His
description
was that of a large knife. At some stage, he noticed that the blade
of the knife was pointing towards the abdomen of
deceased 3. It
became apparent to him that Pase  was fighting back. Accused 3
required assistance. Accused 1 and 2 kicked
Pase, to help accused 3.
As he had approached the struggle,  the female  (Sauls)
proceeded past him screaming loudly.
Knockpaal then  repeatedly
hit Pase  over the head  with the firearm, causing him to
lose power. According
to Daniels, he
saw
accused 3 stabbing Pase once.
Accused 1 then searched Pase and  removed  his
wallet  and took his phone.
[35]
From there, the group ran away to a
river where they took out the spoils of the robbery and showed it to
each other. According to
him,  accused  1  took
out  the phone which he had taken  as well as the wallet;
Knockpaal
took  out the handgun  and a cellphone and
he himself took  out the two cellphones  that he had taken
from
the car. The money was taken out of the wallet and was
used,  according  to Daniels,  to purchase
"
tiK' ,
which they inhaled after
purchasing same from a certain outlet that sold drugs. Tik was
inhaled until dawn. In the morning, they
went home, but the next day
gathered next to a certain church where some of the cellphones were
sold to the owner of a
''jikeleza "
,
a kind of informal taxi vehicle.
[36]
The proceeds from the cellphones were
again used by all to buy drugs  to smoke. The stolen firearm
remained in the possession
of Knockpaal. At a certain occasion, near
Mabandla, he, Knockpaal and accused 2 were confronted by an
individual with the nickname
of
"Fashion"
,
who approached Knockpaal and
enquired about his possession of the handgun. A rumour had
ostensibly  spread  that
Knockpaal had such a police
firearm in his possession. A confrontation  ensued  between
" Fashion",
a
friend of the so-called
"
Fashion"
and Knockpaal and the
handgun was forcibly removed from the possession of Knockpaal by
"Fashion" .
Daniels
also testified that at the time when the late Pase was attacked, they
did not know that he was a policeman. By reason of
a substantial
gathering at Fan Park the next day, they knew that it was a policeman
and ascertained that he had died in the robbery.
[37]
All the accused were accordingly
compromised and were placed at the scene where the robbery had been
committed and where Pase died,
by Daniels, the
section 204
witness.
During his cross-examination by Adv Theron, he repeated that accused
3 had stabbed Pase whilst accused 1 and 2 had kicked
Pase in order to
help him overcome Pase who was fighting back for his life. The
version of accused 1 which was put to Daniels by
Adv Theron
substantially confirmed the version conveyed to court by Daniels. On
behalf of accused 1 it was put to Daniels that
accused 1 had not
kicked Pase, but had allegedly
"
bumped'
or
"
pushed him over'.
During his
testimony, accused 1 demonstrated to the court what he meant by this.
He crossed his arms across his chest and then demonstrated
that he
forcibly pushed Pase over in order to assist accused 3. Whilst the
version of accused 1 was being put to Daniels, it was
conceded that
accused 1, 2 and 3 were all engaged in the attack on Pase. It was
even suggested during the cross-examination of
Daniels on behalf of
accused 1 that the late Pase had started to
"assault”
accused 1 and 3, an ironic
misdescription of Pase's futile attempt of defending himself.
[38]
According to accused 1's version,
accused 1 and 3 had been
"lifted
up"
by Pase and thrown on the
ground, but this version might well have been contrived
ex
post facto.
In any event, their
active participation in the unlawful attack and robbery was
effectively conceded in the process. Whilst it was
admitted on
behalf  of accused 1 that accused 3 and Pase were struggling
with possession of
"something",
accused 1 dishonestly contended that
it was too dark for him to see what the object was. It was evidently
a knife.
[39]
It was furthermore confirmed on behalf
of accused 1 that accused 3 had sought help when Pase fought back and
called out to the other
accused to come and help him. Daniels was
adamant that accused 1 and 2 both kicked Pase, thereby contributing
to Pase being overpowered.
He re-affirmed during cross-examination,
that Knockpaal had hit Pase violently over the head with the pistol
that he had taken
from the vehicle. In the process of hitting Pase,
Knockpaal accidentally hit accused 2 on one of his legs, causing
bleeding and
subsequent limping. If anything, this merely
demonstrated the violence of the attack.
[40]
During the cross-examination of Daniels
he was asked by Adv Theron whether they had knives in their
possession. Daniels stated that
they
all
had knives in their possession on
the night in question. According to accused 1, he saw accused 3 with
the knife in his hand. Daniels
himself denied that he had his own
knife in his hand at any stage during the attack. It was put to
Daniels that accused 1 would
deny that he had a knife in his
possession on the evening in question. In response hereto, Daniels
denied the assertion. He repeated
that they all had knives on the
evening in question, because they were going to go to Kayelitsha
where it was
"rough".
At
the tavern, they had showed each other the knives which they had in
their possession, purportedly for self-protection purposes
should
they be confronted at Kayelitsha. He demonstrated that these knives
varied in length from 6 inches to 12 inches, or up to
the length of a
ruler. These knives were modified household knives with homemade hand
protectors protecting their hands from sliding
down on the blades of
the knives. This description of the modified nature of the knives in
their possession and of the purpose
of having modified the knives in
this way, was not challenged. What was put to Daniels was a denial on
the part of accused 1 that
he had a knife in  his possession on
the night in question.
[41]
During cross-examination Adv Theron
sought to introduce a statement that had been taken from Daniels by
one warrant-officer Saaiman.
The relevant part relaying the events
comprised of a rather cryptic seven paragraphs. This statement was
interpreted by an interpreter
to warrant-officer Saaiman, from Xhosa
to Afrikaans, but was then written down by Saaiman in English.
Cross-examination of Daniels
ensued about the language used and the
wording thereof. Daniels disputed the contention that he had not
provided all the relevant
detail to warrant-officer Saaiman. He
insisted that he did convey the description of the events in Xhosa to
the interpreter, and
asserted that it was not
"his
problem"
if it was not
correctly interpreted or recorded. Consequently, by reason of this
obvious difficulty confronting the accused 1's
counsel, it was
recorded that warrant-officer Saaiman would be called as a witness to
prove the statement. At the time when Daniels
had made the statement,
he did not have the assistance of a legal representative or of a
parent or guardian.
[42]
However, neither Daniels, nor Mr
Makasana or Mr Sasiwa contended that the statement was not made
freely and voluntarily , without
undue influence. Adv Theron informed
the court that she would prove the statement by calling the
interpreter and if possible, warrant-officer
Saaiman. One of the
identified problems related to the interpretation from Xhosa to
Afrikaans, but recorded in English.
[43]
The State also called Magistrate John
Montgomery, a magistrate employed in the Department of Justice since
1995 to prove a confession
made to him by accused 3. Dr Erasmus, who
represented accused 3, had no objection to the introduction of this
confession. This
was unsurprising, given the forthright manner in
which Magistrate Montgomery testified regarding the circumstances
under which
the statement of accused 3 was recorded. An official
court interpreter had assisted the magistrate and interpreted the
version
of accused 3, which was minuted at the time when he had
reached the age of nineteen. Mr Montgomery reiterated that accused 3
was
calm; made the statement freely and voluntarily, was not under
any duress, and was not unduly influenced to depose to the statement.

The statement was recorded in Afrikaans, was interpreted in court
without any objection and introduced as exhibit "F".
[44]
In exhibit "F", accused 3
confirmed the attack which was perpetrated upon Pase, Sauls and
Nanto. In particular, he confirmed
the robbery of the cellphones and
of Pase's firearm which Knockpaal had removed from the vehicle and
which was then used to hit
Pase over the head. He stated that Pase
had fought back and at one stage started to gain the upper hand. He
referred to the handgun
which was in Knockpaal's hand as a
"shiny
thing"
and asserted that he
only realised that it was a gun  when  Pase  was
hit  over  his  head
with  the
handgun  by  Knockpaal  in his presence. All the other
accused saw the handgun and they subsequently
found out that the
person which they had assaulted had died.
[45]
Dr Erasmus put it to Magistrate
Montgomery that accused 3's confession was correctly recorded, save
that accused 3 had in fact been
stabbed by the person fighting with
him. In other words, his instructions were that Pase had stabbed
accused 3. However, Dr Erasmus
emphasised that accused 3 admits that
he did not convey this to Magistrate Montgomery at the time of making
his confession.
[46]
During
the cross-examination of the
section 204
witness by Adv Skepe,
representing accused 2, there was again substantial corroboration of
the description of the robbery as described
by Daniels. Adv Skepe was
able to elicit from Daniels that the robbery had not been
pre-planned, but had occurred on the spur of
the moment when they
noticed the opportunity to rob Pase and the two females. Daniels
reiterated their intention to rob the car,
Pase and the females. With
respect to the possession of knives, Daniels persisted that they were
all in possession of knives. In
response to a pertinent question from
Adv Skepe
[3]
to Daniels that
they must then have foreseen the possibility that such knives could
be used, Daniels admitted that this possibility
was foreseen.
[47]
It was further put to Mr Daniels on
behalf of accused 2 that accused 2 saw no other knife in anyone's
hand, save for the knife which
accused 3 had in his possession on the
night in question. Adv Skepe informed Daniels that accused 2
was not going to deny
that he had kicked Pase in assisting accused 3
to overpower him. This was in response to  accused  3
allegedly
calling  for  help,  but
Daniels  stated that he did not hear such a call. Adv Skepe
further put it to
Daniels that accused 2 would confirm that he saw a
knife
"between"
the
subsequently deceased Pase  and accused 3 at some stage during
their struggle. Consequently, it became apparent that accused
2
knew
that accused 3 was using a knife in
the scuffle with Pase.
[48]
In response to questions posed by the
court, Daniels stated that Pase did not have a knife. Daniels's
version that Knockpaal had
hit Pase over the head with the police
handgun that had been removed from the vehicle was confirmed and not
seriously challenged
by any of the accused.
[49]
Daniels conceded during
cross-examination that he had reconciled himself with the intent to
rob and overpower Pase. He maintained
that he and all of the accused,
as well as Knockpaal, had reconciled themselves with the intention to
rob and overpower Pase. There
was a disavowal conveyed to Daniels on
behalf of accused 2 that he did not share in the proceeds of the sale
of the cellphones,
but this was disputed by Daniels.
[50]
During the cross-examination of Daniels
by Dr Erasmus, the most important aspect which became apparent during
such cross-examination,
was the version which Dr Erasmus put to
Daniels to the effect that Pase purportedly had a knife of his own.
This was in line with
what he had earlier put to Magistrate
Montgomery, that accused 3 was purportedly stabbed by a knife of Mr
Pase himself, which was
not mentioned in his confession. This version
was obviously untruthful. Significantly, the version of accused 3
which was put to
Daniels, was not to the effect that accused 3 was
not
on
the scene. To the contrary, accused 3 tried to portray himself as a
victim in his fight with the late Pase, instead of being
a
knife-wielding perpetrator.
[51]
On behalf of accused 3, accused 1 was
incriminated as having been initially responsible for kicking Pase
off balance, causing him
to fall down, whereafter the fatal struggle
ensued. That both accused 1 and accused 2 had violently kicked Pase,
was also confirmed
during the version put by Dr Erasmus on behalf of
accused 3, to Daniels.
[52]
During the cross-examination of Daniels
by counsel for accused 1, he testified that all the accused,
including himself, had knives
in their possession. He was criticised
for not having asserted in his
section 204
statement that he actually
saw accused 3 stabbing Pase, as he had testified in court. However,
there was corroboration for his
viva
voce
evidence in this regard. When
the version of accused 1 was put to Daniels, Adv Theron asserted that
accused 1 would testify that
he also saw accused 3
"with
a knife in hand'.
In response to the
lastmentioned assertion, Daniels merely confirmed that he and the
accused all had knives in their possession.
In putting the version of
accused 1 to Daniels, Adv Theron further confirmed that accused 1 and
2 had kicked the male person whilst
accused 3 was on top and at that
stage, accused 3 allegedly needed help, because he and Pase were
scuffling with a knife which
was protruding upward towards the
abdomen of accused 3.
[53]
During the cross-examination of Daniels
by Adv Skepe for accused 2, it was put to Daniels that accused 2
would deny that he was
present when the stolen cellphones were sold
and that he (accused 2) also dissociated himself from the firearm,
having allegedly
last seen the firearm when Pase was hit with the
firearm during the scuffle with Knockpaal. Daniels denied this,
contending that
accused 2 was with him and Knockpaal when the firearm
was forcibly taken from Knockpaal by one
"Fashion",
suggesting that accused 2 was at all
relevant times aware of the fact that the stolen police firearm was
in the possession of Knockpaal.
[54]
As
already mentioned, during the cross-examination of Daniels, Dr
Erasmus put it to Daniels that accused 3 would contend that during

the scuffle between Pase and accused 3, Pase purportedly produced a
knife of his own. Daniels insisted  that he saw a knife
with a
blade pointing upwards in the scuffle between Pase and accused 3. It
was then put to Daniels that accused 3 never used his
own knife,
which was in his pocket. The knife which was used was suggested to
have been the knife of Pase. None of this was mentioned
in the
confession made by accused 3 to Magistrate Montgomery. After taking
instructions from accused 3, Dr Erasmus further pertinently
put it to
Daniels that by reason of the assistance of accused 1 and 2, accused
3 was able to wrest the knife from Pase. During
accused 3's oral
testimony, he testified that he allegedly
"w
on"
possession
of the knife and persisted in the version
[4]
that Pase had produced his own knife, which was never mentioned to
Magistrate Montgomery in accused 3's confession.
[55]
Daniels was cross-examined at length by
three different counsel. I disallowed  a statement which was
minuted from Daniels by
a police official on 24 March 2017, shortly
after he had been arrested, as it was evident that Daniels was
unassisted, intimidated
and not informed of his constitutional rights
to legal assistance or to have a parent or guardian present, even
though he was a
juvenile confronted with a policeman seeking to
minute an incriminating statement.
[56]
On the assurance from Adv Theron on
behalf of accused 2 that she would call the interpreter and, if
possible, warrant-officer Saaiman,
I did allow cross­ examination
on a
section 204
statement which was minuted from Daniels on 24
October 2017 by the said warrant-officer E F Saaiman. The
section 204
statement was then introduced, by agreement, as exhibit "H".
The eighteen year old Daniels was interviewed by the Afrikaans

speaking Saaiman, who used a Xhosa speaking interpreter Makasi, who
allegedly
"translated the above
notes, questions asked of the deponent  by  the W
O
Saaiman  from the
Afrikaans language  to the Xhosa  language and vice versa".
This statement merely consists of
seven paragraphs. Daniels was criticised for not having provided more
detail in "H".
He was criticised in particular for the fact
that he had omitted to expressly state that he saw accused 3 as
having stabbed Pase.
But accused 3's use of a knife was corroborated,
as previously mentioned. Accused 3 himself alluded to a knife, but
alleged that
this was a knife of Pase and not his own knife. He
claimed to have
"won"
possession of the knife, which he
threw away later as they approached a river after leaving the scene
as a group. Daniels steadfastly
stated that he did disclose the full
version to Saaiman and that it was not his problem that Saaiman did
not record all the detail.
[57]
With respect to proof of previous
inconsistent statements, the principles that must be kept in mind
include:
1)
it must be determined what the witness
actually meant to say on each occasion, in order to determine whether
there is an actual
contradiction and what is the precise nature
thereof. In this regard, language and cultural differences must be
kept in mind
(vide:
S
v Mafaladiso and Others
2003 (1) SACR 583
(SCA)
at
593 to 594, per Olivier JA);
2)
secondly, it must be kept in mind that
not every error by a witness and not every contradiction or
deviation, affects the credibility
of a witness;
3)
thirdly, contradictory versions must be
considered and evaluated on a holistic basis. This include the need
to consider the circumstances
under which the versions were made; the
proven reasons for the contradictions; the actual effect of the
contradictions with regard
to the reliability and credibility of the
witness; the question whether the witness was given a sufficient
opportunity to explain
the contradictions the quality of the
explanations, and the connection between the contradictions; and the
rest of the witnesses'
evidence;
4)
fourthly, it is the duty of the court to
weigh up the previous statement, allegedly inconsistent, against the
viva voce
evidence
of the witness concerned; to consider
all
the evidence and to decide whether
it is reliable or not and to decide whether the truth has been told,
despite any shortcomings.
(Mafaladiso
at 593(e) to 594(h); see also:
Schwikkard and Van der Merwe:
Principles of Evidence, Third Edition,
Juta,
at page 461).
[58]
The evidence of Saaiman was confusing.
He was informed by Daniels, who had just turned 18 years old, that he
already had a
"legal aid
lawyer".
He failed to enquire
who the lawyer was; when the previous statement to such identified
"lawyer"
was
made; where it was made and did not record any of such particulars
elsewhere in the pre-printed form.
[59]
Warrant-officer Saaiman also asserted
that he was fully bilingual. When he was asked why the interpreter,
who knew him well, did
not interpret what Daniels had told them,
directly in English but rather in Afrikaans, he said that she knew
him to be Afrikaans.
On being asked whether the English language used
was then his own interpretation from what the interpreter had
interpreted into
Afrikaans, he proferred an explanation that he in
any event understood 60% of Xhosa, after initially saying he
understood a little
bit, enough to help himself. An important page,
the penultimate page of "H", reflects no signature or
initials of Daniels,
although the last page (an English pre-printed
page explaining the import  of
section  204)
does.
The  seven paragraphs are cryptic and overly concise, yet
Saaiman maintained that the time recorded on the
page unsigned by
Daniels, reflecting that he had purportedly spent nearly two hours to
record same, was correct.
[60]
Substantial corroboration for the
description of the events by Daniels  was  in any event
provided by the accused themselves
during  their
testimony,  by  the
section 220
admissions and by the
photographic  and medical  evidence,  as  well
as  the evidence of the police official
Van der Mescht, over and
above the description of  the robbery and attack  on Pase
provided by Sauls and Nanto.
Overall,  the evidence
of Daniels was acceptable and his responses to questions  to
the  point,
without  undue elaboration, and
consistent, despite having been cross-examined at length by three
counsel. In his
section 220
affidavit,  he substantially
confirmed  the description  of the attack which he gave to
court, with Pase lying
prostrate on the ground after having been
overcome by his  attackers.
[61]
After Daniels was called, the State led
the evidence of Lt.Col Colin Deysel, who recorded a confession of
accused 1 on the 27th
of March 2017 at the commercial branch Port
Elizabeth, which branch was not in any way involved in the
investigation of the matter.
Lt.Col Deysel had thirty years of
experience in the South African Police Service. He emphasised that
accused 1 was fully informed
of all his constitutional rights before
the statement was taken. There was no objection to the introduction
of the confession of
accused 1 into the evidence by his counsel or
any of the other counsel.
[62]
In
this confession of accused 1, the description of the events as
described by Daniels was substantially confirmed. Accused 1 admitted

that  he had kicked  Pase (the deceased) and thereby
actively associated himself  with the attack  on Pase,

in the words
"[W]hen
we arrived at that people I kicked the African  male  and
he fell  down and then he tried to push me
aside.  Then it
became a fight  now.  Msawawa
(the
nickname  for  accused  3)
and
I we fought  with  this man but could not manage him. He
was beating us. Then Thulani
[5]
and Siya
[6]
came running towards us. When Thulani arrived, Thulani hit that man
with a firearm on his head. He fell. He tried to get up. Then
Bongo
(the
nickname for accused 2)
tried
to kick this man but while he was doing so that by mistake Thulani
(i.e.
Knockpaal)
hit
Bongo with a firearm on his leg. That is when I really noticed that
this was a real firearm" .
He
proceeded to state that they ran away from the scene towards a river.
They looked  down at the scene  from some distance
and
noticed  the vehicle driving  away  slowly, but then
coming  to  a halt. He added as follows:
"[A]nd
I also want to add that while we were fighting with that man I took
his cellphone and it also appears that Siya
(a
reference to Daniels)
while
he was busy in the car he took two cellphones. I gave the cellphone
that I took from that man to Siya".
[63]
On behalf of accused 1 it was suggested
to Lt.Col Deysel by his counsel that  the word
"kicked'
was not correct as recorded by him
and that the word should have been
"
bumped'
or
"
pushed' .
Lt.Col Deysel insisted
that he had correctly written down what was conveyed to him through
the interpreter. During the oral testimony
of  accused 3,
accused 3 unequivocally asserted that accused 1 had jumped in the air
before  violently
kicking
Pase
to such an extent that Pase fell over. I find, as a matter
of fact, that accused 1's attempt to minimise (in the
view  of
accused  1)  his involvement by asserting that he had
"pushed'
Pase
over with two arms across his chest, instead of kicking him, was
false. It was further confirmed by counsel  for
accused 1
during the version which his counsel put to Lt.Col Deysel, that
accused  1  did indeed become involved in assisting
accused
3 in his struggle with Pase, so that accused 3 could overpower  him.
[64]
The prosecutor, Mr Makasane, then sought
to introduce a confession of accused 2 by calling Lt.Col Norman
Bower. Although there was
initially no objection to the introduction
of the incriminating statement by Adv Skepe, counsel for accused 2,
Adv Skepe changed
his position in the light of concerns raised by the
court with relation to the following answers given in the pre-printed
form
completed by Lt.Col Bower, a captain at the time. In paragraph
7, the following question was posed:
"[D}o
you want to consult with a legal practitioner of your choice or apply
for legal assistance to assist and advise you before
you make a
statement?".
The recorded
answer reads:
"Yes, I want to
apply for legal aid'.
Upon being
questioned by the court, Lt.Col Bower admitted that he
"wanted
to stop at that time",
but
nonetheless proceeded. He seemingly thought he had some form of a
discretion to proceed minuting the statement on the basis
that the
accused would in due course get legal representation at the trial. He
evidently did not appreciate that accused 2, a juvenile
accused,
wanted legal representation there and then before making his
statement.
[65]
Not only did the juvenile accused 2 not
have a parent or guardian present, he had
expressly
sought legal representation. He
might well have been advised to decline to make any incriminating
statement whatsoever, if he did
have the assistance of a legal
adviser. The right to legal representation and to remain silent are
fundamental rights, aimed at
ensuring substantive and procedural
fairness, and the import of section 35(5) of the Constitution of the
Republic of South Africa
Act 108 of 1996
("the
Constitution")
is clear.
[66]
The
fact that accused 2 allegedly stated in answer to the following
pre-printed question
[7]
that he
did not want a legal practitioner, was irreconcilable with his
previous  answer  to paragraph  7.
Furthermore,
in paragraph  9 it was  recorded as follows by Captain
Bower, in answer to the question why accused
2 was prepared to make a
statement, as follows:
"[T]he
detectives told me that I can get 25 years imprisonment if I do not
tell the truth. I therefore just want to tell the
truth".
He
further intimated that he had made a previous statement to the police
with regards to the incident and that he was making the
statement
because he was
"expecting
to be released from police custody".
[67]
Having regard to the requirements of
section 35 of the Constitution and decisions such as
S
v M
1993 (2) SACR 487
(AD)
at 490;
S
v Kondile en Andere
1995 (1) SACR 394
(SE)
and
S v Soci
1998 (2) SACR 275
(ECO),
I
ruled that the introduction of this confession was inadmissible. Such
evidence, especially an incriminating confession of an unrepresented

youthful accused in particular, would fall foul of the requirements
of section 35(3)(f) and (g), and also undermine the right to
remain
silent contained in section 35(3)(h), especially taking into
consideration the apparent promise of a release which was made,

linked to a simultaneous threat of 25 years incarceration. It was
accordingly my view that the introduction of such evidence would
not
only have been unjust to accused 2, but would render the trial unfair
or would otherwise be detrimental to the administration
of justice,
as contemplated by section 35(5) of the Constitution.
[68]
As a consequence, the confession which
the State sought to introduce in respect of accused 2 was held to be
inadmissible, which
Mr Makasana accepted. Any possible perception
that a purported waiver on the part of accused 2 or form of
acquiescence could somehow
render inadmissible evidence admissible,
was misconceived. The prosecution is prohibited from introducing
evidence of an inadmissible
confession. In
S
v Nkata
1990 (4) SA 250
(A),
the
court held that even the preamble to an inadmissible confession could
not
be
used in  cross-examination of the accused and to do so would
constitute an irregularity. See further
Schwikkard
and Van der Merwe: Principles of Evidence, Third Edition,
Juta,
page 349.
[69]
Accused
1 was then called as a witness by his counsel, persisting in his
rather contrived version that he did not kick Pase but
purportedly
"bumped'
him.
Nonetheless, he unequivocally admitted that he had led the attack on
Pase. From his evidence in cross-examination, it became
apparent that
he not only led the attack by kicking Pase (and I find that he did
not really
"bump"
him
as he suggested), causing Pase to lose his footing, but he also came
back to assist accused 3 who was engaged in the unlawful
attack on
Pase, when Pase started overpowering accused 3. Moreover, at some
stage accused 1 removed a beer bottle from the hand
of Sauls to
ensure that she could not use that beer bottle in possibly hitting
one of them in order to assist Pase in his desperate
struggle. He
thereby re-associated himself with the attack, despite the
exculpatory suggestions proferred on his behalf through
his counsel.
He actively led the attack on Pase, joined accused 3 in fighting with
Pase
[8]
and also removed a beer
bottle which concerned him, from Sauls. His active participation
and association  with the attack
was established
beyond   reasonable
doubt.
[70]
I
further find that accused 1's assertion that he allegedly could not
see that the object was a knife, was untruthful. Even his
own
demonstration in court would have led any objective observer
ineluctably to the conclusion that the object could have been
nothing
but a knife.
[9]
Although there
was no direct evidence that he had used his own knife in stabbing
Pase, he associated himself with a robbery performed
by way of the
use of a stolen police firearm, at least one knife and physical
violence, causing the death of an off-duty policeman.
He furthermore
admitted that he had stolen a Vodafone cellphone which, according to
him, was lying on the ground next to Pase and
put such a stolen
cellphone onto his
"private
parts".
Only
when he found out that the cellphone belonged to a police official
who had died, did he attempt to get rid of the cellphone,
which then
became the proverbial hot potato.
[71]
Accused
1, was argumentative, evasive and in my view, deceitful. His
assertion that the Magistrate made a mistake in recording his
kicking
of  Pase (instead of
"pushing")
is
rejected and was pertinently denied by
inter
alia
accused
3. His description of merely taking the beer bottle to drink same,
amidst a frenetic fight, was manifestly untrue. Only
during
cross-examination did he admit that the beer bottle was removed from
the hand of Sauls because he was scared that she could
use it against
him and his co-perpetrators. During persistent
cross-examination by  the prosecutor about his own intention
in
attacking Pase, he eventually admitted that
"I
went to the father
[10]
to take things I don't have".
He
furthermore conceded  that he  had run towards Pase before
he attacked him, followed by accused 1 and 2. He incriminated
accused
2 as having kicked Pase during the scuffle in his presence. He went
so far as to expressly concede his involvement in a
"robbery".
He
also  conceded that he foresaw that the attack could result in
injuries being caused to Pase. His leading role in the attack
on Pase
had to be conceded by him during cross-examination, although he
disingenuously attempted to minimise his own   role.
He
admitted that he became entangled in the violent fight with Pase,
when Pase started to overpower accused 3, who then called
upon
accused 1 by his nickname
[11]
to come and assist him. He also confirmed that he
saw
accused
3 in possession of a knife. After the attack had been completed, he
testified that he saw knives in the possession
of accused 3, of
Knockpaal and also in the possession of  Daniels.
[72]
He confirmed that at a gathering after
the robbery, all of the accused had met and showed each other what
they had robbed from Pase
and Nanto. He tried to distance himself
from the firearm. He disavowed the use of any knife himself.
Nonetheless, he admitted that
after the robbery, he had smoked with
his cohorts at a certain meeting point. As previously stated, his
theft of Pase's  cellphone
was conceded earlier in his
testimony.
[73]
Accused 2, who was merely seventeen on
29 August 2016, was a decidedly  bad witness with a shifty
demeanour. There is very
little of his version which one can believe,
save for the incriminating admission that he had joined accused 1 in
kicking Pase
and had seen accused 3 in possession of a knife. He
over-elaborated on his assertion that he was accidently hit on his
leg by the
seemingly sadistic, firearm­ wielding Knockpaal
and sought to portray himself as a victim in this regard. He failed

to realise that this placed him right at the vicious Knockpaal's
side. He furthermore testified that accused 1's version to
the
effect  that  he had  merely
"pushed'
Pase, was untrue. He testified that
accused 1 had violently kicked Pase, causing him to fall over. His
testimony was to the effect
that  when  accused
3 was  being  overpowered by Pase, he did indeed run
towards Pase in order to kick
him, but  attempted  to
explain this this was somehow necessary, because his help had been
sought by a co-assailant.
He maintained that he did not share
in any proceeds  from  the sale,  save that he
admitted that he had smoked
with the other assailants after the
attack. This exculpatory  statement is not believed.
[74]
That accused 3 and Pase were engaged in
a struggle with a knife was confirmed by accused 2, who was intent on
being as vague as
possible with respect to his description of the
object, which was clearly a knife. During cross-examination of
accused 2, he admitted
that he knew about the stolen police handgun
that was in the possession of Knockpaal after the incident and also
admitted that
he was present when this handgun was forcibly taken out
of the possession of Knockpaal by the person described as
"Fashion"
some time after the incident.
Accused 2's own testimony revealed his active participation in the
robbery; that he himself took part
in the violent attack and that he
associated himself with the violence and theft. He also knew that
some of the accused had knives
in their possession. He saw Knockpaal
steal a firearm and also saw him use the firearm as a blunt object
inflicting grievous bodily
harm to Pase, right next to him. He
further saw accused 3 with a knife in his hand. Still, he continued
actively in perpetrating
the unlawful attack on Pase.
[75]
If
accused 1 was dishonest and evasive, and accused 2 decidedly bad,
[12]
accused  3 was even worse than both accused  1 and 2. He
did confirm that accused 1 had kicked Pase so violently by running

towards  Pase from behind,  jumping  in the air and
literally kicking Pase in the back  so violently
that
Pase fell over.  He testified that accused 1 and 2 had engaged
in beating  and kicking  Pase. He
then  assumed
the role of the main aggressor in fighting with Pase.  I
find that  he  did
use  his own knife in the
process, described to the court as an Okapi knife.  There
is  ample  evidence
that the slenderly built accused 3 did
use  a knife.  He  was  seen  with  his
knife in hand. Pase
sustained various stab wounds, including the
fatal  stab  wound which  killed  him.
I
find  that  all the  accused  were
present  when  Pase  was fatally stabbed. Accused 3's

denial of Daniels's categoric assertion that he had seen accused 3
stab Pase was unconvincing and I reject this denial. Accused
3
further testified that there was blood pouring on him from Pase
whilst he was fighting with Pase. When he was shown the photographs

depicting a stab wound to the neck of Pase and a further cut on the
deceased's left shoulder, he conceded that such blood·
which
dripped into his face from the
"father',
might
well have been from the stab  wounds  inflicted on Pase.
[76]
As I have mentioned already, accused 3
furthermore changed his version repeatedly. In his confession, he
made no mention of the
spurious assertion that Pase had his own
knife. This desperate after-thought arose at the trial. During the
trial, it became evident
that accused 3's instructions to his legal
representative, Dr Erasmus, were changing. Dr Erasmus had previously
put it to witnesses
that accused 3 had sustained a stab wound to his
left
hand.
It
turned out that a wound had been sustained to the upper part of his
left forearm, and not on his hand. During cross-examination
of
accused 3 by Ms Theron on behalf of accused 1, he asserted that Pase
had lost power, not merely as a result of being hit with
a firearm by
Knockpaal, but
"he lost power
when everyone was on top of him" .
He
did not challenge the assertion of Daniels that prior to the events
in question, the accused, Knockpaal and Daniels had shown
each other
their knives on the night in question. That these knives which
Daniels had described had been specifically modified
to protect their
own hands from being injured by slipping down on the blade, was never
disputed by accused 3.
[77]
I find further that the said accused 3
was present after the fateful attack when  the assailants showed
each other their spoils,
smoked and in the process, utilised
some of the money which was found in the wallet of Pase. Only during
cross­ examination
by counsel for accused 2 did accused 3 deny
that the knives had been shown to one another. That accused 3 had an
Okapi knife in
his possession was divulged  by him
himself.  This was  a folding  knife and it was
demonstrated
to be of substantial length and size. His
assertion that he did not use this knife is rejected.  His other
exculpatory assertions
are also not believed. Most contrived of all
was his assertion that Pase had allegedly produced a knife of his
own, which he had
allegedly wrested from Pase. When he was asked what
became of such a knife described by him, he opportunistically
advanced a further
contrived version that he threw the knife away as
they were crossing the river after the attack. This was an obvious
untruth, having
never been put to any of the witness by his
experienced  legal representative.
[78]
His attempt to portray himself as a
victim in the scuffle with Pase was desperate. The extraction of an
admission by the prosecutor
from him that he was
"angry"
after the incident prior to a
postulation being put to him that it was as a result of his anger
that he then fatally stabbed Pase,
had the ring of truth. He
repeatedly admitted that he was angry. Accused 3 also referred to the
assailants' need to take off their
jerseys after the incident,
because
"our blood was  hot'
.
[79]
I find that accused 3 furthermore
knew that the cellphones  had been stolen.  His exculpatory
assertion that he
did not share in the proceeds of the sale of the
cellphones, is rejected.
[80]
Evaluating
the credibility of the three accused, who were all unimpressive
witnesses that were either evasive or untruthful in material

respects, in contrast to Daniels who was cross-examined at length, I
prefer the evidence of Daniels, even though I am fully conscious
of
the need to approach his evidence with caution.
[13]
Did
the State prove that the accused were guilty of robbery with
aggravating circumstances?
[81]
The elements of the crime of robbery
are:
1.
the theft of property;
2.
through the use of either violence or
threats of violence-,
3.
a causal link between the violence and
the taking of  property.
[82]
On the evidence, I find that all three
the accused were shown to have been guilty of robbery, the late Pase
having been dispossessed
of his firearm, wallet (with an unknown
amount of money in the wallet), of his cellphone, whilst cellphones
were also taken from
inside the car, and from Nanto. With respect to
proof of aggravating circumstances in relation to robbery this
entails:
1.
the wielding of a firearm or any other
dangerous weapon;
2.
the infliction of grievous bodily harm;
or
3.
a threat to inflict grievous bodily
harm,
by
the offender or an accomplice on the occasion where the offence is
committed, whether before or during or after commission of
the
offence.
[14]
[83]
Robbery with aggravating circumstances
is thus robbery where a firearm or other dangerous weapon is wielded,
or where grievous bodily
harm is inflicted or threatened. The
definition defines
"aggravating
circumstances",
not robbery
itself, which is a common-law offence
(Minister
of Justice and Constitutional Development v Masingli
2014 (1) SACR
437
(CC),
paragraph [16]). It is a
form of robbery with more serious consequences for sentencing
(Masingli,
at
[33]).
[84]
The elements of robbery are theft of
property, through violence or threats of violence;
unlawfulness  and intent. Robbery
with aggravating
circumstances  is not a separate offence. Like armed robbery, it
is merely a
form
of
robbery.
(Masingli,
at
paragraphs [33] and [34]. Aggravating circumstances are a
manifestation of the  degree of violence: at paragraph  [48]).
[85]
Section 1(1)(b) of the CPA does not
expressly  require  any  mental  element with
respect to the aggravating
circumstances. Instead, only objective
facts constituting aggravating circumstances are referred to in the
section. Nor is
intent implicit in section 1(1)(b):
R
v Jacobs
1961 (1) SA 475
(A). In Jacobs,
the
Appellate Division held that aggravating circumstances are
established
objectively
and
the intention of the accused is not imported into an enquiry as to
whether aggravating circumstances are present. Not requiring
proof of
specific fault does not  offend  against the presumption
against strict liability, since this principle is
"already
established because intent is
a
requirement for robbery''.
(Masingli,
at paragraph [48]).
[86]
Counsel for all three accused eventually
had to concede during argument that the State established robbery and
that the objective
facts satisfied the definitional elements of
"aggravating circumstances",
as contained in section 1(1)(b) (see
further
S v Hlongwane
2014 (2) SACR
397
(GP)).
[87]
I find that the State has established
that all three accused, through the use of violence and with intent
to take property from
Pase, Sauls and Nanto, inflicted  grievous
bodily harm on the late Pase and are accordingly all guilty of
robbery with aggravating
circumstances.
Did
the State prove that the three accused were guilty of  murder?
[88]
Murder is the unlawful and intentional
causing of the death of another human being
(Snyman
CR:  Criminal  Law,  Sixth  Edition,
2017
reprint,  LexisNexis;
S v
Ntuli
1975 (1) SA 429
(A)
at 436 to
437). In this instance an off-duty policeman, the late Lulamile
Stanley Pase, was  murdered.
[89]
It has been formally admitted by all
three the accused that the 36 year old deceased died at the scene as
a result of a 5cm stab
wound  which  he sustained
16cm below his armpit, posterior, to his left chest, as demonstrated
on photographs
13 and 14 of the consensually introduced
photo bundle marked "B". The tract of his fatal wound was
described by Dr Jan
Anthonie de Beer, who performed the post­
mortem report dated 31 August 2016 which was admitted in evidence, as
going from
"Jeff to right and
towards the front; it enters the Jeff chest cavity between the 9th
and 1Qth ribs leff-posterior-lateral,
missing the Jeff lung, going
through the diaphragm into the abdominal cavity and ending in the
spleen".
[90]
That Pase also sustained knife wounds to
the left side of his neck, penetrating into the neck muscles only
(shown on photos 10 and
18 of "B"), and also a non­
penetrating knife wound to his left shoulder (shown on photo 18 of
"B"),
were  common cause.
[91]
Daniels, the section 204 witness,
testified that he saw accused 3 stab Pase once. Accused 1 saw accused
3 and Pase struggle with
what was clearly a knife. Accused 2 also
reticently described such a  struggle
"with
a
knife,
something  that they had'.
On
the version of accused 3, this knife-fight between  himself and
the late  Mr Pase was confirmed, but he dishonestly
suggested
that the knife had been produced by Pase, which he was then able to
"win"
from
Pase. I find that  he had  used his own knife, described by
him as a
"push-button"
Okapi knife, in the attack on Pase,
and further find that his belatedly adapted version that the late
Pase had produced his own
knife, was a fabrication. This is also
consistent  with  the  other proved  facts
and  no
other  reasonable   inference
was  suggested.  His own legal representative moreover
received changing
instructions as the matter progressed, which has
already been referred to above in this judgment.
[92]
In the indictment, the State had made it
clear that the State alleged that the accused acted in concert and in
the execution of
a common purpose. The evidence showed that the
particular attack on Pase, Sauls and Nanto had not been  pre­
planned,
or that there had been a prior agreement, but when
the  accused,  Knockpaal and Daniels identified the
opportunity
to rob them, they, together with Knockpaal and Daniels,
did not hesitate to act as a predatory group intent on achieving
their
objective of robbing Pase, Sauls and Nanto, irrespective of any
foreseen or anticipated resistance from Pase. Knockpaal, since
deceased, and Daniels, focused on the vehicle, stealing cellphones
and Pase's  official  Pietro  Beretta 9mm from
the
parked vehicle, whilst accused 1 led the attack to overpower Pase,
with accused 2 and 3 following him.
[93]
All three the accused were directly
involved  in the  violent  attack.  They
all knew what they
were doing, despite having used tik and dagga.
That Knockpaal also participated by violently hitting Pase over his
head, does not
diminish the individual culpability of the accused.
The kicking and hitting was deliberate,  aimed  at
overcoming resistance
from the desperate Pase. All the perpetrators
must in such circumstances have foreseen that either their own acts,
or the acts
of their co­ perpetrators with whom they associated
themselves, may result in the badgered and bloodied Pase's death.
They
all reconciled themselves  with such a possibility.
Some of the accused carried knives themselves, or knew that others
in
the group did carry dangerous, specially modified knives to be
effective assault weapons which  they would not hesitate
to use
during a  robbery.
[94]
Resistance
from the burly Pase was not only foreseen, but anticipated, hence the
rushed attack from behind on Pase. Each of the
accused actively
associated themselves with the attack and each of the three were
actually involved  in  the  unlawful
attack. Accused 3
was specifically identified as having wielded a knife, with Daniels
having seen him stab Pase, whilst Knockpaal
used the handgun as a
brutal blunt instrument to inflict serious bodily harm to Pase in
their very   presence.
[15]
[95]
Suggested attempts on the part of
accused 1 and 2, to somehow dissociate themselves from the group,
after the attack, especially
by suggesting an earlier departure (or
by running away) from the scene; not sharing in proceeds save for
smoking tik or dagga,
probably purchased with money from Pase's
wallet, and emphasising that Knockpaal jealously kept the stolen
firearm to himself,
were either irrelevant, belated or clearly
untrue.
[96]
None of the accused dissociated himself
from  the  joint attack  before  Pase was fatally
injured. This
had to be conceded during argument by counsel for all
three accused, which concession was prudent and  correct.
[97]
I find that each of the accused partook
in the vicious attack.  Whilst  the  evidence did not
clearly establish that
accused 1 and 2 had used their own knives,
accused 3 did,  and  Knockpaa l's use  of the firearm
caused extensive
burst  fractures to the scalp of Pase, in
their immediate presence, with the wounds so inflicted having been
described by
De Beer and demonstrated on photographs 66, 67 and 79 of
the photo bundle, exhibit "B". Pase's profuse bleeding, as
described
by accused 3, who testified that Pase's blood was pouring
into his eyes  whilst  he was  struggling  with
him,
did not trouble them at all. They simply carried on with the
vicious attack.
[98]
The common purpose doctrine laid down in
S v Safatsa
1988 (1) SA 868
(A),
imputes the deed(s) which caused the
death to all co-perpetrators. In
Safatsa,
Botha JA intimated that in relation
to common purpose, the obstacle of proving causation between the
conduct of a particular participant
and the death of Pase was removed
(see page 898 at D).
[99]
In
S v
Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC),
Moseneke
J stated in paragraph [34] as  follows:
"In
our law, ordinarily, in
a
consequence crime,
a
causal nexus between the conduct of
an accused and the criminal consequence is
a
prerequisite for criminal liability.
The doctrine of common purpose dispenses with the causation
requirement. Provided the accused
actively associated with the
conduct of the perpetrators in the group that caused the death and
had the required intention in respect
of the unlawful consequence,
the accused would be guilty of the offence. The principal object of
the doctrine of common purpose
is to criminalise collective criminal
conduct and thus to satisfy the social 'need to control crime in the
course of joint enterprises'.
The phenomenon of serious crimes
committed by collective individuals, acting in concert, remains
a
significant societal scourge. In
consequence crimes such as murder, robbery, malicious damage to
property and arson, it is often
difficult to prove that the act of
each person or of
a
particular
person in the group contributed causally to the criminal result. Such
a
causal
prerequisite for liability would render nugatory and ineffectual the
object  of the criminal  norm  of common
purpose
and  make prosecution  of   collaborative
criminal  enterprises  intractable
and ineffectual'.
[100]
Contentions that the doctrine
"de-humanises"
people
by treating them
" in a general
manner as nameless, faceless  parts  of  a
group",
was
rejected  and  the criminal
"norm"
in issue, i.e setting a standard of
criminal culpability, was held to be constitutional. ( at paragraph
[36] of
Thebus)
.
[101]
In
S v
Mgedezi and Others
1989 (1) SA 687
(AD},
the
requirements which must be established in the absence of proof of a
prior agreement, were laid down (see page 705 I -706C).
These
requirements are:
"1.
Proof that the accused was present at the scene where the violence
was being committed.
2.
He must have been aware of the
assault or attack on the victim .
3.
Thirdly, he must have intended to
make common cause with those who were actually perpetrating the
assault.
4.
Fourthly, he must have manifested
his sharing of
a
common
purpose with the perpetrators of the assault by himself performing
some acts of association with the conduct of the others.
5.
Fifthly,
he must have had the requisite mens rea; so in respect of the killing
of the deceased, he must have intended him to be
killed, or he must
have foreseen that the possibility of him being killed and performed
his own act of association with recklessness
as to whether or not
death was to ensue".
[16]
[102]
Applying these principles to the conduct
of each individual accused, I am of the view that the conduct of
accused 1, accused 2 and
accused 3, individually assessed, satisfied
these elements. In particular, I find that each of accused 1, 2 and 3
individually,
participated
actively and deliberately, using various degrees and types of
violence to overpower Pase. They did so in the achievement
of the
common purpose that developed at the scene.
[103]
I find that each of them must have
foreseen, and did foresee,  that Pase could  be killed by
their actions and that each
of accused 1, 2 and 3 manifested conduct
showing their own individual act(s) of association, with reckless
disregard whether or
not death was to ensue. Each of them persisted
in their participation, even when the severity and viciousness of the
attack must
have been  clear to each  one of them.
They nonetheless persisted, reckless of the possibility that
they,
or  one  of  them, could cause the death
of Pase
[104]
Having overpowered the bleeding,
seriously injured off-duty policeman at the scene, they callously ran
away. Whether the critically
injured  Pase would  then
die,  was none of their  concern.
[105]
That Pase was somehow able, with the
help of Sauls  and  Nanto,  to get into  the car,
and to start the vehicle,
was Pase's  last
superhuman  attempt to get help.  The Corsa then collided a
short distance from the place
of attack, with a tree planted  by
the municipality and Pase succumbed to his injuries approximately
eight minutes after paramedics
arrived at 02h29 (as testified to by
warrant-officer Van der Mescht). This was undisputed and common
cause.
[106]
The attackers left the seriously injured
Pase to die, viewing his attempt to get up in order to get help
unsympathetically from
a distance, with the spoils of their crime in
their possession, only to go and smoke together thereafter.
[107]
For what it is worth, the evidence of
accused 1, who allegedly stated to the others that they had to leave
and apparently stopped
Knockpaal from going back to
"finish
off'
the already fatally injured
Pase, is as hard to  believe  as  his  dishonest
refusal to identify the object
between accused 3 and Pase for what it
was, namely a large knife. In any event, by that time the fatal stab
wound had already been
inflicted.
[108]
There was no proof of any reasonable
effort to nullify or frustrate the effect of the individual unlawful
acts or
" contributions"
on
the part of any of the three accused. Whatever view one takes of the
matter, there was no effective, timeous or relevant dissociation
(vide:
S
v Beahan
1992 (1) SACR 307
(ZS)
at
324;
S v Lungile and Another
1999
(2) SACR 597
(SCA)).
The mere
fact that the first accused and his co-perpetrators ran from the
scene - with accused 2 allegedly limping - is neither
here nor there,
as they were probably afraid of being arrested and wanted to make
good their escape.
[109]
None of accused 1 or 2 intended or
attempted to stop accused 3 from fighting with Pase. To the contrary,
they actively took part
in the attack. Knockpaal was not prevented
from repeatedly bludgeoning Pase over the head in their immediate
presence. The evidence
established the significant  roles
of each of the accused  at  the scene of the attack. I have
analysed their
own roles  carefully, as I have  to,
and find that each of them were active participants in the
achievement of
a common purpose. I have found that each of them was
present at the scene when Pase was fatally stabbed.
[110]
I accordingly  find that the State
has established, above reasonable  doubt,  all  the
elements necessary
for a conviction of murder in accordance with the
doctrine of common purpose, as laid down in
Mgedezi,
applied  and explained  in
5  v Le Roux
2010 (2) SACR 11
(SCA)
at paragraph [17], and
confirmed in
Makhubela
and
Jacobs
(see footnote 16  above).
Has
the  State proved the third charge, unlawful possession of a
firearm, on  the part of accused 1, 2 and 3?
[111]
On the evidence, Thulani Knockpaal took
Pase's 9mm Pietro Beretta firearm from the stationary Corsa vehicle.
One
"Fashion"
then
forcibly took the firearm from Knockpaal sometime afterwards.
Sergeant Ntliziywana of the Kwanobuhle Police Department testified

that after receiving a tip-off from a registered  informer,
the  firearm  was  found  at
"Fashion's"
informal  dwelling  where
it was  hidden, leading  to
"
Fashion's"
arrest.
[112]
The serial number corresponded with the
serial number of the official police firearm that had been issued to
the late Pase. The
said
"Fashion"
was apparently successfully
convicted for being in unlawful possession of the  firearm
in  the Uitenhage Regional
Court.
[113]
On the evidence before court, none of
accused 1, 2 or 3 had physical control over the firearm, but saw
Knockpaal using the firearm
as a blunt assault weapon, by hitting
Pase over his head in their presence. After the attack, they
testified that Knockpaal
retained the  handgun in his
possession, which they realised belonged  to  a policeman
because of the serial number
and presence  of police
vehicles  in Fan Park the next morning. Only Daniels, the
section  204
witness,  was  allegedly
allowed  to touch  the firearm.
[114]
At common law, the two elements of
possession are
corpus
and
animus,
referring
to the physical and mental elements respectively. Was the first
objective element
and
the
second subjective element proved on the evidence, taking into account
the legislative provisions relied upon by the State to
establish the
act or conduct required for a conviction? (See generally
CR
Snyman: Criminal Law, Sixth Edition,
LexisNexis,
pages 62 to 70). The distinction between
possessio
civilis
and
possessio
naturalis
is well-known, the latter
element being satisfied by proof of the
animus
detentionis
and  not
requiring  proof of the
animus
domini.
But was either the
corpus
element and the
animus
detentionis
element
proved  on the part  of each  of the accused?
[115]
The section 204 witness Daniels at no
stage indicated that any of the accused was in possession of the
firearm. To the contrary,
Knockpaal jealously retained the stolen
firearm in his possession.
[116]
The
difficulty in proving that a possessor's possession of a firearm
should be imputed to others  in the group,  is apparent

from  decisions  such as
S
v Nkosi
1998 (1) SACR 284
(W)
at
286 H to I;
S
v Mbuli
[2002] ZASCA 78
; S v Ramoba
[2017] ZASCA 74
and
also in
Makhubela,
[17]
supra,
at
paragraphs [55] to [57].
[117]
In his section 204 warning statement,
exhibit "H", Daniels  asserted  in
paragraph 6 thereof that Knockpaal
was still in possession of the
firearm  one week after the attack on Pase. No evidence was
adduced establishing that any of
the accused either had control
over the  firearm,  or  somehow  actively
approved Knockpaal 's appropriation
of the firearm. Even assuming
that proof of the lesser element of
possessio
suffices, namely
possessio
naturalis,
I  am
unable  to find  that this offence was evidentially
established against accused 1, 2 or 3 above reasonable
doubt.
[118]
During argument, prosecutor Makasana
conceded that there was no factual basis to sustain a conviction of
the accused on this charge,
which concession was correct. The three
accused are not guilty of this   charge.
Conclusion:
[119]
Accused 1, 2 and 3 are each found guilty
on charges 1 and 2 (robbery  with
aggravating
circumstances, and murder), but not guilty on charge 3 (unlawful
possession of a firearm).
Swanepoel
AJ
APPEARANCES
FOR
STATE: ADV MAKASANA
FOR
ACCUSED NO.: 1-ADV THERON from Legal Aid Board, PORT ELIZABETH
FOR
ACCUSED NO.: 2: ADV SKEPE instructed by Legal Aid Board, PORT
ELIZABETH
FOR
ACCUSED N0.:3 MR ERASMUS instructed by Legal Aid Board, PORT
ELIZABETH
[1]
Exhibit "B".
[2]
Although the first and second accused denied that they themselves
carried knives
[3]
Probably  welcomed by the prosecutor
[4]
Which I find to have been fabricated.
[5]
Knockpaal
[6]
Daniels.
[7]
In
paragraph 8.
[8]
As is borne  out  in  his confession.
[9]
This was conceded by all counsel during argument.
[10]
Or " Tata"
[11]
"Radza".
[12]
Responsibly  conceded  by  Adv Skepe  during
argument.
[13]
Compare Monyepao and Another v S {Al67/2016) [2017) ZAGPPHC 594 (19
September 2017), and S v Hlapezula and Others
1965 (4) SA 439
{AD)
at 440 D to H
[14]
Section  l(l)(b) of  the  CPA
[15]
See generally : Snyman, page 259.
[16]
See further  the  words  of  caution
expressed  in Dewnath  v  S (2014)  ZASCA

57  {17  April 2014) at paragraph (15], which the court
has taken into account . See also Makhubela v The State; Matejka
v
The State
(2017) ZACC 36
, at paragraph  (38] and consider
further the confirmation of the applicability  of Mgedezi
requirements in factual
circumstances as in casu, in Jacobs and
Others vs S
2019 (5) BCLR 562
( CC).
[17]
Above, footnote 16.