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[2021] ZAECPEHC 44
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S v Ntlokwana and Another (CC 20/2020) [2021] ZAECPEHC 44 (18 June 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION â PORT ELIZABETH
Case
No: CC 20/2020
In
the matter between:
THE
STATE
and
SIMTHEMBILE
NTLOKWANA
ACCUSED NO.1
SIYABULELA
MRAJI
ACCUSED NO.2
JUDGMENT
ON CONVICTION
MAKAULA
J:
[1]
The deceased Peter Sample lived at No 10 Higa Street. He
operated a business from
his house garage styled Peter Sounds and
Alarm. He installed car radios and alarm systems. He had
two employees, Thabiso
Jekeqa (Thabiso) and one referred to as
Peanuts. At his home, the deceased lived with his brother
Patrick Sample (Patrick)
and certain children. The deceased was
shot and killed at his home on 24 December 2019.
[2]
On 24 December 2019, the deceased was at work as usual. He was
with Patrick, Peanuts
and Thabiso. They were working on a car.
Two men arrived. According to Patrick, one of them had an
injury on the
head. They spoke to the deceased and thereafter
left. After some time they returned in the company of another
man whom
he described as having an average body build and asked from
the deceased whether he was giving them their radio. The
deceased
denied knowledge of it. One of them drew a firearm
cocked it, placed it on the deceased head, and fire a shot. The
deceased
fell down. Patrick ran towards the house. As he
was running, he heard a second gunshot, which he assumed was aimed at
him. He ran into the house and while he was inside, he heard a
third gunshot. He ran out the back door to a neighbourâs
house.
[3]
Patrick returned after a while and found the deceased lying in front
of the garage.
He pulled him to the garage. Many people
had gathered at his home. The police arrived. He could
not identify the
person who shot the deceased. It is worth
mentioning at this stage that I acquitted the accused at the close of
the Stateâs
case of the charge of attempted murder (i.e. Count 2)
relating to the attempted murder of Patrick. The latter was
running away
from the incident at the time he heard a gunshot and
could not vouch that it was aimed at him.
[4]
Thabiso testified that on 24
December
2019, he was working on a motor vehicle fitting speakers with
Peanuts. He was working on the driverâs side under
the
steering wheel. Peanuts was busy on the passengerâs side
which was closer to the garage which they used as a workshop.
Peanuts alerted him saying âhere are these guys comingâ.
Thabiso did not see them. A short while thereafter, he heard
a
gunshot and people screaming. A second shot rang and Peanuts
got out of the passengerâs side and ran away. Another
shot
went off and it was then that he got out from under the steering
wheel to see what was actually happening. Initially he
thought
what he heard were crickets (i.e. firecrackers). When he looked
through the passenger side, he saw a man carrying a
black 9mm pistol
which looked âlike those that are carried by the policeâ.
That man swore at him saying âmsunu kanyoko
donât look at meâ.
[5]
Thabiso testified that that man, who he later identified to be
Accused 2, became aware
of Thabisoâs presence after sometime.
At the time, Thabiso had a good look at him. Accused 2 did not
see him initially
because of the position Thabiso was in. At
that juncture, Thabiso was in the process of getting out of the car.
Thabiso
said he had been looking at him from the time Accused 2 came
from the garage towards the car he was working on. He saw him
for more than ten seconds. They locked eyes when he was
instructing him to get out of the motor vehicle. At the time,
Thabiso was sitting on the edge of the driverâs seat watching him.
[6]
Accused 2 ordered Thabiso to get out of the car. He was
pointing the firearm downwards
at the time. Thabiso complied
and moved from the driverâs side, walked to the front of the car
and towards the garage as
ordered. At all material times
Thabiso was looking at him. Accused 2 then pointed the firearm
at him and escorted him
towards the garage. He saw the deceased
lying on the ground in front of the garage. Accused 2, when
closer to the deceased,
fired a shot at the deceased. As they
were walking towards the garage, Thabiso saw another man coming out
of the garage carrying
a firearm and a Plasma Television set (TV).
Accused 2 said âlook down Msunukayoko, let us kill this one as well
because he
has seen usâ. The one carrying the Plasma
instructed Thabiso to go away. He walked past him and went to
the deceased
room through an interlinking door in the garage.
Whilst inside the house, he heard another gunshot.
[7]
Thabiso could not identify the one who was coming out from the house
carrying the TV.
On 15 January 2015 an identification parade
was held at St Albans prison by Captain JG Mackay at 10h00.
Thabiso pointed out
Accused 2 as the person who took him out of the
motor vehicle and shot at the deceased while he was lying on the
ground. He
did so within 10 seconds. Thabiso again
pointed at Mr Windvogel as the second person who was carrying the
TV. He took
5 minutes to do so. He admitted under
cross-examination that his identification of Mr Windvogel was wrong
because he did not
have a good opportunity to see the person who was
carrying the TV set at the scene of crime. He testified that
immediately
after the identification parade, he told the
Investigating Officer that he made an error when he identified Mr
Windvogel as the second
suspect.
[8]
Thabiso further testified that the people who formed part of the
identification parade
were almost of the same height, built and
complexion. Only two of them were wearing prison trousers and
they were not amongst
those he pointed out. He disagreed with
the defence counsel that he could have made a mistake in identifying
Accused 2.
He denied further that he had initially saw Accused
2 in New Brighton Magistrate Court when the accused appeared there
for the second
time after their arrest as put to him. He stated
that Accused 2 would be lying if he denied his involvement in the
killing
of the deceased intimating that he is the one who ordered him
out of the motor vehicle he was working on. He was
cross-examined
at length about the statement he made to the
Investigating Officer. He confirmed that he made the statement
and signed it.
He testified that there was a language barrier
between him and the Investigating Officer. He left school in
Grade 11.
He is not well conversant in English and that created
a communication problem between them. He battled with
translating some
Xhosa words to English. He denied the part in
his statement that said he saw Accused 2 pointing a firearm at the
deceased.
He repeated his evidence that the deceased was
already on the ground when he saw Accused 2 firing a shot at him.
He ascribed
that contradiction to the communication problem he
experienced when he made the statement. Thabiso was an honest
witness who
easily conceded if he made a mistake. His demeanour
was excellent in court and gave credible evidence. He would
concede
any aspect of the matter that favoured the accused.
[9]
Ms Nombulelo Totyi (Nombulelo) was a passenger in a motor vehicle
which was driven and
owned by Mr Dumile Maxwell Mrwebo (Dumile).
Nombulelo worked for Dumile as a domestic worker. Dumile, on 24
December
2019 was taking her home after work. They drove down
Higa Street. That street has speed humps. As they were
slowly
driving down the street, a dark male person approached Dumile
and demanded that he should give him the motor vehicle. Dumile
stopped the motor vehicle. That person produced a firearm and
demanded that he should give him the key. Suddenly, he
fired
two shots inside the motor vehicle. The bullets struck her on
her left leg. The medical certificate reveals that
she
sustained the following injuries.
-
â
1-4 cm laceration noted on the sole of
left foot.
-
Bullet wound noted on the right calfâ.
[10]
Nombulelo testified that they both alighted from the motor vehicle
and sat on the side of the road waiting
for an ambulance. The
person drove away in the motor vehicle. She was unable to
identify the person who shot at her.
She was taken to Dora
Nginza Hospital where she was treated for the injuries.
[11]
Dumile confirmed the evidence of Nombulelo regarding how the incident
occurred. He testified that
he was 72 years old. As he
was driving down Higa Street at about 5pm, he was stopped by a
certain young man. He did so
by standing in front of the motor
vehicle. He stopped the motor vehicle as he was not driving
fast because of traffic and the
speed humps. The young man came
to the driverâs side and demanded that he should give him the car.
The young man was
carrying a firearm. He tried to get out of
the motor vehicle. He was struggling to get out because of his
age.
The young man started to fire gunshots at him. He
struck him on the left hand between the little and the ring fingers.
He bled profusely. Eventually he struggled out of the vehicle
and went to sit on the pavement. The young man got into
the
driverâs seat and called out saying âNantsika yiza nalonto gouâ
translated to me âhey guy come with that thing quickâ.
It
is then that Dumile looked down the street. He saw a person
coming from the deceased house and approaching the motor vehicle
carrying a Plasma TV and a firearm with the other hand. He
watched that person throughout until he reached his motor vehicle.
He attempted to place the Plasma TV inside the cab but it would not
fit. He then took it to the back of the van and placed
it
there. He entered at the passengerâs side and they drove
off. He said he had a good opportunity to identify the
person
as Accused 1. I should mention upfront that at a photo
identification parade, Dumile pointed at a wrong person claiming
him
to be Accused 1. I shall deal with that later on in the
judgment.
[12]
Dumile confirmed that Nombulelo was injured. She was taken to
hospital by an ambulance. The
paramedics treated him at the
scene and he thereafter went to his home. He stated that he saw
the body of the deceased lying
in the garage and a lot of people had
gathered at the deceasedâs house. He testified that in
subsequent days he made a statement
to the police, attended the photo
identification parade and also received his motor vehicle as it had
been recovered by the police.
[13]
Dumile was quizzed about his mistake regarding his identification of
wrong persons at the photo identification
parade. He was
adamant that he was certain about the identity of Accused 1 even on
the day and subsequently thereafter.
He conceded that he could
have made a mistake about Accused 2 as the person who shot him.
He ascribed that mistake on the fact
that he was shocked when he
demanded the motor vehicle and it was worse after he shot at him.
He, however, said that he was
now able to recognise Accused 2 as he
was in the witness box as the person who shot at him. He
recalled that it was him.
I should state that the evidence of
Dumile is not convincing as to how he identified Accused 2. In
his evidence in chief he
stated that he was unable to identify the
person who shot at him. But as the cross-examination unfolded,
he gradually became
more confident that it was Accused 2 who shot at
him. I do not accept his identification of Accused 2 as
reliable for purposes
of positive identification of him.
[14]
Regarding the photo identification parade, I enquired from both
counsel as to whether the photos of the
accused were amongst those
which were in the identification photo album i.e. Exhibit âFâ.
It turned out that their photos
were not amongst them. This
should be viewed in the light of Dumileâs evidence that he
identified the photo that was marked
11 as that of Accused 1.
He was unable to pick a photo that resembled that of Accused 2.
To me that he pointed somebody
who is not Accused 1 casts some doubt
as to whether he clearly saw Accused 1 to an extent of him being able
to identify him later.
The identification of Accused 1 by
Dumile is not reliable especially because of his identification of a
wrong person in the photo
identification parade. If he was so
certain about his identity, he could have easily said Accused 1âs
photo is not amongst
those.
[15]
Warrant Officer Xolile Ngqambuza testified that he visited the crime
scene and picked up three cartridge
cases. One was across the
street opposite the premises of the deceased next to the speed hump
and the other two cartridge cases
were in front of the garage.
He took photographs of the scene and the cartridge cases.
[16]
Warrant Officer Sherwin Ashley Walsh is a member of the SAPS attached
to Mount Road Police Station Vehicle
Booth. He took photographs
of the motor vehicle of Dumile. He found possible blood stains
and a bullet inside the vehicle.
Warrant Officer Schoeman who
is a ballistic expert testified that the cartridge cases found at the
scene (whose chain evidence is
not in dispute) were fired from two
different firearms.
[17]
Captain Jerome Gerald Mackay is stationed at Kwazakhele Police
Station. He conducted an identification
parade at St Albans
Correctional facilities. He testified that he complied with all
the processes which are necessary for an
identification parade
stipulated in the Criminal Procedure Act
[1]
,
(the CPA) and their Standing Orders. The accused were legally
represented at the parade by the Legal Aid Attorney Mr Mbekwana.
He confirmed that within the time stated above Thabiso pointed out
Accused 2 and Mr Windvogel who was not a suspect in this matter.
The cross-examination of this witness did not advance the case of the
accused in any meaningful manner.
[18]
Sergeant Leon Matthys Lotter arrested Accused 2 on 30 December 2019
at Saba Street in Kwazakhele.
It was after they had arrested
Accused 1 at the corner of Saba Street. As they were arresting
Accused 1, he saw Accused 2 at
Accused 1âs home. Accused 2
was watching as they were effecting the arrest on Accused 1. On
realising that, Accused
2 ran away. He chased after him.
Accused 2 jumped over a boundary wall to a neighbouring house.
He did likewise.
Having jumped over the wall, Sergeant Lotter
noticed people coming rushing out of a flat. He got inside the
flat and found
Accused 2 inside. Accused 2 had taken off his
clothes and was busy wrapping a towel around his waist. Accused
2 was out
of breath. Accused 2 resisted to be arrested.
He summoned their motor vehicle to come closer. They eventually
arrested
him. He phoned the Investigating Officer and notified
her accordingly.
[19]
The Investigating Officer Warrant Officer Yolandi Mynhardt testified
in respect of two issues.
She testified about how she obtained
the statement of Lubabalo Fumananenzi (Lubabalo) who has since passed
away, and who according
to her was a key witness in this matter.
She testified that Lubabalo was murdered on 3 December 2020 a few
weeks before the
matter started. Lubabalo, according to her,
gave the statement freely and voluntarily. They communicated in
English and
Lubabalo read the statement, initialled each page and
signed it. The import of her evidence in this regard was for
the admission
of the statement of Lubabalo in terms of section
3(1)(c) of the Law of Evidence Amendment Act
[2]
(the Act). The section deals with the admission of hearsay
evidence, as in this instance, the affidavit of Lubabalo amounts
to
hearsay evidence because he was not available to testify in court
because he is deceased.
[20]
Mr Makasana brought a substantive application in this regard. In
the application Mr Makasana submitted
that it was in the interests of
justice that the sworn statements made to the Investigating Officer
and to Sergeant Erasmus made
to the Investigating Officer be admitted
as evidence. Lubabalo stated in his statement amongst other
things, that during the
second week of December his motor vehicle was
broken into and a sub-woofer and an amplify were stolen. His
investigations led
to Kuhle who informed him that he sold the items
to the deceased. He and Kuhle visited the deceased who denied
knowledge of
the allegation by Kuhle. They left and on their
way, Kuhle told him to stop next to four males who were in the
street.
He stopped and Kuhle went to them. Kuhle came
back with two of them and they told him to drive to the deceased
home.
At the house, the deceased was called and whilst still
talking to them one of the males took out a firearm and shot at the
deceased.
Lubabalo was shocked and he ran to his motor vehicle
and drove to the Zwide Police Station to report the incident.
He was told
to go to Kwazakhele Police Station which he did. At
Kwazakhele Police Station he was informed that the police were
already
at the scene of crime and that they will call him. They
told him he must come to the police station on the 26
th
December. No one phoned him. On 29 December 2019,
he saw Kuhle and took him to the police detectives to inform them of
what they know. He intimated that he could identify the two
males. He noted that he heard rumours that they wanted to
kill
Kuhle.
[21]
Lubabalo again made an identification statement to Warrant Officer
Erasmus on 29 December 2019 at 10h03.
He states in the
statement that he was shown a photo album and asked to identify the
two males. He states as follows:
â
3.
He showed me a photo album by signing underneath the photos pointed
out photo number
2 and photo number 12 as the suspects in the above
mentioned case. (
Sic
)
4.
The suspect pointed out in photo 2 was inside the house when I heard
the shots
and the suspect in photo number 12 was standing outside the
garage. I also like to state that I immediately drove off when
hearing the shots go off. I heard shots at the timeâ.
(
Sic
).
[22]
There has been no dispute that photo 2 depicts Accused 1 and photo 12
Accused 2. What has to be
noted is that Lubabalo did not see
any of the accused shooting the deceased. He ran away on
hearing the shots; of importance
is that he was able to place the
accused at the scene of crime especially when the shooting started.
[23]
The second reason why Warrant Officer Mynhardt was called is because
the State applied for the declaration
of Kuhle Nobebe (Kuhle) as a
hostile witness. In this regard, she testified that she was
phoned while doing her detective duties
to come to the police station
because there were two gentlemen who wanted to meet with her.
She obliged. On arrival she
met with Lubabalo and Kuhle.
She took them to her office and enquired from them the purpose of
their visit. They told
her that they witnessed the death of the
deceased and wanted to give their account of what had happened.
She asked Kuhle to
wait at a place which is provided for visitors.
It is far away from her office in a passage which is about 30 metres
away.
[24]
She obtained a statement from Lubabalo. They spoke in English.
There was no language barrier
between them. Having finished,
Lubabalo signed and she commissioned the statement. Thereafter,
she told him to wait outside.
She then called Kuhle in and did
the same thing with him. She asked if he wanted to make the
statement freely and voluntarily
to which he confirmed. Kuhle
spoke to her in English. They understood each other very well.
It was only the two
of them in the office. Had there been a
communication problem, she would have easily asked for a Xhosa
speaking colleague to
come and serve as an interpreter. After
finishing, she went through the statement with him and thereafter
administered oath
and Kuhle signed it.
[25]
Warrant Officer Mynhardt denied that she used Lubabalo to interpret
on behalf of Kuhle. She said
she would not have done so because
that is not allowed. On 30 December 2019 she fetched Lubabalo
from his home for purposes
of an identification parade. The
person in charge of that identification parade was Captain v d Berg.
The outcome was
that he pointed out the accused as the perpetrators.
She denied that she showed Kuhle the photos of the accused prior to
the
photo identification parade nor at any stage thereafter.
She again saw Kuhle at the police station. Kuhle had come to
report to her that he was scared because he heard that Accused 2âs
friends were looking for him (this confirms the statement of
Lubabalo). She testified that Kuhle never at any stage told her
that he was coerced to write a false statement which implicated
the
accused.
[26]
Under cross-examination, Warrant Officer Mynhardt stated that she was
informed by Lubabalo that he had
been looking for Kuhle since the day
of the incident. He did so because he wanted Kuhle to make a
statement to the police because
he witnessed the killing of the
deceased.
[27]
She testified that Lubabalo was a willing witness who approached the
police immediately after the incident
at Zwide Police Station.
He was, however, told to go to Kwazakhele Police Station. At
Kwazakhele he was told to wait
for the detectives who were at the
scene of crime. Seemingly, he did not meet with the detectives
on that day hence he came
in with Kuhle to make the statement, so she
testified.
[28]
The State called the evidence of Kuhle Nobebe (Kuhle). Kuhle
was declared a hostile witness in
terms of section 190(1) of the
CPA. Kuhle gave a statement to the police and consulted on
numerous occasions with the Investigating
Officer and the Public
Prosecutor. In the statement and during consultation, he
claimed that the people who killed the deceased
are the accused.
However, at the time he testified he changed to say that the accused
were not involved in the murder of the
deceased. Hence the
application to declare him a hostile witness was granted after the
State had established and proved the
statement. Kuhle conceded
that, during consultation, before the court started, he misled the
Public Prosecutor to believe that
it was the accused who killed the
deceased. He further confirmed that the contents of the
statement reflected what she told
Warrant Officer Mynhardt.
However, he was coerced by Lubabalo to say that to her.
[29]
In court, Kuhle testified that he knew both accused very well.
He knew Accused 1 as Simthembile.
He used to buy clothes from
him several months before the incident. He even knew where he
lived. He knew Accused 2 as
Siya because the latter used to
visit his place of work at Big Daddy in Struandale. They were
not friends but acquaintances.
They would greet each other when
they met. However, he did not know where he lived.
[30]
Kuhle testified further that on 24 December 2019, Lubabalo picked him
up next to a certain shop and took
him to Grahamsâ tavern.
When they got there, he enquired about his music system. He
told him he sold it to the deceased.
Lubabalo assaulted him to
an extent that he sustained two lacerations on his head.
Lubabalo took him to the deceasedâs home.
On arrival,
Lubabalo enquired from the deceased whether he knew Kuhle. The
deceased denied knowing him and having bought a
music system from
him. Kuhle pointed at the music system because it was displayed
or lying in his workshop. Lubabalo
took him away and they drove
in the direction of Grahamâs tavern. At the tavern, they left
the delivery van because it had
liquor and took another motor vehicle
and went to buy liquor at an area called Soweto. They took the
liquor to Magaleni and
offloaded it. They came across four
young men who were standing on the side of the road. Kuhle knew
them by sight.
Lubabalo stopped to meet them. One of them
enquired whether Lubabalo found his music system to which he
responded in the negative.
Two of them got in the motor vehicle
and they all proceeded to the deceasedâs house. One of the
two men enquired from the
deceased where the music system was.
The deceased denied knowledge of the music system. Without a
word further, that
man took out a firearm and shot the deceased in
the face (left eye). He described the killer as a tall slender
guy. The
second man remained next to Lubabaloâs motor
vehicle. At the deceased house, he said there was an elderly
person who was
in the garage and another one who was working on a
motor vehicle âfixing musicâ. He ran away. Whilst
running, he
heard another gunshot. He ran through the deceased
yard and jumped the boundary wall to an adjacent property and
proceeded
to his home. On arrival at home, he told his mother
about what had happened. His mother said he must go and report
the
matter to the police, something which he did not do because he
was still shocked and scared at the time.
[31]
Kuhle testified that Lubabalo arrived at his home on 29 December 2019
and instructed him that they must
go to the police station.
They went to Lubabaloâs home and thereafter proceeded to the police
station. On the way,
still closer to Lubabaloâs home, the
latter took out an iron rod (used to jack motor vehicles) and
assaulted him with it, saying
he must implicate Accused 1 and 2 as
the killers. He showed him their photos on his cellphone and
said he must tell the police
that Accused 1 is the one who shot at
the deceased. Kuhle sustained a swollen left kidney as a result
of the assault which
was âstill not workingâ. Lubabalo
thereafter, took him to the police station to make a statement.
It was still painful
when he made the statement but decided not to
tell the police about the assault on him. Indeed, in his
statement he implicated
Accused 1 and 2. Even at the photo
identification parade, he pointed out the accused as the people who
killed the deceased.
He intimated that when the Investigating
Officer was taking the statement, she used Lubabalo as an
interpreter. She further
stated that during the photo identity
parade, he was asked to sign next to the photos of the accused
persons. The statement
was not read back to him and he did not
know its contents. All he was told by the Investigating Officer
was to sign the statement.
[32]
Apart from what he testified to as having happened, it is worth
highlighting the relevant portions which
he omitted in his evidence
that appear from his statement to Warrant Officer Mynhardt. The
relevant portions read:
â
2.
I am the one who broke into Lubabaloâs bakkie. I
took out his sub and amplifier the following day. I took it to
Peter. He
gave me R300.00 cash for them. Then a week
later Lubabalo got hold of me and told him that I broke into his
bakkie and sold
the sub and amplifier to Peter. (
Sic
)
4.
. . . On our way to Grahamâs tavern in Magaleni, I saw four guys
standing at
the corner. I said to Lubabalo he must stop, I am going
to ask those guys to give me money to pay him back for the sub and
amplifier.
He stopped and I went to them.
5.
I asked them to borrow me money as I wanted to pay Lubabalo back.
They asked
for what. I explained to them that I broke into the bakkie
and sold the sub and amplifier to Peter. Then two of them just said
ok,
letâs go to Peter. The one is known to me as Simthembile and he
is well built. The other one is Siya, he is shorter and fat.
I
got at the back of the bakkie with Siya and Simthembile got into the
front with Lubabalo. (
Sic
)
6.
When we got to Peterâs house, I went into the garage with
Simthembile. Siya stood
outside. Simthembile asked the old man
inside where is Peter and he said at the other side. Then Peter came
into the garage.
Simthembile asked Peter where is the music. Peter
said he knew fokkol about the music and if he knows he would have
given it to Lubabalo
already as he knew him. (
Sic
)
7.
Simthembile did not say anything further. He just pulled out a
firearm from his
side. He pointed it next to Peterâs head and shot
him in the head. I turned around and ran out of the garage and then I
heard another
shot. I know nothing further as I ran away scared
of my life. I did not know that Simthembile had a firearm, but
I saw
him he shot Peter. â¦â (
Sic
)
[33]
Kuhle further confirmed that he made a statement to Captain v d
Berg. Kuhle gave the latter information
which he wrote down.
He spoke through a Xhosa Detective who was interpreting on his
behalf. That statement was in relation
to the photo identity
parade which was concluded by Captain v d Berg. He signed it
and it was handed in as Exhibit âCâ.
In the photo identity
parade he pointed the accused as the people who committed the
offences.
[34]
The statement he made to Captain v d Berg is to the following effect.
â
On
Monday 2019/12/30 at 9:00 I was at Kwazakhele SAPS where I was shown
a photo album by Captain v d Berg. There were 17 photoâs
that
was shown to me. I pointed out number 9 and 13 on the album.
Number 9 I known as Siya and number 13 as Simthembile.
Number 9
was standing inside the garage while number 13 Simthembile was inside
the garage shooting with the firearm. (
Sic
)
I was not coerced or
influence to point out any of the suspects on the album. The
album that was shown to me only had number.
No names was with
the photos.
I
also signed next to numbers 9 and 13 as the persons I pointed outâ.
(
Sic
)
[35]
The statement was signed and attested to before Captain v d Berg on
30/12/2019 at 09h25. Captain
v d Berg was not called.
However, the statement and the photo album were handed in by
agreement between the State and the defence.
[36]
Immediately, Mr Makasana, for the State, realised that Kuhle was
deviating from his statements and what
he said during the
consultations he held with him, applied in terms of section 190 (1)
of the CPA as aforesaid. Kuhle did not
dispute what is
contained in his statements made to the Investigating Officer and
Captain v d Berg. He admits having given
the information
contained therein as well as his signature. He further did not
dispute that when he consulted with the Public
Prosecutor, he stuck
to what he had written and confirmed that the people who killed the
deceased are the accused.
[37]
Mr Makasanaâs cross-examination revealed the lies that Kuhle wanted
this court to believe. It
transpired that everything, he said
in his statement to the Investigating Officer (Exhibit âDâ) was
correct except for that he
substituted the real culprits for the
accused. In Exhibit âDâ, Kuhle confirms that he is the
person referred to by Patrick
that had been injured and was in the
company of the persons who killed the deceased. He was present
through the ordeal, up
to the stage when the deceased was shot in the
face. The circumstances of this matter give credence to the
submission by the
State that Kuhleâs statement reflected the truth
and should be accepted as such and his
viva
voce
evidence in relation to the
accused should be rejected. The issue at hand is whether the
written statement by Kuhle, who was
called as a witness, which in his
evidence before me disavowed should nevertheless be accepted as
evidence against the accused.
Most of the pockets in his
statement have been confirmed by Patrick, Thabiso and the statement
of Lubabalo which I have accepted
in terms of
section 3(1)
of the
Law
of Evidence Amendment Act 45 of 1988
.
[38]
Section 190(1)
of the CPA provides as follows:
â
Impeachment
or support of credibility witness.
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 partyâ.
[39]
Section 190
refers to the situation where a party is left in a lurch
by its own witness. A party may not attack the credibility of
its
own witness unless the court has declared the witness hostile as
I have done in this instance.
[3]
In
S
v Rathumbu
[4]
the
court had to determine whether the trial court had properly admitted
as evidence a written, sworn statement made by the appellantâs
sister. The facts were that she had initially made a sworn
statement to the police to the effect that she had seen the appellant
(her brother) stab the deceased (her brotherâs wife) with a knife.
At the trial she denied having seen him do that.
The State,
having realised that her evidence was in stark contrast to the
statement, applied for her to be declared a hostile witness.
The State conceded on appeal that without the statement, which was
essentially hearsay evidence, the appeal should succeed.
[40]
The court in
Rathumbu
referred to
section 3(1)
of the Act, and
found that the statement of the sister of the appellant was correctly
admitted in terms thereof. In paragraph
10 and 11 (which I find
to be applicable hereof) the court said the following:
â
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:
â
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 witnessâs disavowal of or
inability to affirm the prior statement may bear on
the question of
the statementâs reliability at the time it was made, it does not
change the nature of the essential enquiry, which
is whether the
interests of justice require its admissionâ.
In
amplification, in para 33, it was stated that:
â
The
âprobative valueâ of the accusedâs statements to the police did
not depend on their credibility at the time of the trial
â which
the Court rightly found totally lacking â 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 on the interests of justiceâ.
[11]
In the present appeal, following the approach set out in
Ndhlovu,
and considering the totality of the circumstances under which the
statement was made, one is driven to the conclusion that the court
below was correct in admitting Ms Rathumbuâs statement.
Substantial corroboration for the truthfulness of the statement is
to
be found in other evidence tendered by the state.
.
. .
[12]
Applying the principles set out in the
Ndhlovu
case, all of
the above factors clearly demonstrate that when she made the
statement Ms Rathumbu was telling the truth. Her inconsistent
evidence at the trial can be easily explained on the basis that she
wished to protect her brother. Her statement, therefore,
was
correctly admitted into evidenceâ.
[41]
Similarly herein, in the statements made to the Investigating Officer
and to Captain v d Berg, Kuhle
was telling the truth. The
change of heart which led him in court to substitute the accused as
the real culprits, speaks to
his dishonesty. He did so merely
to protect the accused.
[42]
He testified that he wanted to reveal the true facts in court hence
he misled the Investigating Officer
and the Public Prosecutor to
believe that it was the accused who were involved in the killing of
the deceased. This is a blatant
lie because nothing prevented
him from doing so at an earlier stage. He did not advance any
reason why he misled them.
This further gives credence to the
evidence of Lubabalo and the Investigating Officer that he approached
them saying he had received
death threats presumably because of his
involvement as a witness in this matter.
[43]
The accused elected to testify in their defence. The evidence
of the accused overlaps. Accused
1 got to see Accused 2
frequently because the latter lived not far away from where his
girlfriend and their 2 year old child lived.
They were not
friends. He further knows that Accused 2 worked at Big Daddyâs
in Struandale. Accused 1 would meet Accused
2 at Big Daddyâs.
They further would meet at times in Grahamâs tavern when they went
there to drink and socialise.
They would just greet each
other. Accused 2 told him that he was no longer working at Big
Daddyâs but was operating a jikeleza
taxi. Accused 2 used to
give him a lift at times when he was going to Shoprite.
[44]
Accused 1 testified that he knew Kuhle as a person who worked at
Graham tavern. Kuhle used to purchase
clothes from him on
occasions. They met frequently because they were neighbours in
the sense that Kuhle stayed at Grahamâs
tavern.
[45]
Accused 1 knows Lubabalo very well. They had known each other
from Magaleni even before that place
became Grahamâs tavern.
When the house converted to being a tavern, Lubabalo worked there and
they regarded each other as
neighbours. They used to be
together mostly at the tavern. Lubabalo was his customer as he
bought clothes from him.
Lubabalo paid him well and he regarded
him as a good customer.
[46]
The accused testified that a week before Christmas they met at
Grahamâs tavern and drank together.
They enjoyed each otherâs
company very well to an extent that they decided to be together again
on 24, 25, 31
December
2019 and 1
January
2020. They were to meet at Accused 1âs house. The plan
was that they were to buy liquor and meat for those days.
Accused 1 said they were going to contribute a sum of R 300.00 per
person for those days. Indeed, they met on 24 December 2019
from the late afternoon. They drank until the middle of the
night. They drank a bottle of viceroy and Heineken.
They
decided to go to Grahamâs tavern to look for women. Accused 1
testified that he became so drunk that he fell asleep
on the table.
He was woken up by Siyabulela who worked at the tavern. He
proceeded to his home and slept until 11am on
the Christmas day.
He does not know how he parted ways with Accused 2. However,
they met again on the Christmas day and
continued to drink.
[47]
Accused 1 was extensively cross-examined by Mr Makasana. I
should mention that he bungled under
questioning. He at times
did not know answers to straight forward questions and in others he
would not recall pertinent things
about the two man party and would
refuse to answer questions. Accused 1 portrayed and elaborated
on the plan for the 24
th
.
I even gained an impression that he was preparing for quite a number
of people. He testified that he woke-up early on
that day,
cleaned the yard until 14h00 or shortly thereafter. He cleaned
the house. That took him about an hour.
Having finished,
he started preparing food. Upon realising that he was running
late, he rushed to Shoprite to buy a few groceries
because the shop
was due to close at 17h00. He returned home at about 18h00.
He had bought three bottles of viceroy and
Heineken beer. He
cooked and prepared salads. Accused 2 arrived shortly before
20h00.
[48]
Accused 1 testified that he did not see how Accused 2 got to his
place. He did not see what he
was driving. This is
contrary to Accused 2âs evidence. Accused 2 testified that he
arrived at accused 1âs place after
7pm. Accused 1 was
standing outside (topless) drinking beer. He alighted, went to
him, took the beer from him and had
a sip. After that, he got
inside the house and had something to drink. They sat outside
and had braaied meat. They
continued drinking until midnight
according to Accused 2. They decided to go to Grahamâs tavern
to look for women and listen
to music. After a while he managed
to get a woman and took her home leaving Accused 1 having passed out
inside the tavern.
[49]
Accused 1 on the other hand stated that upon the arrival of Accused
2, they sat inside the house and
drank liquor until they decided to
go to the tavern. Other that the braaied meat, they partook in
the food and salads which
were prepared by him. Accused 1 was
questioned about the details of their âtwo men partyâ which was
well planned and arranged.
He stuttered when it came to that.
He did not know how much he spent on the groceries at Shoptire and on
alcohol. He
contradicted Accused 2 on how much they each
contributed. Accused 1 said they were the only two at his house
but in the same
breath he was not sure whether there was/were
people/person who joined them on the 25
th
. On the
25
th
he did not know when they met, what alcohol they
drank and assuming that they finished off what was left the previous
day.
When asked why he could not remember what happened on the
25
th
, his answer was:
â
I
donât have an answerâ.
When told that it
was strange that he could remember clearly the events of the 24
th
and nothing of the 25
th
, his answer was again:
â
I
donât have an answer
â
.
He
was further asked whether he did not find it strange that he
remembered clearly the events of the day that he was put on the scene
of crime and not the other days e.g. the following day, he stated
that he did not have an answer to that.
[50]
Accused 1 denied that he was involved in the killing of the
deceased. He further denied that he
met with Accused 2 on the
day of their arrest. He stated that he was arrested at the
corner of his street not far away from
his home. He was placed
at the back of the police van. He became surprised when Accused
2 joined him at the back of the
police van. He was meeting
Accused 2 for the first time that day.
[51]
Accused 2 testified that he knew Accused 1, Lubabalo and Kuhle having
seen them whilst he was working
at Big Daddy. He worked there
from 2011 to 2016. They would buy alcohol from Big Daddy on
regular basis. He saw
Accused 1 regularly because his
girlfriend with whom he had a child lived not far from his home.
He also knew that Accused
1 was selling t-shirts and he bought some
from him. On his second appearance in court, he saw Thabiso as
they were leaving
the dock. Thabiso pointed at him. At
the time Thabiso was in the second row of seat behind the dock.
That is how
he knew Thabiso. He did not know Nombulelo and
Dumile before this matter started.
[52]
Accused 2 confirmed the plan he had with Accused 1 for the 24
th
.
Indeed, on that day after he came back from work he went to Accused
1âs house. He found him standing outside as stated
above.
They ate meat and bread. They drank alcohol. They went to
the tavern as alluded. On the 25
th
he met with Accused 1 and they drank alcohol until late. He did
not meet him on the 26
th
.
They could not get together on the 31
st
as arranged because they got arrested before that day.
[53]
On the 30
th
,
he proceeded to drop people next to Accused 2âs home. He saw
the door opened and decided to get in and greet Accused 1.
He
found that there was no one inside the house. He called out for
him but there was no response. He decided to wait
for someone
to arrive because he had fears that if anything would go missing,
people would say he (Accused 2) had been to the house
and he would be
a suspect. Whilst he was still waiting, police arrived and
arrested him. He was taken to the police van.
He was
surprised to find Accused 1 at the back of the police van having been
arrested. He denied that he saw when the latter
was arrested.
He further denied that when he saw the police he ran away and was
arrested at a neighbourâs house.
[54]
He suggested that Thabiso must have seen him in court that day hence
he was able to identify him in the
identification parade. He
confirmed that he told his legal representative about this. I
believe, that if it was so, Mr
Thysse, as a competent and an
experienced Advocate would have put that version to Thabiso. Mr
Thysse would not have failed
to put that to Thabiso especially that
he cross-examined him at length on the issue of identification.
[55]
The defence called Sergeant Mzoxolo Mkalipi who visited the scene
immediately after the commission of
the offence. He made a
statement pertaining to what he saw and did at the scene. In
his statement, amongst other issues
he stated that he interviewed
Thabiso. He took short notes during their interview and wrote
on a piece of paper. When
he got to the police station, he
wrote out a comprehensive statement based on the skeleton notes he
made. In his statement
he wrote that Thabiso did not manage to
see the people who killed the deceased clearly though he used to see
one of them at Javu
Street.
[56]
Sergeant Mkalipi was cross-examined by Mr Makasana. In sum, he
conceded that it was not advisable
to obtain a statement from
witnesses at the scene of crime due to various reasons like, they are
still shocked, they are reluctant
to give information to the police
for fear of their lives (because witnesses get killed like what
happened to Lubabalo), etc.
He confirmed that there were many
people who had gathered at and around the house of the deceased.
He could not remember the
detail as to where they were when he
interviewed with Thabiso. He stated that Thabiso appeared not
to want to talk to him.
He was not free. He agreed that
the interview was informal because the environment was not favourable
for him to have had a
proper interview with him. He justifiable
could not comment on the evidence of Thabiso that he was able to
identify one of
the accused at an identification parade and in
court. He testified that it could be that Thabiso did not want
to tell him the
truth because of the circumstances under which the
interview occurred.
Analysis:
[57]
I found that Kuhle and Lubabaloâs sworn statements were admissible
in terms of
section 3(1)
of the Act. What can be gleaned from
Kuhleâs sworn statements is that he identifies Accused 1 as the
person who shot the
deceased at close range. In those
statements he indicated that at the time of the shooting Accused 2
was also present.
. The provisions of
section 3(1)
have
been dealt with above. Lubabalo in his sworn statement clearly
states that Accused 1 is the one who shot first at the
deceased at
close range in the head. He did not implicate Accused 2 in any
way to the shooting because he ran away after the
deceased fell to
the ground. The import of his evidence in relation to Accused 2
is that he was present when the deceased was
first shot by Accused
1. Kuhle and Lubabalo place the accused at the crime scene at
the time the deceased was murdered.
Thabiso places Accused 2 at
the scene as well. Thabisoâs evidence is corroborated by the
evidence of Kuhle and Lubabalo regarding
this aspect. Thabiso
takes the issue of Accused 2 further by saying that Accused 2 shot at
the deceased while he was lying
on the ground. It is not clear
whether the deceased was still alive or not. To me that is
irrelevant if one has regard
to the circumstances of the matter.
Kuhle and Lubabalo as stated say Accused 1 shot the deceased first.
Thabiso says
he saw Accused 2 shooting the deceased, so the matter of
whether he was alive at the time Accused 2 shot his is a non-issue.
[58]
Thabiso witnessed that, the second person who I find to be Accused 1
was not around the garage at the
time Accused 2 shot at the
deceased. Accused 1 only emerged from the house when they were
approaching the garage. Accused
1 was carrying a TV and a
firearm. That means they were both carrying firearms at the
same time. Warrant Officer Yolandi
Schoeman (in her sworn
statement that was admitted) found that two firearms were used at the
scene.
[59]
There is no evidence of prior agreement between the accused to kill
the deceased. However, that
they were acting in common purpose
when the deceased was killed cannot be doubted. The manner in
which the killing occurred
spells that out. They were both
armed when they got to the deceased home, both shot the deceased and
they left the scene together.
In
S
v Mgedezi and Others
[5]
.
Botha JA had this to say above common purpose.
â
In
the absence of proof of a prior agreement, accused no 6, who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room 12, can be held liable for those events, on the
basis of the decision in
S v Safatsa
and
Others
1988 (1) SA 868
(A)
,
only if certain prerequisites are satisfied. In the
first
place, he must have been present at the scene where the violence was
being committed.
Secondly
,
he must have been aware of the assault on the inmates of room 12.
Thirdly
,
he must have intended to make common cause with those who were
actually perpetrating the assault.
Fourthly
,
he must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act of
association
with the conduct of others.
Fifthly
,
he must have had the requisite
mens rea;
so, in respect of the killing of the deceased, he must have intended
them to be killed, or he must have foreseen the possibility
of their
being killed and performed his own act of association with
recklessness as to whether or not death was to ensueâ.
[60]
The five requirements which were enunciated in the
Mgedezi
matter
were held to have passed the constitutional muster in
S
v Thebus
[6]
.
In paragraph 49 of
S
v Thebus,
the
court held as follows:
â
If
the prosecution relies on common purpose, it must prove beyond
reasonable doubt that each accused had the requisite
mens
rea
concerning the unlawful outcome at
the time the offence was committed. That means that he or she
must have intended that criminal
result or must have foreseen the
possibility of the criminal result ensuing and nonetheless actively
associated himself or herself
reckless as to whether the result was
ensueâ.
[61]
There is no direct evidence of identification which deals with the
people who robbed the motor vehicle
of Dumile. I say so because
I have found that the evidence of Dumile is not reliable.
Therefore, I have to rely on the
circumstantial evidence available.
Circumstantial evidence provides facts from which the fact in dispute
can be inferred
[7]
. In
R
v
Blom
[8]
Watermeyer JA said:
â
(2)
The proved facts should be such that they exclude every reasonable
inference from them save
the one sought to be drawn. If they do
not exclude other reasonable inferences, then there must be a doubt
whether the inference
sought to be drawn is correctâ.
That
is the position in this matter. Having regard to the facts, the
only reasonable inference is that the car was hijacked
by the accused
and they, in the process, shot and injured Dumile and Nombulelo as
alluded to. The State does not have to close
every avenue of
escape which is open to the accused suffice for it to produce
evidence by means of which a high degree of probability
is raised
that the ordinary reasonable man, after mature consideration, comes
to the conclusion that there exists no reasonable doubt
that the
accused have committed the crimes charged
[9]
.
What the evidence of Dumile clearly establishes is that the people
who robbed his motor vehicle and shot at him and Nombulelo
are the
same people who killed the deceased. His evidence is that the
second person who came towards the motor vehicle was
carry a TV and a
firearm and was coming out of the deceased house. He came to
join the one who was dark and who had shot at
them and took
possession of the motor vehicle. At the time, Dumile saw the
deceased lying in front of the garage. Patrick
said that when
he came back to the scene, he found the deceased lying in front of
the garage and dragged him. Thabiso saw a
person coming from
the house carrying a TV and had a firearm in one hand. This
evidence is in line with Dumileâs evidence.
The only
reasonable inference one can draw is that the same person is the one
seen by Dumile. It is therefore clear that
the people who
robbed Dumile are the same people who killed the deceased and needed
a motor vehicle to get away from the scene.
This should be
viewed in the backdrop of the statement of Lubabalo, who transported
the accused to the scene. His testimony
is that he drove off
immediately after Accused 1 shot the deceased. Therefore, after
the killing the deceased, the accused
had no transport hence they
decided to hijack and rob a motor vehicle.
[62]
The evidence of the accused regarding the events of 24 December 2019
is not convincing and therefore
not reasonably probably true in the
circumstances of the case. I have highlighted the
contradictions in their evidence above.
Their evidence as to
why they decided to come together for the first time on the day in
question is not true. They were not
friends nor acquaintances
before that day. They met at the streets and never drank
together even though, according to them,
they would meet at Grahamâs
tavern. I say not acquaintances because their relationship was
based on them merely greeting
each other when they met and initially
it was at Big Daddy where Accused 2 worked. They know the
details of what led to the
appointment and what occurred on 24
December. But they knew nothing or little of what occurred in
the days before or after
24
th
.
Accused 1 became confused, and stressed (according to him) when asked
of simple things that flow from their meeting.
He went to
lengths cleaning the yard, house and cooking specifically to
accommodate Accused 2 who merely arrived late and did not
even
partake of the food that Accused 1 prepare for him. It must be
appreciated that the cleaning of the house and yard and cooking
was
done in the name of the visitor. It is both their evidence that
they fortuitously met on all the occasions they have known
each
other. They never visited each other before this day but what
is strange is that on the day of their arrest, Accused 2
decided to
enter the house of Accused 1 and that is how he got arrested together
with Accused 1. Accused 2 denied that he ran
away on seeing
Accused 1 being arrested. Sergeant Lotter gave a straight
forward evidence in this regard. He testified
that on noticing
them, Accused 2 ran away and he had to chase after him. I
believe Sergeant Lotter and reject the evidence
of Accused 2 as a
lie.
[63]
Both accused are placed on the scene by different witnesses (in the
form of the sworn statement) who
did not know each other and who
neither knew the accused before. They were arrested at the same
time in the same vicinity on
a different date all together. It
is therefore a lie that they only met and drank together for the
first time a week before
24 December. They were not good
witnesses at all especially Accused 1. He at times, refused to
answer straight forward
and relevant questions. I therefore,
reject their evidence as false.
[64]
The approach that a court has to adopt when dealing with
identification by a witness was spelt out in
the
locus
classicus
case
of
S
v Mthetwa
[10]
per Holmes JA as follows:
â
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It
is not enough
for the identifying witness to be honest. The reliability of
his observation must also be tested. This
depends on various
factors, such as lighting, visibility, and eyesight; the proximity of
the witness; his opportunity for observation,
both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accusedâs
face, voice, build, gait and dress; the result of identification
parades, if any; and of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or
such of them as are applicable in a particular
case, are not
individually decisive, but must be weighed one against the other, in
the light of the totality of the evidence, and
the probabilitiesâ.
[65]
The reason why I rejected the evidence of Dumile is exactly as a
result of what is said by Holmes JA
above. I found him to be an
honest witness who gave out his evidence truthfully. However, I
cannot rely on his identification
for the reasons dealt with above.
Such reasons call to question the reliability of his observation even
though it was under
the same conditions as Thabiso. Dumile had
just been robbed at gunpoint, he had been shot at and was injured in
his fingers
and the pointing of wrong persons at the photo
identification parade crowns it all. I have a different view
when it comes to
the identification of Accused 2 by Thabiso.
The same principles of identification apply to him as well. The
offence was
committed during the day. The issues of lighting,
visibility and eyesight are not applicable and could not be said to
have
affected Thabiso when he looked and identified Accused 2.
Accused 2 was close to him at the time of the identification.
The scene at the time was not mobile. He was not shocked at the
time he first saw Accused 2. His evidence is that when
he saw
him, he was still trying to establish what was actually happening.
The shots he heard, he mistook them to be fireworks.
He looked
up, while sitting at the edge of the driverâs seat, and saw Accused
2 carrying a firearm. He looked at him closely
as he says and
at that time Accused 2 was not aware of his presence in the motor
vehicle. Accused 2 noticed him and ordered
him out of the motor
vehicle pointing him with the firearm he was carrying. His
testimony is that he continued to look at him
throughout as he was
coming out and going round to the front of the car towards Accused
2. His evidence in this regard find
corroboration from the
statement of Kuhle and Lubabalo who place Accused 2 at the scene of
crime. Unlike Dumile, he was able
to point him out at the
identification parade within 10 seconds. That he pointed Mr
Windvogel as the second person is of no
consequence to the
reliability of his evidence in pointing Accused 2. He confessed
immediately to the Investigating Officer
that he made a mistake in
pointing him. That on its own (in the absence of anything to
the contrary) is telling about his honesty.
I accept his
evidence about Accused 2.
[66]
Consequently, I make the following findings.
1.
Both accused are found guilty of counts 1, 3, 5, 6, 7, 8 and 9.
2.
Accused 1 found not guilty in count 4.
M MAKAULA
Judge
of the High Court
Counsel for the
State:
Adv V Makasana
National
Director of Public Prosecution
Port
Elizabeth
Counsel for Accused
1 and 2:
Adv J Thysse
Port
Elizabeth
Instructed
by: NE
Mbewana Attorneys
Mr
K Nobuzana and Mr N Vusani
Port
Elizabeth
Date
of judgment on conviction:
18 June
2021
[1]
51
of 1977.
[2]
45
of 1988.
[3]
Hiemstraâs
Criminal Procedure: A Kruger pages 23-22 to 23-23.
[4]
2012(2)
SACR 219 SCA.
[5]
1989
(2) All SA 13
(A) at para 67.
[6]
2003
(6) SA 505 (CC).
[7]
Hiemstra
supra
at
22-5.
[8]
1939
AD 180
at 202.
[9]
R
v Mlambo
1957
(4) SA 727
(A) at 738 A.
[10]
1972
(3) SA 766
(A) at page 768.