S v Hlongwa and Others (CC76/2022P) [2023] ZAKZPHC 110 (16 October 2023)

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[2023] ZAKZPHC 110
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S v Hlongwa and Others (CC76/2022P) [2023] ZAKZPHC 110 (16 October 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number: CC76/2022P
In
the matter between:
THE
STATE
and
LINDANI
THEOPHILUS
HLONGWA

FIRST ACCUSED
FANELE
DLOMO

SECOND ACCUSED
MLUNGISI
INNOCENT
BAXTER

THIRD ACCUSED
Coram
:
Mossop J
Heard
:
2, 3, 4, 5, 6, 11, 12, 16 October 2023
Delivered
:
16 October 2023
JUDGMENT
Mossop
J
:
Introduction
[1]
The three accused in this matter faced
trial on five counts. Those counts arose out of events that occurred
on 15 July 2022 and
comprised two counts of kidnapping, a count of
murder, a count of attempted murder and a count of robbery with
aggravating circumstances.
Each of the accused pleaded not guilty to
all counts and each elected to remain silent and offered no plea
explanation. Each, furthermore,
confirmed that they understood the
concept of a minimum sentence and acknowledged that they understood
that the State relied upon
the minimum sentence legislation embodied
in Act 105 of 1997 in respect of the murder count and the count
involving robbery with
aggravating circumstances.
[2]
Before the leading of evidence commenced,
the accused were advised by the court to draw to their respective
counsel’s attention
to any aspect of the evidence due to be led
with which they did not agree. They were invited to raise their hand
to indicate that
they wished to speak to their legal representatives
when this occurred.
[3]
Having referred to legal representatives,
it is appropriate to acknowledge that Mr Khathi appeared for the
State, Ms Franklin for
accused 1, Mr Stuurman for accused 2 and Ms
Citera for accused 3. Counsel are all thanked for their assistance.
[4]
Before the leading of evidence commenced,
an album of photographs was handed up by consent and appropriately
marked. After some
evidence had been led, formal admissions were made
by each accused regarding the identity of the deceased person alleged
to have
been murdered by the accused, who was a Mr Osama Mohamed Zaky
Taha Elbitawu (the deceased), the post-mortem conducted on his body

and the finding of the pathologist that conducted that post-mortem.
The
evidence adduced by the State
[5]
The sequence of evidence led at this trial
did not make for an easy understanding of the events in question. In
considering the
evidence in this judgment, I consequently do not
intend dealing with the evidence in the sequence in which it was
presented but
rather in the sequence that makes the facts more
understandable.
[6]
Mr Khathi, with the consent of the three
legal representatives for the three accused, handed in an affidavit
deposed to by a Mr
Shaker Samieer (Mr Samieer). Mr Samieer is the
complainant in one of the counts of kidnapping, the count of
attempted murder and
the count of robbery with aggravating
circumstances. He was in the company of the deceased on the evening
of 15 July 2022.
[7]
Mr
Samieer narrated in his statement that at about 17h00 on 15 July 2022
he and the deceased had been travelling in a motor vehicle
with
registration mark N[...] 8[...] (the Toyota Corolla).
[1]
Mr Samieer was the passenger and the deceased drove the motor
vehicle. They were on their way to a place called Gugulethu. In the

area of a cemetery, they were stopped by three African males asking
for a lift. While talking to them, a firearm was produced by
one of
the African males and it was pointed at the deceased. Mr Samieer and
the deceased were ordered out of the motor vehicle
and were then
bundled into its boot. The Toyota Corolla was driven an undisclosed
distance and it then stopped. The deceased was
ordered out of the
boot, and he was summarily shot in the forehead by one of the three
African males and died on the scene. Mr
Samieer was also ordered out
of the boot and was made to lie on the ground. Whilst lying prone, he
was stabbed in his back and
then shot in his stomach. Believing that
his death was imminent, he decided to put up a fight and sprang to
his feet and grappled
with the person who had shot him and grabbed
the firearm. He struggled with his assailant for control of the
weapon and managed,
at one stage, to get his finger on the trigger.
He pulled it. A shot went off. One of the robbers who was not
involved in the struggle,
and who was standing to the side of the
struggle, was shot.
[8]
Mr Samieer did not name any of the robbers.
That apparently is why the defence consented to the reception of his
statement without
him being called to testify. But Mr Samieer did
record that the person shot by him was the person who had initially
produced a
weapon when asking for a lift, it being Mr Samieer’s
understanding that there was only one firearm possessed by the three

males. Mr Samieer used the shooting of one of the men to make good
his escape from the gang and he found his way to the main road
where
he was picked up by a motorist and taken to SAPS Greytown.
[9]
Mr Samieer made the following unequivocal
statement in his affidavit:
‘
I
can identify all of them.’
[10]
Five days after this ordeal, he attended
SAPS Greytown and met the investigating officer, Constable
Sibongiseni Sibiya (Cst Sibiya),
who asked him to identify certain
exhibits that had by then been recovered. He was shown, and
positively identified, six bed covers,
two boxes of pots and ‘four
rims’. As regards the latter, his statement specifically
records that:
‘
I
was told that vehicle (sic) was found without tyres.’
[11]
As indicated, Mr Samieer was never called
to give oral evidence. According to Cst Sibiya, his present
whereabouts are unknown. Even
those who know him will apparently not
disclose his whereabouts. Given his dreadful ordeal, that is,
perhaps, understandable.
[12]
The statement of Mr Samieer is the only
evidence presented that explains the events of the evening of 15 July
2022 and that explains
how the deceased met his fate. All the other
evidence led by the State related to events that occurred after the
murder of the
deceased. I remain alert to this fact.
[13]
Mr Musawenkosi July Zakwe (Mr Zakwe) was
called as a witness by the State, and, at the request of Mr Khathi, I
cautioned him in
terms of the provisions of section 204 of the
Criminal Procedure Act 51 of 1977 (the Act). He was advised that by
virtue of the
knowledge that he allegedly possessed of the events in
question he would be required to answer questions that might
incriminate
himself. Provided that he answered all such questions
truthfully and frankly, he would be indemnified from future
prosecution.
If he did not answer with the necessary frankness, he
would not be so indemnified. He indicated that he understood and
agreed to
continue with his evidence.
[14]
Mr Zakwe testified that he knew all the
accused. He worked with accused 1 and accused 2 at a municipality and
accused 2 actually
lived at the same premises as him, which were
situated at a location known as ‘France’ (France). He
also knew accused
3 as he was a mechanic that would visit his
father’s homestead from time to time.
[15]
On 15 July 2022, he testified that he was
asked by his mother and his aunt to drive them to church at around
17h00. He was to convey
them in his aunt’s motor vehicle which
was a small Kia motor vehicle (the aunt’s motor vehicle). He
did so, and after
having dropped them there, he received a cellular
telephone call from accused 3 who requested his assistance. He was
told that
accused 1 had been shot and was requested to pick him up,
together with accused 2 and accused 3, for the purpose of taking
accused
1 to hospital. He agreed to assist but before proceeding to
pick up the three accused, he first went home and requested both his

girlfriend, Ms Amanda Nana (Ms Nana), and his uncle, Mr Musa
Mthokoziseni Ndlovu, to come with him as he was scared, was uncertain

about what was actually going on and felt that he needed some
support. Both agreed to accompany him.
[16]
Having picked up his girlfriend and his
uncle, Mr Zakwe testified that he drove to a forested area (the
plantation) where he finally
found the three accused, after initially
getting lost and after having made and received telephone calls to
and from accused 3
to ascertain their precise location. All the
accused got into Mr Zakwe’s aunt’s motor vehicle, and he
took them to
Ntumjambili Hospital.  Upon arrival at the
hospital, it was suggested by the accused that it might be preferable
if the witness
and his girlfriend, Ms Nana, took accused 1 into the
hospital for treatment. This they did.
[17]
As regards the injury that accused 1
sustained, Mr Zakwe indicated that he was bleeding from a wound below
his left breast, in the
vicinity of his ribs. After medical
examination at the hospital, it appeared that accused 1 would have to
be transferred to another
hospital due to the seriousness of his
wound. After tarrying at the hospital for a while, Mr Zakwe and his
companions were ultimately
instructed to leave.
[18]
Mr Zakwe thereafter asked accused 2 and 3
what had happened that led to the wounding of accused 1 but was
informed by them that
they would only explain when they were alone
with Mr Zakwe. By now it was around 02h00. Accused 2 and accused 3
then directed the
witness to the Toyota Corolla, which was parked in
the plantation but at a location about 3 kilometres from the spot at
which the
witness initially uplifted the three accused. There, the
witness was requested to transfer bed linen sets (the bed linen) and
cooking
pots (the pots) from the Toyota Corolla to his aunt’s
motor vehicle and to take them to his homestead for safekeeping. He

and Ms Nana then drove to his homestead and unloaded the bed linen
and the pots from the aunt’s motor vehicle. Ms Nana then

retired to her bed, but Mr Zakwe proceeded back to the plantation to
accused 2 and 3, his uncle and the Toyota Corolla.
[19]
Upon arriving at the Toyota Corolla, he
discovered that its wheels had now been removed and he was then
requested to also take the
four wheels back to his home, together
with the second and third accused and his uncle. He obliged and
accused 2 and 3 then went
to sleep at Mr Zakwe’s father’s
homestead.
[20]
The next morning, Mr Zakwe suggested to
accused 2 and 3 that they should think of rewarding Ms Nana for her
assistance the previous
day by giving her a set of bed linen. They
agreed to this. Mr Zakwe also took a set of bed linen for his own
purposes. He then
inquired from accused 2 and 3 about what was going
on. He was told that the items that he had transported the previous
night had
been taken from a Pakistani man during a robbery and during
the robbery a fight had occurred during which accused 1 had been shot

and one Pakistani man had been killed and the other Pakistani man had
been injured. He professed to be shocked to learn this.
[21]
Accused 2 and 3 then left his homestead but
Mr Zakwe later called them by cellular telephone and asked them to
return and remove
the bed linen and the pots that he was storing for
them. He advised them that he was no longer prepared to store them as
it was
now clear to him that they were the proceeds of a crime and
their presence at his homestead might cause problems for him. Accused

2 and 3 returned and some debate then ensued about where the items
could be removed to and stored. It was proposed by accused 2
and 3
that they be stored at the homestead of the mother of Mr Zakwe’s
children at Ntembisweni. The mother of his children
is a Ms Sindisiwe
Mahlaba. Mr Zakwe indicated that he informed accused 2 and 3 that
this would not be possible. But he told them
that while he was not
prepared to make that request of Ms Mahlaba, they were at liberty to
approach her in this regard if they
wished to do so.
[22]
Mr
Zakwe indicated that thereafter the South African Police Services
(SAPS) had arrived at his homestead, and he had been arrested.
How
the SAPS came to know of Mr Zakwe’s involvement in the events
was never revealed at trial. He explained that in his yard
there was
an old Opel Corsa motor vehicle that no longer functioned. Accused 2
and 3 had slept in that vehicle. Inside that vehicle
the SAPS
discovered a pair of trousers with blood stains on them.
No
further reference to this potential source of evidence was made
during the course of the trial.
[2]
[23]
Mr
Musa Ndlovu (Mr Ndlovu), is Mr Zakwe’s uncle and is the person
who accompanied him and Ms Nana to the plantation on the
night of 15
July 2022.
[3]
His evidence
confirmed the evidence of Mr Zakwe in most part. He confirmed that in
attempting to locate accused 3 and the other
accused they had got
lost in the plantation. He confirmed cellular telephone calls between
Mr Zakwe and the accused seeking directions
to their location. He
also confirmed the presence of all three accused in the plantation
that night and he confirmed that accused
1 had a gunshot wound.
[24]
His evidence, however, differed from the
evidence of Mr Zakwe in two significant respects. The first
difference was related to transporting
accused 1 to the hospital: Mr
Zakwe testified that all the accused had gone in his aunt’s
motor vehicle to the hospital and
that Mr Ndlovu had been seated in
the rear of the motor vehicle on the lap of accused 3. This was
confidently scotched by Mr Ndlovu
as being incorrect: only accused 1
had been transported to the hospital and the other two accused had
remained in the plantation.
He explained that there simply was
insufficient room in the vehicle driven by Mr Zakwe to accommodate
all the accused, Mr Zakwe,
himself and Ms Nana. That sounds probable
to me, given the fact that Mr Zakwe’s aunt’s motor
vehicle was not a large
motor vehicle. The second difference between
his evidence and the evidence of Mr Zakwe manifested when he denied
that he had remained
in the plantation while Mr Zakwe and Ms Nana
transported the bed linen and the pots to Mr Zakwe’s homestead.
He indicated
that he gone home with them and had thereafter remained
at home. That, too, sounds probable. There was no reason for Mr
Ndlovu
to remain in the plantation with accused 2 and 3 while the bed
linen and the pots were transported to Mr Zakwe’s homestead.
It
was never suggested to Mr Ndlovu that he was in any way involved in
the criminal acts or that he had any particular interest
in the
matter, nor that he had made any claim to any of the items
transferred from the Toyota Corolla to Mr Zakwe’s homestead.

His presence in the plantation was designed simply to support Mr
Zakwe. Upon finding the three accused, Mr Zakwe was co-operative
with
them and any need for Mr Ndlovu’s presence in support of Mr
Zakwe became redundant.
[25]
Under cross examination, Mr Ndlovu also
rebuffed suggestions that accused 2 was not with the other two
accused on the night in question
and he denied categorically that
accused 3 was absent when he, Mr Ndlovu, arrived at the plantation.
[26]
The mother of Mr Zakwe’s children, Ms
Sindisiwe Mahlaba (Ms Mahlaba), was called to testify. She stated
that she resided at
the Zakwe homestead and had three children by Mr
Zakwe. She knew all three of the accused thorough her relationship
with the father
of her children. She disclosed that she is a sangoma
and on a date that she did not remember, and while she was busy with
a client,
accused 2 and accused 3 had arrived at her homestead and
asked her to store some items for them. She asked where the items
came
from and accused 3 told her that they belonged to him. She was
told that the items comprised of pots and pans and bed covers. She

was further told by accused 3 that he did not have space to keep the
items. Ms Mahlaba agreed to assist, and the items were brought
to her
home in three trips by accused 2 and 3. The items were placed in her
kitchen and accused 2 and accused 3 then left. Ms Mahlaba
described
the items as comprising 15 bed covers and two boxes of pots, with
each box of pots containing 6 pieces.
[27]
While she had earlier indicated to accused
2 and 3 that it would not be a problem for them to leave the items at
her homestead,
later that evening while watching television, Ms
Mahlaba described experiencing a feeling that, properly interpreted,
caused her
to feel that she should not store the items. She then
approached Mr Zakwe’s sister, Ms Pumelele Zakwe (Ms Zakwe). Ms
Zakwe
resided at the Bhengu homestead and was asked to take the items
from Ms Mahlaba. She agreed to do so.
[28]
At some stage, Ms Mahlaba learnt of the
arrest of Mr Zakwe. Having visited him at the police station, her
home was, in turn, visited
by the SAPS who were in search of the bed
linen and the pots. She was not at home when they came but she was
subsequently located
at France. She was requested to present herself
to one Capt Hadebe at the Greytown SAPS station the next day, which
she did. There,
she was advised that the SAPS had recovered the items
from Ms Zakwe’s residence.
[29]
Under cross examination from Ms Franklin,
Ms Mahlaba confirmed that she had not known that accused 2 and 3
would be coming to her
homestead nor had she spoken to Mr Zakwe
before that visit occurred. After accused 2 and 3 had delivered the
items and had left,
Mr Zakwe had, indeed, telephoned her and asked
her to remove the items from her home as their presence could
potentially cause
him problems. He repeatedly told her to do as he
said. She then stated that she asked him if the items were stolen but
did not
receive an answer to this question.
[30]
When faced with Mr Zakwe’s version
that he had not telephoned her, she disagreed with it. When Mr
Stuurman for accused 2 put
it to Ms Mahlaba that accused 2 had never
been to her house, she replied with an answer that she thereafter
regularly employed
when answering to a version of the accused being
put to her namely: ‘That is a huge mistake.’ Ms Mahlaba
was prepared
to accede to Ms Citera’s suggestion that it was
unusual for accused 2 and 3 to make the request of her that she store
the
bed linen and the pots for them. When the version of accused 3
was put to her by Ms Citera that he, too, had never come to her home,

she replied with her by now standard response that it was ‘a
huge mistake’. She disputed that she was in cahoots with
Mr
Zakwe to frame accused 2 and 3.
[31]
When re-examined by Mr Khathi, Ms Mahlaba
confirmed that there were foreigners in the area selling products
like those that she
had agreed to store for accused 2 and 3. She
confirmed that the bed linen and the pots, and accused 2 and 3, had
arrived at her
home in Mr Zakwe’s aunt’s motor vehicle.
She also confirmed that the three accused had all visited her home in
the
past. This was denied on behalf of accused 2 by Mr Stuurman when
the defence were given an opportunity to ask further questions

arising out of the re-examination of Ms Mahlaba by Mr Khathi.
[32]
Ms Pumelele Ntombi Zakwe is the sister of
Mr Zakwe. She was called to give evidence that she had stored the bed
linen and the pots
at the Bhengu residence at the request of Ms
Mahlaba. Her evidence was uncontroversial, and she was not cross
examined.
[33]
Mr Zweleni Zethembe Mathonsi’s
evidence related to the recovery of the four wheels that were
allegedly taken off the Toyota
Corolla. He testified that he knew all
three accused and that he resided in a rented room in France. He
confirmed that Mr Zakwe’s
home is not far from his rented room.
He knew that the wheels were stored at the place where he rented a
room but could not say
when they had been brought there. The SAPS had
arrived at his rented accommodation with a local man called
‘Gatsheni’
and he was asked where the wheels were. He
pointed them out. He had previously been told by accused 2 that he,
accused 2, had taken
the wheels to that place. He testified that the
wheels were replete with rubber tyres when they were seized by the
SAPS. When Mr
Stuurman disputed on behalf of accused 2 that his
client had told Mr Mathonsi that he had taken the wheels to his
rented accommodation,
this was vehemently disputed by Mr Mathonsi: he
asked how he would know this if he had not been told as much by
accused 2.
[34]
The investigating officer, Cst Sibiya, was
called to the witness box. Besides being the investigating officer,
he is also the SAPS
official that took down the statement of the
complainant, Mr Samieer. That statement was taken on 20 July 2022, by
which time the
bed linen and the pots had been recovered by the SAPS.
Mr Samieer was shown the exhibits by Cst Sibiya and identified them
as being
his and the deceased’s property. The identification
was effected from the foreign writing on the packaging, which Cst
Sibiya
described in his evidence as being ‘Egyptian’ in
its nature and style. Cst Sibiya stated that Mr Samieer identified

each of the wheels from a mark appearing on each of them which he,
Cst Sibiya, had been told would be found on the rims prior to
the
identification occurring. Because he was able to identify the
exhibits, all of them were returned to Mr Samieer.
[35]
Cst Sibiya testified that he went to the
scene where the Toyota Corolla was recovered. A registration plate
was found there detached
from that motor vehicle and it was
photographed, and that photograph appears in the photograph album. As
stated earlier in this
judgment, the registration plate bore the
registration mark N[...] 8[...]
.
The
registration plate was traced to a person with an ‘Egyptian’
name. It transpired that the owner of the Toyota Corolla
was the
deceased’s brother.
[36]
Under cross examination, Cst Sibiya
indicated that he had taken Mr Samieer’s statement with the
assistance of a local resident
who was fluent both in the language
that Mr Samieer spoke and in English.
[37]
When considering the photograph album, the
court had noted that there were photographs of two debit cards found
at the scene where
the deceased’s body was discovered. Cst
Sibiya was not asked by any of the legal representatives to whom
those cards belonged.
The court asked him that question. His initial
answer was that they were of no assistance at all as they were old
cards. The court,
however, noticed that at least one of the cards had
an expiry date of February 2025, and was thus a current card. Cst
Sibiya then
conceded this to be correct but said, astoundingly, that
the cards had not been investigated nor had the holders of those
cards
been identified. When it was pointed out that the cards could
belong to the murderers of the deceased, Cst Sibiya conceded that

could be so. However, neither he nor the SAPS had ascertained to whom
they belonged.
[38]
Cst Sibiya was asked, given the positive
statement by Mr Samieer that he would be able to identify the three
assailants, whether
an identification parade had been held to allow
him to do so. He indicated that it had not been held because he
allegedly could
not find Mr Samieer.
[39]
Warrant Officer Nosindiso Theorine Mbaleni
(WO Mbaleni) is employed by the SAPS Local Criminal Records Centre
and is stationed at
SAPS Greytown. She attended the scene and took
the photographs that populate the photograph album. She drew the
sketch plan that
was not for a minute referred to in this trial.
[40]
Dealing with the sketch plan, it is a
singularly confusing document. It depicts a road running east to
west. On land to the south
of that road, in a plantation, a motor
vehicle is depicted. On the northern side of the road, in a further
part of the plantation,
several points are depicted, one of which is
the point at which the deceased’s body was discovered. But the
distance from
the motor vehicle to the body, which appears in the
sketch to be some twenty or thirty metres is, in fact, some 6
kilometres. WO
Mbaleni indicated that she wished the sketch plan to
depict that while the two points are separated by some considerable
distance,
they are both contained within the same plantation. That
was not apparent upon considering the sketch plan. There are plenty
of
ways that this could have been demonstrated in a manner that would
not be confusing. Regrettably, none of these other methods occurred

to WO Mbaleni.
[41]
WO Mbaleni confirmed that both the place at
which the Toyota Corolla was discovered and the place where the
deceased’s body
was found is within the Greytown jurisdiction
and not within the Kranskop jurisdiction, as alleged in certain of
the charges in
the indictment and in the summary of substantial
facts. Mr Khathi, for the State, accordingly, proposed an amendment
to counts
3, 4 and 5 of the indictment involving the deletion of the
word ‘Kranskop’ and the substitution therefore of the
word
‘Greytown’ and for the same substitution to be
effected to paragraph 5 of the summary of substantial facts. After
considering
the nature and substance of the amendment sought by the
State overnight, counsel for each of the accused consented to such
amendment
on behalf of their respective clients and the amendment was
accordingly granted.
[42]
WO Mbaleni confirmed that she had attended
the crime scene on the evening of Friday, 15 July 2022 and on
Saturday,16 July 2022.
She testified that she had, inter alia, dusted
for fingerprints at the scene. This fact went unexplored, and no
questions were
asked about the result of that dusting, so the court
broached that topic. WO Mbaleni said that fingerprints had, indeed,
been found
and lifted at the scene and that there had been a positive
comparative match using that fingerprint. She had, however, not
brought
any of her charts to demonstrate the match because the
investigating officer, Cst Sibiya, had told her that she was not
required
to give evidence on the fingerprints, only on the
photographs that she had taken and on the sketch plan that she had
drawn.
[43]
WO Mbaleni thereafter left the witness box.
The court wanted to get to the bottom of this latest revelation and
recalled Cst Sibiya
to the witness box. He was asked whether he had
instructed WO Mbaleni that she was not to testify on the fingerprint
evidence.
I confess that I did not truly understand his reply: he
seemed to indicate that she had not been present when he initially
served
the subpoena on her, but he appeared to concede that he had
told her not to testify on the fingerprint evidence shortly before
she took to the witness box.
[44]
While he was recalled to the witness box,
the court also asked Cst Sibiya what had happened to the balance of
the bed linen: Mr
Samieer indicated in his statement that he was
called upon to only identify 6 sets of bed linen whereas Ms Mahlaba
said that she
had received 15 sets into her possession. After
consulting the SAP13 register, Cst Sibiya confirmed that the SAPS
only had 6 sets
of bed linen in their possession. He could not
account for the balance. He was also asked to explain what had
happened to the tyres
of the Toyota Corolla. As will be remembered,
Mr Samieer stated that he was told that the Toyota Corolla had been
recovered without
tyres. He had accordingly been requested to
identify the rims of a motor vehicle. Cst Sibiya remained adamant
that the tyres were
on the rims and thus the allegation in Mr
Samieer’s statement, which Cst Sibiya himself had taken down,
that Mr Samieer had
been advised that the motor vehicle was found
without tyres remains unexplained. He then left the witness box.
[45]
At this juncture, Mr Khathi indicated, with
reference to the evidence of WO Mbaleni that she had matched a
fingerprint found at
the scene with one of the accused, that he would
not ask for an adjournment to lead that fingerprint evidence as the
Local Criminal
Records Centre usually takes 14 days to prepare its
evidence and this court would not grant him an adjournment for that
length
of time. Before this supposition could be considered, it was
then fortuitously discovered that WO Mbaleni was still within the
court precincts. She returned to court and promised to have the
necessary comparative charts prepared by Tuesday, 10 October 2023.

The matter consequently stood adjourned to that date.
[46]
True to her word, WO Mbaleni was able to
present her evidence on fingerprints found on the Toyota Corolla on
Tuesday, 10 October
2023. She testified initially about a fingerprint
found on the front edge of the right-hand side of the bonnet of the
Toyota Corolla
(all references to right or left are references when
viewed from the perspective of someone sitting behind the steering
wheel).
For some reason she did not complete her evidence on this
fingerprint but shifted her focus to a palm print located on the back

right panel of the Toyota Corolla, above the back right wheel, or at
least where the back right wheel could be expected to be found
if it
had not been removed, as in this case. She found seven points of
identification on this palm print when it was compared with
a set of
fingerprints taken from accused 3. She testified that before she gave
her evidence, she had again taken the fingerprints
of accused 3 and
when she compared that print with the lifted palm print, the
identification remained valid.
[47]
WO Mbaleni, understandably, was only
questioned on this evidence by Ms Citera for accused 3. From this it
emerged that accused 3
reaffirmed his presence at the scene and that
he had, in fact, driven the Toyota Corolla. It was also established
that the palm
print on the rear right panel was facing upwards. Ms
Citera suggested to the witness that the position of the palm print
would
be consistent with someone walking past the motor vehicle and
losing his balance and touching the motor vehicle. WO Mbaleni
disputed
that this could be possible as the palm print was located
too low down on the panel of the motor vehicle. It was, nonetheless,
still put to her that accused 3 had found himself in difficult
terrain and had lost his balance and had steadied himself by holding

onto the Toyota Corolla. The witness had no comment to this
proposition.
[48]
After the cross examination of WO Mbaleni,
the State closed its case.
Section
174
of the
Criminal Procedure Act
[49
]
Each of the legal representatives then
brought brief applications for the discharge of their respective
clients in terms of section
174 of the Act. I dismissed all three
applications without giving reasons. My reasons now follow.
[50]
Section 174 reads as follows:
‘
If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused

committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.’
[51]
In
essence, having heard the basis of the applications, my view was that
there was evidence that the accused committed the offences
for which
they were charged. There was evidence that the two complainants had
been accosted by three African males on the evening
of 15 July 2022
and had been placed in the boot of the Toyota Corolla in which they
were travelling. There were three accused before
me. There was
evidence that the three accused were found with the Toyota Corolla
and there is evidence that the vehicle belonged
to the deceased’s
brother. There was evidence that one of the robbers had later been
shot. Accused 1 admitted that he had
been shot, albeit in a different
incident and at a different location.
[4]
There was evidence that the bed linen and the pots contained within
the Toyota Corolla were taken from that motor vehicle at the
behest
of accused 2 and 3 and were initially stored at the home of the first
State witness, Mr Zakwe. There was evidence that accused
2 and 3 had
informed Mr Zakwe that the bed linen and the pots had been taken from
two Pakistani men and that in the course thereof,
one of the
Pakistani men had been killed and the other wounded and accused 1 had
been shot. There was further evidence that the
next day, 16 July
2022, accused 2 and 3 had been involved in relocating the bed linen
and the pots removed from the Toyota Corolla
from Mr Zakwe’s
homestead to the homestead of the mother of Mr Zakwe’s
children. There was evidence of a palm print
left by accused 3 on the
Toyota Corolla that placed him squarely at the scene.  And,
finally, there was the evidence that
Mr Samieer had been able to
identify the items recovered by the SAPS as being his and the
deceased’s property.
[52]
I
am aware of the decision of
S
v Lubaxa
,
[5]
where the Supreme Court of Appeal expressed itself as follows:
‘
[18]
I have no doubt that an accused person (whether or not
he is represented) is entitled to be discharged at the
close of the
case for the prosecution if there is no possibility of a conviction
other than if he enters the witness box and incriminates
himself. The
failure to discharge an accused in those circumstances, if necessary
mero motu, is in my view a breach of the rights
that are guaranteed
by the constitution and will ordinarily vitiate a conviction based
exclusively on his self- incriminatory evidence.
[19]
The right to be discharged at that stage of trials
does not necessarily arise, in my view, from considerations
relating
to the burden of proof (or its concomitant, the presumption of
innocence) or the right of silence or the right not to
testify, but
arguably from a consideration that is of more general application.
Clearly a person ought not to be prosecuted in
the absence of a
minimum of evidence upon which he might be convicted, merely in the
expectation that at some stage he might incriminate
himself. That is
recognised by the common law principle that there should be
‘’reasonable and probable”
cause
to believe that the accused is guilty of an offence before a
prosecution is initiated and the constitutional protection afforded

to dignity and personal freedom (S10 and S12) seems to reinforce it.
It ought to follow that if a prosecution is not to be commenced

without that minimum of evidence, so too should it cease when the
evidence finally falls below that threshold. That will pre-eminently

be so where the prosecution has exhausted the evidence and a
conviction is no longer possible except by self- incrimination. A

fair trial, in my view, would at that stage be stopped, for it
threatens thereafter to infringe other constitutional rights
protected
by S10 and S12.’
[53]
In
S
v Faku and others
,
[6]
it
was held that the words ‘no evidence’ have on numerous
occasions, been interpreted to mean no evidence upon
which a
reasonable man, acting carefully, may convict.
In
my view, all of the evidence mentioned above exceeded the threshold
required by the law and called for an explanation from the
accused.
There was thus evidence upon which a court could convict.
The
accused
were
consequently put to their respective defences.
The version of accused
1 and 2
[54]
During the trial, the version of each of
these accused was put to various State witnesses. Accused 1’s
version was that he
was walking past a petrol station on his own and
entered what he described as being a passageway, where two men
accosted him and
attempted to rob him. He had no money in his
possession but did have an old cellular telephone which those robbing
him took but
then threw it back at him in a derisory manner when they
saw how old it was. He was then shot in the chest and when he later
came
around, he was surrounded by a group of people. Accused 1 asked
them to call Mr Zakwe, which they did and he came and picked him
up
and took him to hospital.
[55]
Accused 2’s version was that he was
not in the company of accused 1 and 3 and at all times was at home at
Makhabeleni.
[56]
After the dismissal of the accuseds’
section 174 applications, accused 1 and accused 2 elected not to give
evidence and each
closed their respective cases without calling any
witnesses who might have been able to support their versions. The
consequences
of them so doing were discussed with them and they were
reminded that whatever had been put to the State witnesses on their
behalf
did not constitute evidence in their favour. They indicated
that they understood this but nonetheless elected to remain silent
and call no witnesses. Accused 3, after initially indicating that he,
too, would close his case, recanted that decision after this

explanation was provided by the court and decided to testify.
[57]
As
a consequence, the versions of accused 1 and accused 2 may not be
considered as they do not constitute evidence in their favour.
[7]
Evidence by accused 3
[58]
Mlungisi Innocent Baxter is accused 3 and
he testified that he knew both his co-accused. On the evening of 15
July 2022, he had
been with accused 2 and they were walking from
Greytown to the Mhlalakahle township when they met up with accused 1,
who was also
on foot. Accused 1 suggested that they go instead to a
place named Gugulethu, to which suggestion accused 2 and accused 3
assented.
[59]
As
they reached the area of a cemetery,
[8]
accused 1 crossed the road that they were walking on and flagged down
a motor vehicle driving in the same direction that they were
walking
in. It is not disputed by accused 3 that this motor vehicle was the
Toyota Corolla driven by the deceased. The Toyota Corolla
stopped and
accused 1 had a conversation with the driver that accused 3 could not
hear. Accused 1 then produced a firearm and pointed
it at the driver.
The driver and his passenger were forced from the Toyota Corolla by
accused 1 and put into its boot. Accused
1 then pointed the firearm
in his possession at accused 3 and ordered him to drive the Toyota
Corolla. He got into the vehicle
and complied with the instruction
that he had received. Accused 2 assumed the front left passenger seat
and accused 1 sat on the
back passenger seat. While so seated,
accused 1 pulled down a part of the backrest of the rear seat to
allow him to see into the
boot and to speak to its occupants, from
whom he apparently demanded their cellular telephones.
[60]
Accused 1 then instructed accused 3 to
drive to the main road to Kranskop, which bears the number ‘R74’.
He did so.
Accused 1 then told him to drive to Nadi Ngobevu Road, and
he again obeyed. At that place he was instructed to stop at an area
that he described as being ‘a circle’. By this he meant
that there was a clearing in the plantation that took the shape
of a
circle. The road that the Toyota Corolla was then being driven upon
ended at this circle.
[61]
Accused 1 alighted from the Toyota Corolla,
as did accused 2. Accused 3 switched off the ignition of the motor
vehicle and did not
alight but remained seated behind the steering
wheel. He was instructed to open the boot with a lever from within
the motor vehicle
and he did so. He saw accused 1 take one of the men
out of the boot and lead him into the plantation. This observation
was made
by accused 3 looking into the internal rear-view mirror of
the Toyota Corolla. He next heard a gunshot and saw the man taken
from
the boot lying on the ground. Accused 1 came back to the Toyota
Corolla and accused 3 pulled the boot release lever again. He offered

various reasons for doing this: because he was in a panic, because he
was in shock or because the sudden opening of the boot lid
was
intended to distract accused 1 and act as a diversionary tactic to
enable him to make his escape from an intolerable situation.
He
claimed that he did not want to be connected to the case. Having thus
opened the boot lid, he jumped from the Toyota Corolla
and ran into
the plantation and fled, avoiding the roads within the plantation. He
ended up running all the way to France and ultimately
made his way to
Mr Zakwe’s father’s home.
[62]
Accused 3 denied that he ever went to the
home of the mother of Mr Zakwe’s children, Ms Mahlaba, and
claimed that Mr Zakwe
was a liar and Ms Mahlaba was mistaken when
they said that he had. He claimed that he could not have telephoned
Mr Zakwe as the
latter testified he had done because he had sold his
cellular telephone to accused 1 and thus did not have a cellular
telephone.
He also claimed that Mr Zakwe had a motive to falsely
incriminate him because he, accused 3, had failed to properly fix Mr
Zakwe’s
motor vehicle which had allegedly broken down again
after it had purportedly been fixed by him. He did not dispute the
fact that
his fingerprints were found on the Toyota Corolla. He
claimed, however, that the palm print was found on the rear right
panel because
he was in shock and that had caused him to hold on to
anything to steady himself.
[63]
Accused 3 was cross examined at some length
by Ms Franklin for accused 1. He was taxed on why he had not run
away, if it was his
intent to escape the scene, when accused 1 was
out of sight in the plantation with the deceased. He first stated
that he was in
shock. Given the absence of accused 1 this, surely,
was the opportune moment to make a dash for it, it was suggested to
him? Accused
3’s response, inexplicably, was that it did not
occur to him. The explanation is strange, given that accused 3 was
apparently,
on his own version, planning to get away from what was
happening yet did not make use of the perfect opportunity to do so.
Why
would it then not occur to him to escape when accused 1 was not
there? He then stated that he did not know where accused 1 had gone

because the open boot obscured his view. He then claimed not to have
seen the deceased lying on the ground, but to have seen him
actually
fall to the ground. He repeated that when accused 1 had returned to
the Toyota Corolla he had pulled the boot release
lever for a second
time to distract accused 1 and to allow him an opportunity to safely
escape. He was placed under some pressure
by this latter disclosure
as according to his version the boot lid was already open as it had
obscured his view of events. He simply
could not explain how the boot
lid had become closed, who closed it or when that had occurred.
Indeed, it is in this instance,
inexplicable.
[64]
Mr Khathi, for the State, later inquired
from accused 3 as to whose motor vehicle had not been satisfactorily
repaired by him: he
suggested to accused 3 that it was Mr Zakwe’s
father’s motor vehicle and not Mr Zakwe’s. This elicited
the response
from accused 3 that it was both their motor vehicle, a
hitherto unrevealed fact. Accused 3 confirmed that he had no
difficulties
with Mr Ndlovu, Mr Zakwe’s uncle, who placed him
in the plantation with the other two accused on the evening in
question.
But Mr Ndlovu, nonetheless, was a liar according to accused
3. It was suggested to him that his palm print on the right panel was

likely left there when the right rear wheel was removed from the
Toyota Corolla. This was denied and accused 3 indicated that it
was
left there when he ran away. It was then put to him that he would
have run in the opposite direction, that is, away from accused
1 who
was at the rear of the motor vehicle closest to the boot, and
therefore away from the rear of the Toyota Corolla, when making
his
alleged escape. The logic of the proposition appeared to be
undeniable.
[65]
The
court asked accused 3 to clarify certain aspects of his evidence. He
had indicated during his cross examination that accused
1 and the man
that had been removed from the boot had disappeared from his view. He
was asked how he had then seen the man fall
to the ground after
hearing the gunshot if they were not in view. He explained again that
he had used the internal rear-view mirror
to make some observations
but that his observations had been obscured by the open boot lid. He
had continued to make further observations
using the left and right
external wing mirrors attached to the Toyota Corolla. He was asked to
consider photographs 22 and 23 in
the photograph album and was asked
to point out the external wing mirrors. He could not do so as there
were none to be observed
on the Toyota Corolla. To be entirely fair
to accused 3, there was no driver’s door on the Toyota
Corolla,
[9]
and it is possible
that a wing mirror could have been attached to the missing door but
there certainly was no wing mirror attached
to the left front
passenger door. Accused 3 was also asked to explain why, if he had
fled the scene, Mr Samieer would state that
‘they’ had
helped to put the wounded person into the Toyota Corolla because
there would then only be a single person
remaining to do so (accused
3 having allegedly fled the scene and accused 1 being the person who
was shot). The description would
be that ‘he’ put the
wounded person into the Toyota Corolla and not that ‘they’
did so. The use of the
word ‘they’ implied that there had
been more than one person assisting the injured person. Accused 3
indicated that
he could not say how many people Mr Samieer had seen.
It was pointed out that this answer did not address the question but
there
was subsequently no better answer forthcoming from accused 3.
[66]
Accused 3 then closed his case and the
matter stood down for argument the following day, Wednesday, 11
October 2023. On that day,
Ms Citera telephoned my registrar and
informed her that she was ill. The matter was then rolled to the next
day.
Argument
[67]
When the matter was argued the next day, Mr
Khathi called for the conviction of the accused on all charges. The
legal representatives
for the three accused called for the acquittal
of their respective clients on all counts.
Analysis
of the evidence
[68]
The first point to be acknowledged in this
regard is that no oral evidence was led by the State of what befell
the deceased and
Mr Samieer. While the deceased obviously could not
testify, Mr Samieer could, but did not, for the reason previously
mentioned.
The only explanation for what happened, excluding for a
moment the evidence of accused 3, came from Mr Samieer’s
statement
and from Mr Zakwe’s evidence but the latter involved
a version that accused 2 and 3 disclosed to Mr Zakwe. The statement
that Mr Samieer made was handed in by consent, but I caution myself
that what is stated therein has not been tested by cross examination.

The second point is that there is no forensic evidence linking
accused 1 and 2 to the commission of the offences. In addition,
the
firearm used to kill the deceased was never recovered by the SAPS in
their generally woeful investigation of the matter. I
shall have more
to say about the investigation at the end of this judgment. There is,
however, forensic evidence in respect of
accused 3 which establishes
his presence.
[69]
The
fact that there is no direct eyewitness testimony is unusual but not
fatal to the State’s case. The State requires inferences
to be
drawn from the facts that it has established to convict the accused.
When
reasoning by inference, the test postulated in the well-known matter
of
R
v
Blom
[10]
must
be applied, namely that the inference sought to be drawn must be
consistent with all the proved facts. If it is not,
the inference
cannot be drawn. The proved facts should be such that they exclude
every reasonable inference 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 correct.
[11]
[70]
Facts
may be classified either as primary in the sense that they are
directly established by the evidence or secondary in that they
are
established by way of inference from the primary facts.
[12]
[71]
The principal witness for the State was Mr
Zakwe. He is the person who ostensibly had inside knowledge of what
had occurred on 15
July 2022. That knowledge necessitated him being
warned in terms of the provisions of section 204 of the Act. He was
clearly involved
in the events, but only after the fact.
[72]
Mr Zakwe presented himself as being a
confident witness, sure of his facts when led by Mr Khathi for the
State. He initially impressed
me. He was sure of what he said, and he
did not hesitate in providing his answers. There was nothing about
his demeanour to attract
doubt about what he was saying. That
confidence was dented somewhat by his cross examination by Ms
Franklin for accused 1. She
utilised the statement that he had
deposed to when becoming a State witness to cross examine him.
Differences emerged when the
content of that statement was compared
to his oral evidence.
[73]
I remain mindful of
the fact that witness statements are often recorded in a slap dash
fashion by the SAPS official tasked with
taking them down. Statements
taken from witnesses by the SAPS are notoriously lacking in detail
and are often inaccurate and incomplete
and:
‘…
not
taken with the degree of care, accuracy and completeness which is
desirable. . .’
[13]
It
is very common for differences to arise between a written statement
made by a witness some time ago and the oral evidence of
that the
witness subsequently given at a later trial. Comparing the oral
evidence of a witness against an earlier extra curial
written
statement made by that witness is a legitimate method of
cross-examination and is regularly employed by defence counsel
in
criminal trials. Where a difference is perceived to exist between the
two versions, however slight that difference may be, it
is seized
upon and exploited to its maximum benefit.
[14]
[74]
In
S
v Mahlangu and another
,
the court noted that
:
‘
[t]here
will have to be indications other than a mere lack of detail in the
witness's statement to conclude that what the witness
said in court
was unsatisfactory or untruthful’.
[15]
I
agree with that statement. The court will in the final analysis
consider the evidence as a whole to determine in what respects
the
witness's evidence may be accepted and in what respects it should be
rejected. The test is whether the differences were material:
[16]
‘
always
bearing in mind that a witness's testimony in court will almost
without exception be more detailed than what the witness
said in his
written statement’.
[17]
Deviations
which are not material will accordingly not discredit the witness.
In
S
v Mafaladiso en Andere
,
[18]
the
court held that the final task of the judge is to weigh up the
previous statement against viva voce evidence, to consider
all the
evidence and to decide whether it was reliable or not and whether the
truth has been told, despite any shortcomings. This
means that the
court is enjoined to consider the totality of the evidence to
ascertain if the truth has been told.
[75]
There were undoubtedly differences between
Mr Zakwe’s written statement and his oral evidence. Some
differences were relatively
minor: In his evidence in chief, Mr Zakwe
indicated that accused 1 lived in the general area of France and not
at his, Mr Zakwe’s,
homestead. Under cross examination,
however, he asserted that accused 1 actually lived at his homestead.
The court had specifically
canvassed this with him in his evidence in
chief and the answer that he now gave was contrary to the answer that
he initially gave.
He also contradicted himself on whether he
received the cellular telephone call from accused 3 requesting
assistance before or
after taking his mother and aunt to church. But
these are, in truth, not deviations of any great moment or
significance.
[76]
There were other differences in his
evidence that were slightly more significant. In his written
statement he recorded that after
taking the bed linen and pots home
with his girlfriend, he had then obtained food for accused 2 and 3
(bread and polony) and had
returned to the plantation with a set of
spanners to give them to assist them in stripping the Toyota Corolla.
This was a version
not advanced at all in his oral evidence and
exists only in his written statement. Mr Zakwe claimed that he had
not said this to
the policeman who recorded his statement and if it
was in his statement then it was incorrectly included. Well, it was
in his statement,
which was handed up as an exhibit. It is difficult
to understand how this could have occurred as Mr Zakwe confirmed that
his statement
had been read back to him and that he had signed it as
being correct. When confronted further with this and other
differences,
Mr Zakwe lapsed into silence and ultimately said that he
had no response to make.
[77]
Mr Zakwe further mentioned in his written
statement that accused 2 and 3 had used his aunt’s motor
vehicle to transport the
bed linen and pots to the homestead of Ms
Mahlaba, a transaction that was never previously mentioned by him in
his oral evidence.
That this is what did occur was, however,
confirmed by the evidence of Ms Mahlaba.
[78]
Mr Zakwe’s version in his evidence in
chief had resolutely been that he only found out on 16 July 2022, the
day after he assisted
the three accused in the plantation, how they
came to be in possession of the Toyota Corolla and the bed linen and
the pots and
how accused 1 came to be shot. That, to my mind defied
belief and the innate inquisitiveness of human nature. The court
consequently
asked him why, after having been dragged from his
routine to attend upon the accused at night in a plantation which was
a 20-to-30-minute
drive from his homestead, he did not ask
immediately how accused 1 came to be injured when he arrived at the
place where the accused
were. Was he not inquisitive? He claimed that
he did ask this but was fobbed off by the other accused. It seemed
improbable to
me that he would not have insisted on being told what
had happened. After all, he had roused his girlfriend and uncle to
travel
with him because he was not sure of what was going on. Surely,
he would demand to know what was going on?
[79]
Mr Zakwe’s written statement gives a
far more probable version of what must have happened. In that
statement, he records that
upon arriving at the plantation and seeing
the injured accused 1 lying on the ground:
‘
I
asked them how he injured (sic) and Mlungisi answered me that he had
been shot by the Pakistanians (foreigner) while they were
robbing. I
asked what they got from that Pakistanians and [illegible] answered
me that they got the car of the Pakistanian’.
That
seems to me to be a far more likely scenario. Mr Zakwe would surely
have wanted to know what had occasioned the necessity for
him to
proceed to the plantation on that night and what had happened to his
friend.
[80]
Thus, according to his written statement,
Mr Zakwe knew from the outset what he was dealing with. It is,
however, troubling that
he would not acknowledge this to be the case
when he testified. He may have believed that the version he advanced
at the trial
of the accused would assist him in avoiding prosecution
for his involvement in the matter in the sense that the version
advanced
in his oral testimony would present him in a more
favourable, and less complicit, light. If that is what he thought,
then it is
apparent that he did not truly understand the warning that
he was given. To be indemnified, he would have to admit all his own
criminal wrongdoing and not advance a sanitised version thereof.
[81]
It has not been suggested at all that Mr
Zakwe was involved in the kidnapping or the subsequent misfortunes
that befell the deceased
and Mr Samieer. I must accordingly accept
that to be the case. But it is undeniable that he very readily joined
in when dealing
with the stolen goods, a fact that even he was
ultimately compelled to admit.
[82]
While his evidence is not free from
criticism, there is sufficient consanguinity between his written
statement and his oral evidence.
Both versions have the same
essential features and, in their core, narrate the same story: the
perpetrators of the crimes committed
against the deceased and Mr
Samieer were the three accused. I am therefore satisfied that Mr
Zakwe generally answered frankly and
honestly. I intend, after some
consideration and reflection, to grant Mr Zakwe the indemnity
contemplated by section 204 of the
Act at the conclusion of this
judgment.
[83]
While the evidence of Mr Zakwe is open to
criticism for its deviations from his written statement, the same
cannot be said of the
evidence of his uncle, Mr Ndlovu’s
evidence. A slight man who appears older than his 43 years, he gave a
simple explanation
of what occurred and could not be made to recant
that version. Indeed, he very often agreed with the defence version,
particularly
when cross examined by Ms Citera for accused 3. But his
version differed in some respects to that of Mr Zakwe, as previously
stated.
[84]
I have no doubt that Mr Ndlovu was a
thoroughly honest, sensible and uncomplicated witness who did not
hesitate in answering questions.
In short, he was in his simplicity
an impressive presence in the witness box. Where there are
differences between his evidence
and the evidence of Mr Zakwe, I
prefer his version. That does not, in the final result, detract from
the thrust of Mr Zakwe’s
evidence or permit it to be discarded.
[85]
Mr Ndlovu’s evidence indelibly
established that the three accused were together on the evening of 15
July 2022 and dispelled
any notion that accused 2 was not there and
that accused 3 had left the other two accused. He found all three of
them in the plantation.
That is what Mr Zakwe also stated in his
evidence.
[86]
The only controversial aspect of the other
evidence presented in the State’s case was the evidence of Ms
Mahlaba and Mr Mathonsi.
The controversy over their evidence was the
fact that each of them implicated some of the accused in the events
that occurred after
15 July 2022. Ms Mahlaba was a feisty, confident
witness, who impressed with her forthright attitude. She testified
that both accused
2 and 3 associated themselves with the items later
identified by Mr Samieer as being his and the deceased’s
property. The
denial by accused 2 that he ever went to Ms Mahlaba’s
homestead may be dismissed by virtue of the fact that he was not
prepared
to make that denial under oath. His denial of the evidence
of Mr Mathonsi that he had taken the stolen wheels of the Toyota
Corolla
to the witnesses rented accommodation must suffer the same
fate for the same reason. Indeed, it must be mentioned that when
accused
2’s version that he had not taken the wheels to Mr
Mathonsi’s rented accommodation was put to Mr Mathonsi he, Mr
Mathonsi,
was visibly angry that it was indirectly being suggested
that he was not being truthful. I found both Ms Mahlaba and Mr
Mathonsi
to be fair witnesses.
[87]
The State presented no direct evidence of
the individual roles played by each accused but has sought their
conviction based on inferential
reasoning. Mr Samieer indicated in
his statement that he and the deceased had set off for Gugulethu at
17h00. At that very time,
Mr Zakwe was dropping off his mother and
aunt at church. Soon after he had delivered them, he received the
cellular telephone call
from accused 3. Mr Samieer narrated that he
and the deceased were stopped by three African men. On trial before
me are three African
men. It is a fact that accused 1 suffered a
gunshot wound to the chest – he has admitted as much. Mr
Samieer describes in
his statement that he shot one of the persons
who had stopped him and the deceased. It is a fact that accused 1,
together with
accused 2 and 3, were found by Mr Zakwe and Mr Ndlovu
in the plantation shortly after 17h00 after being summoned there by
accused
3. When Mr Ndlovu made his observations in the plantation, he
saw the Toyota Corolla that was later revealed to belong to the
deceased’s
brother. All of this coalesces into a formidable
body of evidence from which it is possible to infer that the three
accused were
the three men who stopped the deceased and shot and
killed the deceased. The alternative to this is that there must have
been a
second gang of three men at loose in the area between Greytown
and Kranskop that night, one of whom was also wounded by a bullet.

The possibility of this alternative scenario occurring is virtually
non-existent. Accused 1 and 2 chose not to attempt to rebut
these
facts. Accused 3, on the other hand, essentially, confirmed all these
facts but sought to minimise his involvement in those
criminal
events.
[88]
What,
if anything, is to be made of the failure of accused 1 and accused 2
to testify? In
S
v Boesak
[19]
the Constitutional Court held as follows:
‘
The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision
to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent in
the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation
to prove the
guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence. What is stated
above is
consistent with the remarks of Madala J, writing for the Court, in
Osman & another v Attorney-General, Transvaal
, when he
said the following:
“
Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an
accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of
its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution’s
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial
system of criminal
justice.”’
[89]
In
Mahlalela
v S
,
[20]
Dlodlo AJA stated the
following:
‘
I
agree that where a prima facie case is proved against an accused
person in a case built and resting upon circumstantial evidence
to
which a reply from an accused would be expected, the fact that the
accused elects not to reply may be a factor which, together
with
other factors in the case, leads to an inference of guilt. However,
the weight to be attached to the accused’s silence
depends on
the facts of the particular case.’
[90]
An explanation was required from accused 1
about how he came to sustain his injury, but none was forthcoming.
This is a factor that
must be placed in the scales when weighing up
his guilt or innocence.
[91]
The
position as regards accused 3 is somewhat different. His exculpatory
version put to witnesses by his legal representative cannot
simply be
ignored because he did testify under oath. His evidence must be
carefully considered. If it is reasonably possibly true,
then he
stands to be acquitted.
[21]
The fact that he did testify is, perhaps, understandable: after all,
he is the only one of the three accused who is identified
by
objective evidence as being at the Toyota Corolla. He has an
incentive to try and explain why there is such evidence and why
the
court should not infer therefrom that he was complicit in the events
under consideration.
[92]
Accused 3’s explanation is simple. He
admits that he and the other two accused were together, and he admits
being present
when the deceased and Mr Samieer were stopped in their
motor vehicle. He also observed the execution of the deceased by
accused
1, for that, in truth, is what it was. His version appears to
be that he did not know that accused 1 possessed a firearm or that
he
intended stopping the Toyota Corolla or that the firearm would be
used to shoot the deceased and Mr Samieer. But it must be
borne in
mind immediately that Mr Samieer stated that there was only one
firearm and the person that he, Mr Samieer, managed to
shoot while
wrestling with another man for control of the firearm was the person
who originally had the gun when their motor vehicle
was stopped. The
accused were thus willing to share the firearm and to use it if
necessary.
[93]
Accused 3 thus appears to deny that there
was any common purpose, which the State relies upon to convict all
the accused. Count
3 of the indictment, being the count of murder of
the deceased, specifically draws the accuseds attention to the fact
that:
‘
the
murder was planned or premeditated and/or committed by a group of
persons acting in furtherance of common purpose.’
[94]
Common purpose is:
‘…
a
purpose shared by two or more persons who act in concert towards the
accomplishment of a common aim.’
[22]
A
common purpose may come about by prior agreement between those
involved or it may come about on an impulse without prior
consultation
or agreement.
[23]
If there is such a prior agreement, there is seldom evidence that may
be led of such agreement. Courts are usually asked to infer
the
existence of such common purpose from the proven facts.
[95]
It is not in dispute that the accused all
knew each other: the issue is whether they were all together on the
evening of 15 July
2022. According to accused 3, he and accused 2
were on their way to Mhlalakahle to drink. After meeting up with
accused 1 they
were prepared to change their plans and join him and
go to Gugulethu. There clearly thus was a good relationship between
the three
of them. In those circumstances, how likely is it that
accused 1 would suddenly embark upon a series of criminal acts
without having
informed his companions of his intentions? In my view,
the likelihood of that occurring is negligible. One minute, they were
discussing
where to drink and the next minute accused 1 has conceived
of, and implemented, a murderous plot to rob the deceased and Mr
Samieer
without discussing this with his companions. Indeed, it goes
beyond that, if accused 3 is to be believed, in that accused 1
threatened
to kill accused 3, a person with whom he was quite
prepared to go drinking with, if he did not participate in accused
1’s
suddenly developed scheme. Such Jekyll and Hyde
transformations may occur in the theatre but are seldom found in
everyday life,
and I do not accept that it happened in this instance.
Remarkably, in accused 1’s version no threats are made against
accused
2 by accused 1. The only threats made by accused 1 are
directed at him.
[96]
The narration by accused 3 of how the
deceased met his fate accords broadly with what was stated by Mr
Samieer in his written statement.
Accused 3’s version is simply
too contrived to possibly be true. His clamant desire to extricate
himself from the events
in the plantation have all the hallmarks of a
defence thought up after the fact. That his explanation of what he
did in the plantation
is false is amply demonstrated by the alleged
release by him of the boot lid of the Toyota Corolla as a
diversionary tactic when,
on his version, it had remained open and
was thus still open when he allegedly pulled the boot lid release
lever within the Toyota
Corolla a second time. That he had not fled
from the plantation is confirmed by the evidence of Mr Ndlovu, who I
have already found
to be a reliable witness.
[97]
Accused 3’s explanations of how the
palm print came to be on the Toyota Corolla smacks of recent
invention and is self-serving.
There was not a single explanation,
but multiple explanations: He steadied himself because of the
difficult terrain, he steadied
himself due to shock and he touched
the Toyota Corolla as he fled from accused 1 and the scene. In
advancing the last version,
he clearly did not consider that for that
to have occurred he would have to be running towards accused 1 and
not away from him.
The fact that the palm print was facing upwards
and not downwards also does not accord with accused 3’s
version. By far the
most likely explanation for the presence of the
palm print, given its location and orientation, is that put to
accused 3 by Mr
Khathi: it was left there when the right rear wheel
was removed from the Toyota Corolla.
[98]
That being the case, the palm print would
have to have been left there after accused 1 had been taken to
hospital and after Mr Zakwe
had taken the bed linen and the pots back
to his homestead as it is only upon his return to the plantation that
he observed that
the wheels had been removed from the Toyota Corolla.
[99]
Accused 3’s version was that he had
fled immediately after the shooting. That cannot be so. The presence
of his palm print
testifies to his presence at the Toyota Corolla
long after he claims to have fled.
[100]
A further factor to be considered was the
demeanour of accused 3 in the witness box. Throughout his stay there
he persistently looked
downwards at the floor. He made no attempt to
make eye contact with whomever was addressing him. His demeanour was
unsatisfactory
and did not generate any confidence in the veracity of
what he said.
[101]
In the circumstances, I do not
accept accused 3’s version of events where it is at variance
with the oral evidence of Mr Zakwe
or Mr Ndlovu or, for that matter,
where it differs from what Mr Samieer narrated in his statement. That
means that I do not accept
that he acted under any form of compulsion
or that he withdrew from the crime scene and disassociated himself
from the activities
of his co-accused.
[102]
It seems to me that the accused may
well have fortuitously met up with each other on the day in question
but what happened thereafter
is not ascribable simply to the rogue
behaviour of accused 1. The common purpose may well have arisen by
impulse and without any
prior plotting and planning but it surely did
arise and when it did, it involved all three of them. As evidence of
that, they collectively
acted in furtherance of their purpose by
proceeding to a relatively isolated area where an attempt was made to
rid themselves of
any persons who could possibly identify them. Even
when that went wrong and one of those persons escaped after accused 1
was shot,
they remained together and sought the assistance of Mr
Zakwe. Accused 2 and 3 continued their conduct in furtherance of the
common
purpose the next day when they attended to the transfer and
preservation of the spoils of their conduct the previous evening. In

so doing, accused 3, in particular, did not
demonstrate
a desire not to be associated with his co-accused, as he claimed in
his evidence. To the contrary, he associated himself
fully with the
hiding of the bed linen and the pots. Such conduct is not consistent
with the version that he advanced that he was
only present due to
being compelled to participate by accused 1. Accused 1, of course,
was no longer present because of his wound.
[103]
In
R
v De Villiers
,
[24]
the
court remarked as follows when considering the task of a court when
assessing the guilt or innocence of an accused person:
‘
The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only
inference which can reasonably be drawn. To put the matter in another
way; the Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.’
[104]
In
S
v Chabalala
,
[25]
the Supreme Court of Appeal stated that the correct approach is:
‘
to
weigh up all the elements which point towards the guilt of the
accused against all those which are indicative of his innocence,

taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and, having done so,

to decide whether the balance weighs so heavily in favour of the
state as to exclude any reasonable doubt about the accused’s

guilt’.
[105]
I am satisfied
that the evidence as a whole permits the inference sought by the
State to be drawn that the accused were the persons
who set upon the
deceased and Mr Samieer. No acceptable explanation to negate the
drawing of that inference has been offered by
accused 1 and 2 and the
explanation proffered by accused 3 to the extent that it attempts to
minimise his knowledge and actions
is also false. I find the evidence
indicative of the involvement of all three of the accused and,
ultimately, the guilt of all
three accused. All three accused set out
on a criminal enterprise that involved at least one firearm and they
must have appreciated
that at some stage it might be necessary to use
that firearm to achieve their purpose. They clearly reconciled
themselves with
this possibility.
[106]
I
accordingly find that on 15 July 2022 the three accused, acting with
common purpose, kidnapped
[26]
the deceased and Mr Samieer by placing them in the boot of their
motor vehicle against their will and thereby deprived them of
their
liberty, that they robbed them of their private property and later
murdered the former and attempted to do the same to the
latter. They
stand therefore to be convicted on all the charges that they face.
The
SAPS investigation
[107]
Finally, and regrettably, something needs
to be said about the investigation of this matter and the conduct of
the investigating
officer. This matter has not been a good example of
how criminal offences should be investigated. To be blunt, the matter
has been
poorly investigated and presented. Obvious clues have not
been pursued by the SAPS and false explanations have been provided
for
why this was not done. I allude here, in particular, to the
explanation offered by the investigating officer that the debit cards

found at the scene were old and would have been of no assistance to
the SAPS. Between the date of the investigating officer’s

evidence and the closure of the State case there was an opportunity
for this vital investigation to occur. It did not.
[108]
There was also evidence of fingerprints
linking one of the accused to the Toyota Corolla. The State,
according to Mr Khathi, apparently
did not know of the existence of
this evidence and was content to close its case without leading it
even when it found out about
the existence of this evidence. It was
only through good fortune and not good planning that such evidence
came to be led.
[109]
In addition, Mr Zakwe testified about
the SAPS finding blood-stained trousers in the defunct Opel Corsa
parked in his yard in which
accused 2 and 3 had allegedly slept. The
results of the testing of those trousers were never presented to the
court.
[110]
The overall impression was that the
investigating officer had no interest whatsoever in investigating the
matter. He attended the
scene and walked WO Mbaleni through the crime
scene. He would have known therefore that she had dusted for
fingerprints. He appears
to have shown no interest in following up
with her regarding any possible matches. He also seems to have taken
no steps to expedite
the analysis of the blood stained trousers from
the Forensic Sciences Laboratory. I need say nothing further about
the debit cards.
[111]
Viewed dispassionately, it appears that the
investigating officer was shielding the accused and had deliberately
refrained from
fully investigating the matter. It is totally
unacceptable that evidence that may implicate persons in the
commission of extremely
serious offences is not presented to a court
tasked with trying that offence. In fact, it is disgraceful that this
should have
occurred and that it is now necessary for this court to
have to offer up this criticism.
[112]
I pointed out to Cst Sibiya that when the
facts pertaining to the fingerprints are viewed in conjunction with
the debit cards that
were not investigated and the identification
parade that was not held, it appeared that he was not intent on
assisting the State
in properly investigating the matter and
presenting its strongest version of events to the court. He denied
this. But his conduct
and these unattended to issues leaves the
impression that he has not intent on performing his duties for some
reason that is not
clear to me. I leave that to others to investigate
and consider.
Conclusion
[113]
I accordingly:
(a)
Find each
accused guilty on counts 1 to 5.
(b)
Direct that in terms of the provisions of
section 204(2)
of the
Criminal Procedure Act 51 of 1977
, the State
witness, Mr Musawenkosi July Zakwe,
is
discharged from future prosecution on any charges arising out of the
kidnapping of Mr Osama Mohamed Zaky Taha Elbitawu and Mr
Shaker
Samieer, the murder of Mr Elbitawu and the attempted murder of Mr
Samieer and the robbery of both men on 15 July 2022.
(c)
Direct that the Registrar of this court
send a copy of this judgment to Brigadier A Holby, the head of SAPS
detective services in
KwaZulu-Natal, and whose offices are situated
at C. R. Swart Square, Durban, to investigate and consider the
conduct of the investigating
officer, Constable Sibongiseni Sibiya of
the detective branch of SAPS Greytown.
MOSSOP
J
APPEARANCES
Counsel
for the State:
Mr J
Khathi
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Counsel
for accused 1:
Ms D
S Franklin
Instructed
by:
Legal
Aid
Pietermaritzburg
Counsel
for accused 2:
Mr R
Stuurman
Instructed
by:
Legal
Aid
Pietermaritzburg
Counsel
for accused 3:
Ms T
M Citera
Instructed
by:
Legal
Aid
Pietermaritzburg
Dates
of trial:
2, 3,
4, 5, 6, 11, 12, 16 October 2023
Date
of Judgment:
16
October 2023
[1]
The photograph album has a photograph of a number plate of a motor
vehicle with the registration mark N[...] 8[...]. The difference
in
the registration mark referred to by Mr Samieer and that which
appears in the photographic album was never explained. I shall

assume that Mr Samieer incorrectly narrated the registration mark
given the later identification of the owner of the motor vehicle

bearing the registration mark N[...] 8[...], referred to later in
this judgment.
[2]
In argument, Mr Khathi indicated that this was because the results
of deoxyribonucleic acid (DNA) testing performed on the blood
stains
on the trousers had never been received from the Forensic Sciences
Laboratory.
[3]
Ms Nana was, inexplicably, never called as a witness.
[4]
I
shall deal with the version of the accused later in this judgment.
[5]
S
v Lubaxa
2001
(2) SACR 703
(SCA) paras 18 and 19.
[6]
S
v Faku and others
(2004)
3 ALL SA 501
(CK)
at
504 i-j.
[7]
Maculeko
and Others v S
(A16/2010) [2011] ZAWCHC 83 (1 April 2011) para 10.
[8]
It will be remembered that Mr Samieer stated in his statement that
he and the deceased were on their way to Gugulethu and were
stopped
by the three men near a cemetery.
[9]
The
Toyota Corolla was discovered without the driver’s door and
the investigating officer was never able to discover its

whereabouts.
[10]
R
v Blom
1939
AD 188.
[11]
Ibid,
p
ages
202-203.
[12]
Willcox
and Others v Commissioner for Inland Revenue
1960
(4) SA 599
(A) 602A-B.
[13]
S
v Xaba
1983
(3) SA 717
(A)
at 730B-C.
[14]
S
v Govender and others
2006
(1) SACR 322
(E)
at 326c-j.
[15]
S
v Mahlangu and another
[
2012]
ZAGPJHC 114.
[16]
S
v Bruiners en 'n ander
1998
(2) SACR 432
(SE)
at 437E-F;
S
v Mafaladiso en andere
2003
(1) SACR 583
(SCA)
at 593E.
[17]
S
v Mahlangu and another
,
supra.
[18]
S
v Mafaladiso en andere
supra.
[19]
S
v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
(CC) para 24.
[20]
Mahlalela
v S
(396/16)
[2016] ZASCA 181
(28 November 2016) p
ara
16.
[21]
S
v Van der Meyden
1999 (1) SACR 447
(W) at 448F-G.
[22]
S
v Motaung and Others
[1990] ZASCA 75
;
1990
(4) SA 485
(A) 509A.
[23]
Magmoed
v Janse van Rensburg and others
[1992] ZASCA 208
;
1993
(1) SACR 67
(A) 96e-f.
[24]
R
v De Villiers
1944
AD 493
at
508-9.
[25]
S
v Chabalala
2003 (1) SACR 134
(SCA) para 15.
[26]
In
our law, kidnapping is defined as ‘the unlawful, intentional
deprivation of a person’s freedom of movement’.
The two
key elements of kidnapping are the unlawful deprivation of the
freedom of the individual. The use of force or duress
is not an
element of the offence: see
Ntuli
and Another v S
(2858/2017) [2021] ZAGPPHC 149 (10 March 2021) para 30.