S v Phakathi and Others (CCD52/2021) [2024] ZAKZPHC 18 (15 March 2024)

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[2024] ZAKZPHC 18
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S v Phakathi and Others (CCD52/2021) [2024] ZAKZPHC 18 (15 March 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, NORTH EASTERN CIRCUIT
Case
no:
CCD52/2021
In
the matter between:
THE
STATE
and
SMANGA
PHAKATHI

FIRST ACCUSED
SIPHO
RICHARD
MTHEMBU

SECOND ACCUSED
SIBONELO
MABOSI SIHLONGONYENE

THIRD ACCUSED
JUDGMENT
MOSSOP
J
:
Introduction
[1]
This is an ex tempore judgment.
[2]
Mr Smanga Phakathi, Mr Sipho Mthembu and Mr Sibonelo Sihlongonyeni
are
the first, second and third accused respectively in this matter.
I shall refer to them as accused one, two and three respectively.

They each face the same three counts, namely a single count of
attempted robbery with aggravating circumstances and two counts
of
murder. These counts have as their origin certain events that
occurred at the Pongola Rugby Club (the rugby club) situated in
the
town of Pongola in Northern KwaZulu-Natal on the evening of 6 March
2020. At approximately 22h00 on that evening, a group of
six men with
their faces concealed by balaclavas entered a pub situated within the
rugby club that rejoices under the name of ‘Porra’s
Pub’
and attempted to rob the patrons there present and the pub. Shots
were fired and an alleged robber, Mr Xolani Goodenough
Mtshali (the
deceased) and a member of the public, Mr Shaun Mathews (Mr Mathews)
were fatally wounded.
The
application
[3]
Before dealing with the pleas tendered by the accused to those counts
and the evidence that was then led, it is appropriate for me to deal
at this stage with applications that were made by accused one
and
accused three respectively before they were called upon to plead.
Having heard argument from both sides, I dismissed the applications

and said that I would provide reasons later. These are those reasons.
[4]
But first, some background information relevant to those
applications.
This court is part of the north east circuit of the
KwaZulu-Natal High Court, sitting in Mtubatuba. Before the court
decamped from
Pietermaritzburg to Mtubatuba for the session
commencing on Monday, 26 February 2024, I called a pre-trial
conference in Pietermaritzburg
with the legal representatives of the
parties in this matter and in other matters on the court’s
calendar for the session.
This occurred on Wednesday, 21 February
2024. In attendance at the pre-trial conference in respect of this
matter was Mr C Ngubane
(Mr Ngubane), who appears for the State, and
Mr M Luthuli (Mr Luthuli) who appears for all three of the accused in
this matter.
[5]
At the pre-trial conference, Mr Luthuli indicated that he intended
taking
‘a point’ before the trial commenced. He indicated
that he would accordingly be preparing application papers and would

let Mr Ngubane have an unsigned copy of those application papers over
the weekend preceding the commencement of the session. He
was true to
his word and Mr Ngubane received an unsigned copy of the application
papers from Mr Luthuli at approximately 11h00
on the morning of
Saturday, 25 February 2024.
[6]
When the matter was called in Mtubatuba on Monday, 26 February 2024,
Mr
Ngubane indicated that he had not had an opportunity to consult
with the investigating officer regarding the applications and stated

that he required time to do so. I agreed to stand the matter down
until Tuesday, 27 February 2024 to give him that time.
[7]
On Tuesday, Mr Ngubane indicated that he now needed time to deliver
an
answering affidavit. Mr Luthuli, understandably, indicated that he
would then have to reply to the answering affidavit. To afford

everyone the opportunity to properly present their respective cases,
I stood the matter down until Wednesday, 28 February 2024
on the
clear understanding that at some stage on Tuesday (I did not fix a
specific time), I would be emailed the contemplated answering
and
replying affidavits at my place of accommodation. This was not done:
I received only the answering affidavit on Tuesday and
received the
replying affidavits on Wednesday morning before proceeding to court.
While this was slightly inconvenient, no significant
harm was
occasioned thereby and I was able to properly consider both sets of
affidavits before argument commenced. I point out
that neither side
prepared any heads of argument.
[8]
What was before me was,
in fact, two almost identical applications brought by each of accused
one and accused three. Each application
had a notice of motion,
supported by a founding affidavit to which the same two annexures
were attached. The two annexures consisted
of a witness statement of
a Mr Nkosinathi Mtshali (Mr N Mtshali) recorded in manuscript and a
copy of an agreement concluded between
the government of South Africa
and the government of Swaziland.
[1]
‘The point’ that Mr Luthuli indicated that he would take
at the pre-trial meeting, is described in the founding affidavits
as
being ‘a point in limine’.
[9]
The identical relief is sought in both applications and reads as

follows:
‘
1.
Declaring that the Applicant’s apprehension, arrest and
abduction in Swaziland
on or about 8 March 2020 and subsequent arrest
and detention pursuant thereto, be declared wrongful and unlawful.
2.
Declaring that the charge before this Honourable Court is a nullity
and setting
aside the proceedings before the Court.
3.
Declaring that the Applicant is entitled to be discharge (sic) from
detention
in Qalakabusha Correctional Service Centre.
4.
Directing the Head of Qalakabusha correctional service to immediately
discharge
the Applicant from detention.’
[10]
The founding affidavits in both applications reveal allegations that
both the first
and
third accused assert that they are citizens of Swaziland. They stated
that they resided in Swaziland and that whilst at their
separate
homes on the evening of 8 March 2020, they were forcibly removed from
those homes by men whom they later discovered were
policemen from
this country. Accused one states that one Captain Mncwango (Capt
Mncwango), a member of the South African Police
Services (SAPS) and a
person who featured prominently throughout the trial, was present at
his apprehension in Swaziland, but that
allegation is not made by
accused three. Their respective apprehensions occurred an hour apart
on the same day, the first respondent
being apprehended at 20h00 on
the date aforementioned and the second applicant at 21h00. When they
were apprehended, each applicant
was gagged and made to walk from
their respective home to the border fence between South Africa and
Swaziland and made to ‘jump’
the fence. Waiting for them
on the South African side of the border were numerous SAPS officers
as well as members of the Pongola
Community Forum. They were placed
in a motor vehicle and were taken to the Pongola police station where
they were detained and
from whence they have ultimately ended up
before this court facing trial.
[11]
The allegations about the place of residence of the first and third
accused are not in
dispute. The indictment records that:
(a)
The first accused is a South African male aged 26 years who resides
at the Lavumisa
area, Swaziland; and
(b)
The third accused is a South African male aged 20 years who also
resides at
the Lavumisa area, Swaziland.
[12]
In the summary of substantial facts put up by the state, the
following is stated in paragraph
3 thereof:
‘
Accused
1 and 3 resided in the Lavumisa area, Swaziland. Accused two resided
in the Madanyini area, Pongola.’
There
can thus be no dispute about where the first and third accused
reside. The only dispute is whether that was where they were
when
they were arrested and whether this court can make such a
determination based only on the papers, for it appeared from the

outset that there was a factual dispute between the parties.
[13]
The state delivered two affidavits in opposition to the applications.
Mr Thabiso Dlakude
(Mr Dlakude) indicated in his affidavit that he is
a director of a security company and a member of the Julukatsotsi
Community
Policing Forum (JCPF). Mr Dlakude stated that on 8 March
2020, he received information that the suspects who had perpetrated
the
robbery at the rugby club were hitchhiking along the N2 highway
towards Pongola in the vicinity of Sitilo, which is within the
boundaries of South Africa. He and other members of the JCPF, but no
members of the SAPS, proceeded to the place where it was believed

that the suspects would be found. They were, indeed, found there and
he and the people that he was with apprehended them. They
were then
taken by him and his companions to the SAPS at Pongola where they
were handed over to Capt Mncwango, who formally arrested
them. Capt
Mncwango deposed to the second affidavit delivered by the state and
confirmed that he had arrested the suspects at the
Pongola police
station. He had not, as alleged by accused one, ventured into
Swaziland to effect his arrest: on Capt Mncwango’s
version, he
had not even left the town of Pongola.
[14]
In reply to the answering affidavits, the first and third accused
submitted that Mr Dlakude
had no authority to represent the state, or
the SAPS for that matter, and, so it was submitted that he:
‘…
is acting
ultra
vires
and I submit that his affidavit is
null
and void
.’
[15]
It was further argued that, given the fact that Mr Dlakude’s
affidavit had
to be ignored, the content of Capt Mncwango’s
affidavit was consequently revealed to be constructed on hearsay
allegations
and is likewise to be ignored. The version of accused one
and accused three should therefore be accepted and the application
granted.
[16]
Dealing with the first
point taken in the replying affidavit, namely that Mr Dlakude lacks
authority, the point is a singularly
weak one. No authority is
required by a witness to depose to an affidavit.
[2]
This is an elementary concept and cannot excite any controversy,
despite the force with which this point was argued by Mr Luthuli.

Likewise, the allegations that Capt Mncwango’s affidavit is
hearsay is bereft of merit. Hearsay evidence is:
‘
evidence,
whether oral or in writing, the probative value of which depends upon
the credibility of any person other than the person
giving such
evidence.’
[3]
Capt
Mncwango’s affidavit is brief and simply states that the first
and third accused were brought to his office by Mr Dlakude
who had
apprehended them and he then arrested them. That is not hearsay, but
is the recordal of his own conduct. Nothing of any
merit is therefore
to be found in the replying affidavits.
[17]
The indictment specifically alleges that the first and third accused
are South African
citizens. They, however, allege that they are
citizens of Swaziland. Immediately a dispute of fact may be
discerned. When I inquired
why no objective evidence had been adduced
by accused one and accused three establishing their Swazi
citizenship, Mr Luthuli indicated
that they had insufficient time to
acquire the documents that would establish this fact. That argument
lacked any appeal because
the accused have been in custody awaiting
trial for nearly four years and have had ample time to formulate
their applications and
to acquire the necessary documentation to be
used in support thereof.
[18]
As previously mentioned, accused one and accused three attached to
their respective applications
an affidavit of Mr N Mtshali. He is the
brother of the deceased. The surname ‘Mtshali’ appears
frequently in this matter
and several persons have it as their last
name. To avoid confusion, I shall continue to refer to the deceased
as ‘the deceased’
and I shall refer to the other
Mtshali’s mentioned in the evidence by their initial and
surname. No disrespect is intended
to the deceased by referring to
him in this fashion.
[19]
Mr N Mtshali’s affidavit was made before Capt Mncwango. It
appears to be a damning
narration of the participation of the accused
in the events at the rugby club. When I inquired why this particular
affidavit had
been put up for it did not appear to show accused one
and accused three in a favourable light nor did it appear to support
the
allegations of their abduction from Swaziland, I was informed by
Mr Luthuli that it had been attached to the two founding affidavits

to establish the presence of accused one and accused three in
Swaziland on the date of their arrest, being the evening of 8 March

2020. I invited Mr Luthuli to point out where in the affidavit of Mr
N Mtshali that was stated to be the case. After several minutes,
he
indicated that he could not do so. That is not surprising, because
the affidavit deals primarily with events that occurred on
6 and 7
March 2020. Why it was attached to the founding affidavits of the
first and third accused is accordingly not clear.
[20]
Mr Luthuli relied
heavily in his argument on the matter of
S
v Ebrahim
.
[4]
That matter involved a kidnapping from Swaziland of a Mr Ebrahim and
his subsequent delivery to the SAPS in South Africa. His abduction

from Swaziland was later ruled to be unlawful. Its attraction to the
defence was manifest. However, there is one distinguishing
feature
between the facts of that matter and the facts of this matter. Mr
Ebrahim fled to Swaziland from South Africa and it was
common cause,
or at least not disputed by the state, that he was in that country
when he was forcefully removed therefrom to South
Africa against his
will, as the following extract from the reported judgment reveals:
‘
Die
volgende feite soos vervat in albei voormelde aansoeke, is óf
gemene saak óf onbetwis.
…
In
Swaziland het appellant bekend gestaan as Ahmed Zaheer en ook as Roy
Zaheer en hy was aldaar woonagtig op gedeelte 212 van plaas
no 188,
Dalriach, Pine Valley, in die Umgugu reservaat aan die buitewyke van
Mbabane. 'n Manlike Swazi by name van Dumisane Zwane
was daar in
diens van appellant as tuinier.
Om
ongeveer 22h00 op 15 Desember 1986 was appellant in die sitkamer van
sy woning voornoemd. Hy en Zwane het gesit en kyk na die
beeldradio.
Daar was 'n klop aan die voordeur. Zwane het op appellant se versoek
gaan kyk wie dit was en het die deur oopgemaak.
Twee swartmans het
buite gestaan.’
[21]
The fact that it was not disputed that Mr Ebrahim was taken from his
home in Swaziland
and brought to South Africa distinguishes
Ebrahim
from the facts of this matter. In this matter, it is disputed by the
state that accused one and three were in Swaziland at the
time of
their apprehension.
[22]
The dispute about where
accused one and accused three were when arrested permeates their
applications. Instead of delivering a plea
in terms of s 106(1)
(f)
of the
Criminal Procedure Act 51 of 1977 (the Act),
[5]
the applications were delivered. It must have been apparent to
accused one and accused three that there were disputes of fact:
the
very essence of the two applications depends on the existence of that
dispute. Yet no concern was had for how the disputes
of fact were to
be resolved on paper and there was no application for oral evidence
to be heard before determining the applications.
[23]
Mr
Luthuli urged me to apply the approach formulated in
Plascon-Evans
Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd
,
[6]
and submitted that if I did so, the inevitable outcome would be that
the applications must be granted. That submission seems to
me to be
based on an incorrect understanding of
Plascon-Evans
,
which provides that an application must be decided on the
respondent’s version unless that version is so farfetched or
uncreditworthy that it can be rejected out of hand.
[24]
In
National
Director of Public Prosecutions v Zuma
,
[7]
the
Supreme
Court
of Appeal explained the
Plascon-Evans
principle
as follows:
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together with the
facts
alleged by the latter, justify such order. It may be different if the
respondent’s version
consists
of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly
untenable
that the court is justified in rejecting them merely on the papers.’
[25]
As
to what a genuine dispute of fact is, in the earlier matter of
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
,
[8]
the
Supreme Court of Appeal
explained
that:
‘
A
real, genuine and
bona
fide
dispute
of fact can exist only where the court is satisfied that the party
who purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact said to be disputed. There will of
course be instances where a bare denial meets
the requirement because
there is no other way open to the disputing party and nothing more
can therefore be expected of him.’
[26]
After perusing the application papers and after hearing argument, I
was satisfied that
the state’s version seriously and
unambiguously addressed the allegations in the two applications and
raised material and
bona fide factual disputes. If
Plascon-Evans
was to be applied, as Mr Luthuli urged me it should be, then the
application must be resolved on the state’s version. The
fact
that the state admitted that accused one and three reside in
Swaziland does not amount to an admission that they were in that

country when apprehended.
[27]
In the circumstances, I could not find that the versions advanced by
the two witnesses
for the state who have put up affidavits are so
improbable, uncreditworthy or farfetched that they can simply be
dismissed on the
papers. The denial is not merely a bald denial but
is a version populated with facts and details from which a clear
picture of
how, and more particularly, where, the state alleges that
accused one and accused three were arrested.
[28]
It is for these reasons that I dismissed
the applications.
The
plea
[29]
Reverting now to the trial, when the three counts were put to the
accused, each pleaded not
guilty to each count. They specifically did
not tender a plea in terms of s 106(1)
(f)
of the Act. No plea
explanation was offered by Mr Luthuli on their behalf but certain
admissions were made by the defence in terms
of the provisions of s
220 of the Act. Those admissions related primarily to the identity of
the two men who perished at the rugby
club, the preservation of their
bodies after their deaths and their respective post-mortem
examinations, all of which were admitted
by the accused. It was not
disputed that the forensic pathologist recorded the cause of death of
Mr Mathews was from a
gunshot wound to the left
iliac crest of his pelvic bone, which caused him to haemorrhage into
the pelvic cavity and cause his death.
It was also undisputed that
the same forensic pathologist recorded that the deceased died from
multiple gunshot wounds to an area
just above his umbilicus, the
lateral side of his right nipple and the posterior chest wall,
causing a right haemothorax and a
puncture wound to his right lung
and his ultimate demise.
[30]
All three accused were
apprised by the court of the concepts of competent verdicts and
common purpose, which all three indicated
that they understood. They
were also advised to listen carefully to the evidence and to raise
their hand when they wished to attract
the attention of Mr Luthuli to
give him an instruction on evidence that had been led. Upon a hand
being raised, the court indicated
that it would alert Mr Luthuli to
the need to take an instruction from his client.
[9]
The
first state witness: Jose Gil Jardim (Mr Jardim)
[31]
Mr Jardim is the proprietor of ‘Porra’s Bar’ at the
rugby club. He was
on duty behind the bar counter on 6 March 2020 at
approximately 22h15. He stated that he was seated on a chair facing
the door
when he saw six men enter the pub, each wearing a balaclava.
At that time, he estimated that there were approximately 15 customers

in the bar. One of the robbers jumped onto a chair and from there
onto the bar counter and pointed a firearm at Mr Jardim. The
other
five robbers went into the body of the bar near certain pool tables
where customers were sitting and drinking. The robbers
shouted ‘down,
down’ to the customers and began hitting them with the flat
side of pangas that some of them wielded.
Mr Jardim estimated that
two of the robbers had firearms and most of the others had pangas.
[32]
Mr Jardim said to the robber standing on the bar counter that he
should not shoot and that
he was free to take whatever he wanted. He
then heard shots emanating from his right-hand side. He testified
that he did not turn
to see what had occurred because he was facing
the barrel of the gun held by the man standing on the bar counter and
was afraid
that he was to be shot. After the shots were fired, the
robbers suddenly fled from the premises and Mr Jardim moved from
behind
the bar counter into the area of the pub where patrons sit. He
observed a white man lying on the ground who had been injured, but

who was still alive, and he also observed a black man lying on the
ground who appeared to be dead, with a firearm next to his hand.
This
was the deceased. He was not the man who had been standing on the bar
counter pointing a firearm at Mr Jardim.
[33]
The injured white man lying on the floor was known to Mr Jardim as Mr
Mathews. An ambulance
was summoned and a doctor arrived at the pub
and Mr Mathews was transported to hospital. He, however, did not
survive his injuries
and died later that night in hospital. Mr Jardim
stated that some of his patrons suffered bruising injuries from being
hit with
the flat side of the pangas wielded by some of the robbers.
[34]
Mr. Jardim said that he was unable to identify any of the robbers
because their faces were
obscured by the balaclavas that they wore.
He indicated that there were closed circuit cameras within the pub
and that the hard
drive to which those cameras were attached ought to
have recorded the images of what had occurred. That hard drive had
been uplifted
from the pub by a Mr Kurt Stock (Mr Stock), who is
apparently a member of the local farmers’ forum.
[35]
Mr Luthuli cross examined Mr Jardim, albeit briefly. Mr Jardim
confirmed that Mr Stock
had taken possession of the hard drive and
that it had apparently been handed to the SAPS. Mr Jardim confirmed
that he did not
have the hard drive nor had he himself observed what
was recorded on the hard drive. He confirmed that he did not know any
of the
accused and when the balaclava was removed from the head of
the deceased so that his face could be observed, he did not recognise

him as a man that he had previously seen before.
The
second state witness: Warrant Officer Themba Knowledge Jele (WO Jele)
[36]
WO Jele is stationed at the Local Criminal Records Centre in Vryheid,
northern KwaZulu-Natal.
He describes himself as being a forensic
field worker, photographer, finger printer and draftsman with 13
years’ experience.
He holds a BSc in biochemistry and he
attended the rugby club on the evening of 6 March 2020, arriving
there at around 01h00 (which
technically meant he arrived in the very
early hours of 7 March 2020).
[37]
He testified that upon his arrival at the scene, he received an
explanation of the events
that had occurred and he then commenced
looking for exhibits. Once he found them, he marked them and gave
them a number and photographed
them. The principal exhibits that he
discovered were a firearm, spent cartridge cases and some live
ammunition. The body of the
deceased was still in situ when he
arrived and WO Jele accordingly performed a gunshot residue test on
his hands (he did not know
what the outcome of the test that he
performed was).
[38]
To the great astonishment of the court, WO Jele testified that he did
not dust for fingerprints
in the pub because, according to him, there
was no surface upon which to check for such fingerprints. Remarkably,
he also did not
attempt to lift fingerprints from the firearm found
next to the body of the deceased because he was told that the
deceased had
possessed it, which he simply accepted as being true. He
did take photographs of the spent cartridge cases where he found them
and put them into evidence bags with their own unique serial numbers
endorsed upon them.
[39]
WO Jele confirmed that he was the author of a photographic album,
received by the court.
He had taken the photographs that appear
therein. He stated that the exhibits that he had found were taken by
him to his unit in
Vryheid and were locked in a strong room before
being sent to the Forensic Sciences Laboratory in eManzimtoti,
KwaZulu-Natal. He
testified that he went to the hospital where Mr.
Matthews had passed away and took photographs of his body and his
clothing.
[40]
In answer to a question from the court, WO Jele confirmed that there
was evidence that
a firearm other than the firearm apparently
possessed by the deceased had been used inside the pub. He was
advised later that the
owner of that firearm had surrendered it to
the SAPS and it was also sent off by him for ballistic testing.
[41]
WO Jele’s incredible evidence that he had not bothered to dust
for fingerprints was
correctly explored by Mr Luthuli in
cross-examination. WO Jele confirmed that he had been shown the door
through which the robbers
had entered the pub but had chosen not to
check for fingerprints on it because when he saw the door it was
already open. Anyone
entering the bar, on his understanding, would
have had no need to touch the door. He further reasoned that as the
door had not
been forced open no purpose would be served by checking
for fingerprints. He failed to appreciate that he could not have
known
the state of the door several hours earlier when the robbers
entered the pub.
[42]
WO Jele confirmed that, as far as he knew, there was no scientific
evidence whatsoever
that linked any of the accused on trial to the
crime scene.
The
third state witness: Scott Arden Julyan (Mr Julyan)
[43]
Mr Julyan was a patron at the rugby club on 6 March 2020. He was in
the company of friends
and was seated at a wooden table in ‘Porra’s
Pub.’ At about 21h45 he and his friends were finishing their
drinks,
when he heard a commotion and saw a group of men enter the
pub. He observed a man coming towards the table where he was seated
and who then moved behind him and began to hit him, the lady that he
was seated with and another man seated at his table with a
panga. He
raised his arms to protect the lady that he was with and was struck
by the flat side of the panga. The person hitting
him suddenly ran
off, which allowed Mr Julyan to stand up. He was armed with his own
firearm and he drew it. He observed one of
the robbers pointing a
firearm at the barman. He then heard a shot and, in turn, fired his
weapon at the man pointing the firearm
at the barman. He hit him and
he estimates that he fired approximately eight to nine shots at the
man.
[44]
The man that he shot fell to the ground and Mr Julyan then ran up to
him. It transpires
that the person that he shot was the deceased. Mr
Julyan then went outside and followed the robbers as they fled from
the pub to
make sure that all who remained at the pub were safe. When
he returned to the pub, he now observed three men lying on the floor

of the pub, namely Mr. Mathews, the deceased and an older, unnamed
gentleman. He helped the older gentleman, who was not actually

injured, to get to his feet. Mr Mathews, who Mr Julyan knew
personally, was injured but was alive and told him that he had been

hit in the stomach. Mr Julyan then telephoned his father who had
connections with the emergency health services, and requested
that an
ambulance be dispatched to the rugby club as a matter of urgency. The
deceased was not moving at that stage but Mr Julyan
indicated that he
was loath to come to the conclusion that he was dead. He testified
that the deceased’s firearm was lying
on the floor on his right
hand side. He could not see where the deceased had been shot but said
that he had a general idea of where
he had aimed when he had fired at
him. An ambulance then arrived and took Mr Mathews to hospital.
[45]
Mr Julyan was still present when the SAPS arrived and he informed
them that he had fired
his weapon. The SAPS wanted to see his firearm
and he surrendered it to them. Approximately one year later he
received the firearm
back. He was never charged with any offense.
Whilst he knew Mr Mathews, he had not been in his company that
evening and he was
not able to indicate where Mr Mathews had been
seated when the robbers burst into the pub.
[46]
Under cross-examination from Mr Luthuli, Mr Julyan indicated that he
had been drinking
and he would therefore not have described himself
as being entirely sober, having arrived at the pub at either 18h00 or
19h00.
He indicated that he had personally only seen two of the
robbers and stated that he had never seen a robber standing on the
bar
counter as Mr Jardim had described. He indicated that he was not
able to identify any of the robbers because their faces were obscured

by balaclavas and he agreed with Mr Luthuli that the lighting in the
pub was dim.
[47]
As regards the shots that
he fired at the deceased, Mr Julyan indicated to Mr Luthuli that he
had aimed for his ‘centre mass’.
He denied that there was
any prospect of a stray shot from his firearm hitting anyone other
than the deceased because as far as
he was aware all the shots that
he had fired had hit him.
[10]
The deceased was standing about 10 metres from him when he fired at
him. He confirmed to the court that he had possessed a Gerson
MC 28
9mm pistol and that it had been loaded with 15 rounds of ammunition.
After the shooting, he had approximately six or seven
rounds left in
the magazine.
The
fourth state witness: Vusi Mathebula (Mr Mathebula)
[48]
Mr Mathebula is a resident of Madanyini, Pongola. He testified that
he does not know either
accused one or accused three, but does know
accused two. He knew him because accused two had worked with him as a
van assistant
prior to his arrest. Mr Mathebula stated that he was
the van driver and that the van was owned by a member of his family.
He stated
that he had known accused two for approximately two or
three years.
[49]
He testified that on 5 March 2020 at approximately 12h30, he was at
home when he received
a telephone call from accused two. Accused two
indicated that he was calling him from Swaziland and then informed
him that he was
planning to commit some sort of crime. Mr Mathebula
urged him not to do so but did not ask him what crime was being
contemplated.
Accused two then changed the conversation and said that
Mr Mathebula should relax and ended the call.
[50]
Mr Mathebula said that accused two did not reside in Swaziland but
went there from time
to time in order to purchase dagga to sell.
[51]
Mr Mathebula testified that the next time that he spoke to accused
two was on 7 March 2020,
when accused two arrived at his home at
approximately 19h30. After exchanging greetings, accused two asked Mr
Mathebula if he had
heard about something that had happened at the
rugby club. Mr Mathebula said that he had heard something about a
white man being
killed there. Accused two then indicated that it was
time for him to go to sleep and he went to sleep in another building
at Mr
Mathebula’s family’s homestead.
[52]
On 8 March 2020, Mr Mathebula further testified that accused two had
knocked on his door
and asked him for a cigarette. While smoking
together, accused two said that there was a problem: he confessed
that he was one
of the people who had been at the rugby club. Mr
Mathebula asked him who he was there with and certain names were
mentioned, including
‘Bhungu’ and ‘Mhlobongi
Mtshali’. The latter is a reference to the deceased. The
witness said that he did
not know these people and he never
ascertained what role accused two actually played in the events at
the rugby club. Mr Mathebula
asked accused two what was going to
happen and received the response that he was thinking of simply
running away. Mr Mathebula
mentioned to accused two that he could not
do that because he was still ‘signing’. This was a
reference to the fact
that accused two was still on parole after
having been released from prison. They then carried on watching
television.
[53]
Mr Mathebula testified that as far as he knew, accused two was
arrested on 9 March 2020.
He received a telephone call from someone
who informed him of his arrest. He indicated that his relationship
with accused two was
a good one. He, however, could not recall
accused two’s telephone number but was sure that it was a
Vodacom number.
[54]
Mr Luthuli cross-examined this witness. He asked Mr Mathebula why he
had not reported to
the SAPS that accused two was intending to commit
a crime. The unsurprising answer was that the witness stated that he
did not
know for certain that he was actually going to commit a
crime. Mr Luthuli then asked how the SAPS had known about the
confession
that accused two had made to him. Mr Mathebula’s
answer was initially not clear. He ultimately agreed that he had
deposed
to a statement to the SAPS. Under some considerable pressure
from Mr Luthuli, Mr Mathebula indicated that accused two must have

informed the SAPS after he was arrested that he had spoken to him. It
was then put to Mr Mathebula that the telephone number belonging
to
accused two had been given to him by Capt Mncwango. Mr Mathebula
initially could not remember this to be the case. Later, when
the
question was repeated, Mr Mathebula denied this to be the case and
stated that, in fact, he had given Capt Mncwango accused
two’s
telephone number.
[55]
Mr Mathebula was also put under pressure when asked about who had
told him about the arrest
of accused two. His answer had initially
been that he could not remember. Ultimately, his statement to the
SAPS was proved by Mr
Luthuli and it revealed that it made mention of
the fact that his mother had telephoned to inform him of accused
two’s arrest.
Mr Mathebula explained that this was not actually
a reference to his true mother but was a reference to a female
person. He then
agreed that the paragraph in his statement dealing
with the telephone call that he received was incorrect. Dealing with
the telephone
call that accused two allegedly made to him from
Swaziland, the witness confirmed that the telephone number that
appeared on his
cellular telephone did not have a Swazi dialling
code.
[56]
The court asked Mr Mathebula why accused two would have shared with
him the information concerning
his upcoming criminal activity. He
could not explain this. Mr Luthuli put it to the witness that he had
been put up to giving false
evidence implicating accused two by the
SAPS. This was denied by Mr Mathebula. It was further put to him that
he had visited accused
two whilst he was in the SAPS cells and had
admitted to accused two that he had been given his telephone number
by the SAPS. Mr
Mathebula admitted visiting accused two but denied
the allegation that he had been given his number by the SAPS.
The fifth state
witness: Nkosinathi Mtshali (Mr N Mtshali)
[57]
Mr N Mtshali was the brother of the deceased. He
testified that his brother’s nickname was ‘Mhlobongi’.
He confirmed
that all three of the accused were known to him. He had
grown up with accused one in Swaziland and has known him for 10 to 15
years.
Accused two was a friend of the deceased and the witness
indicated that he had known him for about a year. Accused three is
also
a person that the witness had grown up with in Swaziland.
[58]
He testified that on 6 March 2020 at about 20h00
he went from South Africa to his parents’ home in Swaziland.
When he arrived
there, he inquired from his parents where his
brother, the deceased, was but was advised that he was not at home
and that his parents
did not know his whereabouts. The witness went
to his brother’s room, but he was not there. He then decided to
go to sleep.
[59]
The next morning, between 06h30 and 07h00, he
returned to his brother’s room to look for him but again did
not find there.
Instead, he found accused one asleep in his brother’s
room. He woke up accused one and asked where his brother was. Accused

one told him that he did not know where he was, indicating that he
had not seen him the day before. Mr N Mtshali left the bedroom
and
then noticed that accused three had also arrived at the homestead, as
had accused two and a person named Sondo Mamba (Mr S
Mamba). They
conversed and he again asked where his brother was. Mr S Mamba said
that they had last seen him near the border fence.
All of them then
left and went to the neighbouring Sithole homestead to drink the brew
called ‘amaganu’. They purchased
a 5-litre container of
this concoction for R50 and sat around drinking it.
[60]
Whilst so drinking, accused three approached Mr N
Mtshali and took him aside. Mr N Mtshali said that he believed that
accused three
was drunk, but not drunk to the extent that he was not
able to talk. Accused three commenced by apologizing to him, saying
that
he ‘was sorry’. The witness asked him what he was
sorry about. Accused three then told him what had occurred on the

evening of 6 March 2020 at the rugby club. He explained that they had
gone there with a view to committing a crime. The person
described as
‘Bhungu’ and the deceased had been armed with firearms.
When they arrived at the rugby club, some white
people had come out
and Bhungu went in and ran on top of the tables. Those with accused
three who did do not have guns had pangas.
Inside the club, Bhungu
fired a shot and the white people had fired gunshots at them in
response, causing them to flee in different
directions. They,
however, met up at a certain point. When they all gathered at the
meeting point it was realized that one of their
number was missing,
namely the deceased. They then left South Africa and returned to
Swaziland where they intended to wait for
the deceased.
[61]
Whilst waiting in Swaziland, so Mr N Mtshali
testified further, it dawned on them that perhaps the deceased had
been shot. Mr N
Mtshali indicated that he telephoned his sister who
resides in Pongola and asked her to make inquiries. After a while,
everyone
left, with accused two saying that he was going to his
homestead in South Africa. The group split up between 13h00 to 14h00
on
7 March 2020.  Mr N Mtshali stated that he never saw them
again.
[62]
Mr N Mtshali was not able to explain why accused
three chose to make the disclosure to him that he did. He did,
however, remark
that accused three looked more shocked than the
others. He explained that accused three spoke in a normal tone of
voice when narrating
the events to him and nothing prevented the
others present from hearing him make his disclosure to him. He
explained that his relationship
with accused three was a normal
friendship and that he had no problems with him prior to these
events. The same applied to his
relationship with accused one, who
the witness said he viewed as being his brother. As regards accused
two, the witness said that
he had not spent much time with him but
that he had no issues with him.
[63]
The witness went on to testify further that on 8
March 2020 he returned to South Africa and he did not know where the
accused were
at that time. Accused two had said he was going to his
house in Pongola. The court asked him whether he had informed his
parents
of what he had been told by accused three and he said that he
had done so. They had instructed him to proceed to Pongola to verify

the fate of his brother. He explained that on his way to do so he had
met up with Capt Mncwango of the SAPS. He knew him and he
told him
what accused three had told him. He mentioned the names of all the
accused to Capt Mncwango.
[64]
Under cross-examination from Mr Luthuli, Mr N
Mtshali claimed that despite his residence in Swaziland he was,
nonetheless, a South
African citizen. He explained that his mother
was a Swazi woman, and his father was from South Africa, and they
lived in separate
households, his mother in Swaziland and his father
in South Africa. He also confirmed that he has four brothers, of
which only
one lived in Swaziland, with the rest living in the
environs of Pongola in South Africa. He indicated that he did not
regard accused
three as being a friend of his but saw him rather as
an acquaintance. He indicated that he didn’t often speak to
accused
three but did converse with him when accused three came to
his homestead. The witness indicated that he had schooled in South
Africa
and accused one and accused three had schooled in Swaziland
but that they would meet up during the school holidays when he went

to Swaziland. Mr N Mtshali indicated that accused one and accused
three were, to the best of his knowledge, Swazi citizens.
[65]
Mr Luthuli wanted to know when the deceased had
been buried. The witness could not remember the precise date but
confirmed that
it was in March 2020, which answer attracted some
criticism from Mr Luthuli, who indicated that the witness could
remember dates
and times but could not remember the significant date
of his own brother’s funeral.
[66]
Mr N Mtshali was asked where he had met Capt
Mncwango and said that it was at a petrol station in Pongola. He
confirmed that on
10 March 2020 he had deposed to a statement that
had been recorded by Capt Mncwango. Mr N Mtshali indicated that he
knew that accused
two was actively involved in crime in the area.
[67]
Mr Luthuli then put the version of the accused to
Mr N Mtshali. He indicated that the accused would deny that accused
three had
informed him of the events at the rugby club. It would be
said that he had been told of those events by one Sanele Mtshali (Mr
S Mtshali) and Maphisholo Thabethe (Mr Thabethe). Accused two would
also deny having been in Swaziland and accused three would deny
that
he drank alcohol and therefore did not sit drinking with the group on
7 March 2020. Accused three did not deny that the witness
might have
seen him on that day, and that if he did, it was when accused three
was passing by where Mr N Mtshali was. To this,
Mr N Mtshali
responded that he knew accused three very well and on 7 March 2020 he
sat face to face with him whilst accused three
told him of the events
at the rugby club.
[68]
Mr Luthuli continued that the accused would say
that Mr N Mtshali’s story was a fabricated story and that the
witness had
been told what to say. Mr S Mtshali and Mr Thabethe had
told him what had happened to his brother. Confusingly, it was also
put
that the accused would say that the statement that Mr N Mtshali
had deposed to did not arise from his own knowledge but from
knowledge
that had been given to him by the SAPS. This was vehemently
denied by the witness. Finally, Mr Luthuli indicated that accused one

would deny sleeping at Mr N Mtshali’s parents’ homestead
and did not see him at all on 7 March 2020. Mr N Mtshali denounced

this as a lie and said that on 7 March 2020 he found accused one
asleep in his brother’s room and that he even remembered
the
clothing that he was wearing at the time.
The sixth state
witness: Thabiso Thembumusa Dlakude (Mr Dlakude)
[69]
Mr Dlakude is a self-employed businessman. He
testified that he is actively involved in the provision of security
services to his
community. He has incorporated a business known as
‘Laws Anti-Crime Force Technical Response Unit’ and he
provides
security to the businesses and townspeople of Pongola. He is
also a member of the JCPF.
[70]
Mr Dlakude stated that on 8 March 2020 at
approximately 20h30 he was in Pongola when he became involved in the
arrest of accused
one and accused three. He explained that he was
doing patrol duties on the properties where he had security guards
stationed when
he received a telephone call from a member of the
JCPF. He was told that three males who may have been involved in the
events at
the rugby club were on the N2 near Sitilo, within South
Africa, and were proceeding towards Pongola. Mr Dlakude telephoned
other
JCPF members and about 30 minutes later two other vehicles
containing six members of the JCPF arrived where he was. He then
extracted
three security guards from the premises that he was
guarding and took them with him. There were thus three motor vehicles
containing
10 people. They rushed to the Sitilo area, which Mr
Dlakude estimated was about 4 to 5 km distant from Pongola. Mr
Dlakude indicated
that before a bus stop on the N2, they observed
three males. The vehicles that they were traveling in were fitted out
with flashing
lights and as they approached, the three men ran up a
gravel road on the left-hand side of the N2. The vehicles proceeded
up the
gravel road which ended in a cul-de-sac and Mr Dlakude and his
security guards then leapt from their vehicle and pursued the three

men on foot.
[71]
One of the men they were pursuing ran to Mr
Dlakude’s right and so he set his sights on him. He chased
after him and, during
the chase, the pursued man tripped and fell to
the ground and Mr Dlakude captured him. The man that he captured was
accused one.
He estimated the chase had covered some 50 metres.
Accused three was captured by one of Mr Dlakude’s security
guards. Using
handcuffs, Mr Dlakude handcuffed accused one and he
later handcuffed accused three to accused one using the same
handcuffs. A search
was conducted for the third man, but he was not
located.
[72]
Accused one and accused three were transported to
the Pongola police station and there Mr Dlakude met a Capt V K
Buthelezi (Capt
Buthelezi). Accused one and accused three were handed
over to Capt Mncwango. Mr Dlakude said that both the men who had been
apprehended
were strangers to him. He further confirmed that at no
stage had he gone into Swaziland to apprehend them.
[73]
Under cross examination, Mr Luthuli wanted to know
from Mr Dlakude how he knew who he had to look for after receiving
the telephonic
tip off. Mr Dlakude said he was told that he had to
look for three male persons. Mr Dlakude indicated that he had started
working
in the security field in 2015 and that in 2018 had set up his
security services company. He explained that Pongola is not a big

place and that he was a well-known activist in the crime prevention
field. He indicated that he also had an application on his
cellular
telephone that provided him with the true identity of a person
calling him. When he had received the tip off about the
three men on
the N2, he accordingly knew who had made the call to him. It was put
to him by Mr Luthuli that none of his evidence
was true because it
had never happened, which was denied by Mr. Dlakude.
[74]
Asked about when he had found out about the events
at the rugby club, Mr Dlakude said that he knew about those events on
the very
night that they had occurred because he happened to be
guarding a property that bordered on the rugby club. He also advised
that
he had only ascertained that Capt Mncwango was the investigating
officer when he arrived at the Pongola police station and was so

informed by Capt Buthelezi.
[75]
It then transpired that Mr Dlakude also had
knowledge of the arrest of accused two but had not mentioned this at
all during his
evidence in chief. He explained that he had never been
asked to speak about accused two, only being asked questions about
accused
one and accused three. Factually, that is entirely correct,
but one would have expected that Mr Dlakude would also have mentioned

the arrest of accused two. The court asked him to explain how this
had occurred. He indicated that he had received a telephone
call from
a Mr Andries Nkosi (Mr Nkosi), now deceased, who was a member of the
JCPF. Mr Nkosi said that he had received information
that accused two
was in a nearby area in Pongola and that they should rush there to
apprehend him. Mr Dlakude went to the area
described and as he parked
his motor vehicle, he saw security guards chasing a fleeing person.
The fleeing person was apprehended,
and it turned out to be accused
two.
[76]
Mr Luthuli then proved a written statement made by
Mr Dlakude. I confess that I am not entirely certain why this was
done. Perhaps
it was done to establish that no reference was made to
the arrest of accused two in Mr Dlakude’s statement. This,
however,
was feely admitted by Mr Dlakude.
[77]
Mr Luthuli put it to Mr Dlakude that everything
that he described in his evidence had never happened. The court asked
whether by
this it was meant that he was not involved in the arrest
of accused two, which elicited a spontaneous exclamation from Mr
Dlakude
that ‘but they are all here’. Mr Luthuli then
said that Mr Dlakude was not involved in the arrest of accused two.
Mr
Dlakude acknowledged that he was not the arresting person, but
that he was in attendance when accused two was arrested.
[78]
Mr Luthuli indicated to Mr Dlakude that accused
one and accused three would assert that they were in Swaziland when
they were apprehended,
which Mr Dlakude soundly refuted. He also
refuted the notion that they had been abducted from Swaziland and
forced to enter South
Africa against their will. Mr Dlakude stated,
politely, that the accused were mistaken if that was what they were
going to say.
He, finally, agreed that the accused did not know him.
The seventh state
witness: Sergeant Nhlanzeko Sifiso Masondo (Sgt Masondo)
[79]
Sgt Masondo ordinarily performs charge office
duties. I have no idea why he was called to testify. He attended the
rugby club on
the night in question but did nothing of significance
and made no unique observations that would have warranted his
evidence being
led. He was not cross examined at all by Mr Luthuli,
so unremarkable was his evidence.
The eighth state
witness: Gcinile June Mbongwa (Col Mbongwa)
[80]
Mr Ngubane, for the state, then informed the court
that the next state witness, a commissioned SAPS officer, was to
testify about
an extra curial statement made to her by accused two.
The statement amounted to a confession by accused two but, so it was
submitted,
no trial within a trial was necessary. The reason for this
was that he had discussed the proposed witnesses evidence with Mr
Luthuli,
who had advised him that the defence’s objection to
the written statement did not pivot around its admissibility: accused

two simply denied that he had ever appeared before the witness to be
called and that he had ever made the statement sought to be

introduced. Whether the statement was freely and voluntarily made was
therefore not the issue. Mr Luthuli agreed that no trial
within a
trial was needed.
[81]
A
trial within a trial is resorted to in criminal proceedings to permit
an accused person to give evidence on the admissibility
of an extra
curial statement that he has allegedly made, but now disputes,
without being concerned that what he may say in disputing
the
admissibility of that statement may be used against him when his
guilt is later determined in the main trial. It is utilised
to deal
with the limited issue of whether or not the statement in dispute has
been voluntarily made. In my view, justice requires
that where a
confessor disputes a statement that he has made, he should have the
greatest freedom to challenge the admissibility
of that document.
Practically, this usually means that the confessor must give evidence
himself. To an extent, he is therefore
forced to relinquish his right
to silence to ensure that a statement that he believes was wrongly
extracted from him is not admitted
into evidence and later used
against him.
Such
considerations do not appear to arise when the confessor simply
asserts, as accused two does in this instance, that he never,
in
fact, made the statement that the state seeks to introduce. The issue
in such instance is not one of admissibility, but one
of credibility.
No trial within a trial was accordingly conducted for the extra
curial statement introduced by the eighth state
witness.
[82]
Col Mbongwa is the station commander of the
Pongola SAPS station. She testified that on 12 March 2020 she was in
her office at the
police station when she received a telephone call
from Capt Mncwango. She was informed that he had a person who wished
to make
an extra curial statement and she was asked if she had the
capacity to record that statement. She said that she had capacity,
and
it was arranged that the statement would be taken by her the next
day, 13 March 2020.
[83]
At about noon on 13 March 2020, Capt Buthelezi
brought accused two to Col Mbongwa’s office. She noted that he
was in leg irons,
and she indicated that she communicated with him in
isiZulu. She testified that she was dressed in full uniform, and she
exhibited
her appointment card to accused two. She described him as
being in a relaxed state of mind. She asked him why he had been
brought
to her and he indicated that he wished to make a confession
because he was involved in the commission of a crime.
[84]
Col Mbongwa testified further that she had
explained to accused two that she was not involved with the
investigation of that crime
and that he was not obliged to say
anything to her, but that if he did say anything it would be recorded
by her and could be used
against him at a subsequent trial. He stated
that he understood. She stressed to him that he had the right to
remain silent and
further explained that he was entitled to take
legal advice. If he could not afford the services of a legal
representative, one
would be appointed to assist him by the state. He
indicated that he also understood this but nonetheless elected to
proceed without
legal representation.
[85]
Col Mbongwa explained that she ascertained from
accused two that he had not been assaulted or threatened and asked if
he had any
scars that might evidence such an assault. He indicated
that he only had an old scar on his forehead. Accused two confirmed
to
her that no promises had been made to him and that he was acting
voluntarily because he felt guilty. He explained that he had not

expected anyone to get killed and that he had taken the decision to
tell the truth. He then narrated his statement to Col Mbongwa,
who
recorded it in the English language.
[86]
After the statement had been recorded, accused two
indicated to Col Mbongwa that he was satisfied with what she had
written down.
He indicated that he had no complaints. Col Mbongwa
mentioned that it was only herself and accused two in the room whilst
the statement
was recorded. Recording the statement had taken a
considerable amount of time, from 12h00 until approximately 15h30.
[87]
A document was handed in by the state which was
confirmed by Col Mbongwa as being the document that she had completed
when recording
accused two’s extra curial statement. It is
comprised of several pre-typed pages with spaces for responses to be
inserted.
The statement provided by accused two was written down by
Col Mbongwa in manuscript on lined A4 paper. The manuscript recordal
runs to some 9 pages and the entire document, including the pre-typed
pages, comes to some 19 pages.
[88]
I do not intend to quote the statement of accused
two in the same granular detail that Col Mbongwa recorded it. In
summary, it records
that accused two went to Swaziland on 4 March
2020. The next day he went to his neighbour’s home where he met
the deceased,
Mr S Mamba, one Malibongwe and accused three. They sat
and drank amaganu and were later joined by Bhungu Mnisi (Mr Mnisi)
who said
that they were going to South Africa with accused two as
they needed to get some money. Accused two asked where they would get
money from and Mr Mnisi said they would wait and see how they could
get it. On 6 March 2020 at about 07h00, Mr Mnisi called accused
two
on his cellular telephone and said that he would meet him at the
deceased’s homestead. They all met at about 08h00. Later,
Mr
Mnisi said they needed to return to South Africa and after accused
two had gathered his belongings, they left Swaziland on foot
bound
for South Africa. There were six of them in all and they crossed the
border illegally. Once inside South Africa, they walked
towards
Pongola, ultimately reaching a caravan park. They then stopped and
planned what they were going to do. Mr Mnisi said that
their target
was the rugby club. On learning of this, accused two apparently
protested saying that there was no money at the rugby
club because
the white people that frequented it paid by swiping their bank cards.
Mr Mnisi and the deceased insisted that they
were proceeding to the
rugby club. Accused two warned them that they would not be able to
come back as the whites were always armed
with firearms. Mr Mnisi
said that that was not correct as they were not allowed to enter a
bar with a firearm. Accused two continued
to protest that they would
all be killed. Mr Mnisi took a firearm and threatened him with it and
ordered all of them to go to the
rugby club. At the rugby club, Mr
Mnisi went in to check the place out and then came back and took out
four bush knives from his
backpack, giving one to accused two, one to
Mr S Mamba, one to accused one and one to accused three. He also took
out a pair of
pliers and cut the fence separating the caravan park
from the rugby fields. Mr Mnisi had a pistol in his hand and the
deceased
also had a pistol. They checked that both pistols were
loaded with live rounds of ammunition. They entered the rugby club
and,
in accordance with their instructions, those with bush knives
began to assault the patrons on their backs. Mr Mnisi and the
deceased
pointed with their pistols and ordered the patrons to lie
down. Accused two saw Mr Mnisi on the bar counter pointing at
everyone
and telling them to lie down. Accused two stated that he was
scared and then heard a gunshot but could not say who was shooting.

He and the others fled from the rugby club and ran in the direction
of Swaziland. After a few minutes, he received a cellular telephone

call from Mr Mnisi, who asked how many were with him. He explained
that they were four in number. Mr Mnisi asked where the deceased
was.
Accused two stated that they had left him and Mr Mnisi inside the
club when they heard the gunshot. Mr Mnisi said they should
wait,
expecting the deceased to catch up with them. When this did not
happen, they resolved to go back to Swaziland using the same
route
that they had used to get into South Africa, and went to the
deceased’s homestead and slept. The next day, they still
did
not know what had happened to the deceased. Mr Mnisi left them but
telephoned almost immediately to say that he had heard on
Pongola FM
that the deceased was dead but that accused two should not tell the
others. This news greatly upset accused two. He
resolved to leave the
group and go back to South Africa. He never heard anything further
from the group until he was arrested at
his home. He confirmed that
he had been advised by the SAPS of his constitutional rights and had
been told why he was being arrested.
When the name of the deceased
white man was mentioned, he realized that he knew him. He confirmed
that they had taken nothing from the rugby club.
[89]
In cross examination, Mr Luthuli asked Col Mbongwa
whether she had an officer by the name of ‘Nkosi’ at her
station.
She said that there had been one by that name but that he
had since retired. It was put to her that accused two had been taken
by Officer Nkosi to see Magistrate Ntshangase at KwaNongoma. Accused
two had apparently been taken there for him to make a confession
but
after being asked questions by the magistrate as to how the deceased
man had died, he said that he did not know. The magistrate
then wrote
something down on a piece of paper and gave it to Officer Nkosi. The
magistrate consequently did not continue with the
confession
exercise.
[90]
The court inquired from Mr Luthuli as to when the
visit to the magistrate at KwaNongoma had occurred: before or after
the visit
of accused two to Col Mbongwa. After taking an instruction,
Mr Luthuli advised that this had occurred before the visit to Col
Mbongwa.
Col Mbongwa said she knew nothing of this.
[91]
Under further cross-examination, Col Mbongwa
acknowledged some errors that she had made on the recordal document.
She acknowledged
that she had recorded on the document she was using
that accused two wanted legal representation, but said that she had
erred and
ought to have recorded that he did not want legal
representation. The verbatim answer to the next question asked by Col
Mbongwa
was the following:
‘
He
wishes to talk to the police officer without legal representation.’
That tends to confirm
that Col Mbongwa had, indeed, erred in her recordal about legal
representation.
[92]
At the bottom of each page of that document a
person’s initials and surname appears, written in manuscript.
Mr Luthuli stated
to Col Mbongwa that what appears was not accused
two’s signature and that he consequently denied signing the
document. This
was refuted by the witness. It was put to the witness
that the only time that accused two saw Col Mbongwa was when she had
come
to see him in the police station holding cells. This, too, was
denied. Mr Luthuli went on and said that Col Mbongwa had been
carrying
a diary when she had come to the holding cells. This was
denied. It was put to her that the narration of events at the rugby
club
had not been dictated to her by accused two, which was again
denied by Col Mbongwa. Finally, it was denied by Mr Luthuli that
accused
two had a girlfriend whose name appears in the narration
recorded by Col Mbongwa. Col Mbongwa said that she did not know
whether
that was correct or not but that was what accused two had
told her.
The trial within a
trial:
The first state
witness: Tjaart Nicolaas Kruger (Mr Kruger)
[93]
A
trial within a trial was next conducted when the state indicated that
it wished to prove an extra curial statement made by accused
one.
[11]
The admissibility of this extra curial statement was specifically and
pointedly contested by Mr Luthuli on behalf of accused one.
[94]
The first witness in this compartmentalised
portion of the trial was Mr Kruger. He testified that he was a
retired magistrate who
had held a position on the bench since 1986.
He was stationed at the Pongola Magistrate’s Court. He was
handed a document
which he identified as being a document that he had
completed when accused one had been brought before him. The document
was handed
in, but not before Mr Ngubane had made certain that
accused one’s statement had been detached from it.
[95]
The portion of the document before the court was
nine pages long and those nine pages, essentially, dealt with
questions that were
put by Mr Kruger to accused one before his
statement was even recorded. Each page of the document contains
printed questions and
spaces within which the responses to those
questions may be recorded. The first series of questions records that
the witness and
accused one were alone in Mr Kruger’s office,
save for the presence of a language practitioner, who assisted Mr
Kruger.
[96]
Of particular significance in that document is a
caution that if accused one was worried that the SAPS might take
action against
him after appearing before the magistrate or if he had
been unduly influenced to make the statement, he was invited to
disclose
this fact to Mr Kruger in the knowledge that Mr Kruger was
empowered to take steps necessary for accused one’s subsequent

protection. Accused one indicated that he understood this. In
response to a question whether he would like to say anything in this

regard, his response was as follows:
‘
No
the police have done nothing and I fear nothing’.
[97]
When Mr Kruger asked him why he had been brought
to him, accused one explained that it was:
‘
To
explain regards to the incident that taken place from time it started
until we got arrested.’
[98]
Accused one was then informed of his right to
legal representation and his right to remain silent, both of which he
understood,
but he elected to continue without such representation
and to make his statement to Mr Kruger. He was then advised that a
series
of questions would be put to him but that he was at liberty
not to answer any of those questions. He indicated that he had not
used any drugs or alcohol, which seemed to conform with Mr Kruger’s
own observations of accused one’s condition. Accused
one
indicated that he understood that the allegations against him were
that he and others had committed robbery at the rugby club
and that a
white man had been killed during the course thereof. Explaining why
he came before Mr Kruger, the following was recorded
by the latter:
‘
I
explained to Capt Mncwango what had happened and he asked if I could
tell what I told him to another person and I said yes it
is my
decision to make a statement.’
[99]
Accused one indicated further that the statement
that he made to Capt Mncwango was the same statement that he intended
to make to
Mr Kruger. He confirmed that he had not been intimidated,
threatened, forced or induced by the SAPS to make the statement that
he intended making. As to whether he had any injuries, he made
reference to a painful nose, occasioned when he had been slapped
when
he was arrested. He apparently bled from his nose onto his T-shirt
and was later given another T-shirt. Mr Kruger noted a
stain of
approximately 10 cm on the right leg of accused one’s jeans. Mr
Kruger stated that in his opinion there was no need
for further
medical attention. He then recorded accused one’s extra curial
statement.
[100]
Under cross examination from Mr Luthuli, Mr Kruger
indicated that he made no assumptions or deductions from what he had
heard from
accused one and simply recorded what he had told him. He
was placed under some pressure concerning the injury to accused one’s

nose but he did not deviate from his opinion that the injury was
minor in nature and that it no longer worried accused one. He

indicated, further, that in his experience, before an accused person
is taken before a magistrate for the recording of a confession,
the
accused person is taken to a doctor to be examined. He assumed that
had happened in this instance. He did, however, state that
if he had
formed the view that the injury was a serious one that required
medical treatment, he would immediately have stopped
the interview.
[101]
Mr Luthuli suggested to Mr Kruger that accused
one’s version was that Capt Mncwango had gone to the holding
cells and had
given him a piece of paper and made him read it.
Written on the paper were words in isiZulu. Capt Mncwango told him
that if he
did not adhere to what was stated on the piece of paper
when he appeared before the magistrate, the SAPS would surrender him
to
‘the white people’ and that they would ‘fix’
him. Mr. Kruger said he had no knowledge of this.
[102]
Mr. Luthuli proceeded and said that Capt Mncwango
had indicated to accused one that word would get back to him about
what accused
one had said to the magistrate. All of this had
apparently inspired fear in accused one. Mr Kruger indicated that he
could detect
no fear in accused one, and had noted at various places
in the statement that accused one appeared calm. It was suggested to
Mr
Kruger by Mr Luthuli that a person could appear calm but could
actually be operating under duress. Mr Kruger acknowledged that some

people could act better than others, but he indicated that the
questions in the confession document were designed to expose where

that was occurring.
The trial within a
trial:
The second state
witness: Nkosinathi Mandla Ntshangase (Mr Ntshangase)
[103]
Mr Ntshangase was the language practitioner who
assisted Mr Kruger with interpretation services when recording the
extra curial
statement of accused one. His version adhered closely to
that of Mr Kruger. His evidence was largely uncontroversial and
nothing
of any great value arose from his cross-examination by Mr
Luthuli.
The trial within a
trial:
The third state
witness: Loveness Phakeme Zulu (Sgt Zulu)
[104]
Sgt Zulu is a sergeant in the SAPS and, more
particularly, is a court orderly stationed at the Pongola
Magistrate’s Court.
She testified that she took accused one
from the court holding cells to Mr Kruger’s office. In the
office was Mr Kruger and
the language practitioner, Mr Ntshangase.
She remained outside the office on guard until she was required to
take accused one back
to the cells.
[105]
That evidence ought to have been brief and
uncontroversial. It was neither. This is because accused one
contended that he had never
before seen Sgt Zulu. Much time was
devoted to this dispute. Perhaps Sgt Zulu put her finger on it when
she stated that her appearance
in court would probably be the first
time that accused one had seen her when she was not wearing her full
SAPS uniform (Sgt Zulu
was dressed in civilian clothing and had her
head covered).
[106]
Another issue that was raised was that at some
stage earlier in the trial accused one had complained that a woman,
whom he now believed
to be Sgt Zulu, had pointed at him from outside
the courtroom, through the open court door. I am not sure what the
complaint in
this regard was and it was never disclosed, expanded
upon or persisted in. Sgt Zulu said she had been at court on a number
of occasions
for this matter and she would normally be found outside
sitting on a bench.
The trial within a
trial:
The fourth state
witness: Muzi Moses Mncwango (Capt Mncwango)
[107]
Capt Mncwango previously was the investigating
officer in this matter but retired from the SAPS in October 2022
after 39 years’
service. He explained that he had informed
accused one of his right to remain silent, but that if he chose to
say anything it would
be recorded and could be used against him at a
later trial. He also explained his right to legal representation to
him. When advising
him of these rights, he communicated with accused
one in the isiZulu language.
[108]
Accused one apparently admitted to Capt Mncwango
that he had knowledge of the events at the rugby club. Capt Mncwango
asked him
if he would tell the magistrate what he knew about those
events and accused one indicated that he was willing to do so.
[109]
Before accused one was taken to the magistrate,
Capt Mncwango stated that he was taken to a doctor for a medical
examination. A
J88 document was completed by the doctor and was
returned to Capt Mncwango. Accused one was then taken to the
magistrate. Capt
Mncwango denied at any stage threatening or
assaulting accused one and stated that accused one voluntarily made
his statement to
Mr Kruger. He did not know accused one prior to him
being arrested and he denied that he ever visited him in the holding
cells
whilst he was in custody. When Mr Ngubane, for the state, put
it to him that accused one’s version was that he, Capt
Mncwango,
had given him a statement to read and had then admonished
him to tell that story to the magistrate, Capt Mncwango denied that
this
occurred.
[110]
Mr Luthuli commenced his cross-examination of Capt
Mncwango by asking him how many times accused one had been taken to
the doctor.
The answer he received was that this had occurred twice,
and that both visits had occurred on the same day. From the evidence
given
by Mr Kruger, it was known that he had seen accused one on 10
March 2020. Mr Luthuli then produced two J88 documents pertaining
to
accused one which revealed that he went to the doctor twice on 9
March 2020, being the day before he saw Mr Kruger. Capt Mncwango
said
that it was normal for detainees to be taken to a doctor twice in one
day, firstly before being seen by a magistrate and then
after being
seen by a magistrate. He later recanted and said that it would not be
that regular unless there were circumstances
that required two visits
to the doctor.
[111]
Capt Mncwango was again asked about accused one’s
allegation of being given a document compiled by him detailing what
to tell
the magistrate. Capt Mncwango denied that that had occurred.
He also denied that he had threatened to hand accused one over to
‘the white people’ if he did not adhere to the contents
of that document.
[112]
It was further put to Capt Mncwango that accused
one and accused three were always together in the cells, which
appears to have
been admitted by Capt Mncwango, although he said that
when he removed one from the cells to come to his office they would
obviously
not have been together. It was also put to Capt Mncwango
that he had informed accused one that two other co-accused had been
arrested
and detained at Magudu police station and that they had told
Capt Mncwango everything. The alleged co-accused named by Capt
Mncwango
were Mr S Mtshali and Mr Thabethe. Capt Mncwango said that
he had no knowledge of their involvement in this matter but that he
did know of the two men mentioned.
[113]
Capt Mncwango was the last witness for the state
in the trial within a trial.
The trial within a
trial:
The defence witness:
Smanga Phakathi (accused one)
[114]
Accused one testified that he had been detained in
the early hours of 9 March 2020. Later that morning, he and accused
three had
been called for by Capt Mncwango. When they arrived at a
place described by accused one as being a place where people wait to
be
charged, Capt Mncwango had first called accused three to his
office. Accused three later returned and accused one then went to
Capt Mncwango’s office. Capt Mncwango asked him whether he
‘knew this case’ and he replied in the negative. He
was
then taken back to the place where people wait to be charged. Capt
Mncwango only asked him the one question. Thereafter, both
accused
one and accused three were taken back to Capt Mncwango’s
office.
[115]
Capt Mncwango, according to accused one, had a
document in his hand. The two accused were told to sit down and to
read that document.
They shared that document as they read it. Capt
Mncwango then read the document to them. He instructed them to repeat
what was
in that document when they went to see the magistrate. Capt
Mncwango said that there was no point in them denying their guilt
because
their co-accused, now held at the Magudu police station, had
told him everything that was contained in the document that they had

read. Capt Mncwango had said that if they did not comply with this
instruction he would give them to the white people who would
shoot
and kill them. They were instructed also not to reveal to the
magistrate that Capt Mncwango had threatened them and were
warned
that if they disobeyed this instruction, Capt Mncwango would
ultimately know what they had told the magistrate. All of this

happened in Capt Mncwango’s office.
[116]
Accused one continued and said that his T-shirt
had been stained with blood from his nose bleeding after being
slapped when he was
apprehended. He repeated that this had happened
at his home in Swaziland and that Capt Mncwango had been present at
his arrest
in Swaziland. After finishing with the accused in his
office, Capt Mncwango said that they would be taken to the doctor
before
going to the magistrate. However, before going to the doctor,
Capt Mncwango came to the cells carrying another T-shirt and
instructed
accused one to swap his bloodstained T-shirt for the clean
T-shirt. The T-shirt removed was left in the cell and was later found

by accused one when he returned from the doctor.
[117]
When
they arrived at the doctor, accused one said that the SAPS had
already told the doctor the reason for them being there. The
doctor
first saw accused three and then saw accused one. Accused one said
that the doctor placed ‘ear phones’ in his
ears and that
was all that happened. They were then taken back to the SAPS holding
cells. After lunch, they went back to the doctor
again and, again,
‘ear phones’ were put in his ears. This time it was a
different doctor that examined them.
[12]
When they returned to the police cells, Capt Mncwango came to them
there and warned them that they must not forget what was in
the
document that he showed them in his office when they went to see the
magistrate.
[118]
The next day, they were transferred to the
magistrate’s court and ultimately accused one went to see Mr
Kruger. Whatever he
told Mr Kruger was, according to accused one,
straight from the document prepared by Capt Mncwango. He did not,
however, mention
the existence of the document to Mr. Kruger. He
confirmed that neither Mr Kruger nor Mr Ntshangase had threatened him
and, in fact,
described them as being ‘good people’. He
finally confirmed that his signature appeared on each page of the
document
prepared by Mr Kruger.
[119]
Mr Ngubane cross-examined accused one. Accused one
confirmed that on the
day that he appeared
before Mr Kruger he had not seen Capt Mncwango at all. He was asked
then how he could have felt threatened
by Capt Mncwango. The answer
that he received was that Capt Mncwango had all the time in the world
to deal with them whereas he
only saw Mr Kruger on one occasion.
Asked why he had not told Mr Kruger what the true state of affairs
was yet he was happy to
tell this court, accused one indicated that
he was no longer being kept at the Pongola police station but was now
being held at
a local prison. Asked what happened to the document
prepared by Capt Mncwango, accused one said that it was given back to
Capt
Mncwango. Accused one refused to indicate what the contents of
the document contained because he was not prepared to go into the

merits of the matter. He was asked why it had never been put to Capt
Mncwango that he had given him a fresh T-shirt. The answer
to this
was that accused one had forgotten about this.
[120]
Accused one was the only witness called by the
defence in the trial within a trial.
[121]
Mr Ngubane addressed the court and argued that the
court should rule that the extra curial statement be admitted whereas
Mr Luthuli
argued that the statement should be excluded. I indicated
that given the lateness of the hour, I would consider the matter
overnight
and give my ruling in the morning. This I then did, ruling
that the extra curial statement of accused one was admissible and
that
I would give my reasons later. What follows are my reasons.
Trial within a trial
Reasons
[122]
Section 217(1) of the Act
provides as follows:
‘
(1)
Evidence of any confession made by any
accused person in relation to the commission of any offence
shall, if
such confession is proved to have been freely and voluntarily made by
such person in his sound and sober senses and without
having been
unduly influenced thereto, be admissible in evidence against such
person at criminal proceedings relating to such offence:
Provided –
(a)
that a confession made to a peace officer, other than a magistrate or
justice or, in the case
of a peace officer referred to in section
334, a confession made to such peace officer which relates to an
offence with reference
to which such peace officer is authorized to
exercise any power conferred upon him under that section, shall not
be admissible
in evidence unless confirmed and reduced to writing in
the presence of a magistrate or a justice; and
(b)
that where the confession is made to a magistrate and reduced to
writing by him, or is confirmed
and reduced to writing in the
presence of a magistrate, the confession shall, upon the mere
production thereof at the proceedings
in question –
(i)
be admissible in evidence against such person if it appears from the
document
in which the confession is contained that the confession was
made by a person whose name corresponds to that of such person and,

in the case of a confession made to a magistrate or confirmed in the
presence of a magistrate through an interpreter, if a certificate
by
the interpreter appears on such documents to the effect that he
interpreted truly and correctly and to the best of his ability
with
regard to the contents of the confession and any question put to such
person by the magistrate;’
[123]
Section 35(1) of the
Constitution, inter alia, provides that:
‘
(1)
Everyone who is arrested for allegedly
committing an offence has the right –
(a)
to remain silent;
(b)
to be informed promptly –
(i)
of the right to remain
silent; and
(ii)
of the consequences of not
remaining silent;
(c)
not to be compelled to make any
confession or admission that could be used in evidence against
that
person;’
[124]
And s 35(5) of the Constitution provides that:
‘
[e]vidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence
would render the
trial unfair or otherwise be detrimental to the administration of
justice’.
[125]
Strictly speaking, the evidence of Mr Kruger need
not have been called by the state as the document that he compiled
contained the
name of a person identical to the name of accused one,
and the language practitioner utilised in the recordal of the
statement,
Mr Ntshangase, had signed a certificate concerning his
involvement in the proceedings before Mr Kruger.
The
content of the statement recorded by Mr Kruger is not in issue
either. It appears to me that accused one admits that what is

contained therein is what he told Mr Kruger. What he disputes now is
that the version that he gave is his version, for he contends
that it
is the version that Capt Mncwango gave to him and compelled him to
recite to Mr Kruger. This he did under the threat levelled
at him by
Capt Mncwango and he thus acted under duress.
[126]
There
was nothing regarding the witnesses called by the state in the trial
within a trial that indicated that there was anything
irregular about
their conduct. All told their
versions
in an entirely satisfactory manner. Mr Luthuli tried to make
something of the fact that accused one appears to have been
seen
twice by a doctor on the day before he made his statement to Mr
Kruger. It certainly is unusual that this should occur, especially

since the visits were but a few hours apart. Capt Mncwango appears to
have suggested that a person making an extra curial statement
would
be taken to a doctor before and after making the statement. This does
not appear to have been done in this instance, for
reasons that have
not been explained but it is likely that this was an administrative
error.
[127]
There
is, however, no requirement that a person making an extra curial
statement must be seen by a doctor either before, or after,
making
that statement. This is made even less relevant in this matter when
it is acknowledged that no physical assault by the SAPS
is alleged by
accused one to have occurred. The assault that accused one complained
of to Mr Kruger occurred at the time of his
apprehension by the JCPF
and not subsequent to his detention. After the slap to the nose,
there is no further reference to any
physical violence being visited
upon him. His complaint before this court was the threat allegedly
made by Capt Mncwango. No amount
of examination by a doctor would
reveal whether that threat had been made.
[128]
The
duress alleged by accused one is thus not a physical assault upon
himself but the threat of what Capt Mncwango alleged would
happen in
the future if accused one deviated from the terms of the document
that he had been instructed by Capt Mncwango to memorise
and then
narrate to the magistrate.
In
civil law, it is trite that a contract entered into under duress may
be voided by the innocent party. In alleging duress, the
party
relying on it must prove:
[13]
(i)
a threat of
considerable evil to the person concerned;
(ii)
that the fear inspired was
reasonable;
(iii)
that the threat was of an
imminent or inevitable evil and induced fear;
(iv)
that the threat or
intimidation was unlawful or
contra bonos mores;
and
(v)
that the contract was
concluded as a result of the duress.
[129]
Obviously, the last requirement falls away in this
matter for we are not dealing with a contract in any form. But there
is no reason
why the preceding requirements for duress should not be
established in criminal proceedings where duress is alleged to play a
part.
It is not sufficient simply for the duress to be alleged to be
accepted: it must truly be duress in the form recognised and accepted

by the law.
[130]
I have two difficulties with the duress identified
by accused one. The first is that
the
alleged threat is by no means certain in its terms. It started as a
threat that accused one would be handed to ‘the white
people’
who would ‘fix’ them. This was put to Mr Kruger by Mr
Luthuli. It then evolved to a threat that the white
people would
‘shoot and kill them’ when accused one testified in the
trial within a trial. He then changed it to an
allegation that the
white people would simply ‘kill them’. There is thus no
certainty as to precisely what the threat
was. The second difficulty
is where this threat, whatever its form and content, was made by Capt
Mncwango. The evidence adduced
of this by the defence is equivocal.
The initial version put by Mr Luthuli to Mr Kruger was that it
occurred in the SAPS holding
cells. Capt Mncwango, when he testified,
stated that he never went to see accused one in the SAPS holding
cells and only met with
him in his office. After this evidence was
led, accused one testified that the threat had been made in Capt
Mncwango’s office.
Later it was mentioned by accused one that
Capt Mncwango had indeed gone to the SAPS holding cells after the
events in his office
and reminded accused one that he should adhere
to the prescribed version. This version was not put to Capt Mncwango.
Thus an attempt
at blending the two disparate versions was attempted
by accused one. The accused has accordingly given two different
versions of
where the threat was made.
[131]
The
substance of the alleged threat must also be considered, for it must
inspire a reasonable belief of imminent harm occurring.
It is
difficult to understand how anyone could reasonably believe that the
SAPS would surrender persons in their custody to ‘the
white
people’, whoever that general group of people might be, so that
the ‘white people’ could ‘fix’
them, whatever
that may mean. It is so vague in its meaning and unlikely in its
application that in my view it cannot reasonably
have inspired fear
in accused one if such words were indeed said to him. Indeed, accused
three also allegedly received the same
threat and it did not drive
him to make a statement to a magistrate. It clearly did not inspire
any fear in him.
[132]
The difficulty of accused one in adhering to a
simple allegation can only indicate that the version is not factual
in its foundational
elements. It is a contrived version to avoid the
consequences of what accused one voluntarily elected to disclose to
Mr Kruger.
I can find no evidence of duress. There is compelling
evidence recorded by Mr Kruger that he spoke with him freely and
voluntarily.
For these reasons, I ruled that accused one’s
extra curial statement was admissible.
The ninth state
witness: Tjaart Nicolaas Kruger (Mr Kruger)
[133]
Mr. Kruger, the magistrate who recorded the extra
curial statement of accused one, was recalled to the witness box to
read out that
statement. The statement, which was recorded by him in
manuscript, almost completely fills four lined A4 pages. It is not
necessary
for me to quote the statement verbatim and I shall deal
with it only in summary form.
[134]
The statement commences with a recordal that
accused one was drinking amarula sorghum beer at the Mashazi
homestead. Present with
him were the deceased, Bhungu, Sondo, accused
two and accused three. The deceased and Bhungu stated that they had a
plan to get
money but did not mention initially where the money was
to be obtained from. The group then met the next day to plan their
operation.
After a diversion involving them attempting to find a
missing pig, Bhungu said they needed to get moving in order to
implement
the plan. The plan was to go to the rugby club where there
was a tavern that white people frequented and to take their money.
They
departed for South Africa and three of them had backpacks. One
backpack was loaded with bush knives. They arrived at the rugby club

and accused one noticed that there were many ‘Boers’
present. Accused one indicated that they should not go ahead with
the
plan but Bhungu did not agree with this, saying that they had not
gone there to play. Just then a white man driving a motor
vehicle
arrived at the rugby club and accused one again insisted that they
not proceed with the plan because there was now more
‘Boers’
present. The deceased then took out a firearm from a backpack and
said they were going on with the plan. Accused
one and the others
then retreated as if they were going home when the deceased pointed a
firearm at them and said that no one was
going home. He forced them
into the rugby club and all of them entered. Once inside, they heard
a gunshot and saw Bhungu coming
out of the tavern, running, and they
followed him. They split up and went in different directions but
accused one and three others
ran into the sugarcane and then ran in
the direction of Swaziland. Accused two then telephoned Bhungu to
inquire where they were
and was given directions to find them. He was
asked where the deceased was, and he said that they had run in
different directions.
They then returned to Swaziland and slept and
went their separate ways the next day. Accused one went to his
homestead and took
a bath and then went to drink at the Sithole
homestead. Whilst there, the deceased’s younger brother arrived
and accused
two received a telephone call from Bhungu who told him
that the deceased had been killed. Bhungu said that he had heard this
on
Pongola FM radio. The sister of the deceased also telephoned Sondo
and also told him of the death of the deceased. They cried when
they
heard this news and then parted ways.
[135]
Mr. Kruger was not cross-examined by Mr Luthuli.
The tenth state
witness: Musi Moses Mncwango (Capt Mncwango)
[136]
Having testified in the trial within a trial, Capt
Mncwango was recalled to the witness box by the state.
[137]
Capt Mncwango confirmed that he had arrested all
three of the accused with the assistance of Mr Dlakude and the JCPF
members. He
confirmed that Mr Nkosi was associated with the JCPF but
that he had since passed on. He also informed the court that he took
possession
of the hard drive taken from the bar at the rugby club but
that when the experts analysed it they were unable to recover
anything
from it. He did not explain why this was the case.
[138]
As regards the firearms that had been recovered at
the rugby club and the gun shot residue test performed by WO Jele on
the deceased,
he stated that he never received any results from the
Forensic Science Laboratory. He had taken the matter up with WO Jele
but
still did not receive the results that he required. The court
expressed its amazement that Capt Mncwango, an experienced SAPS
investigating
officer, would let the matter lie and would present the
case for prosecution without that evidence.
[139]
Capt Mncwango confirmed that accused two had made
an extra curial statement. He explained that this had occurred when
he had arrested
him and after he had read him his rights. In essence,
accused two admitted his involvement in the offence to him and Capt
Mncwango
asked him if he would repeat that statement to Col Mbongwa,
which he agreed to do. Before that occurred, however, accused one was

taken to a magistrate at KwaNongoma. How this come to occur was never
revealed. He believed that had occurred on 10 March 2020.
Accused one
returned without making a statement to the magistrate because,
according to accused two, they did not appear to understand
each
other. The magistrate did not want to proceed as accused two
apparently did not admit the event. He had admitted that he was
there
but said that he did not kill the person. Asked why he then referred
accused two to Col Mbongwa, Capt Mncwango said that
accused two had
requested the charge office officers to call him to go and see him in
the holding cells. He had honoured the request,
thereby contradicting
his earlier assertion that he did not visit the accused in the
holding cells, and accused two indicated to
him that he still wanted
to make a statement. It is on that basis that accused two was taken
to Col Mbongwa. Accused two indicated
to him that he knew the
deceased person, which presumably was a reference to Mr Mathews.
[140]
Capt Mncwango categorically denied that he ever
threatened or assaulted any of the accused. He testified that he did
try to trace
the other persons who were involved in the raid on the
rugby club but he was not able to find them. He, finally, confirmed
that
he did not know any of the accused until he arrested them.
[141]
Under cross-examination from Mr Luthuli, Capt
Mncwango confirmed that he had explained his rights to accused two
and that accused
two had signed a notice confirming that to be the
case (the rights notice). Mr Luthuli then drew attention to the
signatures that
appear on the confession recorded by Col Mbongwa and
the signature that appears on the rights notice. They were obviously,
and
demonstrably, different both in their form and in their content.
It was put to Capt Mncwango that accused two denied ever making
the
statement recorded by Col Mbongwa. Capt Mncwango said that whilst the
signatures appeared different on the statement and on
the rights
notice, on the statement recorded by Col Mbongwa the accused had
written out his initials and his surname whereas he
had put his
signature on the rights notice. Asked why the accused would sign in
two different ways, Capt Mncwango said he could
not answer that and
that the person who could best answer it was accused two.
[142]
It was disputed by Mr Luthuli that accused two had
ever said that he had knowledge of what occurred at the rugby club,
which Capt
Mncwango rebuffed. Capt Mncwango was asked whether he
searched the accused and he confirmed that he did. Asked whether he
found
anything upon such search, Capt Mncwango indicated that
cellular telephones had been retrieved from accused one and accused
three
and that those cellular telephones were presently in the SAP 13
register. A statement was then put to Capt Mncwango that he had

personally made in which Capt Mncwango reported the use of the
cellular telephones that he had recovered from accused one and
accused three in relation to cellular transmission towers in South
Africa. Capt Mncwango had apparently acquired this information
from
the cellular network operators. There was no attempt to qualify Capt
Mncwango as an expert in this regard and I cautioned
Mr Luthuli about
the wisdom of introducing this statement. Mr Luthuli indicated that
it proved his clients’ alibi. I asked
him what alibi he was
referring to because none had ever been pleaded or disclosed. I
pointed out to him that rather than prove
an alibi, the statement
appeared to prove that those cellular telephones were in the vicinity
of the transmission towers in South
Africa on the night in question.
Nothing further was said regarding this statement. After reflection,
I intend to disregard the
contents of that statement on the basis
that Capt Mncwango did not have that knowledge personally but
acquired it from someone
else who did and it was therefore hearsay
evidence prejudicial to the accused.
[143]
It was then put to Capt Mncwango that Mr Dlakude
had said that he found nothing when he had searched accused one. Capt
Mncwango
said that when he searched him he had found the cellular
telephone.
[144]
The version of the accused was then put to Capt
Mncwango. Capt Mncwango disputed that he was present in Swaziland
when accused one
and accused three were apprehended, he denied
gagging and abducting them from that country and he denied that the
JCPF were waiting
on the South African side of the border when
accused one and accused three were so abducted.
[145]
At this juncture, Mr Luthuli advised me that
accused one had a headache. I accordingly arranged for my registrar
to acquire over
the counter headache medication in the form of a
popular headache tablet for accused one and he subsequently took the
medication.
[146]
Mr Luthuli continued his cross-examination of Capt
Mncwango by saying that Capt Mncwango had lied when he said that he
did not know
accused two because accused two had been at school with
his son and accused two had been taught by Capt Mncwango’s
brother.
Capt Mncwango said that was a lie because his son was
substantially younger than accused two, his son now being 28 years
old. According
to the indictment, accused two is aged 49. It is
accordingly extremely unlikely, given the age differential of 21
years that they
ever could have been at school together. It was also
put to Capt Mncwango that he had fabricated the statements of Mr
Mathebula
and Mr N Mtshali, which was denied by Capt Mncwango. Capt
Mncwango also denied giving accused one a clean T-shirt and again
denied
that he had threatened him into making a statement.
[147]
Capt Mncwango confirmed that Mr Nkosi had bought
accused two to the police station and had said that he was a suspect
in the events
that happened at the rugby club. At that stage Capt
Mncwango had a list of suspects which he had recorded in his diary
and he consulted
that list and confirmed that accused two’s
name was on that list. He accordingly denied Mr Luthuli’s
suggestion that
two other persons had been arrested for the offence.
In response to an allegation that he had taken a photograph of
accused two
with his cellular telephone, Capt Mncwango denied this
but confirmed that it is standard practice for photographs of
arrested persons
to be taken by the SAPS, but that such photographs
are taken using a camera and not a cellular telephone.
[148]
The state closed its case once the
cross-examination of Capt Mncwango had been completed.
[149]
I was then advised by Mr Luthuli that accused one
was not in a condition to continue with the proceedings
notwithstanding the medication
that he had taken. I accordingly
attempted to have accused one examined by a local district surgeon
but was ultimately advised
by both legal representatives that there
is no longer a district surgeon in Mtubatuba. Proceedings accordingly
had to be adjourned
early to allow accused one to be taken to the
prison hospital, some distance from the court, for treatment.
Overnight, accused
one received medical treatment and was in a
position to present his case when the trial resumed the next day.
The first defence
witness: Smanga Phakathi (accused one)
[150]
Accused one commenced his evidence by indicating
that he had been employed as a tailor at an establishment called
Mathanjeni Future
Garments in Swaziland before he was arrested. He
indicated that on 6 March 2020, he was at work during the day and
knocked off
at 17h00 and from then until 05h00 the next day he had
remained at home. He resided at a homestead with his grandparents and
his
uncle. He stated that he did come into South Africa from time to
time in order to purchase items but indicated that he did not know

the whereabouts of the rugby club.
[151]
Accused one confirmed that he was arrested on 8
March 2020 at around 20h00. On that day, he was sleeping in his room
when he heard
a knock on the door. While asking who it was, the door
was kicked open and persons entered his room and started assaulting
him.
Whilst doing this, one of his assailants put a piece of cloth on
his mouth and tied it. He was taken out of the room to an area
with
better lighting, where he found two other people who had been
handcuffed. Those persons were known to him as Mr S Mtshali
and Mr
Thabethe. The latter was his cousin, who he said resides in South
Africa most of the time. Accused one then corrected himself
and said
that his cousin stayed in Swaziland but works in South Africa and
travels from one country to another every day. Accused
one said that
he knew Mr S Mtshali was from the deceased’s family but that he
was not friendly with him.
[152]
After had he had seen the two men handcuffed
outside his homestead, they had all left together, walking a distance
of about 1 km
to accused three’s homestead. One of the persons
in handcuffs was then taken by a police officer who went down to
accused
three’s house. Accused one remained outside with Mr S
Mtshali and a person who was guarding them. Those who had gone inside

then came back with accused three, having been away for approximately
five minutes. One of the persons who had gone into the homestead

walked back with accused three holding his hand over accused three’s
mouth. A piece of cloth was then taken from one of the
guard’s
pockets and accused three’s mouth was ‘tied’ with
it. They then left and proceeded to the road
that led to South
Africa. Accused one estimated that they walked for 9 or 10 km before
reaching the border fence. Walking on the
road towards the fence were
eight people, including accused one and accused three. Having scaled
the border fence, he saw that
there were both white and black people
waiting for them in South Africa and that there were more than five
motor vehicles there.
He and accused three were told to lie face down
in the bin of a bakkie and the other two men in handcuffs were placed
in a different
motor vehicle. They were taken to the Pongola police
station and made to sit in the charge office. It was now the early
hours of
9 March 2020. The two men in handcuffs with them were called
by Capt Mncwango who announced that they would be kept at the Magudu

police station and would join accused one and accused three later
when they appeared in court.
[153]
Capt Mncwango then took accused one to his office
and told him he was going to be charged with attempted robbery and
that people
were killed. He was also to be charged with illegal
immigration. He was then taken back to accused three. After 20
minutes, Capt
Mncwango returned and took accused three with him. Five
minutes later he was back and accused one was then taken by Capt
Mncwango
again. He was taken to his office and Capt Mncwango asked
him if he knew of the offences that he had been charged with. To
this,
accused one replied that he did not. Only then did Capt
Mncwango introduce himself to him. Accused one was then taken back to
accused
three. After approximately three minutes, Capt Mncwango
returned and said that they must both go with him to his office.
[154]
In his office, so accused one testified, Capt
Mncwango had a piece of paper with writing on it. He said that there
was no use in
them denying the allegations as the two men in
handcuffs had told him everything and he had written down what they
had told him
on that paper. He then read out what was on the paper
after which he handed it to accused one and accused three for them to
read
together. The document was written in isiZulu and was comprised
of two pages. Capt Mncwango then said they were to go and tell the

magistrate the story written on the paper otherwise he would hand the
accused to the white people who would kill them as they had
killed a
white person. Accused one said that ‘we agreed to that’.
[155]
Later, Capt Mncwango gave accused one a new
T-shirt. The same day, they visited the doctor on two occasions and
after their last
visit, Capt Mncwango came to them in the cells and
warned them not to forget about what they had read.
[156]
The next day, he and accused three were taken to
see a magistrate. He confirmed that he appeared before Mr Kruger and
agreed that
he had informed him that he had come to make a
‘confession statement’. He made no mention of what he
told Mr Kruger.
[157]
Accused one said that he did not know accused two
and that he only came to know him after 10 March 2020. He added that
after they
returned from the magistrate’s court, Capt Mncwango
came to him with a cellular telephone with a picture on it. The
significance
of this was not revealed.
[158]
Accused one stated that he did not want to say
anything about the statement that Mr Kruger took down. He also
indicated that Mr
N Mtshali was lying when he said that he found him
in the deceased’s room at the family homestead on 7 March 2020,
denied
that he drank alcohol and denied that he was ever in the
company of accused three and Mr N Mtshali. He denied that Mr Dlakude
had
arrested him but could not say that he was not present because
there were allegedly many people present. Ultimately, he agreed that

Mr Dlakude, a very large, conspicuous man, was present.
[159]
Mr Ngubane then took accused one under
cross-examination. The first point that he took with accused one was
that he now mentioned
that there were white people involved in his
apprehension, a fact that had not previously been mentioned. To this,
accused one
stated the following:
‘
I
was arrested by black people from Swaziland when I was brought here.’
This was contrary to his
evidence in chief, which specifically mentioned the presence of white
people. Mr Ngubane insisted that
accused one had mentioned the
involvement of white people in his apprehension for the first time
while being led in chief by Mr
Luthuli. That invoked a response from
accused one that he could not recall this. He was asked why this
version had never been put
to Mr Dlakude or to Capt Mncwango. Accused
one agreed that it had not been put, but said that he had told his
counsel about the
persons in Swaziland. He confirmed that he had been
at home on 6 March 2020 but ultimately conceded that everyone who
could potentially
confirm this was not going to be called to testify.
[160]
Mr Ngubane asked why Capt Mncwango had not been
told of his alibi whilst he was investigating the matter. Accused one
stated that
he did tell him. It was never put to Capt Mncwango that
he had been told of accused one’s alibi. Later, accused one
agreed
that he had not told Capt Mncwango of his alibi because he was
in a state of shock. He was at liberty to mention it for the first

time because he was now ‘free’.
[161]
Accused one agreed with Mr Ngubane that he had
been spoon fed a version by Capt Mncwango to tell the magistrate. He
was asked what
was on the piece of paper prepared by Capt Mncwango
but refused, initially, to answer the question. The court indicated
that he
was required to answer the question and every response that
was thereafter received to a question relating to the content of the

paper was that accused one could not recall.
[162]
When accused one’s attention was drawn to
his confession to Mr Kruger, he was asked whether he had given the
names of persons
mentioned therein to Mr Kruger. He stated that he
could not recall but repeated that what he told Mr Kruger was what
Capt Mncwango
had told him to say.
[163]
Accused one was asked why he did not ask for a
copy of the paper from Capt Mncwango so that he could refresh his
memory before he
went to see the magistrate. Accused one stated that
he did not want to interact with Capt Mncwango for a long period of
time because
he was so afraid. He stated that he thought Capt
Mncwango would hand him over to the white people if he ‘asked
for things’.
Asked how Capt Mncwango could surrender him to the
white people when it was obvious that he was in SAPS custody, accused
one said
that it was possible that he could have been booked out at
night.
[164]
Mr Ngubane again drew accused one’s
attention to the extra curial statement recorded by Mr Kruger and,
more specifically,
to that portion thereof in which it was recorded
that the deceased forced accused one into the rugby club against his
will at gunpoint.
He was asked why Capt Mncwango would have wanted
him to say that to the magistrate. Accused one said that he did not
know. There
is no ready explanation for this. The court asked him
whether Capt Mncwango was, in fact, helping him by demonstrating that
he
was an unwilling participant in the events that were then to
occur. He again stated that he did not know. Asked why Capt Mncwango

would prepare this false version and force him to narrate it to Mr
Kruger, it being agreed that neither Capt Mncwango nor he knew
each
other, accused one said it was because Capt Mncwango was protecting
the two persons that had been taken to the Magudu police
station. Why
Capt Mncwango would wish to protect these two men was never
explained. Mr Ngubane put it to accused one that if the
story he was
forced to narrate to Mr Kruger was contrived by Capt Mncwango, he
could have said that accused one also had a firearm
and thereby made
it worse for him. Accused one said that he did not know about this.
[165]
Asked by Mr Ngubane why Mr N Mtshali would lie
about finding him in the deceased’s bedroom on 7 March 2020,
the only response
received was that the witness was lying. Accused
one later said that Mr N Mtshali was protecting Mr S Mtshali, one of
the persons
who was allegedly detained at Magudu police station. That
completed Mr Ngubane’s cross-examination and Mr Luthuli had no
re-examination.
[166]
Accused one’s case was provisionally closed
at that stage pending delivery of a copy of his identity document and
the evidence
of accused two was then commenced. During accused two’s
evidence, the further evidence of accused one was interposed to
permit
the handing in of a certified copy of his identity document to
occur. It records that he is a Swazi national. His case was then

finally closed.
The second defence
witness: Sipho Richard Mthembu (accused two)
[167]
Accused two confirmed that he lived in South
Africa and that he was unemployed at the time of his arrest. He made
a living by doing
odd jobs which included, it would appear, some form
of block laying. He did not know either accused one or accused three
and first
met them on 10 March 2020 in the Pongola police station
holding cells. Apropos nothing, accused two added that this was a
Tuesday.
[168]
Accused two stated that on 6 March 2020 he had an
argument with a man who owned a security company in Pongola. He was
laying blocks
for this man. He identified this man as being Mr Mdu
Mamba (Mr M Mamba). He explained that he was cleaning a concrete slab
and
was waiting for Mr M Mamba to bring a pallet of blocks. The
concrete slab was apparently near to his home. This response was
provided
when Mr Luthuli asked him where he was on 6 March 2020.
However, it later transpired that accused two was not at the concrete
slab
but was at home ‘from the morning until the afternoon.’
[169]
Asked by Mr Luthuli if he knew the witness Mr
Mathebula, accused one said he did and that that he was just a boy
from the same area
where he lived. It is to be remembered that Mr
Mathebula stated that he lived at
Madanyini, Pongola.
He
said that Mr Mathebula used to drive a van that belonged to accused
two’s late brother. He stated that he had no relationship
with
him and had never trusted him with any of his ‘secrets’.
He had known him for about five or six years. He denied
telephoning
him from Swaziland and he denied informing him that he intended to
commit a crime. He also denied staying at Mr Mathebula’s

homestead. He stated that Mr Mathebula’s homestead is near a
sports field and that Mr Mathebula may have seen him on 6 March
2020
as he proceeded to the sports field to exercise. How this visit
fitted in with his alibi, discussed later, was not explained.
[170]
Accused two denied informing Mr Mathebula of what
happened at the rugby club on 7 March 2020 and did not speak to him
on that date.
He denied Mr Mathebula’s evidence that on 8 March
2020 he had informed him that he had been at the rugby club. All of
this
was lies, according to accused two. On that date he was at the
concrete slab where he was working.
[171]
Accused two stated that he knew Mr Mnisi, who he
knew because he was, or had been, a player in a local football team
called ‘Karera’.
He knew the deceased as a brother to Mr
Mnisi. He stated that he last saw Mr Mnisi approximately 20 to 30
years ago. He stated
that he had last seen the deceased when they
were arrested together in 2007. The deceased had been released from
prison first and
he thus estimated that he last saw him in 2013 or
2014.
[172]
Mr
Luthuli asked accused two why Mr Mathebula would have made up these
allegations against him. Accused two indicated that Mr Mathebula
had
given him an explanation. However, the explanation that he then
launched into did not, ultimately, explain why Mr Mathebula
had made
the allegations about him. What was said by accused two at great
length was that at about noon on 8 March 2020, a Mr Nkosi
came to him
with two men called Mr Sbu Qhakaza and Mr Sifiso Khumalo. Great
detail was provided by accused two as to what was said
between him
and these men. Mr Nkosi asked him where his cellular telephone was.
Accused two said that he had it with him. Mr Nkosi
then tried to
telephone it. When accused two’s cellular telephone did not
ring, Mr Nkosi then wanted to know about its SIM
card.
[14]
Accused two was then taken to the Pongola police station where Capt
Mncwango and three other persons came out to where he was standing

near a tree. The three persons with Capt Mncwango each took a
photograph of him using their cellular telephones. Members of the

JCPF then arrived with two people, one of whom was the deceased’s
elder brother. They were made to stand in front of accused
two. None
of this explained why Mr Mathebula would concoct his version about
accused two.
[173]
Accused two indicated that he remembered Col
Mbongwa but disputed that his signature appeared on the statement
that she stated that
she had recorded from him. His name is on the
statement, but he did not know who had written the statement and he
was not the person
who made it. He confirmed that he had never spoken
to Col Mbongwa but that she had come to the holding cells.
[174]
Accused two further said that he had never stated
to Col Mbongwa that he wanted to clear his conscience. Accused two
acknowledged
that Capt Mncwango had said that in his evidence, but
said that in saying that he was lying. He said that he knew Col
Mbongwa and
said, rather enigmatically, that he did not think he
would have made ‘such a thing’, meaning the extra curial
statement,
before her. Certain advice that he had received in prison
held that such a statement could only be made before a judge.
[175]
Regarding events at the KwaNongoma Magistrate’s
Court, accused two confirmed that he had been taken there by a police
official
called Nkosi. There he met a lady who identified herself as
Ms Ntshangase (Ms Ntshangase) who said that she was a state
prosecutor.
A language practitioner was also present. Ms Ntshangase
asked why he was there, and he replied that he had been taken there
to
admit an offence. She spoke English to him which was interpreted
into isiZulu by the language practitioner. He informed her that
he
had no knowledge of the offence but stated that the investigating
officer had said to him that if he admitted the offence, the

investigating officer would consider letting him go. She did not take
a statement from him but signed a form which was given to
his police
escort. He did not read it and he did not sign it.
[176]
Mr. Ngubane commenced his cross-examination of
accused two by asking him why it had not been put to Capt Mncwango
that he had been
working for Mr M Mamba at the time of his arrest.
Accused two said that he forgot to dispute that. Accused two was,
however, not
asked why he had commenced his evidence in chief by
stating that he was unemployed before he was arrested. In what was to
become
a trend with this witness, and with accused three for that
matter, he stated that he had told his counsel that was where he was

working, but for some reason it was not disputed with the witness.
[177]
Accused two was then asked why he had never
disputed going to Mr Mathebula’s residence. Accused two said
that he had disputed
that when he said that everything Mr Mathebula
said was lies. He was then asked why he had not disputed calling him
on 5 March
2020. Initially, accused two said that it had been
disputed, but then conceded that it had not and that the error was
his but that
he had told counsel that he did not telephone Mr
Mathebula. Mr Ngubane pointed out that accused two had not hesitated
to attract
his counsel’s attention when he disagreed with
something that a witness had testified about and wanted to know why
this had
not been done regarding this issue. Accused two said that
there were too many questions. He confirmed that he did not see Mr
Mathebula
on 7 March 2020, but he did see his van parked in his yard.
He agreed that they knew each other well but asserted that he had
never
stayed at his homestead, nor had he ever confided in him that
he was considering committing a crime. When Mr Mathebula said that

that had occurred, he was lying.
[178]
Mr Ngubane wanted to know why it had not been put
to Capt Mncwango that he had stated to accused two that if he
confessed to the
crimes, he would let him go. The response received
was that accused two had forgotten about this. He did say, however,
that he
had a disagreement with Capt Mncwango on that issue,
informing him that he did not believe that he could do that because
he was
‘not a court’. He confirmed that he was not
present when Capt Mncwango allegedly gave his cellular telephone
number
to Mr Mathebula.
[179]
The state advocate wanted to know how Col Mbongwa
knew his date and month of birth if he never appeared before her, as
he alleged.
Accused two said that he did not know how this happened,
but that he had been arrested before at Pongola and she may have got
that
information from other documents relating to him. This was, as
he acknowledged, merely an assumption that he made. Asked how Col

Mbongwa knew where he lived, he stated that what was recorded by her
was not where he lived. When it was pointed out to him by
the court
that the indictment said that he also lived at that address and that
had never been disputed, he said that he did not
understand that. He
appeared also to have forgotten that he had said that Mr Mathebula
was ‘just a boy from the same area
where he lived’ and
that Mr Mathebula had said that he lived at Madanyini, which is what
Col Mbongwa had recorded. He agreed
that it had not been put to Col
Mbongwa that she had merely copied her statement from an already
existing statement. Surprisingly,
accused two then stated that he did
not know what a ‘colonel’ was. He said he knew her as the
station commander.
[180]
Mr Ngubane wanted to know, if the extra curial
statement recorded by Col Mbongwa was a fiction, why it included a
description of
accused two and other people going to look for a
missing pig. The answer received was that that may also have been
copied from
another statement. Why this fictional event should be
included in his extra curial statement was not explained. Along a
similar
line, Mr Ngubane wanted to know why Col Mbongwa would have
recorded in her statement that accused two had allegedly been forced

by Mr Mnisi to go into the rugby club and that accused two and the
others had to be guarded to ensure that they all entered the
rugby
club. The answer was that accused two did not know why this had been
done. He was pressured again with the same question,
Mr Ngubane
wanting to know why Col Mbongwa would record that accused two was
forced to commit the crime. Accused two said that
he ‘could not
comment much’ on that.
[181]
Accused two stated that Mr N Mtshali was lying
when he had said that he had seen accused two on 7 March 2020. When
Mr Ngubane later
put it to accused two that he had not challenged an
issue with Capt Mncwango, accused two, remarkably, now stated that he
thought
that Capt Mncwango would come to give evidence for a third
time and that he was intending to ask him these questions when he
returned
yet again to give evidence. Asked why he had not sought
clarity on this from his legal representative, accused two said that
Mr
Luthuli had stated that he would ask questions at the tail end of
the trial. Asked why he had made an assumption about Capt Mncwango

returning, and had not asked to obtain certainty, accused two
irrelevantly stated that there were a lot of questions that had been

asked.
[182]
The court required clarity on certain issues after
Mr Ngubane completed his cross-examination of accused two. Firstly,
the court
required clarity on what had happened at the KwaNongoma
Magistrate’s Court. It was pointed out to accused two that it
had
first been put by Mr Luthuli to Col Mbongwa that he had met a
magistrate and a language practitioner there. However, when accused

two had testified in chief, he said that he had met a state
prosecutor and a language practitioner. He had later said that he had

seen a magistrate and a public prosecutor. In the latter instance,
with him in the room, there were three people. He was asked
why there
was no language practitioner in the last version. Accused two
attempted to suggest that the prosecutor was also an interpreter.
He
was asked which of these three versions was correct. He gave a
rambling answer and I cannot be entirely sure which of these
versions
he ultimately plumped for.
[183]
The second issue that the court required clarity
on was whether he had been employed as a van assistant to Mr
Mathebula. Mr Mathebula
had said that was how he knew him and that
he, Mr Mathebula, drove a van that belonged to a member of his
family, the latter fact
never being disputed by accused two. Accused
two had said in his evidence that the van belonged to his late
brother. Accused two
said he never worked with Mr Mathebula. Why Mr
Mathebula’s evidence had been accepted without challenge was
not explained.
[184]
The final issue that the court required clarity on
was accused two’s alibi. Mr Ngubane, for the state, appeared to
accept
that accused two had been at work at the concrete slab on 6
March 2020. However, that was not in conformity with the evidence of

accused two, who had stated, as previously noted, that on that day he
was at home ‘from the morning until the afternoon’.
He
had never indicated where he was on the evening of 6 March 2020.
Accused two then said that on the evening of that day he was
at a
place known as Sgungwini. That place is apparently next to Ngamazini.
This had never been mentioned at any stage. Accused
two made no
attempt to explain how he could have been at the sports field near Mr
Mathebula’s house on 6 March 2020 if he
was either at home or
at Sgungwini.
[185]
Before that explanation of his whereabouts on the
evening of 6 March 2020 was provided, there was a rather
extraordinary exchange
between the court and accused two on when a
day changed i.e. when, for example, did 1 March become 2 March.
Accused two indicated
that a day would change to another day at some
stage during the afternoon of one day. He later admitted that it
changed at midnight,
a rather elementary proposition. He was then
asked why he had purposefully not mentioned where he was on the
evening of 6 March
2020 when asked by his counsel where he was on
that day. He said that he had not been asked where he was in the
evening. When it
was pointed out that he was not asked where he was
in the morning or the afternoon either but had provided that
information, he
could only say that he had forgotten to mention where
he was in the evening. Of course, it really made no difference where
he was
during the day: the crucial part of his alibi was where he was
during the evening while the offences at the rugby club were being

committed. The court pointed out to him that had it not asked about
his whereabouts on the evening of 6 March 2020, the case would
have
concluded without accused two ever telling the court where he
actually was on the evening of 6 March 2020. Accused two said
he
forgot about the evening.
[186]
That was the case for accused two, who had no
witnesses to call.
The third defence
witness: Sibonelo Mabobosi Sihlongonyene (accused three)
[187]
Accused three elected to testify in his own
defence. He stated that he was a Swazi national, had no relatives in
South Africa and
was unfamiliar with the town of Pongola. On 6 March
2020, between the hours of 19h00 and 23h00, he testified that he was
at home,
asleep. The next day, he went to work at his sister’s
place, and he was arrested on Sunday night, 8 March 2020.
[188]
On the night of his arrest, accused three
testified that he was at home, asleep, with his brother. While he was
asleep, he heard
the sounds of people coming inside the dwelling and
he was then assaulted by those people, as was his brother. He stated
that his
mouth had been closed and the house searched, and he was
then taken outside. When outside, he saw two persons in handcuffs,
one
of whom was known to him. This was Mr Thabethe. He then left his
home and went to the road where he found people standing there.
He
lost sight of his brother but stated that he knew accused one and he
knew Mr S Mtshali, both of whom were present. His mouth
had been
closed by someone’s hand when walking from his dwelling to the
road and then the hand was removed and a cloth was
placed over his
mouth. They walked along the road until they reached the border fence
with South Africa. They came through the
fence into South Africa and
he saw vehicles parked on the side of the road. Many people were
present, and he estimated the number
to be between 14 and 15 and he
stated that they included both black and white people. Accused one
and he were taken to a vehicle,
made to lie face down in the bin of
that vehicle and were conveyed to the Pongola police station. He did
not know any of the people
who had been involved in his apprehension.
[189]
At the Pongola police station, he and accused one
were taken to the charge office where a policeman called for the two
men in handcuffs
that he had seen when he was apprehended. That
policeman then came back and took him to his office. They both sat
down, and the
policeman introduced himself as Capt Mncwango and asked
him whether he knew Pongola and whether he was familiar with the
town.
Accused three said that he did not know Pongola and therefore
was not familiar with it. Capt Mncwango then said that an offence
had
occurred at the rugby club and asked him if he was involved in it.
Accused three said he did not know the case. He was then
taken back
to the charge office. Accused one was then called by Capt Mncwango
and taken to his office.
[190]
Accused one then returned to the charge office.
After some time, Capt Mncwango called accused three to his office.
There he was
told that he was to be charged with attempted robbery,
two murders and an immigration offence. He was required to put his
thumb
on an ink pad (he did not explain why) and was then taken back
to the charge office. Accused one was then taken away and later
brought back. About 20 minutes later, both were taken to Capt
Mncwango’s office. Capt Mncwango had a white paper in his hand.

He introduced himself again and said that they could not deny their
involvement in the offence at the rugby club because their

co-accused, who were being kept at the Magudu police station, had
told him everything. He said that he had the names of all the
people
involved at the rugby club and they were recorded in his diary. He
then read to them what was on the paper that he was holding
and
thereafter gave it to them and instructed them to also read it. After
they had read it, Capt Mncwango said that they were to
be taken to
the hospital. He said when they go to the court, they had to narrate
what they had read in the statement that he had
given them to read.
They were later taken to see a doctor but before they went, Capt
Mncwango gave a clean T-shirt to accused one.
[191]
Having seen the doctor, they were again taken back
to see the doctor in the afternoon of the same day. Accused three
confirmed that
he had never spoken to Mr Kruger, the magistrate, and
that he had not made a confession. When Mr Luthuli asked him to
comment on
Mr N Mtshali’s evidence that he had confessed his
involvement in events at the rugby club to him, he stated that Mr N
Mtshali
was lying. Accused three said he did not know Mr Mnisi and
accused two but that he did know the deceased. He testified that he
could not understand why Mr N Mtshali was implicating him in the
matter as they had a good relationship. He did know accused one,
who
had worked with his brother and sister, but he was not a friend of
his.
[192]
As Mr Luthuli did with each of accused one and
two, he invited accused three at the end of his evidence in chief to
mention anything
that had not yet been mentioned by him in his
evidence. Unlike accused one and two, accused three accepted this
general invitation
and raised two issues that he said had not been
dealt with by him in his evidence in chief. He indicated that Capt
Mncwango forced
him to admit his involvement and took him three times
to court to make a confession but that he had declined to do so as he
did
not know the case. This had not been put to Capt Mncwango. He
repeatedly told the court that he could not confess to a crime that

he did not commit. He was taken to the Pongola Magistrate’s
Court on 10 and 11 March 2020, to two different magistrates,
but
declined to make a statement to either of them. The only thing he
stated that he could talk about was how he had been arrested
and
brought to the court.
[193]
The second issue that accused three raised was
that he wished to state that Capt Mncwango had said that if he did
not confess, he,
Capt Mncwango, would do things his own way and would
take accused three to a place and that when he returned from that
place he
would want to listen to him. This occurred on 11 March 2020
at the Pongola Magistrate’s Court. Accused three, whilst
drawing
attention to this alleged threat, never mentioned the threat
raised by accused one which, according to accused one, had allegedly

also been made to him.
[194]
Mr Ngubane commenced his cross-examination with a
series of propositions that had never been challenged by accused
three when various
state witnesses had testified. Thus, accused three
had never stated that he did not know of the place called Sitilo
where he and
accused one had allegedly been arrested by Mr Dlakude;
Capt Mncwango had never been told that he had asked accused three if
he
knew Pongola; Capt Mncwango was never told that accused three had
been taken twice to a magistrate; Capt Mncwango had never been
told
that he had forced accused three to confess; and, finally, it was
never put to Capt Mncwango that he had threatened to take
accused
three to an unknown place and that on his return from that place he
would listen to Capt Mncwango. All these confrontations
elicited more
or less the same answer from accused three, namely that accused
three’s counsel had been told to put these
propositions to the
various witnesses but had neglected to do so.
[195]
Accused three agreed that he did not know who had
arrested him and could only say that Capt Mncwango had charged him.
Mr Ngubane
asked accused three whether he had informed Capt Mncwango
of his alibi whilst the matter was being investigated. He confirmed
that
he had, but it was then again pointed out that this fact had
never been put to Capt Mncwango. Asked how he had overcome the fear

of the threat made by Capt Mncwango, he declined to answer the
question.
[196]
Accused three was asked what was contained on the
paper that he had been required to read in Capt Mncwango’s
office. He answered
generally that it was about what happened during
the incident. Asked again, he said that he could not recall the
content of the
paper but that Mr Kruger read it out in court. When it
was pointed out that the confession of accused one was read out by Mr
Kruger
and not the document that Capt Mncwango allegedly had, he
replied that both documents were the same. The court asked him to
specifically
indicate what was contained in the document presented to
him by Capt Mncwango, but he again demonstrated his unwillingness to
address
that question by saying that he could not recall its
contents, but that it contained ‘most things’, such as
names.
Asked to mention the names, he eventually stated that those
names were those of the deceased, his name, accused one’s name,

accused two’s name and the name of Simanye Mathe.
[197]
In another challenge, Mr Ngubane asked accused
three why Capt Mncwango had not been asked about carrying a diary.
Accused three
said that had been his mistake. He also confirmed that
Mr N Mtshali was lying in his evidence, although he conceded that he
had
never had a problem with him and could think of no reason why he
would implicate him. Mr Ngubane thus concluded his cross-examination.
[198]
The court sought clarity from accused three on two
issues. Accused three’s attention was drawn to his earlier
evidence that
he could not recognize anyone who was involved in his
arrest in Swaziland and that he could only say that Capt Mncwango had
charged
him at the Pongola police station. The suggestion was
therefore put to him that Capt Mncwango could not have been amongst
those
who arrested him in Swaziland, seeing as he could identify him
but could not identify anyone in Swaziland. Faced with this question,

accused three said that he did not see Capt Mncwango in Swaziland.
His evidence on this aspect was at odds with the evidence of
accused
one.
[199]
Finally, the court asked him why he had never at
any stage mentioned the threat that accused one had stated that Capt
Mncwango made,
namely that if they did not do what Capt Mncwango
wanted them to do, they would be handed to the white people who would
kill them
because they had killed a white person. It was pointed out
that accused one had stated that accused three was present when that

threat was made. Accused three said that he had not mentioned this
because Mr Luthuli had said that they were finished with what
had
happened in Capt Mncwango’s office and that everyone knew what
happened there. It was pointed out that he had been given
carte
blanche by Mr Luthuli at the end of his evidence in chief to mention
anything that had not yet been mentioned in his evidence
that he
wished to bring to the court’s attention and had not mentioned
that threat but had mentioned a different one. Accused
three’s
answer was almost inaudible. He was then asked how serious the threat
could have been seeing that he had defied it.
Accused three said that
different people responded differently to threats.
[200]
That concluded accused three’s evidence and
Mr Luthuli closed his case.
Argument
[201]
Mr Ngubane argued on behalf of the state that the
three accused, based upon the respective statements that they had
made, should
be convicted on the three counts that they each face. Mr
Luthuli, in a lengthy and passionate address, argued that the state
had
not established the guilt of the accused beyond reasonable doubt
and that they should, therefore, be acquitted on all counts.
Analysis
[202]
It is convenient to commence with a consideration
of Mr Luthuli’s final submission, namely that the state has not
proved the
guilt of the accused beyond a reasonable doubt. It is
trite that the state is required to establish that there is no
reasonable
doubt about the guilt of the person or persons that it has
put on trial. A ‘reasonable doubt’ means what it says. It

is the reasonable doubt of a fair-minded, impartial judicial officer,
honestly seeking to ascertain the truth. It is a doubt based
both
upon common sense and reason and is not vague or arbitrary in its
nature. It is a doubt in respect of which a reason can be
given
arising from a fair consideration of the evidence adduced, or a lack
of such evidence, or from conflicts in the evidence
adduced, or a
combination of these factors.
[203]
Even a cursory appreciation of the evidence
adduced would lead to the understanding that in this matter there is
no direct evidence
implicating the three accused in the events at the
rugby club on the evening of 6 March 2020. No eyewitness evidence has
been adduced
that they were there present nor has any objective
forensic evidence been adduced establishing that they left traces of
their persons
there on that night. That, however, does not
necessarily mean that the state has not established their involvement
in those events.
[204]
Direct
evidence is not always necessary to establish the guilt of an accused
person, for there are other ways of determining guilt.
One such way
is by a consideration of circumstantial evidence.
In
Tom
v The State
,
[15]
van Zyl J stated:
‘
The
fact is that the law draws no distinction between circumstantial
evidence and direct evidence in terms of its weight or its

importance. Either type of evidence or a combination of both may be
sufficient to meet the required standard of proof in the factual

context of a particular case.’
[205]
In the
English case of
R
v Taylor Weaver and Donovan,
[16]
Hewart LCJ discussed the value of circumstantial evidence, remarking
as follows:
‘
It
has been said that the evidence against the applicants is
circumstantial: so it is, but circumstantial evidence is very often

the best. It is evidence of surrounding circumstances which, by
undesigned coincidence, is capable of proving a proposition with
the
accuracy of mathematics. It is no derogation of evidence to say that
it is circumstantial.’
Circumstantial
evidence is indirect evidence that does not, on the face of it,
prove a fact in issue but gives rise to a logical
inference that
the fact exists.
The
state relies on the circumstantial evidence of the extra curial
statements made by the accused either to a magistrate, a commissioned

SAPS officer or to a long standing friend.
[206]
It is perhaps prudent to first consider the
undisputed facts in the matter. It is not disputed that the rugby
club has within it
a pub called ‘Porra’s Pub’ that
is owned by the first state witness, Mr Jardim. It is not disputed
that he was
running the pub on the night of 6 March 2020 and that
there were patrons present in the pub when a gang of six robbers
struck.
It is common cause that no robbery occurred but that an
attempt was made to rob the patrons and the pub. It is also common
cause
that Mr Mathews and the deceased lost their lives in the
attempted robbery. The mechanism of the death of Mr Mathews and the
deceased
is also admitted. The only issue is whether the accused were
part of the group of six men who stormed into ‘Porra’s

Pub.’
[207]
The correct approach that a court must adopt when
assessing evidence is principally set out in two cases. The first is
S v van der Meyden
,
where Nugent J observed that
:
‘
A
court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond
reasonable doubt, and so too does it not look at the exculpatory
evidence in isolation in order to determine whether it is reasonably

possible that it might be true.’
[17]
[208]
Thus,
the basic approach to adopt in the evaluation of evidence is that all
the evidence must be weighed together in its totality.
Navsa JA in
S
v Trainor
stated:
[18]
‘
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative evidence,
if any.
Evidence, of course, must be evaluated against the
onus
on
any particular issue or in respect of the case in its entirety.’
An
approach that fragments and compartmentalises the evidence is
accordingly both illogical and incorrect. I bear this in mind as
I
consider the evidence before the court.
[209]
The Kingdom of Swaziland and the Pongola
region of KwaZulu-Natal are adjacent areas of land seemingly
separated by a pervious border.
Where one country ends and the other
begins is defined on maps, and perhaps even on the ground, but does
not appear to prevent
the passage of determined persons who want to
pass from one country to the other without utilising the formal
methods of doing
so. In short, a person who does not possess a
passport but who wants to enter the other country appears to have no
difficulty in
doing so, notwithstanding a passing reference in the
evidence to the fact that soldiers apparently do patrol the border
from time
to time. In reality, there appears to be a blurring of the
division between the two countries. That this must be so is evidenced

by the fact that accused one and accused three are Swazi nationals
while accused two is a South African.
[210]
Perhaps because the state lacks direct testimony
of witnesses who are capable of identifying those who participated in
the events
at the rugby club, it has had to cast its net wide in
order to attempt to find witnesses who may be able to identify who
was responsible
for those events. In this regard, it has taken
statements from a friend of accused two, Mr Mathebula, and the
brother of the deceased,
Mr N Mtshali. Besides the evidence of those
involved in the recordal of the two formal extra curial statements
relied upon by the
state, those two witnesses are the two most
significant witnesses called by the state. The most important witness
when it comes
to the arrest of the accused is Mr Dlakude.
[211]
The first of these witnesses to testify was Mr
Mathebula. He clearly was not comfortable in giving his evidence. He
stared with
a slightly downward trajectory throughout his stay in the
witness box, never looking up, a fact of which the court made a note.

I gained the distinct impression that he was not happy to be in court
giving the evidence that he was giving but, to his credit,
he gave it
nonetheless. His evidence was multi-faceted: he testified that he was
told in advance that a criminal offence was to
be committed by
accused two; he was told a short while later by him that such offence
had actually occurred; and then he was told
by accused two that he
had participated in the offence.
[212]
Mr Mathebula said that he had worked for the last
two years with accused two, who was his van assistant, Mr Mathebula
being the
van driver. Mr Mathebula said that the van he drove
belonged to a family member of his. None of this was disputed by
accused two.
However, when accused two testified, he stated initially
that he was unemployed, and then later that he was employed as a
block
layer and that he had not worked with Mr Mathebula, who drove a
van that belonged not to a member of Mr Mathebula’s family,
but
to accused two’s late brother. None of this was put to Mr
Mathebula. It is patently untenable for accused two to now
suppose
that his untested version should be accepted as being the truth.
[213]
Accepting therefore the version of Mr Mathebula,
it must be so that there was at least some familiarity, perhaps even
friendship,
between him and accused two based upon their day to day
work activities. It is that familiarity that could potentially
explain
why accused two made the disclosures to Mr Mathebula that the
latter says that he made. The disclosure narrated by Mr Mathebula
is
problematic for the innocence of accused two. From accused two’s
point of view, that relationship therefore needed to
be shown to be
fractured and diminished in its importance to make the likelihood of
accused two confiding in Mr Mathebula appear
to be unlikely and
inexplicable. Thus, accused two dismissed him merely as being ‘a
boy’ from the area where he lived.
He was more than a boy: he
was an adult man with whom accused two worked. But the inference that
there was a level of intimacy
between them is revealed by the fact
that
Mr Mathebula knew intimate details about accused two. He
knew that accused two was still on parole, and was thus still
‘signing’,
and could not therefore simply run away, as
accused two at one stage told him he was contemplating doing. There
is further evidence
in the admission by Mr Mathebula, given under
cross examination, that he had gone to visit accused two while he was
in custody
awaiting trial. That conduct is consistent with two men
who are friendly toward each other and is inconsistent with two men
who
each regard the other with disdain and suspicion.
[214]
Mr Mathebula, even in his discomfort in the
witness box, impressed me. He is by no means a sophisticated man,
which is stated without
intending any disrespect. He simply said what
he knew, even though it involved someone that he knew. He did not
know the other
persons mentioned by accused two as being involved
with him in the crime and he candidly stated that he
had never
ascertained precisely what role accused two actually played in the
events at the rugby club.
He had no reason to lie
when he stated that accused two was at his homestead on the evening
after the incident at the rugby club.
An attempt was made to suggest
that he had been put up to his evidence by the SAPS, a consistent and
common theme throughout the
various defence cases, and that the SAPS
had given him accused two’s cellular telephone number,
presumably to strengthen
accused two’s allegations that his
evidence was false.
[215]
Given the fact that Mr Mathebula and accused two
worked together, I would have been greatly surprised if they did not
each have
each other’s cellular telephone number. I would have
considered it a necessity that they be able to contact each other.
If,
however, this was a plot devised by the SAPS, as was suggested by
Mr Luthuli in cross examination, it appeared to fall flat and
was
entirely unsuccessful
because Mr Mathebula could not remember
the cellular telephone number that he was allegedly given. He
ultimately denied that this
occurred and said that he had, in fact,
given Capt Mncwango accused two’s cellular telephone number.
[216]
No evidence was adduced by the defence to show that Mr Mathebula was
ever given accused two’s cellular
telephone number. All the
allegations in this regard were simply supposition and conjecture.
Accused two in his evidence said that
he knew why Mr Mathebula had
been put up to give this false evidence but, as already mentioned,
his long, rambling explanation
did not disclose what the reason was.
I am satisfied that the evidence of Mr Mathebula must be accepted
where it diverges from
that of accused two.
[217]
Mr N Mtshali is a brother of the deceased. He,
however, appears to be cut from a different cloth when compared with
the deceased,
for he gives the appearance of being an empathetic
human being who is not involved in, or supportive of, a criminal
lifestyle.
The latter comment finds its basis in the undisputed fact
that when Mr N Mtshali came to South Africa on 8 March 2020,
dispatched
to this country by his parents to ultimately understand
the fate of the deceased, he coincidentally met up with Capt Mncwango
at
a petrol station and told him everything that he knew about what
had happened at the rugby club. This involved him making some damning

allegations about the conduct of at least two people with whom he had
grown up. Those allegations, moreover, would have included
damning
allegations about his own brother, the deceased. It could not have
been an easy decision to make on his part, or an easy
thing to do,
and says much for his character that he disclosed all that he did.
[218]
Mr N Mtshali’s evidence was rubbished by the
accused as being false. In argument, Mr Luthuli stated that the
common version
that was testified to by a number of witnesses,
including Mr N Mtshali, had as its base, a ‘script’ that
had been prepared
by Capt Mncwango and that had been given to a
number of people. These persons included Col Mbongwa, which allowed
her to record
accused two’s extra curial statement without him
physically being present in front of her. No evidence of the
existence of
this ‘script’ was ever adduced by accused
one and three, other than their own say-so. However, it was not
initially
suggested to Mr N Mtshali that this ‘script’
was the source of his knowledge. It was first suggested that he had
been
advised of what had happened at the rugby club by Mr S Mtshali
and Mr Thabethe. Why, how or when this occurred was never disclosed

nor was how any of the accused knew this to be so. As indicated
earlier in this judgment, confusingly, it was also put to Mr N

Mtshali that the accused would say that the statement that Mr N
Mtshali had deposed to did not arise from his own knowledge but
from
knowledge that had been given to him by the SAPS. This was vehemently
denied by the witness.
[219]
It is important to note in this regard that this
distancing of accused one and accused three from the statement of Mr
N Mtshali
is not consistent conduct on their part, for it was them
that put up his affidavit as an annexure in their earlier pre-trial
applications
dealing with their objections to their arrest. They were
quite content to use it then. The content of Mr N Mtshali’s
statement,
which was appended to the founding affidavits in each of
those applications, is entirely consistent with his later oral
evidence.
[220]
Mr N Mtshali’s evidence, when faced with a
denial by accused three that he had confessed to him on 7 March 2020
regarding
what had happened at the rugby club, was that he knew
accused three very well and that on that date he had sat face to face
with
him whilst accused three told him of the events at the rugby
club. This was a powerful moment in the trial. Mr N Mtshali’s

response was made with confidence and with an air of disbelief that
he could possibly be wrong or mistaken about what accused three
had
done. His response appeared to be genuine and it had the ring of
truth to it.
[221]
The only point of criticism that Mr Luthuli could
summon up regarding the evidence of Mr N Mtshali whilst he was
physically in the
witness box was that he could not remember the
precise date of the deceased’s funeral, only the month and the
year in which
it occurred. In truth, this was no material criticism
of him at all, but merely showed his human fallibility.
[222]
In argument, Mr Luthuli also argued, albeit
faintly, that the repeated questions allegedly asked by Mr N Mtshali
as to where the
deceased was after he saw the other accused and the
other gang members at his parents’ homestead on 7 March 2020,
was contrived
and that what he was truly worried about was not the
whereabouts of the deceased, but the whereabouts of his other
brother, Mr
S Mtshali. This proposition was never put to Mr N Mtshali
and I have no hesitation in rejecting it. How this could be known by
any of the accused was not explained. Mr Luthuli stated that the
repeated expression of concern about the whereabouts of the deceased

by Mr N Mtshali demonstrated that Mr N Mtshali knew more than he was
letting on. I also reject that idea for there is no evidence
to
establish it. Mr N Mtshali’s conduct is entirely in keeping
with the concern of a worried younger brother anxious about
the
well-being of his inexplicably missing older brother.
[223]
In short, I found Mr N Mtshali to be a compelling
and reliable witness and I accept his evidence.
[224]
Mr Dlakude’s evidence was led by the state
to establish how the accused came to be in SAPS custody. Mr Dlakude
is physically
a large person, tall and imposing. He is actively
involved in the security of his home town and, indeed, makes his
living from
such security services. But his involvement in the life
of his community goes beyond that and also involves him being an
active
member of a voluntary community policing forum. He was up to
speed with what happened at the rugby club from the outset as he was

guarding premises right next to it.
[225]
The evidence of Mr Dlakude impacts directly on the
versions of accused one and accused three. They aver they were
arrested in Swaziland.
Accused one initially did not acknowledge his
presence at the time of his apprehension, identifying only Capt
Mncwango by name.
He, however, ultimately conceded that Mr Dlakude
was present. Mr Dlakude was adamant that he had never entered
Swaziland and if
the admission of accused one is accepted, then it
can only mean that accused one and three were apprehended in South
Africa.
[226]
Mr Dlakude was a good witness, and answered
questions without hesitation. I found no indication in his demeanour
that he was uncomfortable
with the version that he gave. He would not
be swayed from his evidence as to how his path crossed with the paths
of all three
accused. For reasons that follow, the accused were not
reliable witnesses. I accordingly accept Mr Dlakude’s evidence
and
find that the accused were not apprehended in Swaziland, as
accused one and three allege, but in South Africa.
[227]
A constant presence in the matter is that of the
erstwhile investigating officer, Capt Mncwango. Now retired, it is he
who is alleged
to have orchestrated the case against the accused. He
is alleged to have improperly entered Swaziland to arrest accused
one, it
is he who prepared a statement, referred to as a ‘script’
by Mr Luthuli, and compelled accused one and accused three
to
memorise it, it is he who uttered a threat to accused one and a
different threat to accused three and it is he who has acted
to
protect the two men held at Magudu police station. These are some of
the allegations made against him by the accused. He was
an excellent
witness. He is undoubtedly experienced and has no doubt appeared in
court many times over the course of his long career
with the SAPS. He
accordingly would not be a novice when it comes to the giving of
evidence.
[228]
The most serious of the allegations against him
are that he unlawfully entered Swaziland and was part of a group that
unlawfully
kidnapped accused one from that country and brought him to
this country. If that allegation was true, it would be evidence of
grossly
unlawful conduct of a person whose duty it is to uphold the
law, not break it. I am satisfied that there is no truth in the
allegation.
Accused three conceded that he did not observe Capt
Mncwango in Swaziland. The presence of Capt Mncwango in Swaziland is
not a
feature of accused three’s affidavit delivered in support
of his earlier application. While accused one does mention his
alleged presence in Swaziland, no particularity of his conduct is
provided. It is simply never mentioned what he allegedly did in
that
country. Moreover, accused one could, and should, have laid a charge
against Capt Mncwango for the alleged act of kidnapping,
but never
did.
[229]
The other principal allegation made against Capt
Mncwango was that he had authored the ‘script’ that he
demanded accused
one and three commit to memory and narrate to the
magistrate. This allegedly occurred in the limited time that accused
one and
accused three spent in his office together. I do not lose
sight of the fact that the initial version put was that it had
happened
in the holding cells. The very notion of that occurring is
so remote that it is tempting to dismiss it out of hand. The
likelihood
of that having happened is further diluted by the
statement of accused one that they were required not to read only two
A4 pages
of manuscript, but four pages, because the back of the two
A4 pages previously mentioned by him had also been written on. It
would
appear that this addition was introduced by accused one because
his statement recorded by Mr Kruger came to occupy four A4 pages,
and
was alleged to be exactly what Capt Mncwango had forced him to
memorise. That there was a threat attached to the memorising
of the
contents of the ‘script’ is rendered unlikely by the fact
that accused three, who apparently also received the
threat, never
mentioned it in his evidence, but preferred to advance a different
threat, of which accused one made no mention.
The entire concept of
the ‘script’ has all the hallmarks of an invented version
resorted to by desperate persons attempting
to extricate themselves
from a predicament of their own making.
[230]
Capt Mncwango was comfortable in the witness box
and had no difficulty in dealing with the questions put to him. His
evidence was
by no means perfect: he said that accused one and three
had gone to see a doctor before and after being taken to a
magistrate,
when it, in fact, transpired that for some unexplained
reason they had been taken to the doctor twice before seeing the
magistrate.
He also appeared to contradict himself when he stated
that he had gone to see accused two in the cells, apparently at
accused two’s
request, after he said that he never went to the
cells. It is possible, however, that his denial was only in respect
of visiting
accused one and three in the cells. I found him to an
acceptable witness and can find no basis for rejecting his evidence.
[231]
I turn now to consider the extra curial statements
relied upon by the state. Section 209 of the Act provides as follows:
‘
An
accused may be convicted of any offence on the single evidence of a
confession by such accused that he committed the offence
in question,
if such confession is confirmed in a material respect or, where the
confession is not so confirmed, if the offence
is proved by evidence,
other than such confession, to have been actually committed.’
The
purpose behind this section is to rule out the possibility of a
person incorrectly admitting his or her guilt in respect of
an
offence that may or may not have been committed. There must therefore
be either confirmation of the offence actually having
been committed
in a material respect,
[19]
or,
in the absence thereof, that there is other evidence that
demonstrates that the crime to which the confession relates was
actually committed. In the latter instance, it is not necessary that
he accused be linked himself or herself to the crime scene.
[232]
In my view, there is evidence that the offences
that the accused are charged with were committed. The evidence of Mr
Jardim and
Mr Julyan establishes the presence of robbers at the rugby
club. Regretfully, the bodies of Mr Mathews and the deceased
establish
the deaths in respect of which the accused are charged. But
there is also other corroboration for what happened. Accused two made

mention in his extra curial statement that the fences at the caravan
park had been cut with pliers. In the photograph album handed
in,
there is a photograph of the deceased lying with some pliers. Further
corroboration may be found in the fact that the deceased
resided in
Swaziland, hence his brother’s inquiries regarding his
whereabouts when he arrived at the family homestead. The
deceased’s
body was found in South Africa, in the pub at the rugby club.
[233]
I am
also mindful when considering the extra curial statements that
whatever one accused person states in such an extra curial statement,

whether it comprises a confession or an admission or a series of
admissions, is not admissible against other accused persons. This
is
because section 219 of the Act stipulates that no confession made by
any person shall be admissible as evidence against another
person.
The same principle applies to admissions since the judgment of the
Constitutional Court in
Mhlongo
v S; Nkosi v S
,
[20]
where the court held that admitting extra-curial admissions against a
co-accused would unjustifiably offend against the right to
equality
before the law. Thus the position is that an accused person can only
confess about, or make admissions regarding, his
own involvement in
an offence. Any confession or admission by an accused person about
the conduct of other accused persons in that
offence is inadmissible
against those accused persons.
[234]
Accused one was taken before Mr Kruger, a
magistrate, and made an extra curial statement to him. He made no
complaint to him about
undue pressure being brought to bear on him to
make that statement, nor did he have any complaint about Mr Kruger
himself. That
statement places him initially in Swaziland but later
in South Africa and at the rugby club. The point of contestation is
whether
the contents of the statement that Mr Kruger recorded was a
recordal of accused one’s real life experiences or whether what

is recorded therein is a story that was made up by Capt Mncwango and
which accused one was forced to regurgitate to Mr Kruger under
a
threat of harm being visited upon him by Capt Mncwango. I have
already found that the statement is admissible and I need not
repeat
my findings in that regard. It appears to me to be entirely fanciful
that Capt Mncwango would require accused one and accused
three to
memorise what accused one later stated was actually four manuscript
pages of information within a very short time and
then have
confidence that the prescribed version would accurately be narrated
to the interviewing magistrate. Such a version is
entirely naïve
in its construction and is rendered all the more unlikely by the
refusal of either accused one or accused three
to make any reference
to what was contained in that document.
[235]
The extra curial statement of accused two was made
to Col Mbongwa, the station commander of the Pongola SAPS station.
This statement
was alleged by accused two to be a complete
fabrication, with him alleging that he was never taken before Col
Mbongwa and that
his signature does not appear on the document that
she compiled. What is recorded at the bottom of each page of the
statement is
a manuscript version of accused two’s initials and
his full surname. Col Mbongwa described it as accused two’s
signature.
It is difficult to say that she is wrong or that she is
correct in that conclusion, for a signature is largely dependent on
the
signor’s intent.  Accused two, if he wrote at the base
of each page as alleged by the colonel, may have intended that
to be
his signature. But it is equally possible that he merely wrote his
name in manuscript. That it differs from his signature
on the rights
notice that he admits signing, brooks of no doubt. For what appears
on that document appears to be a true signature,
being accused one’s
distinctive mark, delivered in a stylized way. It appears to me that
what appears on the document compiled
by Col Mbongwa is simply his
name written in manuscript and not necessarily his signature.
[236]
Mr Luthuli posed the question in argument as to
why accused two would sign in two different ways. I cannot possibly
answer that
question as there may be many reasons for it happening.
Capt Mncwango, however, answered the same question pithily when he
said
only accused two would know that. I do not, in any event, have
to determine why he did so. I merely have to determine whether he

made the statement to Col Mbongwa and whether he recorded his name at
the bottom of each page thereof. Resolving that dispute requires
me
to make a credibility finding between accused two’s version
that he was never before Col Mbongwa and Col Mbongwa’s
evidence
that he was and that he was the source of everything that she wrote
down. I have no hesitation in accepting Col Mbongwa’s
evidence.
She testified well, answered questions put to her without hesitation
and candidly admitted errors that she had made.
There was nothing to
indicate that her evidence was a fabrication. The statement that she
recorded contains details that only accused
two could have given her,
like his personal particulars and the largely irrelevant details
involving the pig. The statement, moreover,
falls short of him
actually admitting his voluntary involvement in the events described.
It did not reveal him to have acted in
any manner against the patrons
but to have performed the role of a reluctant observer, allegedly
compelled to be in attendance
at gunpoint. If this was a trumped up
statement, as accused two alleges, it was a diluted statement that,
while admitting his involvement
and presence, tended to attempt to
shield him from culpability. That it was a fiction cobbled together
by Capt Mncwango and the
SAPS is simply false and must be rejected.
Col Mbongwa’s evidence can therefore be accepted in preference
to accused two’s
version. The extra curial statement that she
recorded was thus that of accused two, as narrated by him to her.
[237]
Accused three did not formally make an extra
curial statement before a magistrate or a commissioned SAPS officer,
but rather made
a statement to his friend, Mr N Mtshali, that
revealed his participation in, and knowledge of, events at the rugby
club. He spoke
freely and voluntarily to him, albeit after having
consumed some alcohol although, according to accused three, he does
not consume
alcohol. Mr N Mtshali had no authority over accused three
and offered him no reward nor made any threat that prompted him to
reveal
to him what he, accused three, knew of the events at the rugby
club.
[238]
Accused three simply denied that he made the
statement to Mr N Mtshali. I have already found Mr N Mtshali to have
been a reliable
witness. I did not find accused three to fall into
the same category of witness.
[239]
There is thus evidence that each of the accused at
one stage had been in Swaziland but had then proceeded from there to
South Africa
on the same day and had gone to the rugby club with the
purpose of obtaining money from the patrons gathered there. Two of
them
were armed with pistols and the others had bush knives. Two
persons lost their lives in the pub as a consequence. One firearm was

subsequently recovered at the rugby club, next to the body of the
deceased.
[240]
Each accused elected to give evidence. It would
not be unfair to commence the analysis of their individual
performances in the witness
box by noting that each of them avoided
mentioning the events at the rugby club. This was no more evident in
the behaviour of accused
one and accused three who resolutely would
not testify about what was contained in the ‘script’
allegedly prepared
by Capt Mncwango and which explained what had
happened at the rugby club. The court still does not know what was
allegedly recorded
in the ‘script’. The accused were,
however, content to narrate, seemingly endlessly, irrelevant details
that had no
prospect of assisting them in their respective defences.
Who said what triviality, who stood where, what some insignificant
person’s
name might or might not be, where a tree was, who had
a diary, what day of the week it was and the like were facts
disgorged by
each of the accused. They were masters of insignificant
minutiae. But when asked to detail what was written on the ‘script’

allegedly prepared by Capt Mncwango, accused one and three suffered a
collective memory failure. It was almost as if they would
somehow
infect themselves by even mentioning anything in that alleged
statement. The most that accused one would say was that what
was in
his statement recorded by Mr Kruger was what was in the ‘script’
prepared by Capt Mncwango. When he was pressurised
to deal
specifically with what was allegedly in the ‘script’ he
could not remember.
[241]
The accused could not adhere to their individual
versions and also contradicted each other. This notwithstanding the
fact that they
have had four years to straighten out their versions.
Accused one initially stated that he had visited Capt Mncwango’s
office
on two occasions which visits eventually culminated in the
production of the ‘script’. Under cross examination, this

morphed into three separate visits. In accused one’s affidavit
in his application, he stated that accused three had been
taken from
where he was and brought to where accused one was:
‘…
and he
had a cloth around his mouth.’
In his affidavit in his
application, accused three said that one of the persons that came
into his room:
‘…
closed
my mouth with his hand and forcefully dragged me outside the room.’
Accused one did not
mention this detail in his founding affidavit, yet when he gave his
evidence in chief in the trial he stated
that accused three had been
brought to where he was standing by someone who had put his hand over
accused three’s mouth.
He appeared to have read accused three’s
application in the interim and picked up that detail from his
founding affidavit.
[242]
In addition, the accused adjusted their versions
as evidence was led. In an exchange between myself and Mr Luthuli at
one stage,
I pointed out to him that no one had said that there were
any white people in the group of people allegedly waiting for accused

one and three when they were allegedly abducted from Swaziland. The
next day, it was added to accused three’s version of
events.
[243]
Accusations of dishonesty by state witnesses were
routinely put. They were made without any hesitation or any
compunction. It was
put on behalf of accused two, without any
justification or foundation, that Capt Mncwango was lying when he
testified that he did
not know accused two because he had gone to
school with Capt Mncwango’s son. Due to the mathematical fact
that there was
a 21-year age gap between them, accused two would have
left school before Capt Mncwango’s son was even born. The
accusation
was palpably false but was not retracted or withdrawn. In
similar vein, accused two raised no objection initially to the fact
that
the state alleged that he resided at a place called Madanyini.
However, in his evidence under cross examination, he stated that
he
did not live there, forgetting that he had stated that Mr Mathebula
was a boy from the area where he lived and Mr Mathebula
had said that
he resided at Madanyini. These are but a few of many instances where
the accused demonstrated themselves to be entirely
unreliable and
opportunistic witnesses.
[244]
The entire version of the accused as a whole is
based upon speculation and allegations of conspiracy in respect of
which not a scintilla
of actual, tangible evidence was produced in
substantiation thereof. It is entirely fanciful in its content,
unsupported by any
facts.
[245]
None of the accused performed well under cross
examination. They were evasive. They avoided answering questions
specifically asked
of them and preferred to answer questions that
they had not been asked. This was true, in particular, of accused
two. John Henry
Wigmore famously said that:
‘
Cross-examination
is the greatest legal engine ever invented for the discovery of
truth. You can do anything with a bayonet except
sit on it. A lawyer
can do anything with cross-examination if he is skilful enough not to
impale his own cause upon it.’
[21]
Those
words are undoubtedly true and the power of cross examination
revealed the accused to be completely unsatisfactory witnesses.
[246]
The essence of each accused’s defence is an
alibi. They each allege that they were not at the rugby club, but
were elsewhere
on 6 March 2020: accused one was at home, accused two
was at a place called Sgungwini, accused three was also at home.
That, however,
was not pleaded at the commencement of the trial, for
each of the accused elected to remain silent and not disclose the
basis of
their respective defences, as is their right. The existence
of these alibis remained an uncertain possibility until the moment
that they were finally disclosed by the accused when they came to
give evidence for those alibis were not put to any state witnesses.
[247]
It is
so that there is no onus on an accused person to establish an alibi.
It is the task of the State to disprove it. In
R
v Mokoena
,
[22]
the
court held that:
‘
If
the onus is upon the Crown to rebut the alibi, as it certainly is,
then the evidence as a whole must be considered and the fact
that the
accused and his witness told stories, which in some respects
disagree, does not mean that the Crown case has been proved
beyond
reasonable doubt ...’.
[248]
If an
alibi might be reasonably true, the accused must be acquitted. The
correct approach is to consider the alibi in the light
of the
totality of the evidence presented to the court, as stated in
Mokoena
.
In evaluating the defence of an alibi, in
R
v Hlongwane
,
[23]
Holmes JA stated as follows:
‘
At
the conclusion of the whole case the issues were: (a) whether the
alibi might reasonably be true and (b) whether denial of complicity

might reasonably be true. An affirmative answer to either (a) or (b)
would mean that the Crown has failed to prove beyond a reasonable

doubt that the accused was one of the robbers.’
For
the court to convict an accused who has raised an alibi as a defence,
that alibi must be proved to be false beyond a reasonable
doubt.
[24]
[249]
The
Supreme Court of Appeal in
S
v Musiker
[25]
observed that once an alibi has been raised, it has to be accepted
unless it is proven that it is false beyond a reasonable doubt.
In
S
v Burger and others,
[26]
the same court held that it is worth noting that mere lies for an
alibi defence or for alibi evidence does not warrant ‘punishment

for untruthful evidence.’ However, where an alibi is presented
and it contradicts evidence presented before the court, and
the alibi
later turns out to be a lie or a falsehood, the lie together with the
other evidence of the accused as a whole may point
towards his or her
guilt in certain cases.
[250]
It is passing strange that none of the alibi
defences were pleaded at the outset of the matter. The accused were
not obliged to
reveal them, although the late disclosure of the
alibis is something that the court must weigh up when deciding the
matter. Each
alibi raised by the accused is simple in its alleged
constituent facts. While it may be so that the state bears the onus
of disproving
an alibi, for it to do so it must know that an alibi is
being proffered and it must know what the facts relating to that
alibi
are. If an alibi is not revealed, it follows that the state
will have no ability to investigate it and either accept or reject
its authenticity. It was never put to the investigating officer that
any of the accused relied upon an alibi. Moreover, in the case
of
accused two, it is apparent that he did not even tell his legal
representative where he was on the evening of 6 March 2020,
for his
true whereabouts (according to him) were only revealed when the court
asked a final question at the conclusion of his testimony.
[251]
The accuseds’ alibis must fail for two
reasons. Firstly, by virtue of the extra curial statements that they
each made. Those
statements do not place them at the places that they
now claim to have been on the evening of 6 March 2020, but place them
squarely
at the rugby club at the critical moment on that night. It
is unnecessary to remark that it is physically not possible to be at

two different places at the same time. On their own admission, each
of them was at the rugby club and that shatters the veracity
of any
alibi that they have subsequently advanced. Secondly, they are not
men whose word can be accepted in the absence of corroboration.
Not
one of them called witnesses to corroborate where they allege that
they were on the night of 6 March 2020. Their alibis depend
solely on
them being credible witnesses. They are not credible witnesses.
[252]
The
state alleges that the accused were at the rugby club because they
developed a common purpose to go there to carry out a robbery
and had
armed themselves to ensure that they achieved their objective.
The
Constitutional Court in
S
v
Thebus
,
[27]
recognized that common purpose (also referred to as ‘a joint
criminal enterprise’) has two forms:
‘
The
first arises where there is a prior agreement, express or implied, to
commit a common offence. In the second category, no such
prior
agreement exists or is proved. The liability arises from an
active association and participation in a common criminal
design with
the requisite blameworthy state of mind.’
Thebus
,
[28]
with approval, referred to the following two definitions of the
doctrine of common purpose as being:
‘
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from their
“common
purpose” to commit the crime’;
[29]
and
‘
The
essence of the doctrine is that if two or more people, having a
common purpose to commit a crime, act together in order to achieve

that purpose, the conduct of each of them in the execution of that
purpose is imputed to the others.’
[30]
[253]
In
S
v Munonjo en ‘n ander
,
[31]
Nestadt JA dealt with the issue of subjective foreseeability. He
found that the liability of persons who are alleged to have a
common
purpose depends on whether they should have foreseen the consequence
of their actions.
[254]
While accused one and two in their respective
extra curial statements have both submitted that they were forced to
enter the rugby
club at gunpoint, I cannot accept that evidence, nor
can they rely upon that version to dilute their culpability because
they dispute
the contents of those statements. From the unchallenged
and accepted evidence of Mr Jardim and Mr Julyan, there is not a
suggestion
that the men who entered the rugby club did so in a manner
that betrayed that they were acting under duress. The six men that Mr

Jardim testified to seeing in the pub were all masked with
balaclavas. Those robbers that went to the tables where patrons were

sitting shouted instructions to the patrons and commenced striking
them with the flat side of the bush knives that they were wielding.

Mr Julyan testified that he himself was struck by one of the robbers
with the flat side of a bush knife. This is not the conduct
of
unwilling participants in the attempted robbery. None of this
evidence was disputed.
[255]
The three accused were thus at the rugby club late
in the evening of 6 March 2020. On their own individual version, each
of them
had gone there to participate in a robbery. Each described
the genesis of the plan as having been conceived previously in
Swaziland.
They left that country to come to South Africa with a
single purpose in mind, namely the implementation of their plan,
which was
to rob the rugby club and its patrons. To achieve this aim
they were armed and must have foreseen that those arms, whether in
the
form of pistols or bush knives, might have to be employed in the
event of them encountering any resistance whilst carrying out their

plan. Before going into the rugby club, accused two told Col Mbongwa
that:
‘
Bhungu
checked and confirmed whilst we were there that both pistols were
loaded with live rounds.’
Accused two was thus
fully aware of the presence of loaded firearms. However, both accused
one and accused three mentioned in their
respective statements that
they knew that two of their number, being Mr Mnisi and the deceased,
were armed with firearms. If loaded
pistols are discharged in a
confined space populated with human beings, the likelihood of injury
and even death eventuating is
high and is entirely foreseeable. The
accused all reconciled themselves with these possibilities and
proceeded to this country
to give effect to their plan. I must
therefore find that there was a prior agreement to commit the crime
and that the common purpose
is the first kind mentioned in the
earlier quoted extract from the judgment in
Thebus
.
[256]
I am not in a position to conclusively find who
shot whom at the rugby club. Disgracefully, no forensic evidence was
presented by
the state. The evidence, and common sense, however,
indicates that Mr Julyan shot and killed the deceased. I cannot make
a finding
about who shot and killed Mr Mathews, for I have heard no
evidence about the circumstances under which he was shot. In my view,

legally it makes no difference whether it was a robber or Mr Julyan
that shot Mr Mathews. The latter likelihood, however, appears

unlikely, because Mr Julyan testified that he was not with Mr Mathews
that evening and was not sitting with him.
[257]
The
reason why I do not believe that it makes a difference as to who shot
Mr Mathews arises from the facts of
Nkosi
v The State
,
[32]
to which I was referred by Mr Ngubane for the state. In that matter,
the appellant was a member of a gang that attempted to rob
the owner
of a business. During the course of the attempted robbery, the owner
of the business drew a firearm and began shooting
at the robbers.
During that gunfire, a member of the gang was killed. The appellant
was convicted of murder despite the fact that
he was not the person
who fired the shot that killed his fellow gang member. The matter was
taken on appeal to the Supreme Court
of Appeal, which held that he
had been correctly convicted. The appellant had argued that the
deceased had embarked on a frolic
of his own which caused his own
death and that the State had failed to prove that the appellant had
the requisite intent to commit
murder. The finding of guilty in the
court a quo appeared to have been based upon the concept of
dolus
eventualis
.
The Supreme Court of Appeal found that the robbers reasonably foresaw
the likelihood of resistance and the possibility of a shootout
and
accordingly armed themselves with loaded firearms. The shootout
occurred in the same room where the robbery was being perpetrated
and
during the course of that robbery. The conviction was accordingly in
order and the appeal failed.
[258]
I can discern no reason why the same principle
should not apply to the facts of this matter. It matters not who does
the killing
when a group have reconciled themselves with the
likelihood of that occurring and proceeds, nonetheless, with their
unlawful conduct.
[259]
Before concluding, finally, I feel I need to
address an issue that was raised by all of the accused. This related
to their counsel,
Mr Luthuli, allegedly being told a version and not
putting it to a witness or being told to challenge the evidence of a
witness
and not doing so. I made it very clear at the commencement of
the trial that I had no difficulty with Mr Luthuli taking
instructions
from the accused whenever necessary and I allowed it to
occur without restriction. The accused and Mr Luthuli made liberal
use
of this offer. Whenever Mr Luthuli took an instruction, he would
challenge the witness with what he had been told. In my view, Mr

Luthuli has applied himself diligently throughout the trial and has
invested great effort in properly representing his clients.
He has
not been correct in every decision that he has taken but I do not
accept at all that he neglected to properly put his client’s

version or that he acted contrary to their express instructions.
Indeed, this appears to me to be a manifestation of a traditional

tactic adopted by accused persons who, when caught in a difficult
moment, blame their counsel for their difficulty.
[260]
I accordingly conclude that the state has
established that each of the accused was at the Pongola Rugby Club
late in the evening
of 6 March 2020. They were part of a group of six
men that had gone there with the purpose of robbing the patrons and
the pub in
which they were found. They were each armed and must have
foreseen the possibility of applying force to overcome any resistance

that they potentially may have encountered. They all reconciled
themselves to this possibility and proceeded. The guilt of the

accused on all three of the counts that they faced has been
established beyond reasonable doubt by the state. They are thus all

found guilty on counts one, two and three.
________________________
MOSSOP J
APPEARANCES
Counsel for the state  :
Mr C Ngubane
Instructed by:
:  Director of Public Prosecutions
Pietermaritzburg
Counsel for the three
accused
:
Mr M
Luthuli
Instructed by
:           Legal
Aid South Africa
Durban
Date of Hearing
:           26, 27,
28, 29 February 2024 and
1, 4, 5, 6, 7, 11, 13,
14, 15 March 2024
Date judgment
commenced

:           13
March 2024
Date judgment
completed

:           15
March 2024
[1]
I am quite aware that
the name of Swaziland was changed to ‘eSwatini’ on
19
April 2018 to mark the country’s 50
th
year
of independence. Despite this, the indictment makes reference to
Swaziland and not to eSwatini, as do the applicants’
notices
of motion and founding affidavits. In the interests of consistency,
I shall also therefore refer to the country as ‘Swaziland’.
[2]
Ganes
v Telecom Namibia Ltd
2004
(3) SA 615
(SCA) para 19.
[3]
S
3(4) of t
he
Law of Evidence Amendment Act, Act 45 of 1988;
Kapa
v S
[2023]
ZACC 1; 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) para 30.
[4]
S v Ebrahim
1991 (2) SA 553 (A).
[5]
S
106(1)
(f)
of
the Act reads as follows:
‘
When
an accused pleads to a charge he may plead -
(a)
…
(f)
that the court has no jurisdiction to try the
offence;’
[6]
Plascon-Evans
Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51; [1984] 2 All SA 366 (A).
[7]
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009
(2) SA 277
(SCA)
para 26.
[8]
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
[2008]
ZASCA 6
;
2008
(3) SA 371
(SCA)
para 13.
[9]
S
v Mdyogolo
[2005]
ZAECHC 3; 2006 (1) SACR 257 (E) page 6.
[10]
The post mortem
performed on the deceased revealed fewer than eight or nine bullet
wounds.
[11]
S v De Vries
1989 (1) SA 228 (A) at 233H-­I.
[12]
The J88 documents
produced by Mr Luthuli made it clear that accused one was seen by
the same doctor on each occasion.
[13]
Arend v Astra
Furnishers (Pty) Ltd
1974
(1) SA 298 (C) at 306A-C;
Van
Vuuren v Van der Walt
[2022]
ZAGPPHC 705 para 6.
[14]
https://www.merriam-webster.com/dictionary/SIM%20card:
A
SIM, or Subscriber Identity Module, card is a
card
that is inserted into a device (such as a cellular telephone) and is
used to identify a subscriber on a communications network
and to
store data (such as telephone numbers or contact information).
[15]
Tom
v The State
[2022]
ZAECMKHC 98 (29 November 2022) at para 13.
[16]
R
v Taylor Weaver and Donovan
21
CR App R20 at 21.
[17]
S
v Van der Meyden
1999
(1) SACR 447
(W) at 448h-i.
[18]
S
v Trainor
2003
(1) SACR 35
(SCA);
[2003] 1 All SA 435
(SCA) para 9.
[19]
R
v Blyth
1940
AD 355
at
364.
[20]
Mhlongo
v S; Nkosi v S
[2015]
ZACC 19.
[21]
John
Henry Wigmore, John Theodore McNaughton, Peter Tillers, James Harmon
Chadbourn (1974): ‘
Evidence
in trials at common law
’
.
[22]
R
v Mokoena
1958
(2) SA 212 (T) 217.
[23]
R
v Hlongwane
[1959]
3 All SA 308
(A);
1959 (3) SA 337
(A) at 339C-D.
[24]
Shusha
v S
[2011]
ZASCA 171
para 10.
[25]
S
v Musiker
2013
(1) SACR 517
(SCA) para 15-16.
[26]
S
v Burger and others
2010
(2) SACR 1
(SCA) para 30.
[27]
S
v
Thebus
and another
[2003]
ZACC 12
;
2003 (2) SACR 319
(CC) para 19.
[28]
Ibid
para 18.
[29]
Burchell
and Milton
Principles
of Criminal Law
2
ed (1997) at 393.
[30]
C R
Snyman
Criminal
Law
4
ed (2002) at 261.
[31]
S
v Munonjo en ‘n ander
1990
(1) SACR 360 (A).
[32]
Nkosi
v The State
[2015]
ZASCA 125.