S v Tai-Tai and Others (CC21/2020) [2023] ZAECMHC 16 (29 March 2023)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2023
>>
[2023] ZAECMHC 16
|

|

S v Tai-Tai and Others (CC21/2020) [2023] ZAECMHC 16 (29 March 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. CC21/2020
In
the matter between:
THE
STATE
vs
LUZUKO
TAI-TAI
Accused No.1
MALETSATSI
MAKETENG

Accused No.2
SAMKELO
NONTWANA

Accused No.3
JUDGMENT
JOLWANA
J
:
Introduction.
[1]
The three accused persons were arraigned in this Court on charges of
conspiracy to commit murder, (count 1); arson, (count 2)
and counts
3, 4 and 5 which are murder charges. The State invoked the provisions
of
section 51
(1) of the
Criminal Law Amendment Act 105 of 1997
in
respect of the murder charges on the basis that the murders were
premeditated and that the accused acted in execution of a common

purpose.
[2]
The summary of substantial facts in terms of
section 144
(3) of the
Criminal Procedure Act 51 of 1977
which was attached to the
indictment does throw light into what the gravamen of the State’s
case against the accused is.
It reads as follows:
“
1.
Before the killing of the deceased persons, accused no.2 approached
accused no.1 looking for a person who she could hire to kill
her
estranged husband (Nyakambi Monoana).  And that she was prepared
to pay a sum of R10 000.00 for such killing.
Accused no.2
then introduced accused no.1 to her boyfriend one Sam.
2.
On the 6
th
of November 2019 during the day, accused no.2
phoned Zimasa Binca to arrange transport to take her to Walaza
Location during the
night at 22h00.  Zimasa then informed her
boyfriend who was running a business of taxi cab about the booking of
the cab by
accused no.2 to Walaza and her cell number 0[...].
3.
Around 23h15 Zimasa received a call from the same number that the cab
should wait for her near Mokhesi Bridge.  Indeed,
Mihlali Manzi
drove to the mentioned place and that is where he met and identified
that it was accused no.2, Sam and an unknown
guy.  Sam loaded a
black plastic at the back and accused gave directions to Walaza
Location.
4.
Accused no.2 instructed Mihlali to drive to the main road whilst Sam
and Accused no.1 had gone away to burn deceased house.
On
coming back accused no.1 and Sam came back smelling burns.
5.
The house of Nyakambi Monoana was burnt and he died of being burnt
with his girlfriend and his son.
6.
All 3 deceased died as a result of flame burns.”
The
pleas.
[3]
The accused pleaded not guilty to all the charges preferred against
them with their legal representatives indicating that the
accused
would not be disclosing the basis of their defence which was reserved
for trial.
The
case for the prosecution.
[4]
The first State witness was sergeant Tole.  She testified that
on 6 November 2019 while on duty at about midnight towards
early
morning she was at the charge office when they received a telephone
call reporting that a homestead at Walaza was on fire.
She
drove to Walaza and the time was about 2am.  As the vehicle
approached Walaza she could see from a distance that there
was a
burning house.  She drove to that homestead and went to a two
roomed structure that was on fire.  She looked through
the
window and saw a human body inside the first room.  She went to
the next room and saw two burnt bodies in the kitchen.
She
looked around in the yard of those premises.   She saw a
green water tank.  Next to the water tank she saw a
black bucket
which contained something that was green and smelled like petrol.
She looked around and next to the gate she
saw a black plastic which
had a plastic container with a yellow lid.  She opened the
container and it smelled of petrol.
After all those
observations she called the emergency services, the detectives and
the LCRC to come to the crime scene.  The
LCRC officers worked
on the crime scene and took exhibits.
[5]
The State then called Zimasa Bhinca.  She testified that she
stayed at Kroomspruit in Sterkspruit.  She was a student
at
Nelson Mandela Metropolitan University.  On 6 November 2019 she
was at home at Kroomspruit.  In the course of the
day she
received a telephone call from a lady enquiring about whether she had
a taxi cab.  After she confirmed that indeed
she was running a
taxi cab the lady enquired about prices for a return trip to Walaza.
She informed the lady that a return
trip to Walaza was R300.00.
The lady indicated that she would call again around 18:00 as she
would need a cab to take her
to Walaza.  She phoned her partner,
Mihlali Manzi and informed him that they had a trip to Walaza at
about 18:00.
[6]
Just after 18:00 the lady phoned again requesting to reschedule the
time.  The lady also mentioned that she would be coming
with a
sangoma whom she wanted to strength her household.  The lady
indicated that the rescheduled time should be about 10pm
to 12
midnight because the sangoma did not want to do the cleansing with
local people still moving around.  She told the lady
that that
would not be a problem as their business operated on a 24 hour
basis.  The lady said they would wait for the cab
near the
Mokhesi Bridge.  After 10 pm the lady phoned again indicating
that they were ready.  Zimasa then called her
partner Mihlali
and informed him that the people that needed a cab were ready.
[7]
The State called Mihlali Manzi.  He testified that he was
involved in various types of business ventures including farming
and
taxi cab services.  He knew the three accused persons.  He
saw accused no.1 for the first time on the day of the
incident and
thereafter he got to see him when he attended this case.  He
knew accused no.2 even before the incident from
a place called
Dlalanomemela where she was employed.    He first saw
accused no.3 when he met him at an event at
Memela.  He also got
to know that accused no.3 was a producer or presenter at LA-FM radio
station in Sterkspruit.  Thereafter
he would see him in local
social circles.
[8]
On 6 November 2019 at about 17:00 he received a call from Zimasa who
told him that there were people that would need a cab to
Walaza at
about 22:00.  He received another call from Zimasa at around
23:00 indicating that the people who needed a cab were
waiting near
Mokhesi Bridge.  He then drove to Mokhesi Bridge and found three
people who were waiting for him.  Accused
no.3 requested him to
open the boot of the vehicle.  Indeed, he opened the boot and
accused no.3 loaded a container of between
10 to 20 litres in the
boot.  The said container was in a black plastic bag.
Thereafter he drove off.  Accused
no.1 was introduced to him by
accused no.2 as a sangoma and he was told that he was going to
strengthen a certain homestead.
When they reached the Walaza
area accused no.2 gave him directions.  During the trip accused
no.2 was sitting in the front
passenger seat.  Accused no.3 was
in the rear passenger seat behind him and accused no.1 was seating
behind accused no.2.
Accused no.2 gave him directions until
they reached a certain homestead.  When they reached that place
accused no.2 made a
phone call and informed the person she was
calling that they had arrived.
[9]
Accused no.1 and 3 alighted from the vehicle.  Before they
alighted they requested him to open the boot for them.
He
opened the boot and they took out the object they had loaded.
He did not notice who took the object between accused no.1
and 3.
Accused no.2 asked him to drive to the main road and stop next to a
shop that was no longer operating.  He drove
to that spot with
accused no.2, leaving accused no.1 and 3 behind.  While they
were waiting there accused no.2 told him that
the sangoma was going
there to help her sister whose marriage was going through some
difficulties.  They were going there
at night so that her
sister’s husband could not see what was being done.  At
some point accused no.1 and 3 came back
running.  They got into
the vehicle.  As they boarded the vehicle he noticed that they
smelled smoke.  As a result,
he enquired from them what they
were smelling of.  Accused no.3 said they were smelling of the
thing they had used.
He also enquired why they were running.
Accused no.3 responded saying that it was because dogs were chasing
them.  He
asked them why they were not carrying the thing they
went with there.  They said that after a job they leave whatever
they
were working with at the place.
[10]
He drove with all three accused and it was quiet on the way.  He
dropped them off at the same spot he had earlier picked
them up near
Mokhesi Bridge.  They paid after which he parted ways with them.
The following day he went to Memela and
realized that accused
no.2 was not at work.  He learned there from one Nonelwa that
something happened at Walaza and that
police had just left.  He
never had anything to do with the accused again.
[11]
An inspection in
loco
which was by agreement between the State
and the defence during which the court was not present was done.
Both Manzi and
the accused and their legal representative as well as
the prosecutor were present.  Thereafter the State placed on
record
the following observations which it was indicated, were by
agreement:
1.
It was agreed between the State and the legal representatives for the
accused that from the point at which Manzi said he dropped
accused
no.1 and 3 to the homestead of the deceased, the distance was 150
metres.
2.
The distance from the point at which he dropped accused no.1 and 3 to
where he and accused no.2 waited for accused no.1 and 3
was also
agreed at 150 metres.
3.
It was also noted that the accused disagreed that the drop off point
was the one pointed by Manzi.
4.
The distance from where Manzi said he dropped accused no.1 and 3 to
where they said they were dropped was 100 metres.  Therefore,

from that spot to the deceased’s homestead the distance was 250
metres according to the accused.
5.
The distance from the place where Manzi alleged that he dropped
accused no.1 and 3 to where the accused said he dropped
accused no.1
and 3 is 50 metres and it is obscured from the one pointed by Manzi.
6.
When they returned the witness pointed near the Gamazini Carwash near
Mokhesi as the spot at which he dropped off all the accused
after
they had returned from Walaza.
7.
According to the accused they were dropped off at a place known as
Dukathole next to a cash loans advertising board near Mokhesi.
8.
The distance between the two places is 50 metres.
[12]
Under cross-examination Manzi testified that he estimated the
distance from where he picked up all the accused to Walaza to
be
between 15 and 20km.  He testified that when he opened the boot
for accused no.3 to put the plastic bag that had a container
of about
10 to 20 litres he was sitting in the driver’s seat.  He
testified that in his statement and in his evidence
he did not
mention a smelling of petrol because he did not smell petrol.
He confirmed that the spot where he dropped accused
no. 1 and 3 was
about 150 metres from the deceased’s homestead.  He denied
dropping accused 1 and 3 about 100 metres
from the spot that he
pointed.  He denied dropping them next to Mr Monoana’s
place.  He said that while he is not
from Walaza, he is from
Sterkspruit and he could never miss Mr Monoana’s place.
He agreed that the distance from Mr
Monoana’s place to the
dropping place that he pointed was 50 metres.
[13]
He confirmed that the person who was giving him directions when they
were going to Walaza was accused no.2.  It was put
to him that
his evidence that the plastic bag carried by accused no.3 contained a
container was a fabricated story which he made
up after he learned
that a container was found at the crime scene.  He denied
fabricating his evidence in this regard.
It was further put to
him that the plastic bag that accused no.3 carried had clothes in
it.  His response was that while he
would not know what accused
no.3 was carrying, he maintained that he saw a container in that
plastic bag.  He denied that
when accused no. 1 and 3 returned
to the vehicle accused no.3 was in possession of a plastic bag and
denied having to open a boot
for accused no.3.  It was put to
Manzi that the purpose of going to Walaza was to get dagga and those
clothes that were in
that plastic bag were going to be used to
exchange them for dagga.  His response was that he would not
know that.  He
denied that when they returned to the vehicle
accused no.3 was carrying anything.
[14]
The next witness for the State was Keketso Mokgejane.  His
evidence was that he knew accused no.1 as they resided in the
same
rental premises but occupying different rooms and were neighbours.
At the time which was in 2019 accused no.1 worked
as a security guard
at a shop called Metro in Sterkspruit.  He also knew accused
no.2 from her work place.  She also
stayed in the same premises
as himself and accused no.1.  He did not know accused no.3 but
he would see him when accused no.3
would often visit accused no.2 but
he never saw him anywhere else.  In November 2019 he, accused
no.2 and accused no.1 went
together to Walaza where they fetched some
goods from a certain homestead.  They travelled in a bakkie.
He knew that
homestead but he did not know the owner thereof.
It had a two roomed flat structure.  The goods they fetched were
a
cupboard and some other items he did not remember.  He did not
know if accused no.2 was related to the people in that homestead
but
she said it was her homestead.  They took the goods to her place
of residence in her flat.  The goods were off loaded
from the
vehicle and taken to her flat or room.  Some of the goods or
items did not have space in her room.  They put
those other
items in his room.  The items that were put in his room were
five containers.  Four of those five containers
were 25 litres
and one was twenty litres in size.
[15]
The following day he, accused no.1 and accused no.2 were in her room
and bought liquor which they consumed.  At some point
he went
out and when he came back he was told not to enter as they were still
discussing something.  He then went to his own
room.  At
about 18:00 or thereabout accused no.2 came to his room and borrowed
a container saying that she was going to fetch
water.  He gave
her one 25 litre container.  She said she wanted the one that
was black with a yellow lid.  He gave
it to her, after all it
was hers.  He later saw the three accused persons getting out of
the gate from those premises singing
or chanting.  That was the
last time he saw them on that day.
[16]
The following day at about 10:00 am he noticed that accused no.1 was
not waking up.  He went to his room to wake him up.

Accused no.1 opened the door and he noticed that his face was black.
He asked him where he was burning fire.  Accused
no.1 said that
he should have followed him when he was told to leave as this would
not have happened.  Keketso enquired from
accused no.1 as to
what happened.  He did not give him an answer.  Keketso
then left.  Later that day police arrived
looking for the
accused persons.  He added that on the day that he had gone out
of accused no.2’s room he had left his
coat in accused no.2’s
room.  The following day he went to fetch it and noticed that it
was burnt.  He did not
know what happened or how it got burnt on
the sleeve and on the edges at the back.  When he fetched the
coat accused no.2
was on her bed and accused no.3 was also in the
room.  He took his coat.  When he left it there, it had not
been burnt.
He asked accused no.2 why his coat was burnt.
Her response was that she did not know.  Thereafter he asked
accused no.1
about his burnt coat and he also said he did not know.
He further enquired from him how come his coat was burnt as it had

not been burnt when he left it.  However, he decided to leave
the issue like that and washed his coat.
[17]
Under cross-examination Keketso testified that when he was
interviewed by the police he did not mention that he together with

accused no.1 and 2 went to fetch goods from Walaza.  He also did
not tell them about him going to accused no.1’s room
and
finding him with black face and asking him when he had burnt tyres.
He said the reason he did not tell the police about
accused no.1’s
burnt face was because he did not know what burnt his face.  He
only made the statement to the police
when everything had happened
when Mr Kutwana, the investigating officer approached him.
Their trip with accused no. 1 and
2 to Walaza to fetch goods happened
and the statement was taken after the trip to Walaza.  Police
approached him on the day
he heard about the Walaza incident asking
about the whereabouts of accused no. 2.  He could not recall
when Mr Kutwana approached
him but it was still in November 2019.
It was put to him that the statement was made on 18 January 2021.
His response
was that the statement was taken a long time ago,
perhaps he forgot as to when it was actually made.
[18]
It was put to Keketso that accused no.1 went to Walaza with him not
in November 2019 but at the beginning of October 2019.
He
disputed this saying accused no.1 was lying.  It was further put
to Keketso that at the beginning of October 2019 he, accused
no.1 and
another person went to Walaza to fetch accused no.2’s brother’s
goods because he was going to be working in
Cape Town.  His
response was that accused no.1 was lying.  He did not know
accused no.2’s brother’s homestead.
What he did
know was that they went to Walaza to fetch the goods.  Accused
no.2 said that they were fetching the goods from
her homestead and
they were fetching her own belongings.
[19]
He testified that he did not mention to the police leaving his coat
at accused no.2’s place and finding it burnt in some
places
because when he had asked accused no.2 about it, she said she did not
know.  It was put to Keketso that accused no.2
did not dispute
going to Walaza with him in 2019 but she was saying it was early in
October.  Keketso said he did not remember
the date and the
month but what he was saying was that they did go to Walaza.  It
was further put to him that accused no.2
disputed that she had said
to him that the homestead from which they went to fetch the goods was
hers.  Keketso said that
accused no.2 was lying.  He
personally did not know the owner of that homestead but it was
accused no.2 who told him that
it was her homestead. He said that he
went to that homestead for the first time when he went there with
accused no.2.  He
did not know to whom the goods belonged and
would therefore not dispute that they belonged to accused no.2’s
brother Lefu.
He confirmed that accused no.2 went to his room
to fetch a container the following day after they had returned from
Walaza.
[20]
He disputed accused no.2’s version that she fetched the
container from him on 3 November 2019 and said that she fetched
the
container from his room on the 6 as he was on duty on that day but he
could not recall the month.  He testified that the
5 was on a
Tuesday.  He worked on Tuesdays, Thursdays and Sundays and only
when it was busy that he worked everyday Monday
to Friday.  He
disputed accused no.2’s version that he was not present when
she came to fetch the container from his
room saying that accused
no.2 was lying.  He denied that only three containers, two of
them were white and one was yellow
were kept in his room insisting
that they were five.  He said that there were five containers,
four of them were 25 litre
containers and one of them was a 20 litre
container which was black with a yellow lid.
[21]
He denied that he had meals at accused no.2’s place and said
that it was accused no.1 who used to have meals at accused
no.2’s
place.  He denied having a quarrel with accused no.2 and being
told to stop eating there or even coming to her
place.  His
evidence was that accused no.2 was lying and that they are still
close even now and that he never had any quarrel
with accused no.2.
He denied that his evidence in court was because of the alleged
quarrel.  It was put to him that
accused no.2 denied that he
ever left a coat in her room.  He said that accused no.2 was
lying and that she knew very well
that he left his coat there.
It was put to him that when he saw the container as accused no.2 was
leaving the premises,
she was going to fetch water and she was with
her sister and accused no.3.  Keketso testified that accused
no.2 was lying
insisting that she came to fetch the container from
his room.  Then she was joined by accused no.1 and 3 and all
three of
them left together from the premises.  He did not know
her sister and that the only female was accused no.2 when they left

the premises.
[22]
The next State witness was Mr Combi.  He testified that he
resided at Walaza.  He knew the deceased Nyakambi Monoana.

He was his brother but he uses their mother’s surname because
he was raised by his mother’s family.  He knew accused

no.2 as she was his brother’s wife but they had been in
separation for about four years when his brother died.  In
November 2019 they were no longer living together as husband and
wife.  Accused no.2 left their common home.  At the time
of
his death the deceased stayed with Kekeletso Senoamadi and a boy
child who was 13 years old at the time.  During the night
of the
6 November 2019 he received a call in which he was told that the home
of the deceased was on fire.  He and his wife
proceeded to the
home of the deceased.  On arrival they found that indeed the
deceased’s homestead was on fire and there
were members of the
community there.  The deceased persons were inside the burning
structure lying there.  He saw a 20
litre container next to a
water tank.  At that stage police had arrived and warned them
not to touch anything.  He did
not report the incident to
accused no.2.  He continued with the preparations for his
brother’s funeral and accused no.2
did not attend the funeral.
[23]
He confirmed that accused no.2 had a brother who stayed at Walaza in
2019.  He could not remember when accused no.2’s
brother
left Walaza.  With reference to photo no.2 which is in the photo
album which was submitted as an exhibit he testified
that photo no.2
depicted the 20 litre container that he referred to including the
plastic bag.  Photo no.4 depicted a bucket
that was smelling
petrol which was also at the crime scene.
The
trial within a trial.
[24]
The State indicated its intention to lead evidence in relation to a
statement allegedly made by accused no.1 which it believed
was a
confession as well as a pointing out allegedly made by accused no.1.
The attorney for accused no.1 indicated that his
instructions were to
object to the evidence of the said statement and the pointing out.
The reason for the objection was
that that the said statement and
pointing out were not obtained freely and voluntarily in that accused
no.1 was beaten, assaulted,
tortured and threatened by the police
into making the statement and doing the pointing out.  He feared
for his life and out
of that fear he did what the police told him to
do.  He was told where to point and what to point before he went
to do the
pointing out.  His constitutional rights were not
explained to him during the interview with the police which preceded
to
confession and pointing out.
[25]
The State applied and was granted leave to open a trial within a
trial to determine the admissibility of the statement made
by accused
no.1 as well as the pointing out.  The State called sergeant
Kutwana, the investigating officer of the case.
He testified
that he works as a detective at Palmietfontein police station.
On 6 November 2019 he received a phone call at
night in which he was
told that a certain homestead at Walaza had been set on fire with
people inside.  He proceeded to Walaza
and when he got there the
date was the 7 November 2019 and from then police investigations
continued.  On the 8 November 2019
he received a phone call for
his informer.  His informer told him to look for accused no.1
accused no.2 and her boyfriend
whose name the informer did not know
at the time.  On that very same day he proceeded to accused
no.2’s place of residence
in Mokhesi.  She was present and
he told her that she was a person of interest in the Walaza
incident.  He enquired from
accused no.2 about any knowledge
that she might want to share with the police about the Walaza
incident.  Her response was
that she knew nothing.  He
asked her about her boyfriend and she said his name was Samkelo
Nontwana who is accused no.3 in
this case.  He eventually met
accused no.3 in town that same afternoon and he also told him that he
was also a person of interest
in his investigations about the Walaza
incident.  He requested accused no.3 to give him his cellphone
handset and he agreed.
[26]
He then proceeded to accused no.2’s place of residence but she
was not present this time.  He eventually found her
at Hohobeni
in a church service.  He took her to her place of residence.
He asked for her cellphone and she said even
the cellphone of accused
no.1 was with her.  He took both handsets with him.  He
requested her for permission to search
her place and she agreed.
She searched it and found a jacket and a pair of trousers which she
said belonged to accused no.3.
Those clothing items were
smelling of smoke and he took them to the police station.  He
looked for accused no.1 from the 8
to the 10 November 2019 but he
could not find him anywhere.  Even at his home at Pelandaba he
was not there.  At work
he was told that he was no longer
reporting for duty.  Then on 11 November 2019 he received
information from his informer
that accused no.1 was on his way to his
place of residence.  The time was about 12 midday.  He
together with sergeant
Moahloli proceeded to accused no.1’s
place of residence.  They found him and introduced themselves to
him and also told
him why they were there.  Accused no.1
co-operated with them and agreed to come to Palmietfontein police
station with them.
When they arrived at the police station he
told him his constitutional rights.  He asked him what his
choice was and he said
that he would speak on his own and that he
would co-operate with the police and tell them what happened.
[27]
He interviewed accused no.1 about what happened on the day of the
incident at Walaza.  From what he was saying it seemed
to him
that accused no.1 was not present when the fire started.  As he
was taking a statement from him he noticed that he
had some burns on
his face.  He asked him about the burns and he then said that he
got those burns on the day of the incident.
He decided to
inspect his body and noticed that he had burns also on his waist at
the back as well as the back of his leg.
It is then that
accused no.1 told him what happened on the day of the incident.
As he listened to his story he realized that
he was also involved in
that incident.  He therefore stopped him from continuing with
his narration of what happened.
He asked him if he would be
prepared to repeat his narration before a commissioned police officer
or a magistrate.  Accused
no.1 requested that he should arrange
a magistrate for him so that he could narrate everything before the
magistrate.  He
asked him since the incident occurred at night
if he knew the area where it occurred and he said he knew the area.
He asked
him if he would be prepared to do a pointing out to another
police officer and he said he would have no problem with that.
[28]
The time was about 16:00 at that stage and the court had already
closed for him to arrange a magistrate.  He then decided
to let
accused no.1 go home.  This was because even when he fetched him
for his place of residence he co-operated with him.
He
therefore saw no need to keep him in the holding cells before he met
the magistrate.  That was how they parted ways on
11 November
2019.  On the 12 November 2019 he came to court very early and
met Mr Tloti who was a magistrate in Sterkspruit
at the time.
He made his request for him to take accused no.1’s statement.
Mr Tloti indicated that he would be
able to see accused no.1 on that
very day.  He also made arrangements for captain Modise to do
the pointing out and he agreed.
He then went to the police
station to fetch sergeant Ndulula whom he wanted to take accused no.1
from his place as he had arranged
with accused no.1 that he would
fetch him after he would have made all the arrangements. He and
sergeant Ndulula travelled in two
separate vehicles going to accused
no.1’s residence.  In his vehicle he was with sergeant
Moahloli and sergeant Ndulula
was alone in his vehicle.  As they
reached the Mokhesi Bridge which is near accused no.1’s place
of residence he saw
accused no.1.
[29]
He then went to sergeant Ndulula and told him that accused no.1 was
the person he was going to fetch from his home.  They
proceeded
back to Palmietfontein police station with accused no.1.  When
they arrived at the police station he asked accused
no.1 if he was
still prepared to make the statement to the magistrate and was also
still prepared to do the pointing out.
He said he was still
prepared to carry on with those things.  The statement was to be
done on the 12 November 2019 and the
pointing out was to be done on
13 November 2019 in terms of the arrangements he had made with
magistrate Tloti and captain Modise.
He parted ways with
accused no.1 whom he handed over to sergeant Ndulula.  He met
sergeant Ndulula at about 18:00 on the 12
November 2019 and he gave
him accused no.1’s statement which had been recorded by the
magistrate.  He then arrested
accused no.1 and detained him.
On 13 November 2019 he again asked sergeant Ndulula to go with
captain Modise for the pointing
out.
[30]
He testified that accused no.1 was never assaulted, forced, induced
or tortured at any stage to make a statement.  He
explained that
accused no.1 even had an opportunity to run away if he had been
assaulted or even go to Sterkspruit police station
to report the
assault as the interview with him took place at Palmietfontein police
station.  On the 11 November 2019 after
he had finished
interviewing him he drove him back to his place of residence to spend
the night at his place and come back the
following day.
Therefore, he had an opportunity to run away if he had been
tortured.  As far as the pointing out was
concerned sergeant
Kutwana testified that he was not present when it took place.
Therefore, he would not be able to respond
to accused no.1’s
allegation that he was told places and points to point out.
Even the officers who went with him to
do the pointing out were not
familiar with that area.
[31]
At no stage was he dealt with by six police officers.  He was
with one police officer when he interviewed accused no.1
at the
police station, sergeant Moahloli.  The other officers who were
at the police station were busy with their daily duties.
He
denied that the statement was not made freely and voluntarily.
He testified that accused no.1 was never assaulted throughout
his
dealings with him.  It was a lie that he was confronted with
information obtained from an informer upon arrival at the
police
station.  He denied that accused no.1 was schooled on what to
say and said that everything contained in his statement
came from
him.  He further testified that he could not have schooled him
as he did not know how the events unfolded.
He denied that he
wanted accused no.1 to be a State witness.  He denied
suffocating accused no.1 with plastic bags or twisting
his private
parts.  He denied schooling accused no.1 about the points he
wanted him to point out.  He denied threatening
accused no.1
with drowning him at the Orange River if he told the magistrate about
being tortured or forced to make a confession.
[32]
Sergeant Kutwana was further cross-examined by the legal
representative for accused no.2 and 3.  He denied finding
accused
no.3 at accused no.2’s place of residence and
confiscating both their cellphones.  He explained that he
confiscated
accused no.3’s cellphone when he met him in town
whereas he confiscated accused no.2’s cellphone in her place of
residence.
It was further put to him that accused no.2 says
that when he took accused no.3’s clothing in her place of
residence and
he said that they smelled of paraffin or petrol, but he
never said they smelled of smoke.  Sergeant Kutwana testified
that
he never told accused no.2 that those clothes smelled of smoke.
He kept that to himself.  He denied breaking at accused
no.2’s
place of residence saying that he found her at Hohobeni and took her
to her place of residence which she opened on
her own.
[33]
The next State witness was Dr Godlwana.  She testified that in
November 2019 she worked at Empilisweni Hospital in Sterkspruit.

On 12 November 2019 she performed her duties as a medical officer at
the casualty area.  At 14:34 she saw accused no.1 and
examined
him and completed a J88 form.  He was brought by constables
Kutwana and Moahloli.  She read the information
she had recorded
in that J88 form into the record.  At no.5 of
part 2
thereof she
had recorded that accused no.1 told her that she had been burnt with
petrol and fire by one adult male and one adult
female that were
known to him at around 12 am on 6 November 2019 at midnight.  He
said that he was burnt on the face, the
lower back, and backside of
his left leg.  She testified that all that information came from
accused no.1 himself.  Her
clinical findings were that accused
no.1 had first degree burns on the face and nose.  He had second
degree burns on the lower
back, the upper thigh and the lower limb of
the left leg.  She estimated those burns to have been about six
days old and were
in their healing stages.  She further
testified that if he had been assaulted on 11 November 2019 such
assault would have
been evident on his body on 12 November 2019.
When she examined a patient she did so with his clothes off so that
she could
examine him or her from head to toe.
[34]
Under cross-examination it was put to Dr Godlwana that the police
officers who brought accused no.1 to hospital were the source
of the
information regarding how the burns were inflicted, it did not come
from accused no.1.  She testified that the contents
of the J88
form were a reflection of the examination she conducted and the
information contained therein was that of the patient.
She
further testified that she examined the private parts of accused
no.1.  Whether or not there would be evidence of his
private
parts having been twisted would depend on how long the twisting took
place and the amount of force applied as well as the
technique used.
Accused no.1 never told her that his private parts had been twisted
when he gave her the history she recorded.
[35]
The second J88 form was read into the record.  It was also
completed by Dr Godlwana also on 12 November 2019 at 17:12
after he
had been brought by police for the second time.  She testified
that a patient examination is done without the police
being present
even where they had brought the patient because of the
confidentiality as the patient might divulge things that were
not
intended to be of general knowledge.  When she examined accused
no.1, it was just the two of them in the room and the
police officers
were waiting outside.  Nothing had changed with the accused from
the earlier examination.  There was
no evidence of new physical
trauma.  She denied that there was a stage in which she was
found by the accused with the police
officers who had taken him
there.  Even during the second examination she had to examine
the patient as if she was doing it
for the first time.
[36]
The State called Mr Sithembele Tloti who testified that he is a
magistrate currently based at Edenburg in the Free State.
In
November 2019 he was based in Sterkspruit.  On 12 November 2019
he was asked to assist in taking a confession.  He
requested the
clerk of the court to get a pro forma of the confession and an
interpreter for him.  After all the preliminary
arrangements had
been made he asked that the person concerned should be brought in.
He took down the details of the police
officer who brought the
suspect in after which he excused him so that only himself, the
suspect and the interpreter were in his
office.  He did the
introductions and attended to the preliminary formalities.  He
thereafter read the confession pro
forma as completed on 12 November
2019 into the record.  There is nothing peculiar on the pro
forma and the information contained
therein save for a part in which
the pro forma requires the suspect to explain to the magistrate how
he was treated by the police
from the time of arrest until he was
brought before the magistrate.  His response was:
“
Today
they did not ill treat me before they brought me here.
Yesterday they arrived at home saying they were looking for me.

I do not wish to say anything regarding the treatment I got
yesterday.”
[37]
Mr Tloti was cross-examined on the pro forma document.  His
cross-examination related to what accused no.1 said allegedly

happened before he was brought to him.  As would be expected Mr
Tloti would not be able to comment on any of the things that

allegedly happened in his absence.  Those all concerned the same
things that were put to sergeant Kutwana during the police’s

interaction with accused no.1.  Mr Tloti’s evidence was
that while he did not know what happened before accused no.1
was
brought before him as he was not present, when he was before him he
appeared to be making the statement freely and voluntarily.
The
magistrate’s evidence was that if accused no.1 had told him
that he had been schooled on what to say to him he
would have
recorded that as well.
[38]
The next witness was Mr Sipamla, the interpreter who assisted with
interpretation when accused no.1 was before the magistrate.

There is nothing peculiar about what happened when the accused was
before the magistrate in the presence of Mr Sipamla who did
the
interpretation.  In fact he was not even cross-examined as it
was the accused’s case that everything went well during
that
process.
[39]
The State called its next witness, sergeant Ndulula.  He
testified that he was stationed at Palmietfontein police station.

On 12 November 2019 he received a call from constable Kutwana in the
morning requesting him to assist with a suspect who wanted
to make a
confession.  He was driving a marked police vehicle and was with
sergeant Bahlekazi.  Constable Kutwana was
in his own vehicle
with constable Moahloli.  As they drove towards Sterkspruit
constable Kutwana showed him accused no.1 as
the person he wanted to
be assisted with.  They met accused no.1 at Mokhesi just before
the town of Sterkspruit.  Kutwana
then requested accused no.1 to
come to his vehicle.  From there they all drove to constable
Kutwana’s office at the
police station.  After Kutwana did
some paper work he handed accused no.1 to him and asked him to take
him to the magistrate.
But before he took accused no.1 to the
magistrate he took him to Empilisweni Hospital where he was attended
to by a doctor.
He wanted the doctor to complete a J88 form
before accused no.1 was taken to the magistrate.  The doctor
examined accused
no.1 and completed the J88 form and signed it after
which he brought accused no.1 to the magistrate.
[40]
He met the magistrate in his office and told him that he had brought
a suspect for the confession.  The magistrate took
his details
after which he excused him.  He came back only after the
magistrate had finished taking the confession.
The magistrate
handed the confession to him and he took accused no.1 back to
Empilisweni Hospital with a new J88 form.  Accused
no.1 was
examined again and the J88 form was completed after which he drove
back to the police station with accused no.1 and gave
all the
documents to Kutwana and left.  On 13 November 2019 he was told
that captain Modise would be coming and he was requested
to assist
him with the pointing out that accused no.1 wanted to do.  He
took a clean J88 form and took accused no.1 from the
cells to
Empilisweni Hospital.  The doctor examined him and completed the
J88 form after which he took accused no.1 and the
J88 form back to
the police station.  At the police station accused no.1 met
captain Modise in the office.  After that
he drove captain
Modise and accused no.1 to Walaza.  After the pointing out was
done he drove back and took accused no.1 and
a clean J88 form to
Empilisweni Hospital again.  After he was examined and the form
was completed he took accused no.1 back
to the police station.
[41]
Under cross-examination it was put to sergeant Ndulula that accused
no.1 knew Walaza locality even before the 13 November 2019.

What he did not know was the homestead in which people were burnt to
death.  Sergeant Ndulula testified that it cannot be
true that
he did not know that homestead as he was the one who gave him
directions to that homestead as he was driving.  He
gave
directions all the way to the crime scene.  As far as having
been schooled on what to point out Ndulula said that he
did not know
what accused no.1 was schooled to say or point out.  All he knew
was that as the driver it was accused no.1 who
gave him directions to
the homestead that was a crime scene.  Prior to his interaction
with the accused he knew Walaza and
he knew the directions from
Palmietfontein police station to Walaza and accused directed him to
that homestead.
[42]
The State called Dr Ntethe.  She testified that on 13 November
2019 she was on duty at Empilisweni Hospital.  Police
brought
accused no.1 for examination.  She examined him and filled in
the J88 form.  She examined him two times that
day.  She
first examined him at 10:05 and then at 15:00.  During the first
examination she observed that he had two healing
abrasions, one on
the right hand side of the face and the other one below the left side
of the cheek.  He also had two second
degree burns on the lower
side of the back which was becoming septic and also on the left leg
at the back.  There were no
fresh injuries.  She again
examined accused no.1 at 15:00 when he was brought for the second
time by the police.  There
was no change in his condition from
the earlier examination and no fresh injuries were noted.  Dr
Ntethe was not cross examined
on her evidence.
[43]
The next witness for the State was captain Modise.  He testified
that he was a police captain stationed at Maletswai police
station
detectives’ unit.  On 12 November 2019 he received a call
from sergeant Kutwana requesting him to assist him
with a pointing
out.  They arranged that he would do it on the 13 November
2019.  On 13 November 2019 he drove to Palmietfontein
police
station.  On his arrival he was allocated an office and waited
for the suspect to be brought in.  Constable Ndulula
brought
accused no.1 in after which he left him with accused no.1.  He
had with him a pointing out form which he completed.
He
obtained all the details of the accused from the accused himself and
they were both communicating in isiXhosa and there was
no
interpreter.  The photographer who had been arranged to take
photographs joined them for the pointing out photographs.
After
the initial photographs of accused no.1 were taken in the office they
proceeded to the vehicle and more photographs of the
vehicle and
themselves were also taken.  They then left for the pointing out
in a vehicle driven by Ndulula.
[44]
Under cross-examination he testified that accused no.1 did not tell
him anything about being schooled, threatened or assaulted
by the
police.  It was confirmed by accused no.1’s legal
representative that indeed he told accused no.1 his constitutional

rights.  He testified that while he would not be able to comment
on what was allegedly done by the police to accused no.1,
he was
certain that during the pointing out he was doing the pointing out
freely and was in fact relaxed.  It was put to him
that while
Ndulula was driving in Walaza when accused no.1 saw a burnt down
house he pointed it out as he was previously directed
by the police.
Captain Modise testified that his impression was that accused no.1
was doing the pointing out as someone with
a personal knowledge and
wanted to point out what he wanted to point out.  Nothing arose
out of the cross-examination.
[45]
The State called sergeant Mooko.  He testified that he is a
police officer stationed at Aliwal North LCRC.  On 13
November
2019 he was requested by Kutwana to assist captian Modise with a
pointing out.  He drove to Palmietfotein police
station and
found captain Modise already interviewing accused no.1.  Captain
Modise introduced him to the accused.  Captain
Modise asked the
accused to have his photos taken in a semi naked position.
Indeed, he agreed and the initial photos of accused
no.1 were taken
in the office with his permission.  The purpose of those photos
was to have visual aid of any injuries the
suspect might have.
Thereafter they moved to the vehicle where more photographs were
taken including the ones for the vehicle
that was going to be used.
Thereafter he followed captain Modise’s vehicle who was with
the accused and the driver.
Captain Modise was in constant
conversation with the accused person at the crime scene which is
where he took photographs of everything
pointed out by the accused.
After that they drove back to Palmietfontein police station where he
took pictures of the vehicle
on return.  They then went inside
to the office and photographs were again taken with the accused being
semi naked.
Sergeant Mooko was not really cross-examined on his
evidence on anything of significance.
[46]
The next witness for the State was sergeant Moahloli.  He
testified that he was at work at Palmietfontein police station
on 11
November 2019.  He was with Kutwana when the latter received
information on the investigation of the Walaza incident.
They
followed up on that information and went to the place of residence of
accused no.1.  After the preliminary introductions
they
requested him to come to the police station with them.  He
agreed and at the police station Kutwana informed accused
no.1 of his
constitutional rights after which the accused indicated that he would
like to talk on his own and co-operate with the
police.  At some
point Kutwana noticed that accused no.1 had some injuries on his face
which appeared to be burns.  Accused
no.1 also showed Kutwana
other burns on his body.  On being questioned further it
transpired that accused no.1 had knowledge
about the Walaza
incident.  Kutwana asked accused no.1 if he would be prepared to
repeat that information to a commissioned
police officer or
magistrate.  He agreed to that.  It was late in the
afternoon and because of the co-operation of the
accused, Kutwana
decided to release him to go back home on the basis that he would
arrange for his statement to be taken the following
day.
[47]
On the 12 November 2019 he and Kutwana drove to the accused’s
place of residence.  However, they came across him
along the
way.  There was also another vehicle from their work place that
was following them driven by Ndulula.  Kutwana
asked accused
no.1 if he still wanted to continue with making the statement and he
responded in the affirmative.  Accused
no.1 boarded Ndulula’s
vehicle and they drove back to the police station.  He denied
that accused no.1 was ever assaulted
and forced to make a statement.
He confirmed that accused no.1 was informed of his constitutional
rights and denied that
he was coached on what to say to the
magistrate.
[48]
Under cross-examination he denied that on their arrival at his place
of residence they told accused no.1 that they had all
the information
on the Walaza incident and that he should not waste their time.
He denied that accused no.1 was assaulted
or taken to the police
station without being given his constitutional rights or without his
permission.  He denied that they
told accused no.1 that they
knew that he was not involved in the Walaza incident and that they
wanted him to be a State witness
and must make a statement
incriminating his co-accused.  He denied that accused no.1 was
tortured and his private parts twisted
or threatened with being
drowned at the Orange River.  He testified that in fact accused
no.1 was so co-operative that they
decided to let him go home as the
statement was to be taken the following day because it was late.
It was put to him that
indeed on 12 November 2019 Kutwana enquired
from the accused if he was still willing to make a statement and he
said indeed he
had decided to continue with the statement.
Moahloli confirmed that.  He however denied that the contents of
the statement
made before the magistrate did not come from accused
no.1 and that he made the statement to the magistrate based on what
Kutwana
told him to say.  He further testified that accused no.1
was not told how to do a pointing out or even schooled on what to

point out at the crime scene.  He pointed out however that he,
Moahloli was not involved with the pointing out.  After
this
evidence the State closed its case in the trial within a trial.
The
evidence of accused no.1 in the trial within a trial.
[49]
Accused no.1 testified in the trial within a trial to give evidence
about the treatment he allegedly received in the hands
of the police
on 11 and 12 November 2019, that evidence being the basis upon which
he contended that the confession and pointing
out which the State
sought to introduce should be declared inadmissible.  His main
contention was that both the confession
and pointing out were not
freely and voluntarily made.  He testified that after supper he
received a call from his father
informing him that police have been
looking for him.  His father told him that he had been receiving
phone calls from the
police who told him they were looking for him.
[50]
He testified that after hearing from his father that police were
looking for him, he went to the police in Sterkspruit.   The

Sterkspruit police told him that they were not the ones who were
looking for him.  He then decided to go to his place of
residence in Mokhesi where he was renting a room.  When he got
there he saw a police vehicle but those detectives could not
see
him.  He noticed that accused no.2’s room had been broken
into and the police officers were inside.  He proceeded
to his
room and applied his ointments on his injuries.  While he was
still doing that, Kutwana and Moahloli barged in.  Kutwana
came
in and slapped him with an open hand on the wounds.  He
testified that he and Kutwana were known to each other but Kutwana

asked “if this is Zuko”.  At that stage Kutwana was
carrying a pipe.  Moahloli slapped him with an open hand
as
well.  Kutwana used the pipe he was carrying to hit him many
times in the shoulder area.
[51]
The reason proffered by these police officers for assaulting him were
given only after they had finished assaulting him with
the pipe.
They asked him what he did at Walaza.  When he told them that he
did not know anything about that, they said
that he was playing.
They told him that they have an informer who had told them
everything.  It was at that moment that
Moahloli jumped onto him
and throttled him.  They told him that he was lying and that he
would tell the truth.  They
took him and put him in the vehicle
and drove with him to the police station.  When they arrived at
Palmietfontein police
station they took him to their officers and
handcuffed him to a drawer of a steel cupboard and left him like that
saying they were
going to have a meal.  When they came back
Kutwana and Moahloli were joined by a third police officer and they
asked him questions
about this case.
[52]
They told him that he was implicated in the burning of a house at
Walaza but they were actually after accused no.2 and 3.
They
told him that he was also present during the incident when the house
was burnt and people were killed.  Throughout he
was never
informed of his constitutional rights by the police.  He was
just kicked and assaulted and told that he would say
what they wanted
him to say.  When he did not speak saying that he did not know
anything they started hitting him hard especially
on his burn wounds
and took turns in doing so until he became weak.  They continued
hitting him for a long time.  They
took evidence bags and said
if he wanted to say something he should stomp his feet on the floor.
They inserted the plastic
bag on his head and sealed it so that he
could not breath.  He then decided to stomp his feet on the
floor.  The plastic
was removed but when he said he did not know
anything the police inserted it again and suffocated him for a long
time.  When
he realized that they were not stopping he stomped
his feet on the ground again.  The third police officer rolled
up his sleeves
and would squeeze his private parts very hard every
time he was suffocated with the plastic.  He would also hit him
with fists,
go up and down and hit him some more with fists.
[53]
Eventually he succumbed to the torture and agreed to a statement that
the police officers gave him.  He was afraid that
they would
kill him as they said they would drown him in the Orange River.
He was told what to say from what appeared to
have been written and
that he would have to go to a pointing out to point out certain
spots.  After he agreed to the statement
and pointing out he was
not assaulted again and was also uncuffed.  He was caused to sit
there and told what was going to
happen.  He was told that he
would not be arrested again, he would be a State witness and that he
would be taken to a magistrate.
He was warned not to tell the
magistrate that he had been beaten up.  He should not tell him
that he would become a State
witness.  The police further said
that he should speak nicely about them.  If he did not do so
there would be consequences.
He was told that he should narrate
the statement he had been given to the magistrate.  He was given
a homework and told that
he should go home and come back the
following morning so that they could hear that nothing has changed
before he went to the magistrate.
The other police officers
left and he remained with Kutwana who took him home.
[54]
On the following day he went to meet Kutwana who happened to arrive
near his place of residence at that moment.  Kutwana
told him to
board their vehicle.  They proceeded to court and sat outside
and drank some juices.  During that time he
was made to rehearse
the statement he was required to make to the magistrate by Kutwana.
After Kutwana was satisfied with
how he would narrate the statement
to the magistrate, Kutwana handed him over to Ndulula.  Ndulula
took him to the magistrate
and stood at the door as he entered the
office of the magistrate.  An interpreter was called over and
the process of taking
the statement before the magistrate started.
He testified that Mr Tloti, the magistrate explained his
constitutional rights
to him after which he narrated the things he
had been told by Kutwana.  He told the magistrate what Kutwana
had schooled him
on what to say.  He did not tell the magistrate
that Kutwana and his colleagues had assaulted him.
[55]
He could not do so because he had been warned that there would be
consequences if he told the magistrate that police had assaulted

him.  He further testified about the part of the pro forma where
he was dealing with his treatment from the time of arrest
until he
was brought before the magistrate.  He said that he told the
magistrate that he was not ill-treated before he was
brought to him.
He explained that when he said that he had realized that there were
no police officers in the office where
the magistrate was.  He
therefore decided to “show the magistrate something when I
narrated the story that a certain
treatment was there on the previous
day”.  However, the magistrate stopped him saying that he
should not say anything
about that treatment if he was not
comfortable in telling him what transpired the previous day and that
he would inform the court
if he was not comfortable informing him
there.  He testified that he did not make the statement freely
and voluntarily as
he was forced to make it.
[56]
With regard to the pointing out, the police had told him four places
to point out.  When he woke up in the morning Kutwana
told him
that he would go and do a pointing out.  He was then taken to
captain Modise from the cells.  The pointing out
was also not
done freely and voluntarily.  It was as a result of the assault
and being schooled on it.  He did not inform
captain Modise
about being assaulted and tortured as he had been warned not to
divulge such things.  He testified that when
he went to Walaza
for the pointing out it was not the first time that he went to
Walaza.  He pointed the places he did, not
because he knew them
but because he had been schooled on them.  He confirmed that the
doctors who examined him did find burn
wounds on his body.  He
was with accused no.3 when he sustained those burns.  He had
gone to a drinking establishment
to drink alcohol.  There were
tyres that were sometimes burnt on the streets.  Because he was
drunk on that day he fell
on that fire.  He was with accused
no.3 who saved his life.  He testified that all the doctors who
examined him did not
examine his private parts.  He further
testified that captain Modise did inform him about his constitutional
rights.
When he told one of the doctors that he was burnt by
accused no.2 and 3 he had been schooled by the police to say that.
[57]
Under cross-examination he testified that he knows Kutwana a lot.
He did not recall the date on which Kutwana and Moahloli
visited him
at his residence.  He testified that in November 2019 he visited
Walaza but he could not remember the date.
On that occasion he
visited Walaza with accused no.2 and 3.  He accepted the
evidence of Kutwana that he and Moahloli went
to his place of
residence on 11 November 2019 but he could not remember the date on
his own.  When it was put to him that
he heard Kutwana’s
evidence in that regard who was also cross-examined on the events of
the 11 November 2019 he said that
he did not hear him.  He said
that he might have been lost in his own thoughts about his own
problems when that was said.
With regard to his evidence that
he saw the police at accused no.2’s room it was put to him that
the evidence of Kutwana
was that it was on the 8 November 2019 when
he went to accused no.’2’s place of residence,not the 11
November 2019.
He disputed that saying that it might be that
Kutwana visited accused no.2 on 8 November 2019 but he did not see
him on that date.
He saw him on 11 November 2019.  On that
date it had been a while since Kutwana had taken his cellphone from
accused no.2’s
place which he had left there for charging.
Therefore it could have been on 8 November 2019 when Kutwana took his
cellphone.
[58]
When it was put to him that in laying the basis for objection to the
admissibility of his statement, his legal representative
had said
that six police officers dealt with him at Palmietfontein police
station, he said that his attorney did not ask him how
many police
officers assaulted him.  However, three police officers dealt
with him while the others were there in the office.
He denied
being dealt with by Kutwana and Moahloli only, insisting that there
was a third police officer.  He was assaulted
because the police
were asking him what he had done and wanted him to co-operate with
them.  He was assaulted with hands and
kicked.  No weapons
were used until the evidence bag was used to suffocate him.
Kutwana would put the evidence bag over
his face and the third police
officer would squeeze his private parts.  His hand was cuffed to
a steel cabinet drawer to the
level of his head.  The handcuffs
were not tight and he had no injuries caused by the handcuffs.
[59]
The police were saying that he should co-operate with them and make a
statement in the manner in which he was being told.
He was
drilled by Kutwana and Moahloli on what he must say to the magistrate
but it was Kutwana who was telling him what to say
with Moahloli just
assisting.  It was put to him that Kutwana and Moahloli never
assaulted him at Palmietfontein police station.
It was further
put to him that Kutwana was so professional in his dealings with him
and he co-operated with Kutwana so much that
Kutwana decided to let
him go and sleep at home.  He denied that.  He said Kutwana
took him from his place of residence
in the morning and brought him
back home at night.  He co-operated as a result of which Kutwana
decided to bring him back
to his place of residence.  Kutwana
beat him so much that he had no option but to co-operate with him.
[60]
Accused no.1 was referred to his consultation with Dr Godlwana at
14:34 on 12 November 2019.  He testified that police
entered to
see the doctor first and told the doctor about the history of his
injuries.  All he did was to confirm what the
doctor wanted him
to confirm.  When he spoke to the doctor she had already been
told what happened by the police.  With
regard to the magistrate
who took the statement from him he testified that he treated him well
and he had no complaint against
him.  He told the magistrate
everything he had been schooled to tell him.  He told the
magistrate that he was burnt by
accused no.2 and 3.  That came
from him but he had been schooled to say that.  The history he
gave to the doctor of having
been burnt with petrol and fire by one
adult male and one adult female known to him on 6 November 2019 at
around 12 midnight was
something the doctor had been told by the
police.  All he did was to confirm it in line with what he had
been taught.
He denied that what the doctor and the magistrate
recorded came from him voluntarily.  He testified that on 13
November 2019
he met captain Modise.  When he met him he told
him everything that he was taught to tell him but he did not have a
problem
with captain Modise.
[61]
With regard to his injuries he testified that on 9 November 2019 he
sustained the burn injuries when he fell on a fire of burning
tyres,
while he was drunk that night.  He clarified that that was two
days before he met Kutwana on 11 November 2019.
He was basking
on that fire when he fell on it and was assisted by accused no.3.
When it was put to him that he got burnt
on 6 November 2019 at
Walaza, he denied that.  He confirmed his evidence that only the
magistrate and captain Modise explained
his rights to him.
Accused no.1 was not re-examined on his evidence.  After this
evidence accused no. 1’s case
in the trial within a trial was
closed.
The
confession and pointing out.
[62]
The defence having closed its case in the trial within a trial the
State and the defence addressed the court on the admissibility
of the
confession and the pointing out.
Section 217
(1) (a) of the
Criminal Procedure Act makes
the following provision regarding the
evidence of a confession:
“
Evidence
of any confession made by any 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.”
[63]
The basis for the objection to the statement made to Mr Tloti on 12
November 2019 was that accused no.1 was beaten up, assaulted,
kicked,
suffocated, beaten with a pipe and other forms of torture were used
to force him to tell the police what they said he knew
about the
Walaza incident.  This was done despite the fact that he had
told the police that he knew nothing about what happened
at Walaza.
From his evidence it appears that the torture took various forms, was
prolonged and was done with heavy handedness
designed to force him to
agree to a statement in which he would implicate accused no.2 and 3.
What is inexplicable though
and which he did not explain was that on
the 12 November 2019, the following day after the torture he was
taken to Empilisweni
Hospital.  He was seen by Dr Godlwana and
she examined him two times that day and there was no evidence of any
form of physical
assault at all.  I have looked at accused
no.1’s evidence thoroughly.  It is clear to me that his
evidence about
being assaulted was fabricated.  I just do not
understand how it is possible for him to have been physically
assaulted in
the manner he described and to have no evidence of the
assault the following day after he was assaulted as heavily as he
described.
It also does not make sense to me that he could be
so seriously assaulted for such a prolonged time and being subjected
to all
forms of torture only to be driven home to sleep at his place
of residence peacefully and not detained.
[64]
His other main objection was that his constitutional rights were not
explained to him by the police.  Besides the difficulties
with
his evidence generally which appeared to be mostly contrived and
largely fabricated to fit some narrative, it was also his
evidence
that both the magistrate, Mr Tloti and captain Modise treated him
very well.  Most importantly, his evidence was
that both of them
explained his rights to him when he appeared before them for the
confession and the pointing out respectively.
The obvious
question then is, why did he not exercise those rights when he was in
the presence of people in authority both of them
very senior and
accountable people who on his evidence treated him well.  He
never used the enabling atmosphere that they
created and told them
about the ill-treatment that he said the police subjected him to.
I do not intend to go into further
details on his evidence save to
point out that I was satisfied that his evidence on being tortured
was patently dishonest besides
being largely contradictory.
[65]
Both the confession and pointing were recorded in circumstances in
which the alleged earlier treatment accused no.1 claimed
to have
received included physical torture for a long time in which he was
assaulted in various ways.  I have found that he
lied about that
torture and I reject his evidence in that regard.  His evidence
included the fact that the magistrate and
captain Modise both
explained his constitutional rights to him.  This is besides
their evidence that indeed they explained
the constitutional rights
to accused no.1.  The explanation of constitutional rights to
him happened before the confession
and pointing out were done.
The State also led evidence of an official photographer from the
Aliwal North Criminal Record
Centre.  The photos of the upper
body of the accused which were taken on 13 November 2019 which were
taken within two days
of the alleged violent assault on his body was
inflicted bear no evidence of the assault.  This must be because
it did not
happen.  I reject this idea by accused no.1 that he
did not tell both the magistrate and captain Modise about the
violence
he alleged was visited on him because he feared being
drowned at the Orange River as false as is the evidence of the
assault itself.
[66]
The confession was properly recorded and in my view, complied with
the law.  The requirements of a proper recordal of
a confession
were articulated quite clearly in
S v Mpetla & Others
1982
(2) SA 406
(C) which predates our constitutional dispensation.
It was quoted with approval very recently by Mbha JA in
Mudau and
Another v S
(1148/2016)
[2017] ZASCA 34
(29 March 2017) in which
the Supreme Court of Appeal said:
“
A
confession made to and reduced to writing by a magistrate is, upon
its mere production, admissible in evidence provided that the

requirements of
s 217
are satisfied.  This means that a
magistrate should ensure that the confession conforms to the
prescripts set out in the Constitution.
Even before the advent
of the Constitution, cases are legion that emphasized the importance
of informing the accused of his constitutional
rights to legal
representation and the right to silence at every important stage
during the recording of a confession.
Thus
in
S v Mpetla & Others
[1982 (2) SA 406
(C)] the court
said at 408 E-H:
‘
Before
the presumption comes into operation it must appear “from the
document in which the confession is contained”
that such
confession was made freely and voluntarily etc.  Normally no
confession of itself would refer to questions of voluntariness
or
undue influence.  A person making a confession is most unlikely
to volunteer the fact that he is confessing freely and
voluntarily,
that he is in his sound and sober senses and that he has not been
unduly influenced to make such confession.
It is manifest
therefore that implicit in the whole procedure envisaged by the
section is a questioning by the magistrate of the
person confessing.
These question as well as the answers must be recorded for it to be
able to appear from the document that
the confession was made under
the required conditions of voluntariness, etc.  This, of course,
is also in accordance with
long-standing practice.  It is well
known that over a  period of many years departmental
instructions and the decisions
of the Courts have built up a series
of guidelines to ensure that confessions are in fact freely and
voluntarily made without the
exercise of undue influence. …’
These
rights have since been entrenched in s 35 [of the Constitution].”
[67]
It is evident from the pro forma confession document that the right
questions were asked by the magistrate and answered by
the accused.
All of that including accused’s clear answers appear from the
pro forma document itself.  This is
besides accused no.1’s
own evidence that indeed his rights were explained to him by
magistrate Tloti.
[68]
The same applies to the pointing out.  It was preceded by a form
captioned “NOTES OF POINTING OUT OF A SCENE/S AND/OR
POINT[S]”.
It appears there from that the accused was indeed telling the
truth when he testified that his rights were
explained to him.
The form is quite detailed and has been carefully designed to ensure
that no accused person would participate
in a self-incriminatory
process without a clear understanding of his right not to participate
in such a process when the process
is properly done.  In all
these circumstances I ruled both the confession made on 12 November
2019 before Mr Tloti, the then
Sterkspruit magistrate and the
pointing out done with captain Modise from Aliwal North or Maletswai
police station were admissible
as evidence in this case.
Can
an accused be cross-examined in the confession before it is ruled
admissible?
[69]
As I conclude on this issue I must point out that prosecutors must
understand that while a confession is generally shielded
from the
ears and eyes of the court and therefore the accused person may not
be questioned on it, that veil may be lifted, on application,
if the
accused’s basis for his objection to its admissibility is that
the contents thereof did not come from him.  They
were narrated
to him by the police or that he was schooled on what to say.
This is because the truthfulness of his allegations
in this regard
needs to be tested as well.  The best way to do that is to
cross-examine the accused on the contents of the
confession which he
alleged, came from the police even though it has not yet been ruled
admissible.  In
S v Talane
1986 (3) SA 196
(A) at 198 C-D
in which the court said:
“
The
truth of the content of a confession made by an accused is, generally
speaking, irrelevant to the decision of the question whether
such a
confession has been freely and voluntarily made, and a prosecutor
would not be entitled to cross-examine the accused as
to the truth of
such contents.  Where the accused, however, himself alleges that
the content of his confession is false and
was prescribed to him by
the police, the State should have the right to cross-examine the
accused on the content of the confession
to prove that the accused
himself is the source of the contents, in other words to test his
credibility.  In such a case it
would not constitute an
irregularity that the content of the statement has been revealed to
the Court and the assessors before
the decision as to the
admissibility thereof has been made.”
[70]
With the confession and pointing out having been ruled admissible,
the State continued with its evidence against all the accused
in the
main trial.  I start with the evidence of Mr Tloti.  He
started by reading the confession into the record as follows:
1.
“
I
am Luzuko Taitai and I am 27 years old.  I stay at Mokhesi, just
across the bridge from town.  I am renting since I
work as a
security guard here in town.  I work at M[...] F[...] M[...].
My home is at Phelandaba
2.
About
3 weeks back Maletsatsi arrived where I rent also to come and stay.
We welcomed her with other tenants.  After
some time, about two
days after her arrival, she asked me if I know at a person who sells
firearms.  I asked her what is she
going to do with the
firearm.  She informed me of her abusive husband.  I said I
have no knowledge of a person who sells
firearms.
3.
The
next time I saw her, approximately a day later, she again talked
about her abusive husband.  She said anybody who can kill
her
husband can give that person R10 000.00.  I told her I am a
security.  I only do legal work.  She was confusing
me.
She began to call me constantly, even at work, urging me to do this
for her, I refused.  I told [her] I am busy
with my odd jobs and
I was doing painting during the day at those flats.
4.
On
05 November 2019 I got off days at my work that were to resume on 06
November 2019.  She requested me to paint her room
and do some
plaster work.  We were no longer talking about killing of her
husband as I have earlier refused.  On my arrival
on 06 November
2019.  In the morning from work, she was already gone to work.
5.
Earlier,
when she arrived to stay at the flats where we rented, she had
introduced me to Sam.  Sam works at L.A. Radio Station.
He
was also a tenant at the flats.  They had a love affair.
He was always sleeping at Maletsatsi’s room.
6.
On
the 6
th
November 2019 they were both present at 17h00.
I am not certain if they arrived together or separately.
Maletsatsi
sent us liquor at Boxer, namely 4 quartz stout and 6 pack
of blue ice.  She sent us there before 18h00.  Again sent
us
to buy liquor at Mjafi Tavern, namely several quartz, I cannot
remember well as I was already drunk.  It was about 21h00.

I was on both occasions in company of Sam.
7.
At
about 22h00, we were very drunk.  We were still drinking.
It was myself, Sam and her.  She said to us this is
the day she
has been talking about.  She said we must not concern ourselves
with money, she has it.  She will pay us.
We ignored her
as we were busy drinking.  She told us what to do, we were just
drinking ignoring her.
8.
At
23h00 she called one Oupa telephonically.  She said we must go
next to the road so that Oupa will not see the room we emerged
from.
Oupa has a small taxi.  She gave us plastic containers
containing petrol to take to Oupa’s vehicle.
I[t] was 1 X
20 litre container and 2 X 5 litres.  In the 20 litres there was
about 10 litres of petrol.  Oupa asked
what was contained in the
containers and she said it was traditional medicine.  He took us
to Walaza.  The car waited
for us in the main road.  The
three of us proceeded to a house in Walaza.  At that stage I was
struggling to walk as
I was very drunk.
9.
I
seek to clarify that the petrol was only in the 20 litre container.
The 2 X 5 litre containers were empty.  On our
arrival at this
house in Walaza, Sam jumped over the fence into the yard.  The
petrol was then poured into the empty 5 litre
empties.  They
were almost full both.  Small petrol was left in the 20 litre
container.  Sam poured the petrol in
the 5 litres before he
jumped into the yard.
10.
I
said I am drunk and I do not want to be involved.  Sam told me
he will kill me if I do not co-operate.  I also entered
and
Maletsatsi was trying to open the gate in order to enter.
Whilst inside the yard I refused to co-operate.  Sam poured
me
with petrol and Maletsatsi lit me.  He used his hands to scoop
the petrol he poured at me.  I took off my jersey trying
to
extinguish the fire.
11.
Whilst
I was trying to doze off the blaze, Sam had opened the windows at the
homestead and sprinkled petrol.  He lit using
matches.
Also Sam caught fire on his hair.  He came to me trying to
extinguish himself.  Maletsatsi was also there
but since I was
burning I could not quite make out where she was.  Also my
trouser was burnt and came back naked on my lower
body.
We
ran back to Oupa in different directions.  We came back to
Sterkspruit with Oupa.  On our arrival I went to my room.

They took my phone.  They then started to threaten me that they
will kill me if I talk.  They then ran away.
That
is all.”
[71]
Captain Modise also gave evidence in the main trial relating to the
pointing out which had also been ruled admissible.
His evidence
was based on the photo album compiled by sergeant Mooko in respect of
the pointing out and the notes of the pointing
that he, captain
Modise took as the pointing out was taking place.  It is worth
mentioning that the pointing out notes which
were read into the
record were signed by both captain Modise and accused no.1.  The
notes read as follows:
“
11:00
Interviewing started with the witness Luzuko Tai-tai at office C-10
Palmietfontein detective’s offices.
11:50
Photos of the witness taken by constable Mooko of LCRC.
11:55
Photos of the seating in m/v BSZ 055 B Reg No. F[...] 2[...] E[...].
11:57
The witness ordered the vehicle to depart and pointed left direction
from the police station.
11:58
The witness Luzuko Tai-tai orders the vehicle to turn left on the
R393 road main road from Telle-bridge to Sterkspruit
direction.
12:10
The witness orders the vehicle to turn right joining the road to
Walaza on Zastron road.
12:20
The witness orders the vehicle to turn right near Walaza Store.
12:23
The witness Luzuko Tai-tai pointed the burnt house referred herein as
the scene of crime and asked the vehicle to stop km:
reading: 102010.
12:24
The photo of the gate was taken where the witness Luzuko Tai-tai and
Sam and Maletsatsi entered carrying five litres
of petrol.
12:25
The photo was taken where the petrol containers were left and the
window where petrol was thrown in the house.
12:28
Photo of the window where petrol was poured by Sam as witness Luzuko
Tai-tai alleges.
12:30
The witness pointed the spot where one full five litre petrol and
half five litre petrol was left by him (Luzuko Tai-tai)
and Sam as
the petrol also burn them.
12:35
The witness Luzuko Tai-tai pointed the place where the white sedan
which was hired by Maletsatsi was parked before they
proceeded to the
scene.
12:40
The witness Luzuko Ta-itai finished or was done with the process of
pointing the scene and orders the vehicle to drive
back to the police
station at Palmietfontein.
13:05
The witness Luzuko Tai-tai, captain Modise and the driver constable
Ndulula arrived at the police station motor vehicle
kilometer reading
stands at 102040.”
[72]
Captain Modise was not cross-examined on his evidence and his
handwritten notes.
[73]
Sergeant Mooko’s evidence was that at the request of Kutwana to
assist captain Modise with taking photos of the pointing
out process
he arrived at Palmietfontein police station on 13 November 2019.
In his evidence he merely confirmed the evidence
he had given during
the trial within a trial.  No real cross-examination on the real
issues pertaining to the actual pointing
out process took place.
After Mr Tloti, captain Modise and sergeant Mooko’s evidence
all of which related to the confession
and the pointing out the State
closed its case.
The
defence case.
[74]
After the State had closed its case there was an attempt on the part
of the legal representatives for the accused persons to
apply to the
court to make a ruling on whether or not, following the admission of
the statement made by accused no.1 before Mr
Tloti, that statement
was in fact a confession.  I first deal with this issue as the
contents of the confession, to the extent
that it was alleged to be
exculpatory, loomed large in both the heads of argument filed and
during oral submissions in court.
I think that the said
application was procedurally out of place and in fact a conflation of
two separate issues.  When the
evidence of a confession is
sought to be introduced, a trial within a trial is opened for
purposes of determining if the said statement
complies with the
strick requirements of
section 217
of the
Criminal Procedure Act.  I
have already dealt with
section 217
above.  However, I consider
it necessary to point out that once a ruling is made that the
statement made by the accused person
is admissible, all it means is
that the State is not barred from leading such evidence.
However, the evidence itself must
be assessed together with the rest
of the evidence as to whether when considered with other evidence, it
supports a conviction
of the accused person.  Its admission does
not mean that on its mere admission the fate of the accused is sealed
and he must
be convicted.
[75]
The accused, through their legal representatives, sought to argue
that the court should make some form of a ruling on that
document.
I do not think that there is a second ruling that must be made by a
court that is based on the reading of the document
that has been
admitted as a confession.  That document speaks for itself in
that it is now available to the court as well
to read it.  Until
the State has led its last witness, it is not known what other State
witnesses might say and what might
transpire from a cross-examination
of such witnesses.  After all, rulings on confessions, pointings
out and admissions are
generally interim in nature and the court is
entitled to revisit them.  The court is at large to consider the
confession in
light of what the accused chooses to say in his defence
when he testifies.  The court may very well conclude that on its
reading
of the document it does not appear that the accused admitted
to having committed any offence.  Or he did not admit to all the

elements of the offence.  Even worse, he can testify and prove
to the court that he was compelled to commit the offence.
That
is a totally separate issue to that of its admissibility.
[76]
The accused having said in a confession statement that he was at the
crime scene because he was forced to be there by other
people must
depend on whether it is in fact his defence that he committed the
offence because he was forced by other people.
If his defence
is that in fact he was not there as was the case in this matter, he
cannot use the confession that says that he
was there as a result of
being forced to be there or was compelled to commit the offences when
in fact his evidence under oath
in court was that he was not even at
the crime scene and he never committed any of the offences.  If
an accused person gives
as his defence that he was compelled to
commit the offence indeed, the State must cross-examine him on being
forced to commit the
offence, not on him not even being at the crime
scene.  The same applies with the accused being too drunk to be
criminally
liable, he must decide if that is his defence or not and
put his version to the State witnesses accordingly.  The idea
that
he must first see which way the wind blows is not part of our
law and is not in the interests of justice.  He cannot have his

bread buttered on both sides.  His right to remain silent is
beyond debate as it is enshrined in our Constitution.  That
the
State must prove the guilt of the accused beyond reasonable doubt,
there can be no debate about that.  But the accused
is not
entitled to plead an alibi and at the same time plead compulsion in
committing the offence.  The fairness of a trial
is not to be
determined only on the basis of what the accused and his legal
representative consider to be his way out of the evidence
the State
presents.  That would be antithetical to the whole concept of
justice.
[77]
In
S v Yende
1987 (3) SA 367
(A) at 368 E-J the following is
stated which, with respect, I consider to be the correct statement of
the law:
“
In
the adjudication of the question whether a statement was a confession
for the purposes of
s 217
(1) (a) of the
Criminal Procedure Act 51 of
1977
, an objective approach is preferable to a subject approach.
A confession, being an unequivocal admission of all the elements
of
the offence in question, concerns the facts which an accused states
(either orally or in writing) rather than the intention
behind such
statement.  If the facts which he admits amount to a clear
admission of guilt, it does not matter that (in making
the statement)
he acted exculpatorily.  It would be unrealistic to regard a
statement which otherwise amounts to a confession
as not amounting to
such merely because the person making the statement (possibly for
some or other illogical reason) does not
intend it as a confession.
The application of an objective standard does not mean, however, that
all subjective factors have
to be left out of account.  The
state of mind or intention of the person making the statement will
sometimes be taken into
account as one of the surrounding
circumstances from which the objective meaning of his statement can
be ascertained.  In
many cases the precise meaning of a
statement can only be ascertained against the background of the
prevailing circumstances –
particularly in the case of an oral
statement consisting only of a few words.  Surrounding
circumstances can therefore be
taken into account, with this proviso,
however, that ‘(s)urounding circumstances which put the
statement in its proper setting
and which help to ascertain the true
meaning of the words used’.  Facts of which the person
making the statement had
no knowledge at the time of the statement
must, however, be left out of account.
In
order to decide whether a statement amounts to a confession, the
statement must be considered as a whole.  In this connection

regard must be had not only to that which appears in the statement,
but also that which is necessarily implied therefrom.
If the
content of the statement does not expressly admit all the elements of
the offence or exclude all grounds of defence, but
does so by
necessary implication, the statement amounts to a confession.
Whether a statement, either standing alone or in
conjunction with
such surrounding circumstances as can lawfully be taken into account,
is capable of a necessary implication will
have to be determined
according to the merits of each particular case.  If there is
doubt in this connection, the statement
is not a confession as it
does not, in the nature of the case, contain a clear admission of
guilt.”
[78]
It should be remembered that the trial within a trial is concerned
with one issue only.  That issue is the admissibility
of the
confession or pointing out.  The issue at that stage is not the
guilt or innocence of the accused person who remains
entitled to be
regarded as innocent until proven guilty beyond reasonable doubt.
When the court rules that a confession is
admissible, that is the end
of the issue as far as admissibility is concerned.  The contents
of that document and what they
amount to do not require a new
impromptu enquiry to determine if it is in fact a confession.
The issues of whether the accused
makes an unequivocal admission of
guilt in the statement itself are all part of the trial.  He may
testify and explain the
prevailing circumstances at the time it was
made.  Those circumstances may very well show that he was forced
to be there and
compelled to commit the offences.  The document,
though admitted as a confession, is not immune from scrutiny.
In fact,
it is always open to scrutiny in terms of what is actually
said in the document.  The court may very well decide that that

statement was not a confession.  This is because, the court,
during the trial within a trial is not dealing with whether the

statement is a confession or not but whether, it was
constitutionality obtained.  If it was constitutionally
obtained, then
it is admitted as a confession.  If on closer
scrutiny after admission it appears not to be, the court is entitled
to revisit
its earlier decision and conclude that in fact that
statement was not a confession in which case it can still disregard
it.
This legal position was made very clear in
Zuma and
Others v The State
[1995] ZACC 1
;
1995 (1) SACR 568
(CC) where the
Constitutional Court per Kentridge AJ said at para 7:
“…
The
reference to the admissions of the two accused that they had
committed the offences arose from the evidence which they had given

in the course of the trial within a trial.  As Hugo J fully
appreciated, that evidence was given only in the context of the
trial
within a trial, where the only issue was admissibility.  To that
issue the truth of the confession was irrelevant.
Thus, in
S
v Radebe and Another
, 1968 (4) at 410
(A) Ogilvie Thompson JA said –
“
It
not infrequently occurs that, although the presiding Judge may think
that the contents of a tendered confession are true, the

circumstances where-under the confession was made compel its
exclusion.”
The
evidence of accused no.1.
[79]
The accused opened their case with accused no.1 testifying in his
defence.  He testified that on 6 November 2019 he stayed
at
Mokhesi in Sterkspruit.  He was employed as a security guard at
M[...] F[...] M[...].  He testified that he knows
nothing about
this case.  However, he remembered what happened in the early
days of November 2019.  He and accused no.2
stayed in the same
premises whereas accused no.3 would visit the premises from time to
time.  On 6 November 2019 he was at
his place of residence and
late in the evening he went to Walaza.  When they went to Walaza
they were four people.  It
was himself, accused no.2 and 3 as
well as Mihlali Manzi.  The purpose for going to Walaza was to
fetch a bulk amount of dagga.
He and his co-accused were going
to sell it.  Manzi was not involved in that business, he was
just driving them there.
They did not tell Manzi that his
vehicle was going to be used to transport the dagga as he might have
refused.  They told
him that they were going there to perform a
ritual at a certain homestead in Walaza and that he was a traditional
healer.
The arrangement for Manzi to transport them to Walaza
were made by accused no.2.  They boarded the vehicle near
Mokhesi Bridge.
[80]
The person who was going to sell them dagga confirmed to them that he
was available on that day.  He also said that they
needed not to
worry about money if they did not have cash as he also took clothing
and blankets, branded clothing like Nike.
The said person was a
male and he spoke Sesotho.  The clothing was packed in a black
plastic bag which was closed.  When
Manzi confirmed that he was
present they proceeded to the vehicle.  They greeted him and
asked him to open the boot.
They put the parcel in the boot and
the vehicle drove off.  After a while he asked them what were
they carrying.  They
decided not to tell him the truth.
They said to him that they were carrying traditional medicine for a
cleansing ritual.
They were only carrying the black plastic bag which
was fully loaded with clothing. They stopped near Mr Monoana’s
homestead
who is not the same person as the deceased in this case.
They requested Manzi to open the boot so that they could off load
the
parcel.  He did so and they took the plastic bag from the boot
and proceeded to the shack where they were going to meet
the dagga
dealer.  He and accused no.3 left leaving accused no. 2 in the
vehicle with Manzi.  But they requested her
to alight from the
vehicle to show them directions to the shack.  He already knew
the shack so when she showed them the road
they proceeded to the
shack.  The dagga dealer was there smoking dagga.  He asked
them to taste the dagga.  He tasted
it by smoking it and he
confirmed that it was indeed dagga.  Thereafter the dagga dealer
opened the plastic bag to check the
clothing and when he was
satisfied, he took the dagga and loaded it in the same black plastic
bag.  After they were done smoking
and had their parcel of dagga
they had to rush as the vehicle was a hired vehicle.
[81]
They ran back to the vehicle and on reaching it they requested Manzi
to open the boot for them.  He disputed Manzi’s
evidence
that on their return they were not carrying the parcel.  About
Manzi’s evidence that on their return they were
running, he
testified that they rushed to the vehicle or were trotting.
When he was asked to explain whether when they returned
to the
vehicle they were running or not, he testified that initially they
were rushing and then eventually they ran to the vehicle
but not in
full speed.  He was asked to comment on Manzi’s evidence
that he asked them why they were running and they
said they were
being chased by dogs.  He said that Manzi never asked him
anything unless he was talking to his co-accused.
He explained
that he did not dispute that the question was asked by Manzi saying
that perhaps he did not hear it.
[82]
On Manzi’s evidence that on their return they were smelling of
smoke he testified that Manzi could be telling the truth
about them
smelling smoke because on arrival at the dagga dealer’s place,
the room was full of smoke and he also smoked some
dagga.  He
denied that when they departed for Walaza from Mokhesi they were in
possession of a 20 litre container.  On
their return to the
vehicle at their request Manzi opened the boot for them, they loaded
their dagga parcel and he drove off until
they reached Mokhesi Bridge
near the place where he had picked them up earlier.  On reaching
that place they requested him
to open the boot for them and they off
loaded their parcel.  Manzi drove off and they went to their
respective rooms.
He opened his room but did not stay but went
to their room to say goodbye and to also say that they would see the
following day
how to go about their dagga.  He then went to his
room to sleep.
[83]
One day he was arriving from his home at Phelandaba and found the
police already at the premises.  The police officers
were
Kutwana and Moahloli who assaulted him and eventually took him to
Palmietfontein police station where he was cuffed and interrogated

about Walaza.  During that interrogation he was assaulted and
threatened with being drowned at the Orange River.  The
police
wanted him to implicate accused no. 2 and 3 saying that he was burnt
by accused no.2.  Eventually he agreed to co-operate
with the
police.  That same evening, he was brought back home and fetched
the following morning in two vehicles.  The
police found him
with his employer.  He was taken to the magistrate’s court
where they waited outside for some time
with the police trying to see
if he had rehearsed his statement properly.  Eventually he was
escorted to the magistrate by
Ndulula.  The magistrate informed
him of his constitutional rights.  He made a statement to the
magistrate which is the
one that the magistrate read into the
record.  He testified that in that statement he talks about
accused no.2 and 3.
After that statement he was taken to the
hospital.  He was examined by the doctor.
[84]
He testified that when he went to Walaza on 6 November 2019 with
accused no.2 and 3 it was not his first time going there.
He
first visited Walaza in October when he went to fetch accused no.2’s
brother Lefu’s goods.  He went there for
the second time
during the dagga visit on 6 November 2019.  On that first visit
in October 2019 it was himself, the person
who was going to assist
them in loading the goods, the driver and accused no.2.  When
asked if Keketso went with them to Walaza
on that occasion, his
response was that Keketso is a sickly person and that he did not
notice his presence.  He then said
he did not dispute his
presence but he was saying that he did not remember his presence
there or seeing him there.  He disputed
Keketso’s evidence
that they went there in November 2019 to fetch the goods insisting
that it was in October 2019.
They brought the goods to accused
no.2’s place of residence.  They remained there consuming
liquor.
[85]
After he made the statement to the magistrate he was then charged and
detained.  The following morning, he was taken to
captain Modise
who took him to the pointing out where he pointed the points he had
been told about.  He pointed the points
or spots Kutwana had
told him about.  He testified that he knew the home of the
deceased in count 3 and he knows that it is
the homestead of accused
no.2 because she said that it was her husband who stayed there on the
day they went there to fetch a key.
On that day he did not
enter.  That day was in October when they went to fetch Lefu’s
goods.  On that day accused
no.2 went inside while he remained
in the vehicle.  Since it was her husband, she was taking time
coming back.  As a
result he went in to call her out.  He
testified that he never conspired with anyone to commit the offences
for which he has
been charged.  He never set the deceased’s
homestead alight and he never caused the death of the deceased in
counts
3, 4 and 5.  Accused no.1 was referred to the evidence of
Keketso who said that he knocked at accused no.1’s room and

when he opened he noticed that his face was black.  He asked him
where he was burning tyres and accused no.1 said that he
wished he
had listened to him.  Accused no.1 testified that he did not
open for Keketso because he had a hangover.  He
denied that his
face was black or that Keketso enquired about it.
[86]
Accused no.1 was cross-examined by the legal representative for
accused no.2 and 3.  He testified that his statement which
he
made to the magistrate led to the arrest of accused no.2 and 3.
He testified that he was told by Kutwana that they were
after accused
no.2 and 3.  Kutwana assaulted him to make a statement
implicating accused no.2 and in accordance with what
they told him to
say.  What he said in that statement was a lie and it is what he
was told to say.  He was also promised
that he would not be
arrested but would be made a State witness.  Where he said in
that statement that accused no.2 loaded
petrol in the hired vehicle,
that was a lie and he had been schooled to say that.  He
confirmed that on 06 November 2019 he
was at Walaza and he had been
there before some time in October when he went to fetch a key.
[87]
He knew the deceased Nyakambi Monoana by sight as he once saw him.
On the 6 November 2019 when they went to Walaza, the
homestead they
visited was very far from Nyakambi’s.  On 6 November 2019
he and accused no.3 went to a shack to buy
dagga.  He did not
dispute smelling smoke but it was from smoking dagga.  Any
evidence that related to him and accused
no.3 at the crime scene was
a lie.  Any evidence of him being approached by accused no.2 for
a firearm to kill the deceased
was also a lie.  It was something
he had been told to say.  He never conspired with accused no. 2
and 3 to kill the deceased.
It was also a lie that he was
forced to participate in the commission of any offence by accused
no.2 and 3.
[88]
Under cross-examination by the prosecutor it was put to him that he
mentioned for the first time when he gave evidence that
he once
visited the home of the deceased in count 3 and that he knew him.
He responded that he had indicated that he forgot
to mention that he
did go to the homestead of the deceased in count 3.  The
deceased in count 3 also used to visit accused
no.2’s place
where she was renting.  Accused no.2 used to tell him about her
husband and he would see him when he visited
her.  When he went
to Walaza in October to fetch Lefu’s goods he was not seeing
the deceased in count 3 for the first
time.  It was put to him
that on his evidence he visited Walaza three times, the first time
was when he went there in October
to fetch Lefu’s goods, the
second time was when he went to buy dagga and the third time was when
he was taken there for the
pointing out.  He admitted going to
Walaza on 3 occasions.
[89]
On 6 November 2019 he boarded Manzi’s vehicle which was hired
by accused no.2.  They were carrying clothing that
was in a
black plastic bag which was a refuse bag.  They used two refuse
bags for that one parcel of clothing.  He agreed
that Manzi was
correct that they were carrying a black plastic bag which they put in
the boot.  He said that that plastic
bag was sealed, so he could
not have seen what was inside.  He did not know where Manzi got
the idea of a 10 or 20 litre container
as he could not see what was
in that plastic bag.  He also agreed with Manzi that he was
introduced to him as a sangoma and
that he was going to Walaza for a
ritual.  With regard to the in loco inspection they did with
Manzi, accused no.1 said that
Manzi pointed his own places and they,
as the accused pointed their own.  He disputed Manzi’s
evidence that they loaded
a plastic bag containing a 20 litre
container.  Their plastic was sealed with clothing inside.
He was referred to the
evidence that a black plastic containing a
container with a yellow cap was found at the crime scene, he said he
knew nothing about
Manzi’s evidence.  He denied that they
loaded a plastic bag containing a container inside in the boot of
Manzi’s
vehicle.  He insisted that that plastic bag
contained clothing in it. He knew nothing about a container with
petrol which
was used to burn the homestead of the deceased in count
3.
[90]
Accused no.1 explained that his burn wounds occurred when he fell on
a fire of burning tyres because he was drunk and was rescued
by
accused no.3.  This happened after some time after the 6
November 2019.  He however did not remember the date.
He
thought it was the 8 or the 9 November 2019 when he fell on that
fire.  When Kutwana visited him he had already fallen
on the
fire.  He disputed Keketso’s evidence that on 6 November
2019 he gave accused no.2 a container with a yellow
lid and that he
then saw him, accused no.2 and 3 getting out of the premises
singing.  He denied being seen by Keketso the
following morning
with a black face and saying that he never opened for him.  He
said that Keketso was lying and is sick and
that he must have been
fed this kind of information.  On 6 November 2019 he had not yet
been burnt.  On Manzi’s
evidence that he came back to the
vehicle smelling smoke, he testified that he should have smelled
smoke because the room they
were coming from had smoke and he had
smoked dagga.  He further said that Manzi was lying that on
their return they were not
carrying the plastic bag.
[91]
They returned carrying the plastic bag containing dagga.  He
denied telling Dr Godlwana that he was burnt on 6 November
2019
saying that Dr Godlwana had spoken to the police, she just examined
him and told him that they did not have medication.
It was put
to him that his being burnt by burning tyres was never put to
Keketso.  His response was that he had told his legal

representative how he got burnt.  On the fact that it was also
never put to Dr Godlwana that he was burnt in a burning tyre
fire he
testified that may be his lawyer was focusing on being burnt on the 6
November 2019 but Dr Godlwana never asked him when
he got burnt.
He had mentioned to his attorney how he got burnt who was
cross-examining witnesses.  He mentioned it
when he testified
because it was his chance to tell his story.  He testified that
he saw Kutwana on 11 November 2019 in accused
no.2’s room but
she was not there.  Kutwana then came to his room just after he
arrived.  He denied that on 6 November
2019 he went to Walaza
for the purpose of killing the deceased in counts 3, 4 and 5 and not
to buy dagga.  On being asked
some questions by the court
accused no.1 testified that he went to Walaza once in October when
they went there to fetch Lefu’s
goods.  He explained that
Lefu’s keys were kept at the deceased’s homestead and
that was the key they went to
fetch in October 2019.  In
November he only went to the deceased’s homestead when he was
brought there by the police.
Accused no.1 closed his case after
his evidence.
Accused
no.2’s evidence.
[92]
Accused no.2 testified that she stays at Majuba in Sterkspruit and
she is not married currently.  She and her husband
simply
separated and theirs was not a civil law marriage.  Her husband
was Nyakambi Monoana, the deceased in count 3.
She had three
children with her husband but those three children all passed away.
Majuba is her home where she stays with
her mother, nephews and
nieces and her own children.  She now has two children, one is 7
years old and the second one is 5
years old.  In November 2019
she stayed at Mokhesi and worked at Memela Tarven until the time she
was investigated for this
case.  At that time she had already
separated from her husband as she stayed in Mokhesi and he stayed at
Walaza.  They
however, visited each other.  He would come
to her place of residence in Mokhesi and she would visit him in
Walaza.
Their relationship was basically the same as at the
time they stayed together in Walaza.  By being in separation she
was referring
to the fact that they lived in different places.
[93]
On 6 November 2019 she was at her workplace.  She knows nothing
about the offences in this case.  She knocked off
from work at
18:00 and went to her place of residence where she found accused no.1
already there but in his own room as he was
off duty on that day.
When he saw her entering her room he came to her and told her that
accused no.3 had just left.
He further said that they wanted to
discuss something with her.  She then phoned accused no.3 who
said he was in town.
He came back from town and the three of
them had a meeting.  The time was at about 19:00.  Accused
no.1 and 3 said they
had a dagga that needed to be fetched from
Walaza that same day and they needed transport.  She then told
them that she had
a metre taxi that she normally used which belonged
to someone she knew.  She phoned the metre taxi as it was only
her phone
that had airtime.  The call was answered and she said
to the person who answered the phone that at around 22:30 she would
need transport to Walaza.  She phoned this person again and
changed the pick-up time to 22:45. The vehicle arrived at 23:15.

The clothing that was to be taken to Walaza had already been packed.
They took a plastic bag and went to the vehicle.
The driver saw
the plastic bag and opened the boot.  The plastic bag was loaded
in the boot of the vehicle.  She sat
in the front passenger seat
and accused no.2 and 3 took the back seat.  The vehicle drove
off until it reached Walaza.
At a certain place in Walaza the
vehicle turned where accused no.1 and 3 alighted.  Before they
left Mokhesi for Walaza her
co-accused had requested her to come
along because they were taking clothing to Walaza but they were
worried that the driver might
leave them.  The arrangement was
that she would remain in the vehicle with the driver.
[94]
Accused no.1 and 3 alighted from the vehicle and requested that the
boot be opened for them.  They took their parcel and
left her in
the vehicle with the driver.  They later came back and requested
that the boot be opened for them.  The boot
was opened and they
loaded their parcel.  She noticed when they alighted at Mokhesi
that the parcel was in a black plastic
bag.  The vehicle drove
off returning to Mokhesi where they alighted and all three of them
proceeded to her room.  In
the morning on 7 November 2019 she
heard that her husband had passed on in a fire incident from
someone.  This was on a Thursday
when she heard the news.
It was on Friday the 8 November 2019 when police arrived at her place
while she was preparing to
go to Walaza.  The police officers
were Kutwana and Moahloli and a third policeman.  When the
police arrived she was
with accused no.3 in her room.  They
asked them about what happened at Walaza and told her that she was a
suspect.  They
asked her for her cellphone handset which she
gave to them.  They also requested accused no.3’s
cellphone handset.
He also gave it to them. Kutwana also asked
her not to go to Walaza because she was a suspect after which Kutwana
and his colleagues
left.
[95]
Later that day on 8 November 2019 police found her at Hohobeni and
took her to her room in Mokhesi.  Her keys were not
with her,
accused no.3 had left with them.  She was not even able to phone
him because police had taken his phone.  The
police decided to
damage the padlock and gained entry into her room.  She entered
the room with them.  They searched
her room but did not find
anything that linked her to the commission of the offences in this
case.  With regard to the evidence
of Keketso that on 6 November
2019 she took her 20 litre container which was in his possession
which the State alleges, was found
at the crime scene, she testified
that she had three containers that she had asked Keketso to keep for
her.  They were two
25 litre containers, both white and one 20
litre container which is yellow.  When she went to Keketso’s
room he was
not there and the room was not locked.  She entered
and took one white 25 litre container.  She, accused no.3 and
her
sister left the premises.  Her sister was going to the taxi
rank while she and accused no.3 went to fetch water with that
container.  She did not have a black container.  However,
she did have a 20 litre container that had a yellow lid but
it was
also yellow.  With reference to photo no. 17 she testified that
she never had a black or blue container with a yellow
cap.  She
explained that on 6 November 2019 she and her co-accused had in their
possession a black plastic bag but it did
not have a container.
The plastic bag they loaded in Manzi’s vehicle boot did not
have a container.
[96]
She phoned Zimasa and made arrangements for their trip to Walaza.
The person she knew who had a metre taxi was Manzi
but when she
called the phone was answered by Zimasa.  She could not recall
the time she spoke to her but she arranged the
pick-up time with
Zimasa to be 22:45.   However, the vehicle arrived at
23:15.  She had arranged the time initially
to be 22:30 but she
later changed it to 22:45.  Manzi was correct that she was the
one giving him directions to Walaza.
She knew the place they
were going to.
[97]
Under cross-examination she testified that she and her husband
separated in terms of places of residences in 2010.  During
the
period they were in separation he would visit her at Mokhesi and
sleep there and she would also visit him at Walaza and sleep
there.
She was not aware that in 2019 the deceased in count 3 was dating
Kekeletso, the deceased in count 4.  When it
was pointed out to
her that it was never put to Mr Combi that the deceased and herself
visited each other, she said that her legal
representative never
asked Mr Combi any questions.  He also did not ask her if she
had anything she wanted Mr Combi to be
asked.  She considered
herself as deceased’s wife even after she left him because he
would also refer to her as his
wife.
[98]
Accused no.2 was asked about the time at which she called Zimasa on 6
November 2019.  She said that during the first call
to Zimasa
she buzzed her number which was a number she saw on a poster whilst
she was still at work.  It was after 18:00 after
she knocked
off.  It was put to her that Zimasa testified that she received
a phone call from a lady during the day and that
lady enquired about
a cab.  Her response was that she did not hear Zimasa saying
that.  Zimasa went on to say that the
caller wanted to know the
price for a return fare to Walaza and she told the lady that it would
be R300.00.  The lady said
she would call at about 18:00 as she
needed a cab to Walaza.  She responded that what Zimasa was
talking about was what they
discussed after she had knocked off and
after her discussions with accused no.1 and 3.  It was further
put to her that Zimasa
testified that indeed the lady phoned just
after 18:00 and requested to reschedule the time.  She confirmed
calling to reschedule
the time.  Accused no.2 was referred to
her conversation with Manzi in which she told him that accused no.1
was a sangoma,
she explained that she could not tell Manzi the truth
when he asked her what they were going to do at Walaza.  This
was because
they were going to fetch dagga at Walaza and he would not
have agreed to load dagga in his vehicle.
[99]
Accused no.2 testified that she did not leave her homestead in 2010
in a bad way.  Her two children who are seven and
five years old
are not those of her husband.  She did not know that he was
staying with Kekeletso.  She last visited
the deceased in count
3 in 2019.  She had gone there to fetch a key, so in 2019 she
visited him once, when she went to fetch
a key.  It was put to
her that Manzi said that when accused no.1 and 3 returned to his
vehicle at Walaza they did not return
with the parcel they had taken
with them when they alighted.  She testified that she had no
knowledge about that.  However,
they asked him to open the boot
for them and when they reached the place where the vehicle had picked
them up they took out a black
plastic bag which she understood to be
the same plastic bag they had placed in the boot when they returned
to the vehicle.
Accused no.2 confirmed Keketso’s evidence
that in November 2019 he together with her and accused no.1 went to
fetch goods
form a two roomed flat structure.  However, that was
not the home of the deceased in count 3.  It was the place her
brother
Lefu was renting.
[100]
She also disputed Keketso’s evidence that on 6 November 2019
she came to his room and took a 20 litre black container
with a
yellow lid.  It was put to her that according to Keketso she,
accused no.1 and 3 were carrying that 20 litre container
going down,
out of the premises and singing.  She disputed that evidence and
said that Keketso saw her, accused no.3 and her
sister.  They
were carrying a white container which he did not see it when she took
it because he was not present in his room
when she took it.
Furthermore, it was not on 6 November 2019 but it was on a Sunday.
[101]
Accused no.2 testified that Manzi lied when he said that accused no.3
asked him to open the boot and the boot was opened and
accused no.3
put in a black plastic bag containing a 10 or 20 litre container.
She testified that Manzi could not have seen
what was in that plastic
bag.   She however, agreed that the plastic bag was black
and that Manzi took them to Walaza
on 6 November 2019.  It was
further put to her that at the crime scene a black plastic bag with a
black container that had
a yellow lid was found.  She responded
that she heard that.  It was further put to her that her legal
representative
said Keketso was fabricating his story about her
because of a quarrel.  However, she herself never gave evidence
about that.
She testified that that was because her legal
representative did not ask her about her quarrel with Keketso.
It was put to
her that on 6 November 2019 she went to Walaza with the
intentions of killing the deceased persons in this case.  Her
response
was that she had not gone to the homestead of the deceased
in count 3 when she went to Walaza on that day.  She went to
Walaza
to fetch dagga.  She denied acting in concert with
accused no.1 and 3 to kill the deceased.
[102]
In re-examination accused no.2 testified that she remembered that she
did call Zimasa during the day after she met accused
no.1 and 3 and
had discussions with them on 5 November 2019.  During those
discussions she said to them that she would make
a telephone call the
following day during the day.  So her discussions with accused
no.1 and 3 were on 5 November 2019.
She first called Zimasa on
6 November 2019.  With regard to what was put to Keketso that he
was falsely implicating her she
explained that when she arrived at
their premises, Keketso already stayed there and she already knew
him.  She did not have
a stove and used that of Keketso for
cooking.  She took his stove and used it to cook in her room and
they would eat together.
She was also buying the groceries.
One day he came back drunk carrying 2kg of chicken.  Keketso
later gossiped about
her saying he was feeding her.  After she
heard that gossip she took the 2kg chicken and his stove and threw
them outside
and told him never to set foot in her room.  That
is what they quarreled about.   Since then their relations
were
never the same.  The main reason for him to implicate her
was that he was no longer coming to her room for meals but would
see
accused no.1 and 3 coming to have meals with her.  He got angry
about that.   The difficulty with accused no.2’s

evidence about the reasons Keketso would falsely implicate her is
that they were never put to Keketso.
The
case for accused no.3.
[103]
Accused no.3 testified that he stayed in Lusikisiki but in 2019 he
stayed at Tienbank in Sterkspruit.  He arrived in
Sterkspruit in
February 2018.  He worked at LA-FM as a programme director and
also conducted two radio shows.  He stopped
working at LA-FM in
November 2019.  He received another offer in Limpompo where they
needed a manager for a restaurant.
He testified that he knew
nothing about the charges preferred against him.  He also did
not know any of the deceased persons.
He had never seen or
heard of them before.  He had never visited the homestead of the
deceased in count 3, Mr Nyakambi Monoana.
He once visited
Walaza in November 2019 in connection with their dagga deal.
All he knew about the dagga dealer was that
he had a Sotho name which
he struggles to pronounce.  However, that person was known by
accused no.1.  Accused no.1 knew
the name of this person very
well.  They visited Walaza at night but he was not sure about
the time.  He was with accused
no.1 and 2 as well as the driver
of the vehicle.  They met with their dealer at Walaza in his
shack.  When they went
to meet him it was himself and accused
no.1.  The driver and accused no.2 remained in the vehicle near
an old shop where the
vehicle dropped them off.  He estimated
the dealer’s shack to be about 300 metres from where the
vehicle dropped them.
The reason the vehicle did not come
closer was because they did not want the driver of the vehicle to be
involved in the dagga
deal.
[104]
They met the dagga dealer.  They took their parcel as agreed and
returned to the vehicle.  When they went to the
shack they were
in possession of some clothing items that were to be exchanged for
the dagga.  They gave the dagga dealer
the clothes and he gave
them dagga.  They placed the dagga in the plastic bag which
previously had the clothing items.
He denied that that plastic
which they had put in the boot of the vehicle had a 10 or 20 litre
container.  He had nothing
to do with the offences that were
committed on 6 November 2019.  He did not conspire with anyone
and he did not set the homestead
of Nyakambi Monoana on fire.
He did not kill anyone of the three deceased persons.
[105]
Under cross-examination accused no.3 testified that accused no.1 has
been his friend since 2019.  He started knowing
him in February
2019.  Accused no.2 is also his friend.  He disputed
Keketso’s evidence in which he said he saw
him and accused no.1
and 2 leaving the premises carrying a 20 litre container which had a
yellow cap.  He testified that accused
no.1 was not there.
It was himself, accused no.2 and her sister.  However, he could
not remember what the date was.
He denied Keketso’s
evidence that he was with him, accused no.1 and 2 in accused no.2’s
room and he went out and on
his return he was not allowed in and that
he was told that they were still discussing something.  Accused
no.3 said all that
was a lie because usually when he visited accused
no.2’s room, he had no relations of any sort with Keketso and
he never
spent time with him.  He confirmed asking Manzi to open
the boot for him at Mokhesi and he confirmed carrying a plastic bag.

He went on to say that it, however, did not contain a container.
Secondly, when Manzi opened the boot, he did not alight
from the
vehicle to open the boot in which case he could have identified what
was in that plastic bag.  That plastic bag contained
clothing
which was to be exchanged for dagga. Those were normal clothing for
males like jeans and t-shirts.
[106]
He disputed Manzi’s evidence that accused no.2 gave directions
as he was driving to Walaza saying that Manzi knew the
Walaza area.
What he did not know was where he was going to drop them.  When
it was brought to his attention that accused
no.2 admitted that she
was the one giving Manzi directions, he said that accused no.2 was
admitting for herself, not for him.
He could not agree to
something that did not happen.  Accused no.2 told Manzi on the
phone that they were going to Walaza.
As a result, Manzi
enquired from accused no.2 where exactly in Walaza they were going to
so that he could charge the fare properly.
He added that he was
present when accused no.2 made the phone call.  The last time he
was present when their transportation
to Walaza was finalized was in
the afternoon.
[107]
When it was pointed out that accused no.2’s evidence was that
she phoned Zimasa after 18:00 after knocking off from
work.  His
response was that perhaps accused no.2 had her own reasons for saying
that and therefore he would not stand in
her way.  When it was
pointed out that accused no.2 was speaking to Zimasa, not Manzi, his
response was that he did not have
a comment.  When he was asked
about accused no.2’s evidence that it was before 19:00 when
they told her that they needed
transport to Walaza, his response was
that he would not comment as he was not sure about the time.  He
further testified that
the dagga deal was discussed with the dagga
dealer by accused no.1.  Accused no.1 told him about it five
days before the date
of the actual deal.
[108]
When they got inside the dealer’s shack they were supposed to
test the dagga to see if it was the correct dagga they
had made the
deal for.  They found the dagga dealer smoking his own dagga and
they had to test the one they were going to
take with them.
After they had tested it and were satisfied with it, the dagga dealer
checked the clothing to see if it was
what was agreed upon.  He
testified that when they returned to the vehicle they found the
vehicle at the spot where Manzi
had dropped them off.  He then
said he did not know if he had moved after he dropped them off.
On returning to the vehicle
his observation was that the vehicle was
still in the same spot where it had dropped them earlier.  He
added that when they
were dropped at that spot he and accused no.1
alighted from the vehicle.  He disputed accused no.1’s
evidence that accused
no.2 also alighted to show them the way.
He insisted that only himself and accused no.1 alighted and added
that accused no.1
knew the place.
[109]
On Manzi’s evidence that on their return, they were running
saying they were being chased by dogs, he said that that
was not
true.  They were walking when they returned in the same way that
they walked on their way there.  He disputed
accused no.1’s
evidence that on their return they were running but not in full speed
or that they were trotting.  Accused
no.3 said that he did not
know because accused no.1 had been smoking dagga and on that day he
himself did not smoke.  He merely
tested the dagga.
Accused no.1 was a dagga smoker.  Perhaps he was high as a
result of which he thought they were running
or rushing when in fact
they were just walking.  Accused no.3 closed his case.
Analysis.
[110]
The defence of all three accused persons was that at about the time
at which the crimes were committed they were in the vicinity
of the
crime scene, at most, about 250 metres from the crime scene.
They were there on an unrelated business that had nothing
to do with
the deceased or the homestead at which the deceased died.  They
were there to get dagga from a dagga dealer.
It is so that
there is no direct evidence linking them to the crimes that were
committed.  Therefore, the evidence against
them is of a
circumstantial nature.
[111]
In
Gcaza v S
(1400/2016)
[2017] ZASCA 92
(9 June 2017) the
Supreme Court of Appeal restated the approach to the assessment of
circumstantial evidence, reaffirming our
locus classicus, R v Blom
on inferential reasoning.  The court said in
Gcaza
:
“
[23]
The appellant’s challenge to the evidence is in a piece-meal
fashion.  This court in
S v Reddy &
Others
1996 (2) SACR 1
(A) at 8C-D
warned against this, where it stated as follows:
‘
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration whether it excludes
the reasonable possibility that the explanation given
by an accused
is true.  The evidence needs to be considered in its totality.
It is only then that one can apply the
oft-quoted dictum in
R
v Blom
1939 AD 188
at 202-203, where
reference is made to two cardinal rules of logic which cannot be
ignored.  These are, firstly, that the
inference sought to be
drawn must be consistent with all the proved facts and secondly, the
proved facts should be such “that
they exclude every reasonable
inference from them save the one sought to be drawn”.
…
[25]
The sentiments expressed by this court in
S v Ntsele
1998 (2)
SACR 178
(SCA) are relevant, where it held that the onus rests upon
the State in a criminal case to prove the guilt of the accused beyond

reasonable doubt - not beyond all shadow of doubt.  The court
held further that when [it] was dealing with circumstantial
evidence,
as in the present matter, the court was not required to consider
every fragment of evidence individually.  It was
the cumulative
impression which all the pieces of evidence made collectively, that
had to be considered to determine whether the
accused’s guilt
had been established beyond a reasonable doubt.  Courts are
warned to guard against the tendency to
focus too intensely on
separate and individual components of evidence and viewing each
component in isolation.”
[112]
There are a number of facts that are common cause and some that
cannot be disputed with any degree of cogency in this case.
I
mention a few of them hereinbelow.
1.
Accused no.2 was married to the deceased in count 3.  According
to accused no.2, they had three children who all predeceased
them.
2.
Accused no.2 had two children who, on her evidence, in 2022 were
seven and five years old respectively.  Both of those children

were not fathered by her husband.
3.
At the time of his death, the deceased in count 3 had an intimate
relationship with Kekeletso, the deceased in count 4 and also
lived
with a 13 year old boy, the deceased in count 5.
4.
Accused no.1 and 2 and Keketso went to fetch goods at Walaza, not
very long before the deceased’s homestead was set alight

evidently with the petrol found at the crime scene.
5.
Keketso testified that he was part of the people that went to fetch
those goods.  Some of his evidence indicates that it
was in
November 2019.  So both on accused no.1 and 2’s version
goods were fetched from Walaza.  This corroborates
Keketso’s
evidence.  Accused no.1 chose not to know whether Keketso was
there or not in the bakkie that accused no.2
had hired to fetch the
goods.
6.
According to Keketso, he did not know the deceased in count 3.
However, he was told by accused no.2 that they were fetching
the
goods from her homestead in Walaza.  Accused no.1 adds a piece
to this evidence.  He says he and accused no.2 went
to the
Nyakambi homestead but, they went there to fetch a key for the
homestead where Lefu’s goods were to be fetched.
So on
that occasion, he also places himself at the deceased’s
homestead with accused no.2.  They only disagree about
the
dates.
7.
Keketso’s evidence was also that he was approached by accused
no.2 who took a black 20 litre container with a yellow lid
from him.
That container was part of the items he keep is his room for accused
no.2 as some items which had been fetched
from Walaza did not fit in
her room.  He later saw accused no.1, 2 and 3 leaving the
premises with the said container singing.
Accused no.2 and 3
agree that they did leave the premises carrying a container which
according to accused no.2, was white with
a white lid and it was a 25
litre container.
8.
Keketso’s evidence was also that the following day after
accused no. 1,2 and 3 left the premises with the container he

described as black with a yellow lid, he noticed that accused no.1
was not waking up.  He went to his room and knocked.

Accused no.1 opened the door.  Keketso noticed that accused
no.1’s face was black.  He asked him about his black

face.  Accused no.1 responded that if he had listened to
Keketso, none of this would have happened.  Accused no.1’s

evidence was that he did not open for Keketso.  Most
importantly, he never disputed that Keketso knocked at his door.
9.
Manzi’s evidence was that he was hired for a trip to Walaza on
the night of the 6 November 2019.  In the vehicle it
was the
three accused persons.  He picked them up near Mokhesi Bridge.
He was asked to open the boot of his vehicle.
He opened the
boot while sitting in the driver’s seat.  He saw being
loaded, a black plastic bag which had a 10 or 20
litre container.
The accused admit his evidence, all of it in this regard save for
what was in the black plastic bag.
Their version is that it was
clothing that was in the plastic bag which was to be exchanged for
dagga.
10.
The vehicle drove to Walaza with accused no.2, who had hired the
vehicle giving directions.  Accused no.2 admitted hiring
Manzi’s
taxi cab which picked them up at 23:15 and giving him directions to
Walaza.  Manzi was told where to stop the
vehicle and at that
spot accused no.1 and 3, alighted and he was again asked to open the
boot and the parcel was off loaded.
Accused no. 1 and 3 left
with that parcel.
11.
According to Manzi, when accused no.1 and 3 returned to his vehicle
in which he and accused no.2 were waiting, accused no.1
and 3 were
running.  Accused no.1 agrees that they were running or were in
a rush as he put it.  Manzi says when the
two accused returned,
they were not carrying the parcel they had taken with them when they
left and were not carrying anything.
In fact they were smelling
smoke.  When he asked then why they were running they said they
were being chased by dogs.
Accused no.3 denies that they were
running.  He thinks it could be that accused no.1 was high from
the dagga he had smoked
at the dagga dealer’s shack.  As
for smelling smoke, Manzi did not know why they smelled smoke.
However, they
attribute the smell from the dagga that was smoked at
the dagga dealer’s shack.  Very interestingly, it was put
to Manzi
that accused no.3 did not smell any smoke.  It was
further put to him that if anything he smelled cigarettes because he
is
a smoker.  Manzi clearly stated that “well, at least I
can be (
sick
) differentiated between that smell of a cigarette
or tobacco and that of something which has been burned different from
a cigarette.”
12.
It is common cause that accused no.1 had healing burn wounds on his
face, lower back in the waist area and the back of his left
leg.
13.
It is common cause that the police found a 20 litre container at the
crime scene.  That container appears in photos 1,
2 and 17 of
the crime scene photo album.  It is in a black plastic bag.
The crime scene photo album’s description
of points describes
that plastic container as black.  This aligns with Keketso’s
evidence that the container that accused
no.2 took from his room was
black with a yellow lid.
[113]
The version of the accused having gone to Walaza that night in
pursuit of a dagga deal is farfetched and is so improbable
as to be
false.  It is a product of an attempt at creative manipulation
of facts which resulted in their evidence being contrived
and appears
to have been well rehearsed and appears to have been adjusted as the
State’s case continued.  This explains
the contradictions
that are just too many to count in the evidence of the accused.
However, as they say the truth has a tendency
of coming out no matter
how hard and careful one is at trying to hide it as the accused
before me seem to have done.  The
exchange of dagga with accused
no.3’s clothes is farfetched.  It does not fit in with
probabilities and is in fact false.
The whole dagga deal has
clearly been made up to explain their presence in that area at about
the same time the crimes were committed.
It is even worse that
the dagga dealer was not called to testify so that the veracity of
this dagga deal could be tested.
[114]
The same applies with what was alleged to be Lefu’s goods, the
brother to accused no.2.  Accused no.2 testified
to have a
sister from one of her relatives who lives in Walaza.  The key
was not left with her and there is no evidence why
the key could not
be left with her or at the homestead Lefu was renting.  Lefu
himself was not called to testify about his
goods.  Accused
no.1’s evidence was that on the day they fetched the goods,
which on his and accused no.2’s evidence,
was in October 2019,
they fetched the key from the homestead of the deceased Nyakambi.
Combi’s evidence was that at
the time of their demise,
Nyakambi had a relationship with Kekeletso who also died in that
fire.  How in those circumstances
where there was no longer any
relationship between accused no.2 and Nyakambi, and both of them had
moved on with their lives, the
key could be left with him is
bewildering.  After all the homestead from which the goods were
fetched not very long before
Nyakambi’s homestead was burned,
was that of Nyakambi according to Keketso.  Keketso’s
evidence was that he was
told by accused no.2 that they were fetching
the goods from her homestead in Walaza.
[115]
The evidence of these State witnesses, Zimasa, Manzi and Keketso was
very credible in most material respects.  It was
not exaggerated
and while it was not perfect, especially that of Keketso, it was very
credible with all its inconsistences and
imperfections at times.
I may add that in respect of the issues he testified about, Keketso
was a single witness.  Applying
the necessary precautions to the
evidence of a single witness, it is clear that Keketso told the truth
and his evidence was credible.
The evidence of all the accused
was full of contradictions and was largely fabricated.  Not only
did each accused contradict
themselves, they also contradicted each
other.  All of it was fabricated when it comes to their reason
for hiring Manzi’s
vehicle and their presence on the night of
the deceased’s murders at Walaza.  That reason was for
fetching dagga.
That evidence was so improbable that it was
false and a trumped up story that was carefully designed to explain
their presence
at Walaza at about midnight on the date and at about
the same time at which the deceased were killed in that fire.
On the
evidence of the State, even without the confession and
pointing out, I would, in any event, have convicted the accused.
I
have no doubt in my mind that they are the ones who set the
Nyakambi homestead on fire.  They intentionally killed the
deceased
at the behest of accused no.2.  The confession merely
serves to explain what was in the mind of accused no.2 which would
have
caused her to arrange and procure the murder of the deceased and
the burning of their home.  Accused no.1’s confession
and
pointing out merely add to the State’s evidence which was, in
my view, sufficient for a conviction even without the confession
and
pointing out.  At the risk of stating the obvious, I may add
that the confession of one accused is not admissible as evidence

against another accused.
Section 219
of the
Criminal Procedure
Act makes
this very clear.
[116]
Two cases come to mind that fit the circumstances of this case.
The first case is
Olawale v S
[2010] (1) All SA 451
(SCA) at
455 paras 13-15 in which the court said:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere

preponderance of probabilities is not enough.   Equally
trite is the observation that, in view of this standard of proof
in a
criminal case, a court does not have to be convinced that every
detail of an accused’s version is true.  If the
accused’s
version is reasonably possible true in substance, the court must
decide the matter on the acceptance of that version.
Of course
it is permissible to test the accused’s version against
inherent probabilities.  But it cannot be rejected
merely
because it is improbable, it can only be rejected on the basis of
inherent probabilities if it can be said to be so improbable
that it
cannot reasonably possibly be true.
In
evaluating the evidence against the appellant, one must look at the
reliability and credibility of the witnesses, consider if
any of them
had a motive to falsely implicate the appellant and further look at
the probabilities of the State’s version.”
[117]
As the court said in
S v Ipeleng
1993 (2) SACR 185
(T) at 189
c-d an accused person is under no obligation to explain why the State
witnesses would falsely implicate him.  This
principle is
sound.  It is difficult for anybody to explain what is in
another person’s mind.  The attempt by accused
no.2 to
provide a motive for what she said was the reason Keketso implicated
him had all the hallmarks of an after thought.
She gave a long
winded explanation that had different components that could not
possibly have anything to do with each other.
It was, like most
of her evidence, false.  It does not account for Manzi’s
evidence who also testified about a 10 or
20 litre container.
It also does not account for the one that was found at the crime
scene at Walaza on the night they, on
their version, were all at
Walaza.  Those two pieces of evidence, looked at independently
of the evidence of Keketso who is
accused of having a motive for
implicating accused no.2 point to the guilt of the accused persons.
[118]
To the extent that some of the evidence of the State might
justifiably be criticized for imperfections, the case of
S v Van
der Meyden
1999 (2) SA 79
(W) at 82 C-D comes to mind.  In
that case Nugent J, as he then was, said:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt and the

logical corollay is that he must be acquitted if it is reasonably
possible that he might be innocent.  The process of reasoning

which is appropriate to the application of that test in any
particular case will depend on the nature of the evidence which the

Court has before it.  What must be borne in mind, however, is
that the conclusion which is reached (whether it be to convict
or
acquit) must account for all the evidence.  Some of it might be
found to be unreliable, and some of it might be found to
be only
possibly false or unreliable, but none of it may simply be ignored.”
[119]
Having considered with great care, all the evidence of the State
witnesses and the evidence of each one of the accused persons,
it is
clear to me that the three accused persons were not at the wrong
place at the wrong time.  The evidence considered as
a whole
point to carefully planned and executed crimes which were designed to
procure the outcome that they did, the killing of
the deceased and
the destruction of their home.  On the evidence, it is accused
no.1 and 3 who set the Nyakambi homestead
on fire at the behest of
accused no.2 who masterminded the whole operation in what, if it was
not criminal acts, would be said
to be commendable skill to evade
detection.  The meeting at her place was not to discuss a dagga
deal.  It was evidently
to plan and execute the crimes that were
committed with the willing assistance and participation of accused
no.1 and 3 who ordinarily
had no axe to grind against the deceased
persons.
[120]
The fact that accused no.2 never set her feet at the Nyakambi
homestead at the time it was set on fire is neither here nor
there.
Accused no.1 and 3 acted on her behalf and executed a plan they had
all hatched together.  They both had no reason
of their own to
kill the deceased persons.  The doctrine of common purpose under
which they were charged makes all of them
equally liable for all the
crimes that were committed that night.  The principles of the
doctrine of common purpose have recently
be reaffirmed in
Tshabalala
v S; Ntuli v S
2020
(2) SACR 38 CC,
2020 (5) SA 1
(CC) by the
Constitutional Court in which the court said:
“
[46]
Burchell defines the doctrine of common purpose in the following
terms.
‘
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 crime.’
[47]
Synman elaborates that –
“
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.”
These
requirements are often couched in terms which relate to crimes such
as murder.
[48]
The liability requirements of a joint criminal enterprise fall into
two categories.  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.
In the latter instance the liability arises from an active
association and participation in a common criminal
design with the
requisite blameworthy state of mind.
[49]
It is trite that a prior agreement may not necessarily be express but
may be inferred from surrounding circumstances.
The facts
constituting the surrounding circumstances from which the inferences
are sought to be drawn must nevertheless be proved
beyond reasonable
doubt.  A prior agreement to commit a crime may invoke the
imputation of conduct, committed by one of the
parties to the
agreement which falls within their common design, to all the other
contracting parties.  Subject to proof of
the other definitional
elements of the crime, such as unlawfulness and fault, criminal
liability may in these circumstances be
established.”
[121]
In all these circumstances, the State has proved the guilt of all the
accused beyond reasonable doubt.  They acted together
to commit
the premeditated gruesome murder of Nyakambi Monoana, Kekeletso
Catherine Senoamadi and the 13 year old boy, S[...] B[...].
[122]
In the results all the accused are found guilty in respect of counts
2, 3, 4 and 5, that is arson and the murder of the deceased
in counts
3, 4 and 5 as charged.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State:
L.
POMOLO
Instructed
by:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
MTHATHA
Counsel
for Accused No. 1:
M.
SAKWE
Instructed
by:
LEGAL
AID SOUTH AFRICA
MTHATHA
Counsel
for Accused No’
s 2
&
3
:
Z.
NGXISHE
Instructed
by:
LEGAL
AID SOUTH AFRICA
MTHATHA
Date
heard:
27
March 2023
Date
Delivered:
29
March 2023