Soni v S (465/2019) [2021] ZASCA 57; [2021] 3 All SA 362 (SCA); 2021 (2) SACR 241 (SCA) (5 May 2021)

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[2021] ZASCA 57
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Soni v S (465/2019) [2021] ZASCA 57; [2021] 3 All SA 362 (SCA); 2021 (2) SACR 241 (SCA) (5 May 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 465/2019
In
the matter between:
RAJIVEE
SONI

APPELLANT
and
THE
STATE

RESPONDENT
Neutral
citation:
Rajivee
Soni v The State
(Case
no 465/2019)
[2021] ZASCA 57
(5 May 2021)
Coram:
NAVSA ADP,
SALDULKER and MBHA JJA and WEINER and

UNTERHALTER AJJA
Heard
:
29 March 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email,
publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00
on 5 May 2021.
Summary:
Criminal appeal –
appeal against conviction and sentence – whether pattern of
evidence proved guilt of the accused beyond
a reasonable doubt –
distinction drawn between a mandate and the doctrine of common
purpose in respect of a charge of murder
­– test to be
applied when a State witness cannot testify and where
cross-examination cannot be completed – sentence
–
whether period of incarceration awaiting appeal ought to be taken
into account.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Henriques J, sitting as
the court of first instance):
1.
The appeal against
convictions and sentences is upheld in part and dismissed in part, as
follows:
1.1
The appeal against the
conviction and sentence on count 1 is dismissed;
1.2
The appeal against the
convictions and sentences on counts 2 and 4 is dismissed;
1.3
The appeal against the
convictions and sentences on counts 3 and 5 is upheld;
1.4
The appeal against the
conviction on count 6 of conspiracy to murder is upheld, with the
conviction substituted with the alternative
count, namely, incitement
to commit murder;
1.5
The appeal against
sentence on count 6 is upheld to the extent reflected in the
substituted order that appears hereunder;
1.6
The effective sentence
is reduced to the extent reflected in the substituted order.
2.
The order of the court
below is substituted as follows:
‘
(a)
In respect of count 1: Murder read with s 51(1) and Part 1 of
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, the accused
is found guilty;
(b)
In respect of count 2: Defeating or obstructing
the course of justice, the accused is found guilty;
(c)
In respect of count 3: Defeating or obstructing
the course of justice, the accused is acquitted;
(d)
In respect of count 4: Defeating or obstructing
the course of justice, the accused is found guilty;
(e)
In respect of count 5: Assault with intent to do
grievous bodily harm, the accused is acquitted;
(f)
In respect of count 6: Conspiracy to commit
murder, alternatively, incitement to murder, the accused
is found
guilty of incitement to murder;
(g)
In respect of count 1, the accused is sentenced to
25 years’ imprisonment;
(h)
In respect of count 2, the accused is sentenced to
18 months’ imprisonment;
(i)
In respect of count 4, the accused is
sentenced to 2 years’ imprisonment;
(j)
In respect of count 6, the accused is
sentenced to 5 years’ imprisonment;
(k)
The sentences imposed on counts 2, 4 and 6 are to
run concurrently with the sentence on count 1. The accused
is
sentenced to an effective 23 years’ and 7 months’
imprisonment.’
3.
The sentence of 23
years and 7 months’ imprisonment referred to in (k) above will
run from the date of the further imprisonment
of the appellant
pursuant to this order.
4.
The National Commissioner for Correctional
Services is directed to ensure that a social worker in the
employ of
the Department for Correctional Services visits the children of the
accused, Mr Soni, regularly during his incarceration,
and submits
reports to the office of the National Commissioner as to whether the
children are in need of care and protection as
envisaged in
section
150
of the Children’s Act 38 of 2005 and, if so, to take the
steps required by that provision.
5.
The Department of Correctional Services is
to give consideration to the recommendation in the report
of Floss
Mitchell relating to the manner in which contact visits between the
accused and the minor children are to take place,
and, where
possible, to facilitate the assistance of a social worker during such
visits.
6.
The accused is declared unfit to be licenced
for a firearm in terms of the provisions of the
Firearms Control Act
60 of 2000
.
JUDGMENT
Saldulker
JA and Unterhalter AJA (Navsa ADP and Mbha JJA and Weiner AJA
concurring)
Introduction
[1]
On the night of 13 May
2013, at around 19h00, when Dr Bhavish Sewram (the deceased), a
medical doctor, left his surgery in Raisethorpe,
Pietermaritzburg
little did he know that he was to meet an untimely death at the hands
of assassins hired to execute him. Mr Sabelo
Dlamini, who fired the
shots that killed him, and those who waited in the getaway vehicle to
drive him away, were arrested, convicted
and sentenced for his
murder. One would think that Dr Sewram’s family had closure, in
that those responsible for his death
were held to account and had
paid for their dastardly deed. But this was not to be.
[2]
This was only the
beginning of a saga which led to revelations of corruption,
conspiracies, incitement, defeating the course of
justice, and the
laying of false charges, all of which eventually culminated in the
arrest of a businessman, the appellant, Mr
Rajivee Soni, for the
murder of Dr Sewram.
[3]
The appellant was
arrested and charged with six counts, namely, on count 1, the murder
of Dr Sewram; on counts 2, 3, and 4, for
defeating or obstructing the
course of justice; on count 5, for assault with intent to cause
grievous bodily harm; and on count
6, for contravening s 18(2)
(a)
of the Riotous Assemblies Act 17 of 1956 (conspiracy to commit
murder).
[4]
It was a lengthy trial
that lasted in excess of three years. The appellant was convicted on
all charges by the KwaZulu-Natal Division
of the High Court,
Pietermaritzburg (Henriques J) (the high court), and sentenced to
imprisonment as follows: 25 years on
the murder count; 18
months, on counts 2 and 3, for defeating the course of justice; 2
years on count 4, defeating the course of
justice; 18 months for the
assault on count 5; and, on count 6, to five years for conspiracy to
commit murder. The sentences on
counts 2 to 5 were ordered to run
concurrently with the sentence on count 1. The appellant was
sentenced to an effective 30 years’
imprisonment. This appeal
against the conviction and sentence of the appellant is with the
leave of the high court.
Background
[5]
Dr Sewram, who was 33 years old at the time of his death, was a
doctor who conducted
a number of practices, one of which was located
at Old Greytown Road, Raisethorpe in Pietermaritzburg, KwaZulu-Natal.
The appellant
and Dr Sewram enjoyed a friendship for several years
and their wives were also friends. However, during January 2012 their
friendship
soured, after the appellant formed a suspicion that Dr
Sewram was engaged in an extra-marital affair with the appellant’s

wife.
[6]
At the commencement of the proceedings in the high court the
appellant tendered a plea of not guilty on all 6 counts and a
statement in terms of s 115 of the Criminal Procedure Act 51 of
1977 (the CPA) was handed in on his behalf, in which he denied
any
involvement in the murder or in any of the offences with which he had
been charged. The appellant stated that at a family meeting
he and
the deceased had reconciled and that over time he had made peace with
his wife.
[7]
The State’s
principal witness was Mr Sugen Naidoo, who, at the time of the
murder, was a policeman serving at the Mountain
Rise police station
in Pietermaritzburg. He testified that in 2012 the appellant had
visited him and in due course recounted that
his wife had been having
an affair with his friend, Dr Sewram. The appellant wanted to
teach Dr Sewram a lesson and was willing
to pay for this to be done.
Sugen Naidoo, a self-confessed drug addict and corrupt policeman, was
willing to assist the appellant
and make some money at the
appellant’s expense.
[8]
Sugen Naidoo’s
evidence was that he and the appellant planned various actions to be
taken against Dr Sewram so as to harm
him, and ultimately cause him
to leave Pietermaritzburg. Over the course of 2012, Sugen Naidoo lent
his efforts, together with
the appellant, to this enterprise. First,
Sugen Naidoo approached a fellow policeman, Warrant Officer Daryl
Gounder, to assist
him to plant drugs at Dr Sewram’s
surgery and then have the doctor arrested for illegal drug
possession. Sugen Naidoo
purchased the drugs with money given to him
by the appellant from his brother-in-law, Mr Hoosen Shaik-Cassim.
Sugen Naidoo however
informed the appellant that the plan to plant
the drugs had been thwarted by senior officers, and he was
nevertheless paid by the
appellant.
[9]
Undeterred, the
appellant then conceived of a plan to have Dr Sewram charged with
sexual assault and sought Sugen Naidoo’s
assistance. Sugen
Naidoo, in turn, asked Gounder to arrange that a woman would consult
with Dr Sewram and then lay a false
charge of sexual assault
against the doctor. This, Gounder did by persuading Ms Mariamma
Kisten to consult with Dr Sewram and then
lay a charge of sexual
assault against him. Dr Sewram was arrested and charged. But the
charge was later withdrawn.
[10]
The appellant then
sought to escalate the actions against Dr Sewram, and wanted him
physically hurt. The appellant asked Sugen Naidoo
whether his
brother-in-law, Mr Morné Emersleben, would be willing to do
so. Sugen Naidoo approached Emersleben and they
contrived a plan to
plant an unlicensed firearm at Dr Sewram’s surgery, and later,
to hire men to assault Dr Sewram. In fact,
they intended to carry out
neither plan and used the appellant’s connivance in these plans
to extract money from him.
[11]
Next, the appellant
came to Sugen Naidoo with a plan to lay a false complaint of assault
against Dr Sewram that would be corroborated
by a friend of the
appellant. The appellant did make the complaint. A docket was opened
by Sugen Naidoo, and Dr Sewram was arrested
and released on a
warning. The appellant paid Sugen Naidoo for his efforts.
[12]
Sugen Naidoo then made
contact with Mr Zaheer Khan, at the instance of the appellant, to
have Dr Sewram assaulted against payment
of R5 000. The assault
did not take place, but a different plan was agreed with Khan. His
step-daughter, Ms Sonali Sookraj,
would consult with Dr Sewram and
then lay a false charge of sexual assault against him. This she did.
Dr Sewram was again arrested
and charged, but the charge was also
withdrawn.
[13]
Finally, Sugen Naidoo
also testified that he had introduced the appellant to two policemen,
Mr Ricky Naidoo and Mr Nishal Maharaj.
They conceived of a plan to
spray-paint ‘sex pest’ and ‘sex doctor’ at Dr
Sewram’s surgery. This
was then done. Emboldened, the appellant
then conspired with the two policemen to have them shoot Dr Sewram
with a paintball gun,
discharging hard objects. The appellant, Sugen
Naidoo, Ricky Naidoo, and Maharaj set off on an expedition to buy a
paintball gun.
This they eventually procured in Pinetown. Ricky
Naidoo and Maharaj carried out the assault upon Dr Sewram, who was
injured as
a result. And the appellant paid them for their efforts.
[14]
We have set out this
sequence of events, to which Sugen Naidoo testified, because they are
central to the case that the State made
against the appellant. The
State led the following witnesses to corroborate the account given by
Sugen Naidoo. First, Emersleben
testified that the appellant had
asked him to procure assailants to assault Dr Sewram. He had done so,
but the assault did not
take place, because the hired assailants had
taken the money for the task and fled. The appellant also wanted
Emersleben to procure
an unlicensed firearm. He agreed to do so, but
in fact did not. Second, Shaik-Cassim testified that the appellant
had paid him
to hire men to break Dr Sewram’s arms and
legs and had described Dr Sewram’s surgery. Shaik-Cassim
testified that
he had no intention of carrying out the appellant’s
request and appeared to acquiesce only in order to extract money from

the appellant. Third, the State called Mariamma Kisten and Sonali
Sookraj, the two women who had laid the false complaints of sexual

assault. They testified as to how they had come to do so. Sookraj
explained that her step-father had asked her to lay the charge
and
had thereafter climbed into a white double-cab vehicle, in which she
identified the appellant seated in the front of the vehicle.
It is
necessary to pause to record that the appellant owned a white
double-cab vehicle. This part of the evidence is explored further,

later in this judgment.
[15]
The State also called
two further witnesses of importance. The first was Mr Mlungisi
Sithebe. Sithebe testified that the appellant
had asked him to scare
Dr Sewram by shooting him in the leg. The appellant wanted this
done because Dr Sewram had had an affair
with the appellant’s
wife. The appellant drove Sithebe to show him Dr Sewram’s
surgeries. Sithebe entertained the proposal,
but ultimately decided
that it was against his religious convictions. He then reported the
matter to Dr Sewram and the police.
[16]
The other witness
called by the State was Sabelo Dlamini. He, together with Mr
Mfaniseni Nxumalo and Mr Brian Treasurer, were convicted
of the
murder of Dr Sewram. Dlamini testified that Nxumalo had persuaded him
to shoot a man who had failed to pay Nxumalo for cutting
his grass.
Dlamini was driven to Dr Sewram’s surgery by Treasurer and
given a firearm. Treasurer explained who was to
be murdered. When Dr
Sewram came out of his surgery, Dlamini shot and killed him.
Treasurer then drove him and Nxumalo away. Treasurer
placed a call in
the course of the journey and said that the job had been done.
[17]
These were the
principal witnesses called by the State.
[18]
The appellant testified
in his own defence. He explained how he came to suspect that his wife
was having an affair with Dr Sewram.
This led to a separation from
his wife and the initiation of divorce proceedings. There was also a
heated exchange between the
families of the appellant and Dr Sewram
at a meeting held after the appellant had discovered the suspected
affair. But, as to the
alleged campaign against Dr Sewram, he denied
any involvement. Nor was he in any way involved in the murder of Dr
Sewram. In February
2012, he reported that an incident had occurred
in which Dr Sewram had slapped the appellant. The appellant laid a
complaint of
assault with the police. But, in the course of 2012, the
appellant’s rift with his wife began to heal. In October 2012,
there
was a meeting of the appellant and Dr Sewram, during which Dr
Sewram apologised, the men shook hands and the appellant said that
he
would withdraw the assault complaint. The appellant’s account
as to how the attacks upon Dr Sewram had come about was
to suggest
that Sugen Naidoo had orchestrated the attacks so as to foster
suspicion of the appellant’s complicity and thereby
sought to
extort money from the appellant.
[19]
The appellant also
called his accountant to testify as to how the appellant’s
businesses were conducted and the insufficiency
of cash transactions
to fund the payments in cash that the State alleged that the
appellant had made to procure the actions taken
against Dr Sewram. In
addition, the defence called witnesses to corroborate aspects of the
appellant’s testimony. These included
Mr Ricky Ganhes, who
testified that he had met the appellant in March 2013 who, together
with a security guard, were looking for
windows that had gone missing
from one of the appellant’s factories. Mr Anesh Premchand gave
evidence principally as to being
in the company of the appellant at
the time of Dr Sewram’s murder. Mr Clarence Jones, a colonel in
the SAPS, also testified.
He investigated police corruption and
explained the investigations of corruption against Warrant Officer
Gounder and the allegations
made against Colonel Bala Naidoo, that
Bala Naidoo had intimidated Sergeants Maharaj and Ricky Naidoo into
giving witness statements.
[20]
Finally, there was
expert testimony led by the State and the defence as to the cellular
telephone records produced at the trial
and what they signified. Mr
Dharmesh Kanti, a manager of the law enforcement liaison division of
MTN, testified for the State,
and Mr Brian Land, the proprietor of
Map Centre CC, for the defence.
[21]
This extensive body of
evidence gives rise to the following overarching issue. There can be
no doubt that Dr Sewram was assaulted,
arrested and charged on the
basis of false accusations of sexual assault, and was ultimately
murdered by assassins acting for reward.
These actions occurred by
design, not chance. The overarching issue is whether the appellant
orchestrated these actions against
Dr Sewram to seek revenge for Dr
Sewram’s infidelity, or whether there is an alternative
explanation that is reasonably possibly
true.
[22]
The appellant was
convicted on six separate counts. There are distinctive questions of
law and fact relevant to each count. We consider
these questions in
what follows. But, it is also relevant to our analysis that the
mosaic of events recounted in the evidence was
not random. The
pattern of events also has to be considered to determine whether the
guiding hand of the appellant set in train
the actions against Dr
Sewram, culminating in his murder, or whether the pattern of events
is susceptible of an alternative explanation
which, if reasonably
possibly true, would entitle the appellant to an acquittal. It is to
this task that we now turn.
Count
1: murder
[23]
As stated earlier, on
13 May 2013, Dr Sewram was shot and killed outside his surgery in
Raisethorpe, Pietermaritzburg. It was common
ground that Messrs
Dlamini, Nxumalo and Treasurer were responsible for Dr Sewram’s
murder. Also, as indicated above, before
the appellant’s trial
commenced, they were convicted of Dr Sewram’s murder. In the
summary of substantial facts, the
State alleged that at all times
material to count 1, the appellant acted in concert and in the
furtherance of a common purpose
with Treasurer, Nxumalo and Dlamini
to kill Dr Sewram. Thus, the trial court was called upon to
adjudicate whether the appellant
had acted in furtherance of a common
purpose with Dlamini, Nxumalo and Treasurer, to kill Dr Sewram. The
trial court found that
the appellant had done so. That finding is
appealed to this Court.
[24]
At the appellant’s
trial, the State led the testimony of Dlamini, who shot and killed Dr
Sewram, aided and abetted by Nxumalo
and Treasurer. Dlamini testified
that on 12 May 2013 he had visited Nxumalo, who was repairing a brush
cutter for him, at his home.
Nxumalo asked Dlamini whether he would
be willing to kill a person who had failed to pay Nxumalo for cutting
his lawn. Dlamini
was told that he would be paid R12 000 if he
was willing to do so. A firearm and transport would be provided.
Dlamini said
he would consider the proposition.
[25]
The following day, 13
May 2013, Nxumalo called Dlamini. Dlamini returned to Nxumalo’s
house, apparently of a mind to carry
out Nxumalo’s proposal.
There he was invited to get into a motor car with Nxumalo. Treasurer,
whom Dlamini knew slightly,
was in the driver’s seat. Nxumalo
took out a firearm and handed it to Treasurer. Treasurer drove to Dr
Sewram’s surgery.
Nxumalo indicated that the person to be
killed works at that surgery.
[26]
Treasurer then
explained to Dlamini how the killing was to be executed. The person
to be killed would, at the end of the working
day, switch off the
lights and come out of the surgery. He may be accompanied by a woman.
Treasurer would park elsewhere.
[27]
Treasurer then handed
Dlamini the firearm and explained its operation. Treasurer identified
the vehicle of the person to be killed,
parked close to the surgery.
Treasurer then instructed Dlamini that he should cross the street as
the person to be shot approached
his vehicle. Dlamini and Nxumalo got
out of Treasurer’s car, and Treasurer went to park the car.
[28]
Dlamini testified that
he shot Dr Sewram, and thereafter he and Nxumalo walked briskly to
Treasurer’s parked car. They got
into the car and Treasurer
drove off. Nxumalo requested the firearm so that he could return it
to Treasurer.
[29]
Dlamini explained that,
in the course of the journey, Treasurer took out his cellular
telephone. The defence objected to the leading
of further evidence as
to Treasurer’s call. The trial judge overruled the objection.
Dlamini testified that, whilst in the
car, Treasurer made a call, and
said the job was completed. Dlamini did not know who Treasurer had
called. Treasurer dropped off
Dlamini and Nxumalo, and returned,
sometime later, with a sum of money. Treasurer handed the money to
Nxumalo. Nxumalo then paid
Dlamini.
[30]
The initial
cross-examination of Dlamini was brief. Dlamini confirmed that he had
been convicted of the murder of Dr Sewram. He
also accepted that he
had acted on the instructions of Nxumalo, and that he knew no more of
the relationship between Nxumalo and
Treasurer than that they had
some sort of a connection. Dlamini was later recalled for further
cross-examination. He was asked
again about the telephone call.
Dlamini’s evidence-in-chief was as follows:
‘
And
your evidence is that on the way to Mason’s a call was made? –
Yes.
Right.
Who made the call? – It was made by Treasurer.
When
you say the call was made, what did Mr Treasurer do? –
Treasurer phoned, phoning some person . . . telling that person,

whoever it was, that the job was completed.
When
Mr Treasurer made the call, what was he using? – He was using a
cell phone.
And
did Mr Treasurer say anything else during this phone call? – I
do not recall anything else.’
[31]
Under
cross-examination, Dlamini testified that Treasurer made the call as
they were passing the Copesville police station. As to
the call
itself, Dlamini confirmed that apart from Treasurer’s voice, he
did not hear any other voice. Dlamini was asked
whether there was a
conversation. The question put and the answer given were as follows:
‘
And
did it sound to you like a conversation, where you could only hear
one of the speakers? – Yes, I could not hear the other
person
who was responding.’
[32]
It was submitted on
behalf of the appellant that the evidence of Dlamini posed a
fundamental difficulty that the trial court had
failed to recognise.
The evidence of Dlamini before the trial court established a common
purpose between Nxumalo, Dlamini and Treasurer
to kill Dr Sewram, in
furtherance of which his murder took place. Neither Nxumalo nor
Treasurer were called as witnesses, though
the defence indicated that
Treasurer was a possible witness made available to the defence by the
State. This was also the common
purpose that had formed the basis for
the convictions of Nxumalo, Dlamini and Treasurer in separate
proceedings. How then was it
possible for the trial court to convict
the appellant for the murder of Dr Sewram, on the basis of an
entirely distinct common
purpose that was found by the trial court to
exist between Nxumalo, Dlamini, Treasurer and the appellant?
[33]
In relation to count 1,
the indictment alleged that the appellant was guilty of murder, in
that he intentionally and unlawfully
killed Dr Sewram. In the summary
of substantial facts the State relied on the appellant having acted
in concert with and in the
furtherance of a common purpose with
Treasurer, Nxumalo and Dlamini to kill the deceased. If, however, the
evidence established
beyond a reasonable doubt that Treasurer was
mandated by the appellant to find persons to murder Dr Sewram, and
the murder was
then carried out in accordance with that mandate, then
reliance on the doctrine of common purpose to convict the appellant
on the
charge of murder would be superfluous. The appellant would be
guilty of the murder of Dr Sewram on the basis that his mandate was

discharged. This is so irrespective of whether the identity of the
appellant was disclosed to the assassin or the other accomplice,
or
whether they knew of the appellant’s existence. As we will
demonstrate below the same result ensues when the doctrine
of common
purpose is applied. It is to the latter enquiry that we now turn.
[34]
It is certainly true
that Dlamini had no knowledge of the appellant. Dlamini testified to
the agreement between himself, Nxumalo
and Treasurer to kill Dr
Sewram, pursuant to which they acted to murder Dr Sewram. But does
this evidence exclude the possibility
that the agreement extended
further than Dlamini appreciated? Before addressing that question, it
is necessary to reflect that
by the time Treasurer was introduced to
Dlamini and, if regard is had to Dlamini’s evidence about how
this had occurred,
including the handing-over of the firearm, it must
have been compellingly clear that the motive for the intended killing
provided
earlier by Nxumalo, namely, that it was for failure of the
deceased to pay the latter for cutting his lawn, was facile. This is

all the more so given the amount he was to be paid to kill the
deceased.
[35]
In
our view, the agreement of which Dlamini had knowledge does not
exclude a wider agreement of which he was ignorant. In
Thebus
,
[1]
the Constitutional Court explained that the doctrine of common
purpose permits of the attribution of criminal liability to those

persons who jointly undertake the commission of a crime. The conduct
of every person who acts pursuant to the common purpose is

attributable to all who form part of the common purpose. A common
purpose may come about by way of a prior agreement, express or

implied, or by way of active association and participation in a
common criminal design. In a consequence crime, such as murder,
the
ordinary requirement that there must be a causal connection between
the conduct of the accused and the death of the deceased
is dispensed
with, provided that the accused actively associated with the conduct
of the perpetrators.
[36]
An agreement between A,
B and C to commit a crime does not exclude the possibility that A is
acting on the instructions of D. In
these circumstances, D is a party
to the agreement to carry out the crime, even though his identity is
not disclosed to B or C.
That may come about because A is acting as
the agent of D. Were it otherwise, the doctrine of common purpose
would be constrained
in an unacceptable way. D, who initiates the
criminal design and instructs his agent A to carry it out, cannot
escape responsibility
for what he has initiated simply on the basis
that those persons his agent has employed to carry out the crime (B
and C) are ignorant
of the principal’s existence.
[37]
As we have indicated,
the same conclusion as to an accused’s responsibility for
murder may be arrived at without recourse
to any agreement or active
association under the doctrine of common purpose, but rather by the
application of the concept of mandate.
If D instructs A to take the
necessary measures to murder a person, and A does so by recruiting B
and C to carry out the murder,
D is responsible for the murder
carried out at his behest. D’s liability need not depend upon
his agreement with A, B and
C. It suffices that A acted within the
scope of the mandate given to him by D so as to cause B and C to
execute the mandate.
[38]
Where an accused’s
agent agrees to the common purpose, there must be evidence of what
the principal had sought of his agent
and that the scope of the
agency is consistent with the agreement concluded by the agent with
the other participants. But on such
a showing, the non-disclosure of
the principal does not exclude the principal from being party to the
agreement, and hence to the
common purpose. So too, provided the
agent acts within the scope of his mandate to effect the murder, the
principal cannot avoid
liability simply because those recruited to
commit the deed are ignorant of the relationship between the agent
and his principal.
[39]
For these reasons, it
does not follow that because Dlamini understood that he was to murder
Dr Sewram in furtherance of a common
purpose with Nxumalo and
Treasurer, the common purpose did not, in fact, include the
appellant. Provided Treasurer was acting upon
the instructions of the
appellant, the appellant is party to the agreement to murder Dr
Sewram.
[40]
The alternative way of
conceptualising the matter yields the same result. Simply because
Dlamini was ignorant of the fact that Treasurer
was acting upon the
instructions of the appellant does not avoid the appellant’s
liability for what was done within the scope
of the mandate he gave
to Treasurer.
[41]
It does not matter that
Dlamini thought that the reason for killing Dr Sewram was his
failure to pay Nxumalo, nor that that
reason lacked plausibility. It
is the agreement to murder Dr Sewram that matters in order to
establish liability. The reason as
to why each party enters into the
agreement, or, for that matter, their appreciation of the reasons
that motivate each of the others
to do so, does not determine what
has been agreed. In this case, there can be no doubt that Dlamini,
Nxumalo and Treasurer agreed
to murder Dr Sewram, and in fact did so.
The central question is whether there was proof beyond reasonable
doubt that the appellant
was party to that agreement or issued the
instruction to Treasurer to kill Dr Sewram, and set in train the
actions that resulted
in his murder.
[42]
The submissions of the
appellant placed some stress upon the fact that Dlamini, Nxumalo and
Treasurer were convicted on the basis
of a common purpose that made
no reference to the appellant. Yet, it was argued, the case against
the appellant is predicated upon
a different common purpose that
includes the appellant. In our view, there is no conceptual
incongruity that arises, nor is there
any injustice to the appellant.
Proof of the tripartite agreement sufficed for the conviction of
Dlamini, Nxumalo and Treasurer.
More is required to implicate the
appellant. That was a central issue in the appellant’s trial.
But if Treasurer was acting
on behalf of the appellant, then there is
no contradiction between the agreement relied upon for the conviction
of Dlamini, Nxumalo
and Treasurer and the participation of the
appellant as a party to that agreement, through the agency of
Treasurer.
[43]
We turn to consider
whether there was proof beyond reasonable doubt that the appellant
issued an instruction to Treasurer to have
Dr Sewram murdered, or was
party to an agreement with Dlamini, Nxumalo and Treasurer to murder
him.
[44]
Dlamini gave evidence
of the call made by Treasurer from his cellular telephone after the
murder. Dlamini was not able to identify
to whom the call was made.
At the trial, the State led the evidence of Kanti, a specialist in
the law enforcement division of MTN.
Kanti also produced relevant
cell phone records.
[45]
The following was
established from Kanti’s evidence. At 7:10:49 pm, on 13 May
2013, Treasurer placed a call to the appellant’s
cell phone.
The call was routed to voicemail. The call’s duration was 12
seconds. The call was placed shortly after the murder.
This is
important evidence, taken together with Dlamini’s testimony as
to what Treasurer said on the call. Given the immediacy
of the call,
the reference to the job having been completed, can only have
referenced the murder. And if this was said on a call
to the
appellant, it plainly implicated the appellant in the plan to murder
Dr Sewram. Treasurer would only make such a report
to the appellant
if the job was one given to Treasurer by the appellant. And that
would suffice as a significant part of the mosaic
of proof that the
appellant had commissioned Treasurer to procure the murder of Dr
Sewram. It would constitute Treasurer as the
appellant’s agent
to agree with Dlamini and Nxumalo a plan to carry out the murder.
Such a plan was agreed and implemented.
Under the doctrine of common
purpose, the murder would then be as much attributable to the
appellant as it was to Dlamini, Nxumalo
and Treasurer. The other
construct that would also render the appellant guilty of murder
arises if the appellant commissioned Treasurer
to procure the murder
of Dr Sewram, and Treasurer then did so, recruiting Nxumalo and
Dlamini for this purpose.
[46]
No doubt appreciating
the significance of this evidence, the appellant sought to cast doubt
on the reliability of the records produced
by Kanti. In addition, it
was submitted that the records do not establish that it was during
the call to the appellant that Treasurer
spoke the words reported by
Dlamini.
[47]
The following
submissions were made on behalf of the appellant. First, the record
of the call placed by Treasurer to the appellant’s
cell phone
number reflected the suburb in which the call originated and
terminated as being Dunveria, and not Copesville. Dlamini
had said
that the call was made as they were driving past the Copesville
police station. The record thus lacks reliability. Second,
the
duration of the call was 12 seconds. The voice message on appellant’s
phone was of longer duration, and hence no message
of the kind
reported by Dlamini could have been left. Third, the call records
reflect that Treasurer made further calls and received
one not long
after the call placed by him to the appellant. The call received was
59 seconds, and one of the calls placed was 24
seconds, long enough
to have spoken the words recalled by Dlamini. Fifth, Dlamini appears
to have testified that Treasurer had
a conversation, when instead the
call record reflected that the call to the appellant went to
voicemail. Sixth, the appellant in
his testimony denied having
received any voicemail from Treasurer. Cumulatively, so it was
contended, the State had failed to prove
beyond reasonable doubt that
the words spoken by Treasurer in the car were addressed to the
appellant.
[48]
Two facts are
incontestable on the evidence. First, Treasurer made a call and said
the words ‘the job was completed’.
This was direct
evidence, undisturbed by cross-examination. Second, Treasurer placed
a call to the appellant’s cell phone
number, which went to
voicemail. Does the evidence cast a reasonable doubt upon the
likelihood that Treasurer spoke the words reported
by Dlamini in the
course of his call to the appellant?
[49]
The evidence of Kanti
does not support the proposition that the 12 second duration of
the call was insufficient for Treasurer
to have left a message
containing the words reported by Dlamini. Kanti, under
cross-examination, stated that the entry in the records
reflecting
the duration of the call is a time period after the voice prompt has
ended and, to use his word, ‘the ping’
is heard. In other
words, the duration of Treasurer’s call to the appellant was 12
seconds after the voice prompt ended.
Quite long enough for Treasurer
to have left a voice message using the words ‘the job was
completed’. It does not matter
that Treasurer might have
miscalculated or was mistaken that the message would be recorded and
left on voicemail.
[50]
The appellant was
extensively cross-examined on his cell phone records. The records
showed that the appellant had contact with Treasurer
on his cell
phone 9 times in the course of 2012, and again on 3 April, 8 May and
13 May of 2013. The appellant’s response
was to dispute that he
received a call or message from Treasurer on 13 May 2013 at 7:10 pm.
This selective denial is adverse to
the appellant. That Treasurer
placed a call to the appellant on 13 May 2013 at 7:10:49 pm
appears in the telephone records
of both the appellant and Treasurer.
It was not disputed before us by the appellant’s counsel. The
appellant’s emphatic
denial of the incriminating call from
Treasurer on 13 May 2013, without any explanation or proof as to why
the records were erroneous,
is unconvincing. The denial is consistent
with his recognition of the call’s inculpatory relevance. The
appellant was also
unable to explain the extent of his numerous cell
phone calls with Treasurer.
[51]
Nor does careful
attention to the cross-examination of Dlamini establish that he
agreed that Treasurer had held a conversation with
the person to whom
he reported that the job was completed. When it was put to Dlamini in
cross-examination whether the call made
by Treasurer sounded like a
conversation, Dlamini’s answer, as we have observed was, ‘I
could not hear the other person
who was responding’. If Dlamini
could not hear another person, he could not know whether there was a
conversation taking
place. There was no guile in Dlamini’s
testimony.
[52]
The records of
Treasurer’s cell phone do reflect that after he placed the call
to the appellant, he received a call at 7:13
pm of a duration of 59
seconds; made a call at 7:28 pm of 5 seconds; and made a further call
at 7:40 pm of 24 seconds. However,
Dlamini’s evidence was
clear that it was Treasurer who made the call when he said the job
was completed. This was not dealt
with in Dlamini’s
cross-examination. This evidence renders the call received at 7:13 pm
outside the bounds of consideration
as being the call during which
Treasurer reported the murder. Nor, as conceded by counsel for the
appellant, was the second call
of 5 seconds a likely contender.
[53]
That leaves the last
call at 7:40 pm. But this call is also not likely to have been the
call when Treasurer spoke the words that
Dlamini reported. First,
Treasurer was driving Dlamini and Nxumalo back to an informal
settlement, Masons, after the murder. Dlamini
was specifically asked,
under cross-examination, whether Treasurer made any other calls in
the course of the journey, other than
the one call to which Dlamini
had testified. Dlamini’s answer was ‘no’. The phone
record reflects that the first
call, in the relevant time period,
made by Treasurer was the call to the appellant at 7:10 pm.
[54]
Second, the call
Dlamini heard Treasurer making was at a point on the journey when
they were passing the Copesville police station.
The defence elicited
from Dlamini that this police station was not far from the clinic at
Masons, where Dlamini and Nxumalo were
dropped off. Defence counsel
estimated that to drive from the Copesville police station to the
clinic at Masons would take 5 minutes.
Dlamini could not confirm
this, but did not deny it. This sequence of events, given that
Dlamini witnessed Treasurer making but
one call, and was dropped off
shortly thereafter, renders it entirely improbable that a call
Treasurer made at 7:40 pm was the
call during which Treasurer
reported the murder.
[55]
There was a
considerable amount of time and energy taken up during the trial
seeking to understand why the record of the call placed
by Treasurer
to the appellant records Dunveria rather than Copesville as the
originating base station from which the call was sent
on the network.
What is plain from the evidence of Kanti, the expert called by the
State, is that the cell tower that relays the
call depends upon where
the signal is strongest at a particular time to connect to the base
station. The density of the base stations
within the cell network
determines the coverage of each station which may vary from 0-3.5
kilometres. As a result, it was not possible
to pinpoint the exact
location of the caller. The network admits of too much variability to
do so. This however does not cast doubt
upon the reliability of the
cell phone records that were produced in evidence. If anything, it is
supportive, as it indicates proximity.
Kanti explained how the cell
phone records of Treasurer were extracted. These records were
extensively utilised by the State and
the appellant, leaving no doubt
as to the call made by Treasurer to the appellant, and the other
calls made and received by Treasurer
during the relevant time period.
[56]
This analysis of the
evidence affords proof, beyond reasonable doubt, that Treasurer
phoned the appellant after the murder, en route
to his dropping off
Dlamini and Nxumalo. Dlamini heard what Treasurer said on the only
call that Treasurer made in the course of
the journey. On the
evidence it was established, beyond reasonable doubt, that
Treasurer’s words, ‘the job was completed’,
were
said on the call Treasurer placed to the appellant’s cell
number.
[57]
Once that is so, as we
have explained, Treasurer’s report to the appellant concerning
the completion of ‘the job’
implicated the appellant in
the murder. There is no way of understanding Treasurer’s report
other than to conclude that the
appellant had mandated Treasurer to
procure the murder of Dr Sewram. And Treasurer had done so. The
extensive telephonic interactions
between Treasurer and the appellant
referred to above supports this. That being so, and if the other
evidence adduced on behalf
of the State supports that conclusion,
then the appellant was guilty of the murder. Additionally,
Treasurer’s report to the
appellant afforded evidence that
Treasurer was the appellant’s agent, and this made the
appellant a party to the common purpose,
with Dlamini, Nxumalo and
Treasurer, to kill Dr Sewram. And under the doctrine of common
purpose, the actions of those who carried
out the murder are
attributable to the appellant.
[58]
The evidence of Dlamini
does not stand alone. The murder of Dr Sewram was considered by the
trial court in the light of the other
actions that were taken against
Dr Sewram before his murder. Certain of these actions form the basis
of other crimes of which the
appellant was convicted. We consider the
evidence and the appeals relating to these counts below. What,
however, cannot be disputed
is that Dr Sewram was subjected, in the
course of 2012, to a range of hostile actions, involving a variety of
persons, that were
orchestrated, intensified, and culminated in his
murder.
[59]
The chronology is as
follows. As alluded to earlier, in December 2011, the appellant
discovered what he feared was an adulterous
affair that Dr Sewram
and the appellant’s wife had been conducting. On 13 February
2012, a charge of sexual assault
was laid by Mariamma Kisten against
Dr Sewram. Dr Sewram was charged with sexual assault. At his court
appearance on 14 February
2012, the charge was withdrawn. On 21
February 2012, the appellant laid a charge of assault against Dr
Sewram. The case was withdrawn
against Dr Sewram in July 2012. On 21
August 2012, Sonali Sookraj laid a charge of sexual assault against
Dr Sewram. Dr Sewram
was arrested and charged. On 30 October
2012, the charge was withdrawn. On 24 October 2012, Dr Sewram, on
exiting his surgery,
was shot several times with a paintball gun,
utilising hard objects, and sustained certain injuries. On 13 May
2013, Dr Sewram
was murdered outside his surgery.
[60]
Sugen Naidoo was the
State’s principal witness. Sugen Naidoo, the self-confessed
drug addict, liar and extortionist, gave
evidence that the appellant
had, over the course of 2012, sought his assistance to orchestrate a
campaign against Dr Sewram to
denigrate him and ultimately cause him
to leave Pietermaritzburg. These efforts are constituted by the
offences with which the
appellant was charged. The appellant had
become obsessed with taking revenge upon Dr Sewram for the damage he
had caused to the
appellant’s marriage. We were warned,
correctly, by the appellant’s counsel that we should treat the
evidence of Sugen
Naidoo with caution. And we do so.
[61]
One further aspect of
Sugen Naidoo’s evidence warrants mention. He testified that in
2012 the appellant had asked him whether
he knew Treasurer. Sugen
Naidoo informed the appellant that Treasurer was an ex-policeman and
a known criminal. The appellant informed
Sugen Naidoo that he had
approached Treasurer to kill Dr Sewram for an amount of R80 000.
The appellant sought the assistance
of Sugen Naidoo to act as
Treasurer’s driver. Sugen Naidoo declined to assist. Given that
Treasurer did indeed procure the
murder of Dr Sewram, it begs the
question as to how Sugen Naidoo would have known in advance of the
plan to use Treasurer for this
purpose, save from the appellant. He
could also not have known of the extensive telephonic contact between
the two. Furthermore,
Sugen Naidoo did not procure the services of
Treasurer, Nxumalo or Dlamini to murder Dr Sewram. How then did
Treasurer come to
arrange the murder? Sugen Naidoo’s evidence
provides an answer to these questions. The appellant’s evidence
does not.
[62]
But there remains the
overarching question. How did it come to pass that Dr Sewram, in the
course of 2012, suffered the hostile
actions catalogued above? It was
certainly not a matter of chance or bad luck. These were deliberate
actions taken against him.
One answer is the account offered by Sugen
Naidoo: Dr Sewram was targeted by the appellant. The other answer,
given by the appellant,
is that Sugen Naidoo orchestrated the sexual
assault charges and the paintball attack so as to extort money from
the appellant.
[63]
The answer of the
appellant is hard to fathom. True enough Sugen Naidoo knew of the
appellant’s marital troubles. The details
of these troubles,
provided by Sugen Naidoo, were not in contestation, and indeed, were
corroborated by the appellant and other
defence witnesses. It
indicates that Sugen Naidoo was truthful about these being disclosed
to him by the appellant, and a closer
relationship that subsisted
between Sugen Naidoo and the appellant than the appellant was willing
to admit. We are constrained
to ask how would the targeting of Dr
Sewram, unbidden by the appellant, have permitted Sugen Naidoo to
extort money from the appellant?
Presumably, on the premise that
Sugen Naidoo, a policeman assigned to the Mountain Rise police
station, would use his position
to cast suspicion upon the appellant
for the actions taken against Dr Sewram. This premise is entirely
implausible. Had Sugen Naidoo
sought to take action against Dr
Sewram, unbidden by the appellant, as a stratagem to extort money
from the appellant, the appellant
would simply have reported the
matter to the police at Mountain Rise, with whom he was admittedly
closely connected. Indeed, on
the appellant’s own version, he
had a close friendship with Sugen Naidoo’s wife, Chantal
Norman, who was a senior police
officer at Mountain Rise police
station. Any attempt by Sugen Naidoo to extort money from the
appellant would have simply been
rebuffed by the appellant on the
basis that there was absolutely no basis to implicate him in any
wrongdoing against Dr Sewram.
The usual premise for extortion is
either the complicity of the person to be extorted in wrongdoing or
the ability of the extortionist
to make it appear so. The appellant
contended that he was not complicit in the actions taken against Dr
Sewram. If that was so,
Sugen Naidoo’s efforts at extortion
would have been short-lived. If Sugen Naidoo had attempted falsely to
implicate the appellant
in the actions against Dr Sewram, it would
have been an easy matter for the appellant to show that he had no
connection to Kisten
or Sookraj, an aspect to which we will come.
[64]
Nor does the
appellant’s reliance upon extortion by Sugen Naidoo cover the
field of actions taken against Dr Sewram. One of
those actions was
the appellant’s own complaint of assault against Dr Sewram. How
would that place Sugen Naidoo in a position
to extort money from the
appellant? Nor does the appellant’s incredulous supposition
account for the murder of Dr Sewram.
It also does not explain the
efforts made by the appellant to incite Sithebe to murder Dr Sewram,
the basis of count 6. This too,
will be dealt with later.
[65]
In sum, the appellant’s
account that the actions taken against Dr Sewram were occasioned by
Sugen Naidoo’s efforts to
extort money from the appellant do
not withstand scrutiny.
[66]
In our view, once the
appellant’s account of the actions taken against Dr Sewram
cannot be believed, as we ultimately
find, then the only other
account as to what befell Dr Sewram is the appellant’s serial
efforts, with a clear motive to harm
Dr Sewram, and later to procure
his murder.
[67]
Furthermore, for all
the caution that Sugen Naidoo’s evidence warrants, there are
material respects in which his essential
position, that the appellant
sought to procure persons to harm the appellant, was materially
corroborated by a number of other
witnesses and events with whom and
with which he was not always or necessarily connected, as well as by
objective evidence.
[68]
First, Sugen Naidoo’s
brother-in-law, Morné Emersleben, gave evidence that he met
the appellant when Emersleben was
staying with Sugen Naidoo. This
occurred in May 2012. The appellant explained that Dr Sewram and the
appellant’s wife had
been ‘messing around’, and
Sugen Naidoo then asked whether Emersleben knew of someone who could
assault Dr Sewram.
The appellant explained that Dr Sewram had two
surgeries, and that the surgery in Raisethorpe had no cameras.
Although, Emersleben
was extensively cross-examined, his attorney
accepted that when Sugen Naidoo asked Emersleben about a person to
assault Dr Sewram,
the appellant was present. The appellant’s
presence, in these circumstances, supports the central premise of
Sugen Naidoo’s
evidence against the appellant.
[69]
Second, in the course of the cross-examination of Sugen Naidoo, the
defence introduced into evidence
the statement that had been taken
from Warrant Officer Gounder who, in 2012, had served with Sugen
Naidoo at the Mountain Rise
police station. Sugen Naidoo testified
that he had conceived of a plan, with the concurrence of the
appellant, to plant drugs in
Dr Sewram’s vehicle, and upon
refinement of the plan, in Dr Sewram’s surgery, and then to
arrest Dr Sewram for
the illegal  possession of drugs.
Sugen Naidoo’s evidence was that he had sought the assistance
of Gounder and Warrant
Officer G R Naidoo to carry out the plan.
Sugen Naidoo did not go through with the plan. But Gounder’s
statement confirms
that there was such a plan, and that the appellant
undertook to pay the sum of R10 000 to have the plan executed as
revenge
for Dr Sewram having had an affair with the appellant’s
wife. Gounder was not called to testify, but the defence placed
his
statement into evidence, and must accept the consequences of that
election.
[70]
Third, the State called Shaik-Cassim. He too is a brother-in-law of
Sugen Naidoo. Shaik-Cassim
testified that, in June or July of 2012,
the appellant and Sugen Naidoo came to his house. The appellant asked
Shaik-Cassim whether
he knew of someone who would break the hands and
legs of Dr Sewram. Shaik-Cassim testified that he did, but that
they were
‘bad guys’ who would end up killing Dr Sewram.
To this, the appellant replied, ‘do whatever it takes’.
The appellant said that he had money for this purpose. He described
the surgery and that it had no cameras. The appellant then left,
and
returned with R5 000. He gave R1 200 to Shaik-Cassim to use
to transport the proposed assailants from Durban, and
the balance was
given to Sugen Naidoo.
[71]
Shaik-Cassim was strenuously cross-examined. It was pointed out to
him that Sugen Naidoo’s
statement indicated that Sugen Naidoo
first approached Shaik-Cassim about the proposed assault, at the
instance of the appellant,
before Sugen Naidoo, Shaik-Cassim and the
appellant met at Shaik-Cassim’s home, where the plan was
further discussed. That
difference is hardly of great moment. The
evidence of Sugen Naidoo and Shaik-Cassim are at one that there was a
meeting at Shaik-Cassim’s
home, where the planned assault upon
Dr Sewram was agreed with the appellant.
[72]
Much was also made of Shaik-Cassim’s criminal history and
involvement in dealing drugs. But on the central issue, Shaik-Cassim

gave clear evidence. The appellant met with him and Sugen Naidoo to
procure the assault of Dr Sewram. Although the appellant denied
that
this meeting took place, there is nothing to fault the trial court’s
assessment that Shaik-Cassim also confirmed the
central account of
Sugen Naidoo as to who was behind the attacks upon Dr Sewram. For all
the attacks on the State’s miscreant
witnesses, by counsel on
behalf of the appellant, one might rightly ask why they would all
unnecessarily implicate themselves in
wrongdoing by testifying
against him.
[73]
For these reasons, we find that there is no basis to disturb the
conviction of the appellant
for the murder of Dr Sewram, and the
appeal accordingly fails in respect of count 1.
Count
6: conspiracy to commit murder, alternatively incitement to commit
murder
[74]
The State alleged that, in early February 2013, the appellant hired
Mlungisi Sithebe to kill
Dr Sewram. Sithebe pretended to agree, but
then informed Dr Sewram of the plan to kill him. In the alternative,
the appellant unlawfully
and intentionally incited Sithebe to murder
Dr Sewram. The trial court found that the appellant and Sithebe did
conspire to kill
Dr Sewram. Sithebe’s change of heart occurred
after the agreement to murder Dr Sewram had taken place. On this
basis, the
trial court convicted the appellant on the main count of
conspiracy. The appellant appeals his conviction to this Court.
[75]
At the trial, Sithebe’s evidence was led and cross-examined.
That took place in the period
28-30 September 2015. The
cross-examination of Sithebe was detailed and lengthy. On 19 October
2015, the prosecution raised with
the court a video that Sithebe had
taken and that the prosecution wished to have admitted into evidence.
Sithebe had referenced
the video in his evidence-in-chief, but the
State had not sought to admit the video into evidence. In chief,
Sithebe stated that
the video had been made on the second occasion
that the appellant had pointed out Dr Sewram’s surgeries to
him. The defence
placed in issue the admissibility of the video, in
particular its originality and authenticity, and also the requirement
that the
prosecution prove the identity of the speakers on the video.
[76]
The trial court decided, perhaps unwisely, that these matters were to
be determined in what was
styled a trial-within-a-trial. Sithebe was
recalled. He testified that he had recorded a video on his cell phone
on 20 February
2013, during a journey he had taken with the
appellant. The video, he testified, recorded a conversation between
Sithebe and the
appellant near Dr Sewram’s surgery. The
conversation ended with the following statement made by the
appellant: ‘take
this number’. Sithebe explained that the
appellant was referencing the number of Dr Sewram’s surgery,
which the appellant
had indicated Sithebe should telephone.
[77]
A lengthy cross-examination followed, in which the defence raised the
following issues with Sithebe:
when the video was taken; how it was
taken; the phone calls made by Sithebe to Dr Sewram and the appellant
on 20 February 2013;
that Sithebe placed the cell phone, on which the
video was recorded, with the pawnbrokers, Cash Crusaders; Sithebe’s
prior
statements to the police; and what was said on the video.
[78]
At the conclusion of the trial-within-a-trial, the trial judge
explained her understanding of
the procedure she had adopted. The
trial judge indicated that she would give a ruling as to the
admissibility of the video evidence,
and depending on the ruling, the
veracity of the contents of the video could then be traversed. The
trial judge, in due course,
made the following rulings. First, the
video was admitted into evidence. Second, the evidence produced in
the course of the trial-within-a-trial
was incorporated as evidence
in the main trial. Third, leave was given to the defence to recall
Sithebe, Sugen Naidoo and Kisten
for further cross-examination.
[79]
The trial court carefully delineated the issues in respect of which
further cross-examination
would be permitted. In respect of Sithebe,
these were issues not previously canvassed in cross-examination. The
entitlement of
the defence to cross-examine Sithebe further was
circumscribed and confined to the following: the veracity and
reliability of the
video recording; the context in which the video
recording was made; the contents of the video recording as it was
relevant to such
context; the contents of the video recording in
relation to the evidence given by Sithebe at trial and in his two
statements, to
the extent not already canvassed; the contents of
certain further particulars given by the State in respect of the
video; and aspects
pertaining to the date and time of the recording.
[80]
Before Sithebe could be further cross-examined, he died. The defence
submitted to the trial court
that the incomplete cross-examination of
Sithebe required that all of Sithebe’s evidence must be
excluded from consideration.
This, it was argued, was the necessary
consequence of the recognition by the trial court of the appellant’s
constitutional
right to challenge the evidence produced by the State
at trial, which right could no longer be fully exercised in respect
of the
testimony of Sithebe. The trial court, referencing a number of
cases that have considered this issue, found that, given the extent

of the cross-examination of Sithebe that had already taken place, the
inability further to cross-examine Sithebe occasioned no
prejudice to
the appellant and did not violate his right to a fair trial.
Consequently, the evidence of Sithebe and the video evidence
were not
excluded from consideration by the trial court. Indeed, it provided
the basis for the appellant’s conviction in
respect of count 6.
[81]
On behalf of the appellant, it was submitted to this Court that the
trial court’s failure
to accord the appellant his
constitutional rights was an error, and that all the evidence of
Sithebe should have been excluded.
And with it, the appellant’s
conviction in respect of count 6.
[82]
The appellant enjoyed the right to challenge evidence. This right
formed part of the appellant’s
overarching right to a fair
trial, entrenched in the Bill of Rights in terms of s 35(3)
(i)
of the Constitution. Under our adversarial system of criminal
justice, the right to challenge evidence includes the right of the

accused in a criminal trial to cross-examine the witnesses whose
evidence is led by the State. This is uncontroversial.
[83]
Difficulties arise when a witness who has given evidence is no longer
available for cross-examination,
or, as here, cannot complete their
cross-examination. In a number of decisions, the high courts have had
occasion to consider these
matters.
[2]
Two approaches have found support. First, the exclusion of evidence
should depend upon the exercise of a discretion by the trial
court.
The discretion is responsive to various case-specific considerations.
How truncated was the right to cross-examine? What
is the nature of
the evidence? Is the evidence to be admitted reliable and otherwise
confirmed? These considerations are by no
means exhaustive. The
second approach is that the right to challenge evidence is a
fundamental right. It is not a right of degree.
If the right is
infringed, the better view is that the evidence should be excluded.
The adoption of a discretion fails to accord
proper recognition to
the right as fundamental to the fairness of the trial. A discretion
of this kind also gives rise to considerable
indeterminacy as to how
it is exercised. Better then, simply to exclude the evidence.
[84]
The correct starting point for the analysis is the recognition that
an accused has the right
to cross-examine those witnesses whose
evidence is relied upon by the prosecution. Where that right cannot
be exercised, or cannot
be exercised in full, the court has a duty to
ensure that the trial remains fair. To do so, the trial court should
not engage in
conjecture as to what the cross-examination would have
been likely to yield. That is speculative. Once a body of evidence
cannot
be cross-examined or cross-examined fully, the safest course,
to ensure the fairness of the trial, is to disregard that evidence,

because the right to challenge evidence is so intrinsic to what makes
a trial fair. It matters not that the impossibility of
cross-examination
is not attributable to the fault of any person. It
is the fact of impossibility that renders the right nugatory.
[85]
The clearest case is one in which the witness called by the
prosecution gives evidence-in-chief,
but then cannot be
cross-examined. The accused is deprived of the right to
cross-examine. That is the deprivation of a fundamental
right. The
only question is this: what remedy should the court provide to the
accused? In this situation, the remedy will ordinarily
be
self-evident: the evidence must be excluded from consideration by the
trial court.
[86]
In the present case, a more nuanced issue arises. To what evidence
does the right of the appellant
have application? As we have
observed, Sithebe died after the trial court had made an order that
he was to be recalled. However,
his recall was to permit of further
cross-examination within a specified remit. The defence was permitted
to cross-examine Sithebe
exclusively with regard to the video
evidence that had been admitted into evidence. It will be recalled
that Sithebe had already
been extensively cross-examined in respect
of all his other evidence. And even in respect of the video evidence,
the trial court
ruled that the evidence yielded from the
trial-within-a-trial was admitted as evidence in the main case. Much
of that testimony
was taken up with the cross-examination of Sithebe,
and it was not confined to issues of authenticity and reliability of
the video.
[87]
The appellant does not challenge the order made by the trial court as
to the remit within which
the cross-examination of Sithebe was to
take place, upon his recall. Once that is so, the appellant’s
right to cross-examine
was circumscribed. The right was only capable
of being exercised in respect of the contents of the video: what it
depicted, when
it was made, what was said, the true import of that
speech, and its bearing upon other testimony and statements given by
Sithebe.
What the order of the trial court did not sanction was a
re-visitation of other aspects of Sithebe’s evidence. Put
simply,
whatever latitude might have been allowed to the appellant or
his counsel, the cross-examination had to have relevance to the
contents
of the video.
[88]
Once that is so, the right of the appellant went no further than to
cross-examine Sithebe, upon
his recall, as to the contents of the
video. It was the potentially damaging contents of the video, upon
its admission into evidence,
that led the trial judge to permit of
the further cross-examination of Sithebe. The right afforded to the
appellant was an opportunity,
by way of cross-examination, to negate
the contents of the video. That is what the trial court ordered, in
fairness, to the appellant.
But if the video is excluded from the
evidence, then the appellant suffers no infringement of his right,
because the right was
never of application outside the contents of
the video. And since the exclusion of the video evidence eliminates
any damaging evidence
recorded on the video, nothing more is required
to be fair to the appellant. The fullest exercise of his right could
never have
achieved more than what is secured by the exclusion of the
video evidence.
[89]
The exclusion of all of Sithebe’s evidence as a consequence of
the appellant’s inability
to cross-examine Sithebe on the
contents of the video would constitute a remedy entirely
disproportionate to the right that the
appellant had foregone. There
was a substantial body of evidence given by Sithebe that had been
thoroughly cross-examined. There
is no reason why this evidence
should not be allowed to stand simply because the right to
cross-examine Sithebe on the contents
of the video could not be
exercised. Wholesale exclusion would be a remedy lacking rational
justification. It would want for proportionality.
And such a remedy
would not make the trial any fairer to the appellant in comparison to
the remedy we consider appropriate to the
right foregone – the
exclusion of the video evidence.
[90]
In sum, our approach recognises that the right to cross-examine is a
fundamental right, and,
if it cannot be exercised, the court must
fashion a remedy that secures the fairness of the trial. What this
requires is an appropriate
remedy that cures the absence of the right
to cross-examine. A remedy is not appropriate if it lacks
proportionality or rational
justification. The remedy flows from the
right, and the recognition of the right as fundamental to our
constitutional commitment
to a fair trial.
[91]
So understood, we do not favour the position that would repose a
discretion in the trial court
to weigh the probative value of the
evidence that has not been subjected to cross-examination against the
prejudice to the accused
that arises from the absence of the right to
cross-examine. Such a test, redolent of many common law regimes for
deciding whether
to exclude evidence, fails, in our view, to
recognise the constitutional significance of a right that is
intrinsic to a fair trial.
The absence of the right to cross-examine
is not measured by a cost-benefit analysis as to who gains or loses,
and by how much.
Rather, if an accused cannot enjoy a right that is
fundamental to the fairness of the trial, the court must restore the
fairness
of the trial. That is not done by attaching weight to the
probative value of the evidence and engaging in conjecture as to what

difference the cross-examination might have made.
[92]
The trial court did not follow this approach. Rather, it admitted the
video evidence and relied
upon it, because the trial court considered
the video evidence to have probative value. In particular, the trial
court found that
the video evidence corroborated Sithebe’s
other evidence. And it was not thought to be prejudicial. For the
reasons given,
this is not the correct way to determine the remedial
consequences of the appellant’s inability further to
cross-examine
Sithebe.
[93]
Rather, given that the appellant’s right to cross-examine
concerned the contents of the
video, the loss of this right required
that only the video be excluded from the evidence at trial. Such a
remedy restores the fairness
of the trial, because the appellant does
not suffer the detriment of the video evidence that the further
cross-examination was
intended to test. The remedy is proportionate,
because it is bounded by the remit of the order that gave rise to the
right. The
remedy is also just, because it leaves in place the
evidence that was subject to the very fullest cross-examination. We
accordingly
find that the trial court fell into error in failing to
rule that the video evidence must be excluded.
[94]
Once that is so, our analysis turns to the evidence of Sithebe, shorn
only of the video evidence.
The trial court found that the appellant
and Sithebe conspired to kill Dr Sewram. It was submitted, on behalf
of the appellant,
that the evidence of Sithebe did not support the
appellant’s conviction. The crime of conspiracy required that
the appellant
and Sithebe reached an agreement to kill Dr Sewram.
[3]
No such agreement, so it was contended, took place.
[95]
There is merit in this submission. Sithebe’s evidence was that
on the first occasion he
met with the appellant, the appellant had
sought to persuade Sithebe to scare Dr Sewram, for which he would be
paid R100 000.
On the second occasion, what the appellant wanted
of Sithebe went further. He wanted Sithebe to kill Dr Sewram. Sithebe
certainly
gave consideration to the matter, and was much tempted by
the offer of R100 000. But Sithebe’s evidence does not
indicate
that he, at any point, agreed to the appellant’s
proposal. Indeed, on his account, his religious scruples prevailed,
and
he went to inform Dr Sewram that the appellant had sought to
recruit him to kill Dr Sewram. The trial court found that Sithebe had

agreed to assist the appellant before his change of heart. But in our
view, Sithebe was equivocal as to the appellant’s proposal
and
never reached a definite agreement with the appellant. That being so,
the appellant’s conviction on the charge of conspiracy
cannot
stand.
[96]
The appellant was charged, in the alternative, with incitement to
commit murder. The question
is whether the evidence at trial supports
a conviction on this charge?
[97]
Section 18(2) of the Riotous Assemblies Act 17 of 1956 renders a
person who incites, instigates,
commands or procures any other person
to commit any offence guilty of an offence, liable on conviction to
the punishment to which
a person convicted of actually committing
that offence would be liable. The key feature of the offence of
incitement, for present
purposes, is that the person charged with
incitement, ‘seeks to influence the mind of another to the
commission of a crime’.
[4]
It matters not whether the person sought to be influenced is
susceptible to such influence.
[98]
Sithebe testified that the appellant had in February 2013 collected
Sithebe and driven him to
point out Dr Sewram’s surgeries.
During this journey, the appellant asked of Sithebe whether he would
be able to procure
a firearm to kill Dr Sewram, who, the appellant
had previously explained, had been in a relationship with the
appellant’s
wife. The appellant pointed out which of the
surgeries had no cameras. The appellant promised to pay R100 000,
if Sithebe
would kill Dr Sewram. According to Sithebe, the appellant
withdrew money from an ATM, and gave him R3 000 to procure an
unlicensed
firearm. Sithebe was not ultimately persuaded to agree
with the appellant to kill Dr Sewram. Indeed, troubled by his
conscience,
he went to Dr Sewram’s surgery and informed him of
the appellant’s plan to have him killed. Sithebe telephoned the
appellant and claimed to have shot Dr Sewram. The appellant sought to
obtain confirmation of this, and ultimately realised that
Dr Sewram
had not been shot. The appellant nevertheless sought to have Sithebe
kill Dr Sewram whilst the appellant was overseas.
Sithebe reported
the matter to the police.
[99]
The appellant denied that he had incited Sithebe to murder Dr Sewram.
He acknowledged meeting
with Sithebe in February 2013. The meeting
was, he testified, to arrange for certain guarding services for
premises owned by the
appellant. He explained that he had encountered
problems with the services rendered by the incumbent service
provider, Tiger Force,
and discussed with Sithebe that Enviro Watch
would take over the guarding service. Sithebe worked for Enviro
Watch. This was the
basis of the appellant’s meeting with
Sithebe in February 2013, and also of the calls that passed between
the two on 20 February
2013. The call records also showed that the
appellant and Sithebe were in contact on 6 occasions on 10 March
2013, and yet further
calls were made in the period of 22-23 March
2013. The appellant testified that these calls and the subsequent
meetings with Sithebe
concerned a break-in and theft that had taken
place at the appellant’s premises in Mkondeni. These were the
premises that
Sithebe had secured a contract to protect. The
appellant suspected Sithebe of some complicity in the theft.
[100]
There can be no doubt that if Sithebe’s evidence is accepted,
the appellant is guilty of the incitement
of Sithebe to murder Dr
Sewram. The appellant, on Sithebe’s evidence, plainly sought to
influence Sithebe to murder Dr Sewram.
The appellant expressed his
wishes plainly. He made provision for Sithebe to purchase a firearm.
He pointed out to Sithebe the
whereabouts of the two surgeries. And
he offered Sithebe a large reward once the murder had taken place.
That is incitement beyond
reasonable doubt.
[101]
The trial court found that, quite apart from video evidence, the
appellant’s version fell to be rejected.
The conflicting
versions of Sithebe and the appellant must be considered by recourse
to the following evidence. On 20 February
2013, apart from the calls
that took place between the appellant and Sithebe, Sithebe’s
phone records reflect the fact that
Sithebe phoned the two surgeries
of Dr Sewram. That is entirely consistent with Sithebe’s
evidence that he sought out Dr
Sewram, after his journey with the
appellant, to warn him of the appellant’s murderous plans.
[102]
Why, it may be asked, would Sithebe have telephoned the surgeries of
Dr Sewram on the very day in February that
the appellant admits that
he met with Sithebe? Sithebe had no prior connection to Dr Sewram. If
the February meeting was simply
concerned with a security guarding
contract, what would explain Sithebe’s conduct in phoning Dr
Sewram. Nor was it ever suggested
that Sugen Naidoo knew of or was in
any way connected to Sithebe.
[103]
In the cross-examination of Sithebe it was suggested that Sithebe was
in contact with Dr Sewram, because Dr Sewram
and Sithebe were
conspiring together to kill the appellant. There was simply no basis
for this claim. Sithebe did not know of Dr
Sewram. Sithebe’s
telephone records show no calls to Dr Sewram prior to 20
February 2013. If Dr Sewram wished to conspire
to kill the appellant,
there is simply no showing as to how he knew Sithebe. Dr Sewram’s
conspiracy theory is entirely fanciful
and unsubstantiated.
[104]
Once that is so, as the trial court found, Sithebe’s account is
confirmed in a material respect by Sugen
Niadoo and the other
witnesses referred to above, more particularly in that the appellant
wished the deceased harm, on the basis
of his wife’s infidelity
with Dr Sewram. The appellant’s version cannot explain
Sithebe’s call to the surgeries
and falls to be rejected. The
timing of the appellant’s approach to Sithebe is also
significant. It occurred many months
after the appellant supposedly
made peace with the deceased and their agreement to put their past
discord behind them. This was
the evidence of the appellant in his
statement in terms of
s 115(1)
of the
Criminal Procedure Act and
also at the trial. The approach made to Sithebe and the ongoing
criminal acts planned and taken against Dr Sewram are indicative
of
an ongoing vendetta undertaken by the appellant. This lends a lie to
the lasting accord that was supposedly concluded.
[105]
In the result, while the appellant’s conviction on the charge
of conspiracy to murder must be set aside,
the appellant is guilty of
the alternative charge of incitement to murder Dr Sewram.
Count
2: defeating or obstructing the course of justice
[106]
The trial court convicted the appellant of obstructing the course of
justice in that, on 13 February 2012, he
enlisted the assistance of
Mariamma Kisten to lay a false complaint of sexual assault against Dr
Sewram, knowing the complaint
to be false.
[107]   It
is common ground that Kisten did make a complaint of sexual assault
against Dr Sewram; a docket was opened;
the complaint was false; and
Kisten did so for the payment of money. The trial court, applying the
required caution to the evidence
of both Kisten and Sugen Naidoo,
found their evidence to be truthful, thereby implicating the
appellant as the person who knowingly
procured the false charge
against Dr Sewram.
[108]
The appellant contended before this Court that the trial court should
not have found Kisten and Sugen Naidoo to
be truthful witnesses. In
addition, the link between Kisten and Sugen Naidoo, and hence the
appellant, was Daryl Gounder. Gounder
was not called by the State,
and hence the State had failed to prove that Gounder had received
instructions, ultimately from the
appellant, to procure Kisten to lay
the false charge.
[109]
Kisten’s evidence was that Gounder sought her assistance to lay
the false charge of sexual assault against
Dr Sewram. Gounder
indicated that he did so to assist a friend whom he did not identify.
Sugen Naidoo’s evidence was that
the appellant had come up with
the plan to lay a false charge of sexual assault against Dr Sewram.
Sugen Naidoo had asked Gounder
to find the person to do so. Gounder
did so. But Sugen Naidoo confirmed that the appellant and Gounder did
not communicate in carrying
out the appellant’s plan. It must
accordingly be accepted that it is Sugen Naidoo alone who was in a
position to identify
the appellant as the person at whose instance
the false charge came to be laid.
[110]
The question is whether Sugen Naidoo’s evidence sufficed for
this purpose. That Kisten laid a false complaint
of sexual assault
against Dr Sewram is beyond doubt. That she did so at the instance of
another and for reward is also clear. Sugen
Naidoo’s testimony
was that the appellant initiated the plan to have a false complaint
of sexual abuse laid against Dr Sewram,
mandated him to execute the
plan, and provided the money to do so. This was but one action taken
by the appellant in an orchestrated
campaign against Dr Sewram.
[111]
Who then had reason to target Dr Sewram by causing Kisten to act as
she did? We have, in considering the murder
charge against the
appellant, already assessed the two accounts offered at trial as to
how it came about that Dr Sewram suffered
serial adverse actions,
culminating in his murder. Either, as Sugen Naidoo testified, this
resulted from the efforts of the appellant
to take revenge against Dr
Sewram for the infidelity with the appellant’s wife. Or, Sugen
Naidoo targeted Dr Sewram to extort
money from the appellant. But,
for reasons we have already set out above, this latter account is so
lacking in evidential support
or coherence that it can safely be
rejected. Once that is so, it leaves intact the explanation provided
by Sugen Naidoo.
[112]
We were reminded by counsel for the appellant of the caution with
which Sugen Naidoo’s evidence should be
approached. And we do
so. In addition, a number of inconsistencies in the evidence of
Kisten were pointed out to us. Kisten gave
different accounts of the
money she was paid and who persuaded her to accept Gounder’s
proposal. Kisten was also asked
as to how her complaint could
ever have sufficed for the purpose of charging Dr Sewram, given
its evident ambiguity. Indeed,
the charge was dropped.
[113]
But, as with the trial court, we do not consider the criticisms of
the evidence to be of such moment so as to
discredit the central
feature of Kisten’s testimony: that she was paid to lay a false
complaint of sexual abuse. And in answering
the crucial question as
to who stood behind what Kisten did, here too there is insufficient
reason to deflect from the conclusion
that this person was the
appellant. The appellant had reason to do so. There is a considerable
body of evidence that the false
charge laid by Kisten formed part of
an orchestrated pattern of action taken by the appellant. And
finally, the alternative account
of the appellant as to how the false
complaint may have come about falls to be rejected.
[114]
For these reasons, we find no basis to interfere with the conviction
of the appellant in respect of count 2.
Count
3: defeating or obstructing the course of justice
[115]
The trial court convicted the appellant of unlawfully and
intentionally obstructing the course of justice by laying
a false
complaint of assault with the police against Dr Sewram, knowing that
the complaint was false.
[116]
Here too, it was common ground that the appellant laid the charge
with the police. The central issue was whether
the assault had taken
place. The appellant gave evidence that he was assaulted by Dr
Sewram. Sugen Naidoo contended that it was
a fabrication. The trial
court found that the probabilities favoured the assault being a
fabrication.
[117]
Two aspects of the evidence warrant careful consideration. First,
unlike other aspects of Sugen Naidoo’s
testimony, where he
remained steadfast as to the appellant’s complicity in pursuing
a campaign against Dr Sewram, here he
conceded under
cross-examination that ‘the possibility exists that the assault
could have taken place – it could have’.
[118]
Second, the witness statement of Mr Roshan Jayinath, a friend of the
appellant, admitted into evidence at trial
by consent, stated that he
was travelling with the appellant in his car on 18 February 2012. The
car was stationary in the traffic,
when, according to Jayinath, Dr
Sewram jumped out of his vehicle, which had drawn up alongside them,
and slapped the appellant’s
face.
[119]
In relation to this count, the appellant is entitled to the benefit
of the doubt. As a result, the appellant’s
conviction cannot
stand on count 3.
Count
4: defeating or obstructing the course of justice
[120]
The appellant was charged with obstructing the course of justice, in
that he procured Sonali Sookraj to lay a
false complaint of sexual
assault against Dr Sewram, knowing that the complaint was false.
The trial court convicted the appellant
on this count. The trial
court found that Sookraj’s evidence confirmed Sugen Naidoo’s
account that the appellant was
behind the plan to target Dr Sewram
with a further complaint of sexual assault. The trial court was
satisfied that Sookraj
had identified the appellant as being present
on the day when she agreed to lay the false complaint against Dr
Sewram.
[121]
Before this Court, counsel for the appellant submitted that the
conviction was predicated upon several misdirections.
First, no
evidence was led at trial of Zaheer Khan, Sookraj’s
step-father, who was said to have played a central role in
persuading
Sookraj to lay the complaint. Reliance on the hearsay evidence of
Sookraj as to what Khan had said was inadmissible.
Such evidence, so
it was argued, was not admissible under the exception to the hearsay
rule in respect of the executive statements
of co-conspirators.
Second, the cross-examination of Sookraj established definitively
that she was not in a position to identify
that the appellant was
present, after Khan had persuaded Sookraj to lay the false complaint.
Third, the trial court placed too
much reliance on the respects in
which Sookraj corroborated Sugen Naidoo’s evidence, but
discounted the contradictions in
their respective testimonies.
[122]
As with count 2, Sookraj did lay a false complaint against Dr Sewram.
The question is whether she did so at the
instance of the appellant.
Sookraj gave evidence that on 21 August 2012 she was working at her
step-father’s tuck shop. Her
step-father, Khan, came to her and
asked her to lay a false complaint of sexual assault against Dr
Sewram. She agreed to do so.
During her evidence-in-chief, Sookraj
said that her step-father then jumped into a vehicle, a white
double-cab, in which two other
men were seated, one of whom she
identified as being the appellant. Khan returned, explained to
Sookraj what she was to do, and
drove her to Dr Sewram’s
surgery.
[123]
The cross-examination of Sookraj, understandably, devoted much
attention to her identification of the appellant.
The defence
produced a dossier of photographs, taken by the defence team, of the
tuck shop and the area in front of the tuck shop
where the double-cab
would have been parked. Sookraj was asked to mark on one of the
photographs where the double-cab had parked.
Defence counsel explored
with Sookraj her line of sight from within the tuck shop to the
parked vehicle. Although the questioning
sought to elicit from
Sookraj that her line of sight to the vehicle was compromised,
Sookraj was adamant that she had a clear view
of the double-cab and
its occupants.
[124]
The appellant submitted before this Court that the photographs shown
to Sookraj prove that Sookraj could not have
seen the face of the
driver of the double-cab. That is not so. Sookraj was asked to
consider photographs 1, 4 and 5. Sookraj explained
that the large
windows at the front of the tuck shop were open and she had an
unimpeded view. It was put to Sookraj that there
was something of a
downward inclination from the tuck shop to the road in which the
vehicle was parked, and that distance was 12
meters, as marked on
photograph 5. However, Mr Sangham, the appellant’s attorney who
conducted the cross-examination, had
earlier stated that the distance
was 4 meters. Sookraj accepted that the double-cab was parked in the
road outside of the tuckshop,
with the left side of the vehicle in
her line of sight. She stated that the window of the double-cab was
rolled down, and that
she had a clear view.
[125]
A careful consideration of the evidence does not establish that
Sookraj could not have identified the appellant
in the double-cab.
There was no inspection
in loco
to determine in fact what was
visible from the tuck shop. The distances depicted on the photographs
were not verified. Indeed,
the defence’s own estimates of the
distance from the tuck shop to the vehicle were at odds. Sookraj was
unshaken as to what
she saw. She had an unimpeded view from her
standing position in the tuck shop to the double-cab, with its window
open. We can
find no error on the part of the trial court in
accepting Sookraj’s identification of the appellant as being
seated in the
double-cab when Khan got into the vehicle. It was
common ground that the appellant owned a white double-cab.
[126]
This finding has important consequences. First, it entirely
undermines the appellant’s evidence that he
had nothing to do
with the false charge laid against Dr Sewram. Second, it corroborates
Sugen Naidoo’s evidence that Khan
was hired at the instance of
the appellant, in the first place to assault Dr Sewram, but, as
the plan evolved, to persuade
Sookraj to lay the false complaint of
sexual assault. Third, the identification of the appellant at the
very place and time when
Khan persuaded Sookraj to go along with the
false complaint renders the appellant’s account unworthy of
belief, both as to
his lack of involvement and his explanation that
the complaint was initiated by Sugen Naidoo so as to extort
money from him.
[127]
Nor is the appellant’s complaint that no reliance may be placed
on what Khan is reported to have said to
Sookraj of any moment. There
is no dispute that Sookraj agreed to make the complaint upon the
request of her step-father. In any
event, that Khan made the request
is not hearsay evidence. That a statement was made is admissible, it
is the truth of the statement
that is subject to hearsay objection.
And finally, the defence cross-examined Sookraj on what Khan had said
to her. The defence
can hardly object to evidence as hearsay that it
has elicited.
[128]
The appellant also raised points of contradiction between the
evidence of Sugen Naidoo and Sookraj. These contradictions
reference
when the false complaint was laid and whether a meeting had taken
place between the appellant, Sugen Naidoo, Khan, Sookraj
and her
mother to discuss the making of a false charge. Allowing for these
contradictions does not negate the force of what Sookraj’s

evidence does corroborate. In particular, that Khan persuaded Sookraj
to lay the complaint, and that the appellant was involved
in having
Khan do so. Why else was the appellant in the double-cab with
Sugen Naidoo and Khan on that very day?
[129]
Nor are the internal inconsistencies in the evidence of Sugen Naidoo
of sufficient import to undermine the central
account given by him,
that is, that the plan to target Dr Sewram with the false complaint
of sexual assault was undertaken with
the full involvement of the
appellant, so as to satisfy his desire for revenge. The issues raised
in cross-examination, as to when
Sugen Naidoo first met Khan, and how
much Khan was paid, do not cast serious doubt on the convergence of
evidence that explains
how Khan came to recruit his step-daughter in
a plan to target Dr Sewram, and with what end in mind.
[130]
For these reasons, we do not consider that the conviction of the
appellant on this count was incorrect, and the
appeal must fail.
Count
5: assault with intent to do grievous bodily harm
[131]
The State charged the appellant with assault with intent to do
grievous bodily harm. The basis of this charge
was that the appellant
hired assailants to shoot Dr Sewram with a high-powered paintball gun
purchased by the appellant. On 24
October 2012, Dr Sewram was shot
several times with this gun, using solid projectiles, and suffered
certain injuries.
[132]
The trial court gave detailed consideration to the evidence of Sugen
Naidoo. Sugen Naidoo testified that the plan
to shoot Dr Sewram with
a paintball gun was conceived with the appellant. Sergeant Ricky
Naidoo and Sergeant Maharaj were recruited
to carry out the assault.
Sugen Naidoo explained how he, the appellant, Ricky Naidoo and
Maharaj undertook an expedition to buy
the paintball gun and the
paintballs. Ricky Naidoo and Maharaj then shot Dr Sewram. Sugen
Naidoo was present at the police station,
shortly after the assault,
when Dr Sewram entered, ‘totally disorientated and dazed and
had red marks on his face and neck’.
Dr Sewram laid a charge
against the appellant. The trial court found that, although Sugen
Naidoo was a single witness, upon a conspectus
of the evidence, and
in the light of the probabilities, the appellant was guilty of having
orchestrated the assault.
[133]
There is no doubt that Dr Sewram was assaulted on 24 October 2012.
Sugen Naidoo implicated Ricky Naidoo, Maharaj
and the appellant in
the assault. There are two pieces of evidence, which the appellant
submitted introduced a reasonable doubt,
that should have been heeded
by the trial court.
[134]
First, the appellant’s cell phone records reflected that on the
day that Sugen Naidoo said that the appellant
joined the expedition
to buy the paintball gun in Pinetown, the appellant never left
Pietermaritzburg. This evidence casts doubt
on the testimony of Sugen
Naidoo as a single accomplice witness.
[135]
Second, Ricky Naidoo and Maharaj were not called to give evidence at
the trial. Their witness statements were
handed in by consent at the
trial. These statements not only denied any involvement in the
assault upon Dr Sewram, but recanted
their earlier statements, which
they claimed were obtained under duress.
[136]
The witness statements of Ricky Naidoo and Maharaj were admitted into
evidence at trial. There are many questions
that arise from these
statements. But their denial of complicity leaves the assault of Dr
Sewram without an assailant. The appellant
has an alibi for the
expedition to purchase the paintball gun. This evidence accordingly
introduces a reasonable doubt as to the
appellant’s guilt. He
is entitled to the benefit of that doubt.
[137]
In the result, we find that the appellant’s conviction cannot
stand in respect of count 5, the appeal succeeds,
and we hold that he
is acquitted in respect of count 5.
Conclusion
on the merits
[138]
Our analysis yields the following result. The appeal succeeds in
respect of the appellant’s convictions
on counts 3 and 5. The
appellant is entitled to an acquittal on these counts. The appeal
fails on the remaining counts, that is,
counts 1, 2, and 4. On count
6, the appellant’s conviction on the charge of conspiracy is
set aside and the appellant is
guilty of the alternative charge of
incitement to murder.
[139]
In coming to this conclusion, we return to the overarching question
we posed at the outset: was the pattern of
events directed against Dr
Sewram the result of the appellant’s orchestration, or does
some other agency account for these
sequential and interconnected
outcomes?
[140]
In our view, the evidence provides overwhelming proof that it was the
appellant who sought and, in many instances
brought about, the
actions against Dr Sewram that culminated in his murder. First,
numbers of witnesses independently confirmed
the appellant’s
obsessive desire to take revenge upon Dr Sewram. Second, apart from
the testimony of Sugen Naidoo, which
required the application of the
cautionary rules, the evidence of Gounder, Emersleben, Shaik-Cassim,
and Sithebe and Sookraj directly
implicated the appellant in securing
that hostile actions be taken against Dr Sewram. Third, the call
placed by Treasurer to the
appellant and the chilling words ‘the
job was completed’ incriminated the appellant in the murder of
Dr Sewram. This
was the final result of the co-ordinated actions
taken by the appellant against Dr Sewram. That Sugen Naidoo testified
to the appellant’s
discussions with him as to Treasurer’s
suitability to murder Dr Sewram, well in advance of the murder,
provides further proof
of the appellant’s complicity in the
murder. Fourth, as we have found, the appellant’s account as to
what brought about
the serial hostilities against Dr Sewram
entirely lacks plausibility.
[141]
Taken together, the evidence shows beyond reasonable doubt that the
overarching question we posed must be answered
thus: it was indeed
the appellant who was responsible for the pattern of actions taken
against Dr Sewram. This answer provides
further support for the
convictions that have been sustained on appeal.
Sentence
[142]
What remains for consideration are the sentences imposed on the
appellant by the trial court. The well-established
triad,
[5]
namely the criminal, the crime and the interests of the community,
are relevant in determining an appropriate sentence.
[143]
Section 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA)
prescribes a minimum sentence on count 1 of
life imprisonment.
However, s 51(3) of the CLAA provides that a lesser sentence may
be imposed if the court is satisfied that
substantial and compelling
circumstances exist. The trial court referred to
S v Vilakazi
[2008] ZASCA 87
;
2009 (1) SACR 552
(SCA), at para 15, where this
Court dealt with the proper approach to determining whether there are
substantial and compelling
circumstances that warrant a deviation
from the minimum sentence prescribed by the CLAA. This Court said
that it is incumbent upon
a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all the
circumstances of the
particular case, whether the prescribed sentence
is proportionate to the particular offence. In addition, in
ultimately deciding
whether substantial and compelling factors exist,
one must look at the mitigating and aggravating factors, and consider
the cumulative
effect thereof.
[144]
The trial court found that there were substantial and compelling
circumstances and imposed a sentence of 25 years’
imprisonment
on count 1. On counts 2, 3 and 5, the appellant was sentenced to 18
months’ imprisonment; on count 4, the appellant
was sentenced
to 2 years’ imprisonment; and on count 6, he was sentenced to 5
years’ imprisonment. Counts 2, 3, 4 and
5 were ordered to run
concurrently with count 1. The appellant was thus sentenced to an
effective 30 years’ imprisonment.
[145]
As mentioned earlier in the judgment on the merits, this Court has
acquitted the appellant on counts 3 (defeating
or obstructing the
course of justice; and on count 5 (assault with intent to cause
grievous bodily harm). On count 6, this Court
has set aside the
conviction of conspiracy to commit murder and the appellant has been
found guilty of the alternative charge of
incitement to murder Dr
Sewram. It is necessary to consider the sentences imposed by the
court a quo on the remainder of the counts,
namely counts 1, 2, 4 and
6.
[146]
In considering sentencing, this Court’s powers are limited.
This Court cannot usurp the sentencing discretion
of the trial court.
In
S v Bogaards
[2012] ZACC 23
;
2012 BCLR 1261
(CC), the Constitutional Court held:
‘
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court’s power to interfere with sentences
imposed by courts
below is circumscribed. It can only do so where there has been an
irregularity that results in a failure of justice;
the court below
misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it. A court of appeal can also
impose a different sentence when it sets
aside a conviction in
relation to one charge and convicts the accused of another.’
[147]
The main
submissions put forward on behalf of the appellant are that the
sentence of 25 years’ imprisonment is shockingly
inappropriate,
and that the period the appellant has served, namely 18 months of
that sentence while awaiting this appeal, should
be taken into
account.
[148]
The appellant did not testify in mitigation of sentence in the trial
court, but through his legal representatives
made submissions which
the court considered. The trial court considered the personal
circumstances of the appellant in great detail,
his upbringing, and
his family history. To have a complete and balanced picture, the
trial court also took into account the reports
of expert witnesses,
and importantly the impact and effect of the crimes on the deceased’s
family, the nature of the crime,
the seriousness of the offences,
their cumulative effect and the interests of society, including the
possibility of rehabilitation.
Accordingly, the trial court took the
following into account. The appellant was 42 years of age at the time
of sentencing and he
was a first offender. He was a useful member of
society and an accomplished businessman. He had grown up in a
staunchly conservative
Hindu family. The appellant suffered from poor
health, and was diagnosed with hypertension and a non-occlusive
coronary disease.
He also suffered from depression. He had been
married for eleven years until the marriage between him and his wife
ended in divorce.
Even though, in terms of the divorce agreement of
settlement, Mr and Mrs Soni were declared co-holders of parental
rights and responsibilities
in regard to the two children born of the
marriage, the divorce was settled giving recognition to the appellant
being the primary
caregiver of his daughter. Both minor children were
financially depended on him. He was also a community orientated
person contributing
to charities and feeding schemes.
[149]
In deciding on an appropriate sentence on count 1, it is important to
bear in mind that the appellant persisted
on exacting revenge on the
deceased and ultimately conspired with and embarked on a campaign to
kill the deceased, and which resulted
in the cold-blooded murder of
the deceased. Never once did he shrink back from a campaign involving
a number of schemes, and ultimately
procured the murder of the
deceased through the hands of hired assassins. He embarked on this
conduct over a period of time until
he avenged the deceased’s
alleged affair with his wife, using corrupt policemen to do his
bidding, and using money as a means
to an end.
[150]
After due consideration of all the facts and circumstances relevant
to sentencing, in our view the sentence of
25 years’
imprisonment imposed on count 1 by the trial court for the murder of
Dr Sewram does not appear to be shockingly
inappropriate. It is not
disproportionate to the seriousness of the crime committed by the
appellant. It is an appropriate and
salutary sentence which is
balanced and fair, and which also takes into account the moral
indignation of the community. Consequently
we find no reason to
interfere with the sentence on count 1.
[151]
The sentences imposed on the appellant with respect to counts 2 and 4
(defeating the course of justice) of 18
months’ and 2 years’
imprisonment respectively, in the circumstances of this case, do not
appear to be excessive. On
both counts a false complaint was laid
against Dr Sewram at the instance of the appellant, in order to
satisfy the appellant’s
desire to exact revenge on Dr Sewram.
Thus, the sentence imposed by the court a quo on counts 2 and 4
appear to be appropriate
and justified.
[152]
In regard to count 6, this Court has found that the appellant is not
guilty of the crime of conspiracy to kill
Dr Sewram, but is guilty of
the alternative charge of the incitement to murder Dr Sewram. The
trial court imposed a sentence of
5 years’ imprisonment on
count 6. In the circumstances of this case, the appellant clearly
sought to influence Sithebe to
kill Dr Sewram. He offered Sithebe a
large reward and pointed out the two surgeries of Dr Sewram. The
conviction of the appellant
on the alternate charge of incitement to
murder Dr Sewram is no less grave than the trial court’s
conviction of the appellant
on the conspiracy to murder Dr Sewram.
Consequently, we consider a sentence of 5 years’ imprisonment
to be appropriate in
respect of the conviction for the incitement to
commit murder.
[153]
Furthermore, in our view, given the circumstances under which the
offences on counts 2, 4 and 6 occurred, they
are all closely linked
to count 1. All these offences form part of the scheme which the
appellant embarked upon, carefully planned,
and which ultimately
culminated in the commission of the offence on count 1. In the light
of the cumulative effect of the sentences
imposed, the sentences on
counts 2, 4 and 6 are to run concurrently with the sentence on count
1.
[154]
It has been submitted on behalf of the appellant that this Court
should take into account the period of imprisonment
served by the
appellant after his conviction and sentence by the trial court. The
appellant was sentenced by the trial court in
October 2018. The
relevant records in the Registrar’s office indicate that the
appellant was released on bail pending appeal
by this court on 19
March 2020. The appellant has thus served approximately 17 months of
the sentence imposed on him before his
release on bail pending the
outcome of the appeal. We are of the view that in such circumstances,
it would be just and equitable
for the appellant to receive credit
for the period already served, and that this be taken into account in
determining the effective
sentence. In doing so, we are mindful of
the loss that the deceased’s family have suffered.
[155]
The result is that the appellant is sentenced to an effective 23
years and 7 month’s imprisonment, which
period will run from
the date of the further imprisonment of the appellant pursuant to
this order.
[156]
In the result, the following order is made: The appeal against
convictions and sentences is upheld in part and
dismissed in part, as
follows:
1.
The appeal against
convictions and sentences is upheld in part and dismissed in part, as
follows:
1.1
The appeal against the
conviction and sentence on count 1 is dismissed;
1.2
The appeal against the
convictions and sentences on counts 2 and 4 is dismissed;
1.3
The appeal against the
convictions and sentences on counts 3 and 5 is upheld;
1.4
The appeal against the
conviction on count 6 of conspiracy to murder is upheld, with the
conviction substituted with the alternative
count, namely, incitement
to commit murder;
1.5
The appeal against
sentence on count 6 is upheld to the extent reflected in the
substituted order that appears hereunder;
1.6
The effective sentence
is reduced to the extent reflected in the substituted order.
2.
The order of the court
below is substituted as follows:
‘
(a)
In respect of count 1: Murder read with s 51(1) and Part 1 of
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, the accused
is found guilty;
(b)
In respect of count 2: Defeating or obstructing
the course of justice, the accused is found guilty;
(c)
In respect of count 3: Defeating or obstructing
the course of justice, the accused is acquitted;
(d)
In respect of count 4: Defeating or obstructing
the course of justice, the accused is found guilty;
(e)
In respect of count 5: Assault with intent to do
grievous bodily harm, the accused is acquitted;
(f)
In respect of count 6: Conspiracy to commit
murder, alternatively, incitement to murder, the accused
is found
guilty of incitement to murder;
(g)
In respect of count 1, the accused is sentenced to
25 years’ imprisonment;
(h)
In respect of count 2, the accused is sentenced to
18 months’ imprisonment;
(i)
In respect of count 4, the accused is
sentenced to 2 years’ imprisonment;
(j)
In respect of count 6, the accused is
sentenced to 5 years’ imprisonment;
(k)
The sentences imposed on counts 2, 4 and 6 are to
run concurrently with the sentence on count 1. The accused
is
sentenced to an effective 23 years’ and 7 months’
imprisonment.’
3.
The sentence of 23
years and 7 months’ imprisonment referred to in (k) above will
run from the date of the further imprisonment
of the appellant
pursuant to this order.’
4.
The National Commissioner for Correctional
Services is directed to ensure that a social worker in the
employ of
the Department for Correctional Services visits the children of the
accused, Mr Soni, regularly during his incarceration,
and submits
reports to the office of the National Commissioner as to whether the
children are in need of care and protection as
envisaged in
section
150
of the Children’s Act 38 of 2005 and, if so, to take the
steps required by that provision.
5.
The Department of Correctional Services is
to give consideration to the recommendation in the report
of Floss
Mitchell relating to the manner in which contact visits between the
accused and the minor children are to take place,
and, where
possible, to facilitate the assistance of a social worker during such
visits.
6.
The accused is declared unfit to be licenced
for a firearm in terms of the provisions of the
Firearms Control Act
60 of 2000
.
H
SALDULKER
JUDGE
OF APPEAL
D
UNTERHALTER
ACTING
JUDGE OF APPEAL
Appearances:
For
appellant:          M
Hellens SC (with him J E Howse SC)
Instructed
by:          Subash Maikoo &
Associates Inc, Pietermaritzburg
Honey
Attorneys, Bloemfontein
For
respondent:       J du Toit
Instructed
by:
Director of Public Prosecutions, Pietermaritzburg
Director
of Public Prosecutions, Bloemfontein
[1]
Thebus
and Another v
S
2003
(6) SA 505 (CC).
[2]
S v
Motlabane and Others
1995
(8) BCLR 951
(B);
S
v Khumalo
[2012]
ZAGPJHC 141 (GP);
S
v Msimango and Another
2010
(1) SACR 544 (GSJ).
[3]
S v
Sibuyi
1993
1 SACR 235
(A) at 249E.
[4]
S v
Nkosiyana
1966
(4) SA 655
(A) at 658-9.
[5]
S v
Zinn
1969
(2) SA 537
(A) at 537-540G.