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[2021] ZAGPJHC 634
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S v Mndaweni and Another (SS107/2020) [2021] ZAGPJHC 634 (11 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS107/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
THE
STATE
AND
MNDAWENI
LEBOHANG
ACCUSED 1
CHANJIRA
INNOCENT
ACCUSED 2
JUDGMENT
VAN
VEENENDAAL AJ:
[1]
The accused in this matter are charged with
the following:
Count
1:
robbery with
aggravating circumstances, as described in section 1 of the criminal
procedure act, 51 of 1977, read with the provisions
of section
51(2)(a) as well as schedule 2 of the
Criminal Law Amendment Act 105
of 1997
, and further read with the provisions of
sections 92(2)
,
256
and
260
of the
Criminal Procedure Act 51 of 1977
;
Count 2:
murder – read with the provisions of
section 51(1)
and (2) as
well as schedule 2 of
Criminal Law Amendment Act 105 of 1997
and
further read with the provisions of
sections 92(2)
,
256
,
257
and
258
of the
Criminal Procedure Act 51 of 1977
;
Count 3:
murder – read with the provisions of
section 51(1)
and (2) as
well as schedule 2 of the
Criminal Law Amendment Act 105 of 1997
and
further read with the provisions of
sections 92(2)
,
256
,
257
and
258
of the
Criminal Procedure Act 51 of 1977
.
[2]
On 27 July 2021 Accused 1 pleaded guilty to
count 1 but not guilty to the remainder of the charges. Accused 2
pleaded not guilty
on the charges and in his plea explanation stated
he did not intend to kill the deseased . Before pleading, the court
warned both
Accused regarding the possibility of the imposition of
the minimum sentences, were they to be convicted on the charges. The
state
alleged common purpose in the charge sheet.
[3]
The following admissions were submitted to
court on behalf of the Accused, who had separate legal
representatives.
3.1
William Cornelius Giessing (the Deceased in
respect of Count 2) and Hillary Silvia Zerda Giessing (the Deceased
in respect of Count
3) resided at the residential premises situated
at [....] Nursery Road, The Gardens within the Johannesburg
Magisterial District.
3.2
Both William Giessing and Hillary Giessing
were at home at the said residential premises during the afternoon
and the early evening
of the 22
nd
of June 2020.
3.3
William and Hillary Giessing, at
approximately 18:12 on the 22
nd
of June 2020, were confronted by two black males (the perpetrators)
armed with a knife, who had gained entry into the yard of the
residential premises.
3.4
The perpetrators then robbed William and
Hillary Giessing of the items mentioned in Count 1, namely a
television, a laptop computer,
two cellular telephones, jewellery, a
watch, and a bank card being their lawful property.
3.5
The Deceased in respect of Count 2, William
Giessing’s throat was slit with a knife.
3.6
The Deceased in respect of Count 3, Hillary
Giessing was stabbed in the neck with a knife.
3.7
The Perpetrators fled the residential
premises at approximately 19:49 in the motor vehicle mentioned in
Count 1, to wit a Chevrolet
Sonic with registration number FL21MH GP.
3.8
The bodies of both Deceased persons were
discovered on the morning of the 24
th
of June 2020.
3.9
The body of the Deceased in respect of
Count 2, William Cornelius Giessing, sustained no further injuries up
until a post mortem
examination was conducted thereupon, at the
Johannesburg Medico-Legal Laboratory, by Doctor Zibonele Petronella
Manukuza-Qwabe
on the 25
th
of June 2020.
3.10
Doctor Manukuza-Qwabe recorded her findings
of the said post mortem examination on form GW7/15.
3.11
Doctor Manukuza-Qwabe’s post mortem
report and accompanying affidavit may be submitted as
Exhibit
“B”
.
3.12
The Accused further admit the correctness
of the facts and findings contained in
Exhibit
“B”
.
3.13
The body of the Deceased in respect of
Count 3, Hillary Silvia Zerda Giessing, sustained no further injuries
up until a post mortem
examination was conducted thereupon, at the
Johannesburg Medico-Legal Laboratory, by Doctor Jacob J Moar on the
25
th
of June 2020.
3.14
Doctor Moar recorded his findings of the
said post mortem examination on form GW7/15.
3.15
Doctor Moar’s post mortem report and
accompanying affidavit may be submitted as
Exhibit
“C”
.
3.16
The Accused further admit the correctness
of the facts and findings contained in
Exhibit
“C”
.
3.17
Warrant Officer CL Wood, who is attached to
the Johannesburg Central Provincial Criminal Record and Crime Scene
Management, Gauteng
Crime Scene Investigation Team as a Crime Scene
Expert attended the residential premises at [....] Nursery Road on
the 24
th
of June 2020 and took photographs thereof.
3.18
Warrant Officer Wood later compiled a photo
album thereof and a key thereto.
3.19
Warrant Officer Wood’s photo album
may be submitted as
Exhibit “D”
.
3.20
The Accused further admit that
Exhibit
“D”
correctly depicts the
scene at the residential premises as it was on the 24
th
of June 2020.
3.21
Mark Daniel van Jaarsveld, the Chief
Executive Officer of CAP (being a local security company) obtained
video footage from various
CCTV cameras that are operated by CAP and
public cameras that CAP has access to.
3.22
The said video footage was used to compile
an album of still photos including a description of the camera the
footage was obtained
from, the date, the location, time and a
description of the still photos as well as a map of the movements of
the persons depicted
in the album.
3.23
Mark Daniel van Jaarsveld’s album may
be submitted as
Exhibit “E”
.
3.24
The Accused further admit that
Exhibit
“E”
correctly depicts the
footage as obtained from the various CCTV cameras.
3.25
The video footage obtained by Mark Daniel
van Jaarsveld was saved on an external storage device.
3.26
The said storage device was sealed in
Forensic Seal Bag with unique seal number PA4004036702.
3.27
Forensic Seal Bag with unique seal number
PA4004036702 was provided to Warrant Officer Christian Charles
Govender, a police officer
attached to the Scientific Analysis
Section of the Forensic Science Laboratory as a Forensic Analyst.
3.28
Warrant Officer Govender, having viewed the
video footage obtained by Mark Daniel van Jaarsveld, compiled an
album of still photographs
he obtained from the video footage.
3.29
Warrant Officer Govender thereafter
compiled a photo album and deposed to an affidavit in terms of
section 212
(4)(a) and (8)(a) in respect of his involvement.
3.30
Warrant Officer Govender’s affidavit
and accompanying photo album may be submitted as
Exhibit
“F”
.
3.31
On the 26
th
of November 2020 Warrant Officer Patrick Sekengkeng Mahlwele, a
photographer stationed at the Johannesburg Local Criminal Record
Centre, took photographs of the two Accused.
3.32
Warrant Officer Mahlwele later compiled a
phot album thereof.
3.33
Warrant Officer Mahlwele’s photo
album may be submitted as
Exhibit “G”
.
3.34
Warrant Officer Michelle Nkwe, a police
officer stationed at the Facial Identification Unit at the Local
Criminal Record Centre
Krugersdorp, is criminalist expert
specialising in the field of facial comparison.
3.35
On the 29
th
of March 2021 Warrant Officer Nkwe received electronic copies of
Warrant Officer Govender’s photo album (Exhibit “F”)
Warrant Officer Mahlwele’s photo album (Exhibit “G”)
and conducted a facial identification comparison.
3.36
Warrant Officer Nkwe compiled a report,
with accompanying annexures, setting out her experience and
qualifications as well as the
process and results of her facial
identification comparison.
3.37
Warrant Officer Nkwe’s report and
annexures thereto may be submitted as
Exhibit
“H”
.
3.38
The accused further admit the correctness
of the facts and findings of Exhibit “H”.
3.39
Warrant Officer Jan Raphadu Nkoatse, a
finger print expert attached to Criminal Record Scene Management:
Gauteng, attended the scene
at [....] Nursery Road on the 24
th
of June 2020 and examined the scene for finger, palm and foot prints.
3.40
As a result of his investigation, Warrant
Officer Nkoatse collected the following exhibits:
3.40.1
A cable and plug from the sitting room,
marked FL1 and sealed in forensic bag with unique seal number
PA6002852555.
3.40.2
A knife in the idle of the spare bedroom on
the bed, marked FL2 and sealed in forensic bag with unique seal
number PA6001546523.
3.40.3
A black box, transparent box, transparent
holder, black bag, black hard box, blue piece of paper and a clear
envelope in the main
bedroom, on the floor, where the body of the
Deceased in respect of Count 3 was found, marked it FL3 and sealed in
forensic bag
with unique seal number PW3000236591.
3.40.4
Two white envelopes and a document with
possible blood found in a drawer in the middle spare bedroom, marked
it FL4 and sealed in
forensic bag with unique seal number
PW4001255899.
3.40.5
A piece of a pillowcase with blood found on
it, found in the main bedroom where the Deceased in respect of Count
3 was found, marked
it FL5 and sealed in forensic bag with unique
seal number PAD001732247.
3.40.6
A piece of pillowcase found on the bed in
the main bedroom, Marked it FL6 and sealed in forensic bag with
unique seal number PA6001546504.
3.40.7
A piece of a pillowcase with blood found on
the floor in the main bedroom where the Deceased in respect of Count
3 was found, marked
it FL7 and sealed in forensic bag with unique
seal number PAD001732233.
3.40.8
A piece of a duvet cover with blood found
on the bed in the main bedroom where the Deceased in respect of Count
3 was found, marked
it FL 8 and sealed in forensic bag with unique
seal number PW3000236592.
3.40.9
A match box in the main bedroom on the
floor, marked FL9 and sealed in forensic bag with unique seal number
PA6002832556.
3.41
Warrant Officer Nkoatse found an
identifiable finger print on the piece of pillow case marked FL6, as
referred to in paragraph 3.40.6
hereof.
3.42
Warrant Officer Nkoatse compared the said
identifiable finger print with a set of Accused 2’s finger
prints and found it to
correspond with Accused 2’s left thumb
print.
3.43
Warrant Officer Deon Izak Ehlers is a
finger print expert stationed at the Johannesburg Local Criminal
Record Centre as Crime Scene
Laboratory Technician.
3.44
On the 13
th
of July 2020 Warrant Officer Ehlers received the remaining exhibits
retrieved by Warrant Officer Nkoatse, mentioned in paragraphs
3.40.1
to 3.40.5 and 3.40.7 to 3.40.9 herein.
3.45
Warrant Officer Ehlers conducted certain
investigations thereupon and deposed to an affidavit wherein he
explains the processes
followed and results thereof.
3.46
Warrant Officer Ehlers further took
photographs of the process described in paragraph 3.45 hereof, and
later compiled a photo album
and key thereto.
3.47
Warrant Officer Ehlers affidavit and photo
album may be submitted as
Exhibit “J”
.
3.48
On the 26
th
of October 2020, Warrant Officer Ehlers conducted further
investigations on the exhibits mentioned above and conducted a
comparison
with a set of Accused 2’s fingerprints.
3.49
Warrant Officer Ehlers found identifiable
finger prints on the two white envelopes as described in paragraph
3.40.4 hereof and compared
them to the set of Accused 2’s
fingerprints.
3.50
Warrant Officer Ehlers found that two of
the identifiable prints corresponded with Accused 2’s left
thumb print and one of
the identifiable prints corresponded with
Accused 2’s left index finger.
3.51
Warrant Officer Ehlers deposed to an
additional affidavit in respect of his investigations and findings of
the 26
th
of October 2020 which may be submitted as
Exhibit
“K”
.
3.52
The Accused further admit the correctness
of the facts and findings contained in Exhibits “J” and
Exhibit “K”.
[4]
Accused 1 submitted a written statement in
terms of
section 212
, stating that he
4.1.
Pleads guilty to count 1;
4.2.
He admits that on or about 22 June 2020 and
at or near [....] Nursery Road, The Gardens, he unlawfully assaulted
both the deceased
and took with force from them a Chevrolet Sonic
motor vehicle, registration number FL21MH GP together with a
television, laptop,
two cell phones, jewellery, a watch and a bank
card that were the lawful property of the deceased and in their
possession, thereby
robbing them.
4.3.
He further admits his residential address
in Soweto, but temporarily resided at a house in Sydenham, where he
met his co-accused
and other house mates;
4.4.
He admits to, on the day in question,
discussing and agreeing with his co-accused to go to the place of the
deceased and rob them.
The house was not far from the place they
stayed and they knew the surroundings very well, specifically the
place of the deceased;
4.5.
Regarding the specific day, he admits the
following:
4.5.1 Both accused
proceeded to the residence around 6pm, they found the gate closed and
locked but tampered with the gate and entered
the yard; they were
approaching the kitchen when the male deceased in count 2 (hereafter
deceased 1) came out of the kitchen door.
Accused 1 grabbed deceased
1 with both hands, Accused 2 joined him in grabbing deceased 1
whereafter Deceased 1 as an older male
succumbed and offered no
resistance;
4.5.2 Accused 1 demanded
valuables and proceeded immediately into the house through the
kitchen door, leaving Accused 2 with Deceased
1 outside the house. He
came across the deceased in count 3 (hereafter Deceased 2) and
instructed a fearful woman to go into the
study next to the kitchen.
He instructed her to lie on the floor and tied her hands and legs
with the belt of her gown. She offered
no resistance and surrendered,
after which he demanded valuables.
4.5.3 Accused 2 joined
Accused 1 in the study and to Accused 1’s surprise he was
holding a knife and his hands were covered
in blood. On Accused 1’s
question as to what happened, Accused 2 told him that he had finished
off the old man. Accused 1
expressed his displeasure and told Accused
2 to go to the kitchen and wash his hands and put away the knife.
Accused 1 describes
Deceased 2 as visibly shivering, scare and
appeared to be shocked by what was happening.
4.5.4 Accused 2 did as
instructed and returned to the study. They both took Deceased 2 to
the bedroom. They instructed her to lie
on the bed, she was still
tied up. Accused 1 ransacked the house, looking for valuables and
found a bank card in a purse. Accused
2 stood by Deceased 2. Accused
1 asked Deceased 2 how much was on the bank card, to which she
replied R32 000, he demanded the
pin from her and he wrote it down,
after which he continued his search for valuables, including the
items mentioned in 4.2 above.
He walked to the garage and opened the
boot of the vehicle, putting the items in the car. When walking
towards the garage, he noticed
Deceased 1 on the ground, bleeding
profusely, also noticing that his throat had been slit. After he put
the items in the car, he
returned to the bedroom where Accused 2 was
with Deceased 2.
4.5.5 Upon his return he
saw that Deceased 2 was begging and pleading Accused 2 to stop what
he was doing. Accused 2 went to the
kitchen and returned with a
knife. He attacked the Deceased and did not say anything. Accused 1
was shocked and did not understand
the conduct of Accused 2.
4.5.6 Accused 2 tried to
wipe his fingerprints from the door panels while Accused 1 simply
left and went to the garage and got in
the car of the Deceased.
Accused 2 also came and they left in the vehicle.
4.6.
Accused 1 further admits that his actions
were unlawful and wilful and he had no right to take the goods of the
deceased. He admits
that he acted in concert with Accused 2 to rob
the items. He says that the intention was only to rob. He expresses
his regret and
begs for mercy from the Court.
[5]
The state called the two doctors who
performed the autopsies, the representative of the security company
and the investigating officer.
The statement of Mr Ndaba was handed
up by consent during the state’s case.
[6]
The evidence of Dr Manukuza-Qwabe referred
to exhibit B, the post mortem she performed on the body of Deceased
1. She described
the wound as a slitting wound, not a stab wound,
which would have been caused by a sharp object, like a blade. The
wound was big
and open and could have been inflicted from any point,
behind, the side or the front of the Deceased. The trachea and
oesophagus
were cut, they were situated behind each other. It is a
deep wound, about 15cm long and 1 cm deep. The Deceased would have
passed
on quickly. There was a spattering of blood on the area
outside the kitchen, although the Deceased would have bled fast after
the
injury. She describes the scene as one where the blood spatters
indicate the bleeding was in transit.
[7]
In cross-examination on behalf of Accused
1, she states that based on the photos, the Deceased may have lost
some blood, but where
the most bloo d is, is where he fell and spent
the longest time.
[8]
In cross-examination on behalf of Accused
2, she admits she does not know where the Deceased had been when his
throat was slit.
The body was found in the kitchen. The knife used
was sharp, one movement was used and force was used.
[9]
In answer to the court’s questions,
she excludes that the Deceased was lying down when his throat was
slit. There were not
bruises on the body. In re-examination, she
states that there were no defensive wounds on Deceased 1. The trail
of blood and where
the body lay bleeding was not consistent with
Accused 1’s version in the
section 112
statement.
[10]
The next state witness was Mr van
Jaarsveld. His involvement is also not disputed, he attended the
scene when the bodies of the
Deceased were discovered on 24 June
2020. He is from the CAP security company and he brought together
video footage and still photos.
The cameras from which videos were
taken were owned privately by the property owners in the area or by
businesses and by the public
space cameras. The Deceased were clients
of CAP but they did not have cameras on their property. On the video
footage he observed,
from property diagonally opposite the house of
the Deceased and Main Road, he saw the Accused on foot on that day
and on previous
dates. Accused 1 wore black and white and grabbed the
gate, first at 16:18 and later at 18:12 on 22 June 2020. The cameras
showed
that the two Accused stayed at the abandoned veterinary clinic
in the area. The suspects were in the street on various days.
[11]
He was on the scene on 24 June 2020 when
the bodies were discovered. There was blood in three areas: in the
courtyard outside, there
was blood on the wall and the round, it
looked like a person had been dragged and the was a trail of blood.
The second part was
the kitchen and the third part was in the main
bedroom. There was a lot of blood on the bed in the main bedroom. He
later confirms
that the Deceased were the only people living in the
house.
[12]
He visited the abandoned vet on the morning
that Accused 1 was arrested there. He thought the Accused may be
living there based
on his observation of the footage. There were a
number of displaced persons staying there. He contacted the police
and went with
them to the place. Accused 1 was arrested there early
in the morning. He identified him as the one with the black and white
shirt
that was on the photos.
[13]
There was no cross-examination.
[14]
Dr Moar testifies that he did the post
mortem on the body of deceased 2. He found that the throat had been
slit in one motion, with
a knife that was double-edged. The Deceased
also had defensive wounds on her hands. A kitchen knife is blunt and
no v-shaped. Both
the arteries had been cut.
[15]
Under cross-examination for Accused 1 he is
adamant that the knife had been double-edged and cannot be the knife
on the photographs
of the scene.
[16]
Under cross-examination for Accused 2 he
confirms that the knife that inflicted the wounds still have to be
found. The position
of the wound is from the left side downwards and
inwards. Death would have followed in seconds due to rapid blood
haemorrhaging.
The bruises on the hands would be from a struggle or a
fight.
[17]
Under examination by the court, he refers
to the organs that are bleak, indicating having bled out.
[18]
Sergeant Hlengiwe Mbele is the final state
witness. She is based at the Provincial Head Office and has 15 years
of service in the
police service. She was present at the arrest of
Accused 1 on 5 July 2020 at the Norwood Veterinary Clinic. She was
convinced of
their presence, based on the video footage and they went
into and out of the specific place. She also confirms that she found
the
television that belonged to the Deceased at the premises of Mr
Ndaba. She handed the television back to the daughter of the
Deceased.
[19]
She confirms that Accused 2 was arrested
based on the connection of his fingerprints to the scene. She
arrested Accused 2 at the
Johannesburg magistrates Court. Initially
there was a third accused, on Hadebe, who was linked through his
possession of exhibits,
the vehicle and phones. He obtained bail and
he absconded and is still at large. She did not link him with
involvement in the murders.
[20]
The Deceased were 79 and 81 years old,
respectively. Accused 1 co-operated after his arrest and he made a
confession which was duplicated
in his admissions before court.
[21]
In cross-examination on behalf of accused 1
she confirms that Hadebe was not linked. She did not arrest Ndaba
when she found the
television with him, as he had a reasonable
explanation for the possession thereof.
[22]
IN cross-examination for Accused 2, she
confirms that Accused 2 has been in custody since his arrest. After
her evidence, the state
closed its case.
[23]
Both accused testified in their defence.
[24]
Accused 1’s evidence in chief is as
follows:
24.1 He confirms
his guilty plea on Count 1. At the time of the incident, he lived at
the Norwood Veterinary Clinic, which
was in the same street and about
three to four minutes’ walk from the Deceased’s house.
24.2 Accused 1
started to get to know Accused 2 around January 2020 at the Norwood
Vet Clinic. They were not friends. . During
lockdown he would go and
knock at the houses and ask for food. The Accused himself refers to
having finished parole and having
trouble to find a job, due to the
covid situation . He saw Accused 2 around. Accused 2 asked him for
tips on how to survive.
24.3 On the day of
the incident the following happened:
24.3.1
Around 6pm the two accused departed the Norwood Vet Clinic and
went
to the house of the Deceased. He and Accused 2 decided on that day to
go and rob the Deceased. They knew that Deceased 2 lived
there. They
tampered with the gate and went over the wall. They looked around.
They tried to open the windows of the bedroom but
were unsuccessful.
They saw Deceased 1 moving around the house by the kitchen side. They
had no weapons of their own. There was
a small door opposite the
kitchen door where it looked like the Deceased had done some
gardening during the day. Deceased 2 became
aware of their presence
and told Deceased 1. He opened the kitchen door and accused 1 grabbed
his hands while Accused 2 held his
mouth closed. This was about 5
steps from the kitchen door outside the house. Deceased 1 did not
fight and accused 1 left him with
accused 2.
24.3.2
Accused 1 then went into the house and surprised Deceased 2. He
told
her to calm down, told her to sit on couch in nearest room, he took
the belt of her gown and tied her hands and feet. He waited
for
Accused 2 who had to come in and look at the things, the machines in
the room. He heard Accused 2 calling him and he went to
look –
he saw Accused 2 with a knife in his hands that were full of blood.
Accused 2 informed him that he had finished off
the old man. He
instructed Accused 2 to wash his hands as he would scare Deceased 2.
Accused 2 did that and then came into the
room. This room was the
study.
24.3.3
Accused 2 and Accused 1 then untied Deceased 2’s legs and
took
her to the main bedroom. They told her to sit on the bed and tied her
hands, then made her relax and asked her to tell them
what items they
could find where. While Accused 2 sat with the Deceased 2 on the bed,
Accused 1 went to a small room between the
room and the bathroom,
which had closets and demanded money when he saw the open safe. She
said there was no money. He found two
watches and a bag with credit
cards. He asked her which card had money and she told them the credit
cad contained R32 000. He took
paper and pen and asked her for the
PIN. He also was opening drawers and looking for valuables. Accused 2
was also looking for
valuables. Accused 1 took what he could find
which included about R600 – 700 and jewellery. He took a pillow
case and put
the things in it. He took the car keys and two iphones
and went into the garage. Deceased 2 kept on telling them to stop,
which
made Accused 2 angry and he told Accused 1 to let him do his
job and finish her off.
24.3.4
Accused 1 took the items and he placed it in the kitchen together
with electronic goods and liquor bottles and then took it to the car.
When he came back, he looked for deceased 1 and could not
see him. He
thought he saw something in the kitchen. He asked Accused 2 who told
him the Deceased was outside. Accused 1 continued
to look for things
and Accused 2 came to the outside window of the bedroom, knocking on
the window to be let it. Accused 1 told
him to use one of the doors.
Accused 2 came back. Accused 1 in the meantime was putting things in
the kitchen with the liquor bottles
and then took them to the car. He
then saw after his second trip to the car that the Deceased 2 lay in
the kitchen, on his back,
with a lot of blood and a gaping throat.
24.3.5
He went back to the bedroom where Deceased 2 was with Accused
2. He
gathered more clothes and valuables and took them to the car. He came
back to the room to find Accused 2 over Deceased 2
with a pillow over
her head with a knife in this hand. She was bleeding and kicking. He
saw a cut on her neck. He asked Accused
2 what he did and Accused 2
told him she is dying and they must go. He gave the keys to Accused 2
as he cannot drive. They left
and went to Alexandra where they
offloaded the goods. They tested the card at a garage ATM and
withdrew around R500. He did not
see the actual cutting of the neck.
24.3.6
The reason for the invasion was to get money to subsist on. Accused
1
cooperated after he was arrested. The killing of the Deceased was not
planned. When he realised Deceased 1 was dead he realised
it would be
better if they left without being caught. His fingerprints were all
over the place. He could not speak to Accused 2
after he killed
Deceased 1. Accused 2 had no knife with him, he got that from the
kitchen. Accused 1 denies that he had anything
to do with the
murders.
24.3.7
Under cross-examination for accused 2. He says that Accused 2
had
criminal discussions with him before. He was alone at the house of
the Deceased on 21 June 2020, the day before the actual
offence, he
was planning a robbery, which meant unlawfully and forcefully take
things that did not belong to them. Accused 2 came
with the idea to
target this house. Accused 2 was supposed to have been with him on 21
June, but he was with his girlfriend. They
both came up with the plan
to target [....] Nursery Road. He denies that he instructed Accused
2. Put to him that the deceased
knew Accused 1 and Accused 1 wanted
to leave no witnesses who could identify them, which Accused 1
denies. Accused 2’s version
is put that there was no prior
agreement to kill the Deceased but merely to steal.
24.3.8
Under cross-examination by the state, he admits that the two Accused
had irreconcilable versions. He agrees that Accused 2 gives two
versions that are irreconcilable. Accused 1 points out mistakes
in
his
section 212
statement, with reference to Sydenham, that the
deceased’s house was indeed not well-known to them and that he
demanded valuable
only from Deceased 2.
[25]
Accused 2 testifies as follows in chief:
25.1 He did not
come to know Accused 1 in January but in March 2020, because of
lockdown and hardship. Rasta said he had to
introduce Accused 2 to
Accused 1. When they met, Rasta told him that he had to wait to ask
how to make a living until Accused 1
was acquainted with Accused 2.
March and April passed before Accused 1 noticed him and they became
acquainted. There was a plan
to rob the Deceased’s place on 21
June, but he was not there and not available as he had a piece job
and went to his girlfriend
in the evening.
25.2 The plan was
not to commit robbery but to steal, without injuring the Deceased.
They came to the place and they got over
the gate, they tried to open
the windows. They didn’t have tools and found it difficult.
They jumped over another gate and
this drew the attention of the
people in the house. Accused 1 said he was known to the people and
would be bad if the people came
outside. The male Deceased opened the
door and Accused 1 rushed at Deceased 1 and grabbed him. Deceased 1
told Accused 1 he knew
him. Accused 1 punched Deceased 1 in the face
and with the third punch the Deceased became powerless and leaned
against the wall.
Accused 1 approached the deceased 1 as he sat down
and he bumped him in the face, so that the man started bleeding. The
man was
unconscious and Accused 1 told Accused 2 to guard the man.
Accused 1 went inside the house and reported later to Accused 2 that
he had tied up Deceased 2 and there was no one else in the house.
Accused 1 went back into the house. Accused 2 tried to pick up
Deceased 1, but he was too heavy, so he dragged the old man to the
kitchen. The old man was suffocating, so he put him upright.
25.3 Accused 2 and
1 had an argument over Deceased 1. Accused 1 instructed him to finish
off the Deceased as he could identify
them. Accused 2 didn’t
want to kill the man. Accused 1 taunted Accused 2 that he had to
prove that he was a soldier and that
he knew his job. He took a knife
and slit Deceased 1’s throat while accused 1 was not present.
He made several slicing motions,
not one cut.
25.4 Accused 1 was
in the main bedroom with Deceased 2. He was removing valuables and he
was assaulting Deceased 2. Accused
1 instructed him to fetch the
computer in the next room. Accused 1 told him he was going to put the
goods in the car and Accused
2 had to guard Deceased 2 so that she
did not activate any alarms. Accused 1 left and took a long time.
Accused 1 told him to go
outside and load the goods into the vehicle
and return quickly. In the process he managed to lock himself outside
and he ran to
the bedroom where he saw Accused 1 assaulting Deceased
2. He told Accused 1 that the Deceased 2 was screaming loudly and
might
rouse suspicions. He asked Accused 1 to open up for him, but
Accused 1 was aggressive and he went back to the kitchen door and
entered through that door.
25.5 Accused 1
demanded the pin from the Deceased 2 and threatened to beat her up.
Accused 1 got a heavy cutting board from
the kitchen and threatened
to smacke it over the Deceased’s head. She gave the pin and
Accused 1 thought she was lying to
him, so he slapped her and she
fell on the bed. Accused 1 then beat her with the cutting board. The
Deceased 2 used a pillow to
cover her head. In between the beatings,
Accused 2 also tried to stop accused 1 and they landed in a heap on
the floor. Accused
1 instructed accused 2 to slit the Deceased 2’s
throat, while again mocking him to act as a soldier before they can
become
partners. Accused 1 was there when he slit the throat of
Deceased 2. Accused 1 then said they had to leave. Accused 1 gave him
the keys and they drove the car. They went to Alexandra.
25.6 He also
repeatedly sliced the throat of the Deceased 2. He used the knife as
photographed on the scene.
25.7 He was
thoroughly cross-examined by counsel for Accused 1 and the state.
[26]
Evaluation of the evidence. After all the
admissions in terms of
section 220
of the
Criminal Procedure Act 51
of 1977
, the state had to prove that the Accused acted in concert and
intended to murder the Deceased in execution of a pre-planned attack.
The state asks the court to convict the Accused by using the method
of inferential reasoning. The only people on the scene were
the
Accused and the Deceased. The Deceased can no longer speak, but they
left their bodies to talk on their behalf. According to
the post
mortems, both victims died quickly after their throats were cut. The
cuts were done once and with force. The doctors were
asked about
other wounds and bruises, but only Deceased 2 had defensive bruises
on her hands. Deceased 1 did not have other bruises
to indicate that
he had been punched in the face. Deceased 2 did not have bruises to
indicate that she had been hit repeatedly
with a flat cutting board
over the head or on her body.
[27]
The Accused admit to a prior plan to
violate the integrity of [....] Nursery Road in order to take as many
valuables a possible.
Whether this plan was to also kill the
inhabitants of the house and to leave no identifying witnesses, is
denied by the accused.
Accused 1 says that Accused 2 did all the
murdering, without his instructions, while Accused 2 says that
Accused 1 instructed him
to do so. Accused 1 says he was not present
at the actual killing, while Accused 2 says that Accused 1 saw him
slitting the throat
of Deceased 2.
[28]
The evidence by the state shows that the
accused were observed together in the afternoon of 22 June 2020,
scoping out the street
and trying the gate of 16 6pm and left the
premises after spending almost two hours there.
[29]
Accused 1 submitted a statement to court in
which he admitted his guilt regarding the robbery and denying killing
the deceased,
but admitting to being on the scene. Accused 2 admits
to being on the scene, but denies having planned the murders and also
says
that he was instructed to carry out the murders.
[30]
The problem regarding Accused 2’s
reference to having acted on instructions of Accused 1, is that he
had a choice to refuse
to follow the instructions, as they were
clearly unlawful instructions – as a soldier he would have
known that. Furthermore,
he says that he did that because of an
attack on him. However, his own conduct and the conduct of Accused 1
equals that of an unlawful
attack on the Deceased and therefore it
cannot be used as a defence. This was not seriously pursued by his
counsel during the case
or during evidence. Accused 2’s plea
explanation was merely that he did not have intention to end the life
of the two Deceased.
On that basis already, his version is crumbling
when subjected to scrutiny.
[31]
Accused 2 furthermore put to Accused 1 in
cross-examination that Accused 1 gave instruction before they entered
the house that the
Deceased know him and that Accused 2 had to finish
them off. This is denied by Accused 1. Later, when Accused 2 is under
cross-examination
by Accused 1, his evidence is that Accused 1 gave
the instructions in the house. This is directly contradictory
versions.
[32]
Under cross-examination by Accused 1’s
counsel, Accused 2 is unable to explain why he did not merely run
away and jump over
the gates the way they came, since Deceased 1 was
an old man.
[33]
Accused 2 also admits under
cross-examination that by the action of slitting the throat of the
Deceased he knew he was killing the
Deceased and therefore had
intention.
[34]
Accused 2 is also confronted for not having
put certain matters to the witnesses: e.g. the issue of having
punched Deceased 1 three
times in the face was not put to the doctor
who did the post mortem, nor to Accused 1. He is also later
confronted on the dualistic
nature of first having defended Deceased
2 against the attack by Accused 1, but later he himself attacks her
and kills her. When
confronted with the two versions and invited to
give a response, Accused 2 states that he is not going to choose a
version, but
that it is up to the court to evaluate and assess the
evidence and find the truth. This is a strange answer to give, when
the Accused
himself was on the scene and could give an easy answer.
[35]
Accused 2 is confronted on his version that
he came under the care of Accused 1 by being introduced by Rasta.
[36]
Accused 2 is confronted by numerous
statements that were not put to Accused 1 in cross-examination, and
accused 2 prefers to alternate
between blaming a lack of time to
properly instruct his counsel, his counsel asking questions and not
writing down his answers,
his counsel only asking certain questions
in consultation and eventually saying he did not instruct his counsel
on certain aspects.
[37]
Accused 1 tries valiantly to keep to his
version as put in the
section 112
statement. However, under
cross-examination his version is tested. He testifies in chief that
they actually had a plan on 21 June
to attack the house, but cannot
explain why this was not pulled off.
[38]
Accused 1’s version of leaving the
bedroom with goods and putting it in the vehicle does not correlate
with his
section 112
statement. He is also loath to admit that he saw
Deceased 1’s body on the first return from the garage.
[39]
Accused 1’s version that lockdown was
not in January 2020 already but only in March, is pointed out by the
state but the Accused
does not give an adequate answer to his
inaccuracy. Accused 1 also does not have a response to the question
as to why he maintains
that both Accused at the same time identified
the house as their target.
[40]
Both accused are confronted by the fact
that they stayed together after the offence and did not distance
themselves from each other.
Both are confronted with the fact that
they did not distance themselves from the killing or the instructions
to kill while in the
house.
[41]
According to law, there are a number of
evidentiary and criminal law principles that need to be considered.
These are that the accused
blamed each other and therefore cautionary
rules apply, that the state relies on inferential reasoning to prove
its case and the
elements of intention, common purpose and
pre-planning. Eventually the court must decide whether the version of
the Accused are
probable and whether the state has managed to prove
its case beyond reasonable doubt.
[42]
It is clear from the video evidence
submitted that the Accused were planning an attack and executed the
attack. Accused 1’s
assertion that the plan was to attack on 21
June and later 22 June, indicates that there was a plan hatched in
advance. Accused
2 also admits that there was a plan. From the
evidence of Accused 1 and 2, the plan was to take as many goods as
possible to sell
and to make a living. What the intention of the plan
was, it is left to the court to find whether there was a plan to
merely commit
theft, to rob or to rob and kill the Deceased. I will
return to this point later.
[43]
When accused testify against each other, it
is not inadmissible evidence, but the evidence must be treated with
caution. Each accused
has every reason to intersperse the truth with
falsehoods and blame in order to diminish their own role in an
attempt to evade
responsibility. The court must look at corroboration
of each version and must look at the totality of the evidence. Every
piece
of evidence must be taken into account, whether probable or
not.
[44]
The Court, in S v Masuku and another
1969
969
(2) SA 375
(N), stated that: “It now becomes necessary to deal
with the cautionary rule relating to accomplices, the rule which we
have
applied to the best of our ability, considering the evidence of
both of the accomplices in this case. The following principles can
be
derived from the cases:
(1) Caution in dealing
with the evidence of an accomplice is imperative even where the
requirements of
sec. 257
have been satisfied. (2) An accomplice is a
witness with a possible motive to tell lies about an innocent
accused; for example,
to shield some other person, or to obtain
immunity for himself. (3) Corroboration, not implicating the Accused
but merely in regard
to the details of the crime, not implicating the
accused, is not conclusive of the truthfulness of the accomplice. The
very fact
of his being an accomplice enables him to furnish the Court
with details of the crime which is apt to give the Court the
impression
that he is in all respects a satisfactory witness, or, as
has been described 'to convince the unwary that his lies are the
truth'.
(4) Accordingly, to satisfy the cautionary rule, if
corroboration is sought it must be corroboration directly implicating
the accused
in the commission of the offence. (5) Such corroboration
may, however, be found in the evidence of another accomplice provided
that the latter is a reliable witness. (6) Where there is no such
corroboration, there must be some other assurance that the evidence
of the accomplice is reliable. (7) That assurance may be found where
the accused is a lying witness, or where he does not give
evidence.
(8) The risk of false incrimination will also, I think, be reduced in
a proper case where the accomplice is a friend
of the accused. (9) In
the absence of any of the afore-mentioned features, it is competent
for a Court to convict on the evidence
of an accomplice only where
the Court understands the peculiar danger inherent in accomplice
evidence and appreciates that acceptance
of the accomplice and
rejection of the accused is only permissible where the merits of the
accomplice as a witness, and the demerits
of the accused as a
witness, are beyond question. (10) Where the corroboration of an
accomplice is offered by the evidence of another
accomplice, the
latter remains an accomplice and the Court is not relieved of its
duty to examine his evidence also with caution.
He, like the other
accomplice, still has a possible motive to tell lies. He, like the
other accomplice, because he is an accomplice,
is in a position to
furnish the Court with details of the crime which is apt to give the
Court, if unwary, the impression that
he is a satisfactory witness in
all respects.
[45]
With reference to the above, it is clear
that both accused are trying to blame each other but also trying to
deny their own involvement
through understating their intended goal
with their attack on 16 Garden Road. One can derive the following
from their evidence:
They planned to target the house and the old
persons in the house. They had previously done reconnaissance work
and knew there
may be persons in the house, but continued with their
intended plan. They knew they may encounter resistance, but decided
to still
go ahead with their plan. They corroborate each other in
that regard. However, they differ as to the stated intention,
underplaying
their goal. Because neither wants to play open cards
with the court, the court can deduce that their intention was indeed
to take
their victims as they found them.
[46]
The Accuse admit to accosting Deceased 1 in
the courtyard, but do not explain the blood trail from the courtyard
into the kitchen.
Accused 1 says he left the Deceased alone with the
Accused 2 and went into the house and waited for Accused 2. Accused
2admits
that he brought the Deceased into the kitchen and explains
how the Deceased landed where he did. However, the Deceased did not
have bruises to confirm that he had been punched by Accused 1.
Similarly, Accused 1 says he did not see how Deceased 2 was killed,
but came the scene within seconds, as the Deceases was clearly
kicking and thus dying, according to the evidence of the pathologist.
[47]
It is not probable that Accused 1 would
have been as decent and accommodating of Deceased 2’s pleas but
clearly the post mortem
evidence shows that the victim had not been
hit over the head as explained by Accused 2.
[48]
What is clear, is that both Deceased had
been violently attacked and died a bloody death after their throats
were slit. The knife
was found at the scene, although it does not
confirm with findings of the pathologist that it was a double-edged
knife. Both Accused
deny taking a knife to the scene. There is only
one knife wound per victim, therefore it is unlikely that there were
two knives
involved. The knife found on the bed explains the wound to
Deceased 2, it had been wiped and was also the knife used in the
attack
on the first Deceased. Without evidence to the contrary, the
court must accept that version.
[49]
They both hide their role in the
death of the Deceased, trying to blame each other, however, this
corroborates their intention to
continue with their plan, no matter
the consequence. Neither of the Accused are satisfactory witnesses in
that neither of them
played complete open cards with the court. The
probabilities of their separate versions may make sense, but did not
stand up to
scrutiny under cross-examination, which showed up the
many points of difference and adaptation of versions when they both
realised
they were driven into a corner.
[50]
The
doctrine of common purpose was set out in the case of S v Mgedezi
1989 SA 687
(A) for one accused to be held liable for conduct in
common purpose: “
In
the absence of proof of a prior agreement, accused [ ..], who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room […], can be held liable for those events, on
the basis of the decision in
S
v Safatsa and Others
1988
(1) SA 868
(A)
,
only if certain prerequisites are satisfied. In the first place, he
must have been present at the scene where the violence was
being
committed. Secondly, he must have been aware of the assault on
[victims]. Thirdly, he must have intended to make common cause
with
those who were actually perpetrating the assault. Fourthly, he must
have manifested his sharing of a common purpose with the
perpetrators
of the assault by himself performing some act of association with the
conduct of the others. Fifthly, he must have
had the requisite
mens
rea
;
so, in respect of the killing of the deceased, he must have intended
them to be killed, or he must have foreseen the possibility
of their
being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.
[51]
In respect of the requirements, applied to this case, one has to look
at each requirement,
each of which must be proved by the state.
45.1 In the first
place, he must have been present at the scene where the violence was
being committed. Both Accused were
proved to be at the house and also
together in the courtyard and kitchen and bedroom where the victims
were. Accused 2 was placed
on the scene through his admission and
through his fingerprints being found on various items. Accused 1 was
on the scene through
his own admissions.
45.2 Secondly, he
must have been aware of the assault on [victims]. Accused 2, through
his evidence demonstrates that he was
aware of an assault on both the
victims. He explains how he himself held the Deceased at both the
kitchen and the bedroom and slit
their throat. Accused 1 assisted in
holding Deceased 1 and subduing him and he bound up Deceased 2 and
took her to the bedroom
where she was put on the bed where she died.
Both Accused emphatically deny that they had brought a knife with
them to the attack.
Accused 1 states in his evidence that he went
into the house and left Deceased 1 with Accused 2. He waited for
Accused 2, he says.
He does not explain why he waited for Accused 2.
The answer is that he waited for Accused 2 to finish off Deceased 1.
Accused 2
says that he only washed his hands when he got to
Alexandra, indicating the hurry with which they left the scene.
45.3 Thirdly, he
must have intended to make common cause with those who were actually
perpetrating the assault. Accused 1
made his intention clear when he
left both Deceased alone with Accused 2. He already knew that
Deceased 2’s fate was sealed
the moment he knew what had
happened to Deceased 1. He came to know of the assault on Deceased 1
and intended to make common cause
by seeing that the man lay there
and made no further enquiries, leaving him there intentionally,
knowing that the man was dying
or already dead.
45.4 Fourthly, he
must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing
some act of
association with the conduct of the others. In this regard Accused 1
shared his common purpose by continuing his ransacking
of the house,
by not dissociating him from what had transpired, not withdrawing
from the plan and leaving the house, or exploring
some escape.
45.5 Fifthly, he
must have had the requisite
mens rea
; so, in respect of the
killing of the Deceased, he must have intended them to be killed, or
he must have foreseen the possibility
of their being killed and
performed his own act of association with recklessness as to whether
or not death was to ensue. Regarding
Accused 1, he knew that he left
Accused 2 with the Deceased. Regarding Deceased 2, he knew that
Accused 2 had already killed Deceased
1 and did not attempt to assist
her to escape. Regarding Deceased 1, he found that Accused 2 had slit
his throat but made no attempt
to find out whether he could assist
the man. He accepted Accused 2’s word that the man had died and
continued with their
plan. He showed his intention to continue, no
matter what the consequences.
45.6 Accused 1 and
2 continued their association even after the completion of the events
and stayed together afterwards.
[52]
The court still needs to be satisfied as to
whether the state has proved its case beyond reasonable doubt. The
state asks the court
to draw the inference that the Accused were
responsible for the death of the Deceased.
The locus classicus
in this regard is
R v Blom
1939 AD 188
at 202-3
where Watermeyer JA (as he then was) referred to “two cardinal
rules of logic”. The Learned judge stated as
follows:-
“
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference
cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one
sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought
to be drawn is correct.”
[53]
The accused were on the scene of the crime,
through their own admissions. They arrived and left together. They
left behind them
a scene of carnage and devastation. They had
foreseen that, through their conduct, the Deceased would die and they
made common
cause with it, they did not withdraw from that purpose.
They tried to distance themselves from aspects of the scene, but in
court
they were shown to be telling falsehoods in order to protect
themselves. The only reasonable inference that can be drawn, is that
they had common purpose to execute the two Deceased in executing
their plan.
[54]
The onus of proof lies on the State to
prove the guilt of the Accused beyond reasonable doubt. Whilst there
is no onus on the accused,
his version must be reasonably possibly
true before a court will acquit. This determination must be made by
considering the evidence
as a whole.
[55]
In assessing evidence in a criminal case,
the trial court must “… weigh up all the elements which
point towards the
guilt of the accused against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses,
probabilities and improbabilities on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour
of the State as to exclude any reasonable doubt
about the accused’s guilt”. See S v Chabalala
2003 (1)
SACR 134
(SCA).
[56]
In S v Hadebe
1997 (2) SACR 641
(SCA), the
Supreme Court of Appeal followed the approach set out in Moshephi &
Others v R, where the following was said, “The
question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants was established
beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful aid to a proper
understanding
and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon the separate
and individual parts
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in a trial may arise
when that aspect is viewed in
isolation. Those doubts may be set when it is evaluated again
together with all the other available
evidence. That is not to say
that a broad and indulgent approach is appropriate when evaluating
evidence. Far from it. There is
no substitute for a detailed and
critical, examination of each and every component in a body of
evidence. But, once that has been
done, it is necessary to step back
a pace and consider the mosaic as a whole. If that is not done, one
may fail to see the wood
for the trees.”
[57]
In S v Van der Meyden
1999 (2) SA 79
(W),
the court held that “A court does not look at the evidence
implicating the accused in isolation in order to determine
whether
there is proof beyond reasonable doubt and so too does it not look at
the exculpatory evidence in isolation to determine
whether it is
reasonably possible that it might be true. A court does not base its
conclusions, whether it be to convict or to
acquit on only part of
the evidence. The proper test is that an accused is bound to be
convicted if the evidence establishes his
guilt beyond a reasonable
doubt and the logical corollary is that he must be acquitted if it is
reasonably possible that he might
be innocent. The process of
reasoning which is appropriate to the application of that test in any
particular case will depend on
the nature of the evidence which the
court has before it. What must be borne in mind however is that the
conclusion which is reached
must account for all the evidence. Some
of the evidence might be found to be false; some of it might be found
to be unreliable;
and some of it might be found to be only possibly
false or unreliable; but none of it may simply be ignored.”
[58]
In S v Trainor
2003 (1) SACR 35
(SCA), the
court held that a conspectus of all the evidence is required.
Evidence that is reliable should be weighed alongside
such evidence
as may be found to be false. Independently verifiable evidence, if
any, should be weighed to see if it supports any
of the evidence
tendered. In considering whether evidence is reliable, the quality of
that evidence must of necessity be evaluated
as must corroborative
evidence, if any. Evidence of course, must be evaluated against the
onus on any particular issue or in respect
of the case in its
entirety. The compartmentalised and fragmented approach of the
magistrate is illogical and wrong.”
[59]
Taking into account the mosaic of evidence,
I find that the Accused did not tell the truth, but obfuscated and
each gave a very
carefully edited version of the truth. There was
indeed a violent attack on the Deceased, which was pre-planned and
executed with
common purpose while executing a robbery. I reject the
Accused’s clearly fabricated versions
[60]
I find that the state has proved its case
beyond reasonable doubt.
[61]
I therefore make the following ORDER: I
find both accused on all three counts guilty as charged.
VAN
VEENENDAAL AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
DATE
OF HEARING: 19/07/2021
DATE
OF JUDGMENT: 11/08/2021