S v Shange/Mchunu and Others (CC19/20P) [2021] ZAKZPHC 79 (13 August 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2021
>>
[2021] ZAKZPHC 79
|

|

S v Shange/Mchunu and Others (CC19/20P) [2021] ZAKZPHC 79 (13 August 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: CC 19/20P
In
the matter between:
THE
STATE
and
SIPHO
WISEMAN SHANGE/MCHUNU                                           FIRST

ACCUSED
STHEMBISO MICHAEL
JESUS ZONDI/MBAMBO                   SECOND

ACCUSED
SIPHOSIHLE EMMANUEL
NTOMBELA/GASA                             THIRD

ACCUSED
JUDGMENT
Mossop
AJ:
The
charges
[1]   There
are three accused in this matter. Accused one faces five charges of
murder, three counts of attempted
murder, a single count of
housebreaking to commit robbery with aggravating circumstances and a
charge of malicious injury to property.
Accused two faces four counts
of murder, two counts of attempted murder and a charge of
housebreaking with intent to commit robbery
with aggravating
circumstances. Accused three faces four counts of murder, two counts
of attempted murder, a count of housebreaking
with intent to commit
robbery with aggravating circumstances and a count of contravening
section 3
of the
Firearms Control Act, 60 of 2000
in that he
unlawfully possessed a firearm and a count of contravening
section 90
of that Act in that he unlawfully possessed rounds of ammunition. The
state alleges that in respect of those offences where all
the accused
are charged together, being the murder and attempted murder charges
and the housebreaking charge, that they acted in
common purpose with
each other.
Representation
[2]   At
trial, the state was represented by Ms Harrison and Ms Nyakatha and
the accused were represented by Mr Mbatha.
All counsel are sincerely
thanked for the efforts that they brought to bear in this matter.
The
pleas
[3]   At
the commencement of the trial, the accused pleaded not guilty to all
charges that they faced and each disclosed
the basis of their
defence. This was done orally and not by way of a written document.
In essence, each accused pleaded an alibi,
averring that they were
not at the respective crime scenes on the day in question. Accused
one and three indicated that they were
at the Sikhakhane homestead at
Sweetwaters on 24 August 2019 and accused two indicated that he was
in the Pietermaritzburg central
business district drinking with a
friend on that day.
[4]   The
issue of minimum sentences and competent verdicts was traversed by
the court with the accused and each
indicated that they understood
these concepts. Certain formal admissions were thereafter made by the
defence which had the effect
of substantially shortening the trial.
Overview
[5]   While
there are a multitude of charges that the accused collectively face,
the events that led to those charges
being preferred against them
essentially occurred on a single day, namely 24 August 2019. The
accused are from an area known as
Esigodini. In that area there are
two rival taxi associations, namely the Edendale Taxi Association and
the Esigodini Taxi Association.
The associations appear to be rivals
over a taxi route and the state alleges that accused one belonged to,
or had an association
with, the Esigodini Taxi Association and that
he set out to kill certain members of, or people associated with, the
Edendale Taxi
Association. Accused two and three were to assist him
in this regard.
The
crime scenes
[6]   There
were multiple crime scenes, five in all. There was potentially a
sixth crime scene but the accused were
not charged with a murder that
occurred in the same general area as the other offences on the night
in question. I shall deal with
the evidence by crime scene and not
necessarily in the sequence in which witnesses testified. Before so
doing it is necessary to
consider the evidence relating to the
prelude to the crimes.
The
prelude to the killings
[7]   I
mention at this juncture that there are a number of members of the
Shange and Makhaye families that feature
in the narrative of events.
I intend referring to those persons by their first name as if each
were referred to as either Mr or
Ms Shange, it might become confusing
as to which person specific reference is being made. No disrespect is
intended, all that is
intended is a clear understanding of which
member of the clans is being referred to. The accused will be
referred to by number.
[8]   The
prelude to the killings occurred on 15 March 2019 and the events of
that day were related by the first
state witness, Ms Nqobile Shange
(Nqobile). She testified that she was the sister of accused one.
Technically she is his half-sister.
She indicated that on 15 March
2019 she received a telephone call from accused one, who at the time
was in custody. In fact, she
received a missed call from him. When
she realised she had missed his call, she sent him a ‘please
call me’ message
and, in due course, he returned her call.
During the course of the conversation that then ensued, accused one
indicated that he
wanted her to pass a message on to her brother,
Khumbulani Shange (Khumbulani). He requested Nqobile to inform her
brother that
he appeared to be on good terms with accused one’s
enemies. She was to tell him that he was not to socialise with Roshi
Maharaj,
Dititi Makhaye, Mthunzi Zuma and Jola Phungula. She was to
also indicate to these persons that because they were members of the

Edendale Taxi Association, and not the Esigodini Taxi Association,
when he was released from custody he was going to ‘strike
their
heads’. Nqobile indicated that this was a well-known Zulu
phrase that she understood to mean that accused one was going
to kill
them.
[9]   Nqobile
conveyed the message to her brother, Khumbulani. As fate would have
it, Roshi Maharaj was later killed,
but his death is another murder
that the accused are not charged with.
[10]   In
cross examination, it was put to Nqobile that no such telephone
conversation had occurred between accused
one and herself. Nqobile
was resolute that it had occurred. It was further suggested to her
that she had been influenced by the
members of the Edendale Taxi
Association to give incriminating evidence against accused one, an
allegation that she confidently
rebuffed, indicating that she had no
involvement with the taxi associations. I turn now to deal with the
first crime scene.
Evidence
relating to the first crime scene
[11]   The
first crime scene is a place identified as the Dinangwe General
Dealer (the store). It is owned by Mr
Nthuthuko Zondi (Mr Zondi) and
sells groceries to the local community. The state alleged that at
approximately 17h45 on 24 August
2019, the three accused went to the
store and killed Mr Thamsanqua Golden Shange (Golden), Mr Thabani
Gumede (Mr Gumede) and Ms
Nobuhle Zondi (Ms Zondi) by shooting them.
An attempt was made to murder Mr Sanele Makhaye (Sanele) and before
being killed, Ms
Zondi, the cashier at the store, was robbed of R800
in aggravating circumstances that involved the use of a firearm.
[12]   Ms
Ntombizakithi Pearl Shange’s (Pearl) evidence was led to begin
the time line of events on 24 August
2019. Her evidence also provided
a full description of the clothing worn by the accused on that day.
[13]   Pearl
testified that she, too, was a relative of accused one, being his
cousin, he being the son of her uncle.
She also knew accused two and
three very well. She testified that in 2018 she had received a
telephone call from accused one. He
had stated that he was unhappy
with another of the witnesses brothers, Golden. Accused one indicated
to Pearl that Golden was too
friendly with accused one’s
enemies and in this regard named Mthunzi Zuma (Mr Zuma), Boy Mthethwa
(Mr Mthethwa) and Roshi
Maharaj as his enemies. Maharaj was the
Edendale Taxi Association’s rank manager.
[14]   On
24 August 2019, Pearl and others were at her boyfriend, Andile’s,
homestead. The three accused arrived
at the homestead. Accused one
asked the witness for his identity document and all the accused then
joined the occupants of the
house in having a drink. She described
the first accused as being clad in black trousers, a white T shirt
and a brown prison warder’s
jacket. She recalled that the
second accused wore a yellow T-shirt but could not remember the
colour of his trousers, whilst she
described accused three as wearing
a maroon T-shirt and khaki coloured trousers. She testified that the
three accused left her
boyfriend’s homestead at 17h30. When
asked why she had remembered what each accused was wearing, Pearl
stated that she was
very excited to see her brother after a long
time. She indicated that she had no difficulties with accused one,
and had, in fact,
visited him whilst he was previously in detention
to deliver cosmetics to him. Later that day, the witness received a
telephone
call to inform her that Golden had been shot and had died.
[15]   Under
cross-examination from Mr Mbatha, Pearl admitted that she was related
to one Thula Shange, who was involved
in the taxi industry, he being
the owner of four taxis and being associated with the Edendale Taxi
Association. The witness said
that she was aware that there was a
fight over the taxi rank as the Esigodini Taxi Association did not
want to share it with the
Edendale Taxi Association, but she denied
that she was partial to any of one of those associations. Mr Mbatha
put it to her that
she was, indeed, biased in her evidence and had
been influenced to give false evidence against the accused, a fact
that the witness
denied. It was put to her that the accused did not
go to her boyfriend’s homestead on 24 August 2019 and their
respective
alibis were also put to her. She was adamant that they had
been at her boyfriend’s homestead as she had testified. As to
how she was aware of the time that they had left, she said she looked
at her cellular telephone to see what the time was it was
starting to
get dark and she was thinking about returning to her home. It was
further disputed that the witness had handed the
identity document to
accused one on 24 August 2019, it being put that this had occurred on
20 August 2019, soon after accused one
was released from custody. In
amplification of this, it was put that accused one had gone to
Standard Bank on 21 August 2019 to
draw money and had then used his
identity document for that purpose. The witness was adamant that she
had only given him the identity
document on 24 August 2019. Finally,
it was again put to the witness that she was colluding with her
boyfriend to give false evidence
against the accused. It was then put
that she had been influenced by her brother, Thula Shange, to give
this type of evidence,
which she denied. Under questioning from the
court, the witness indicated that her boyfriend was not involved in
the taxi industry
at all.
[16]   Sanele
was at Dinangwe General Dealer, the store, on 24 August 2019 at
approximately 17h45, fifteen minutes
after the three accused left
Pearl’s boyfriend’s home. He was in the company of Golden
and Mr Mthethwa and was standing
on the veranda of the store. He had
just purchased some beer and had placed it on the ground when he saw
accused one standing outside
the veranda holding a firearm. Without
saying anything, accused one started firing at Sanele. He was shot in
the right arm below
the elbow. Sanele fled into the interior of the
store and sought refuge in a back storeroom where, inter alia, bread
and cooking
utensils were stored. He hid behind crates of bread. Also
inside that room was Ms Zondi, who served as the shopkeeper and
cashier
at the store. She took cover under a table in the storeroom
and Mr Gumede, who was also taking refuge. Accused one came into the

room and found Ms Zondi and took her to the teller machine and took
some cash from it. He then returned her to the storeroom and
put her
under the table where he had initially found her, then shot and
killed her. At this point, accused one changed the firearm’s

magazine. Sanele could see where Mr Gumede was hiding and made a sign
to him by putting his finger over his mouth in an effort
to get him
to remain silent. It did not work. Mr Gumede panicked, jumped up and
started screaming and was immediately shot and
killed by accused one.
He fell on top of the bread crates.
[17]   After
the shooting of Mr Gumede, Sanele said that accused one said to
accused two and three that they should
go and look for Mr Mthethwa.
Sanele indicated that he never saw accused three, but heard his
voice. He stated that he had grown
up with accused three, had
schooled with him and had played in the same soccer team with him
over the years and consequently knew
him very well. He testified that
he heard accused three say to accused two that they should not leave
behind any liquor, air time
or cash.
[18]   Sanele
testified that the store was well lit with electric lighting. Accused
one had been about 2 metres from
him when he commenced firing. He
stated that accused one wore a brown jacket, similar to those worn by
prison warders. After it
appeared to him that the accused had left,
he emerged from his hiding place and found Golden lying on the
veranda, dead. Sanele
was later treated at the local hospital for his
wounds and discharged the same day.
[19]   Under
cross examination, Sanele indicated that he had been at the store for
less than an hour when the shooting
started. He estimated that the
time between seeing accused one until he came out of hiding,
approximately half an hour had elapsed.
He confirmed that at the time
he was shocked by what was happening but denied that such shock
prevented him from making a proper
identification of the persons
involved in the shooting spree. It was put to him by Mr Mbatha that
he was either mistaken in his
identification or that he had been
influenced to give false evidence against the accused, which was
denied by the witness. It was
then suggested to Sanele that he was
substituting accused one for the identity of the real shooter. The
court clarified whether
this was the case with the witness, who
denied that it was so. Sanele confirmed that his uncle, Dumisani
Makhaye, is involved in
the taxi industry but did not know to which
association he was affiliated. He stated that after the shooting, his
uncle was appointed
as a rank manager but he, again, did not know
which association’s rank he was appointed to manage.
[20]   Under
questioning from the court, Sanele was asked how he knew that accused
three was giving instructions
to accused two, because he did not see
accused two either. He gave a variety of answers: because accused two
and accused three
are friends, because they were both arrested but
accused two was released from custody first, because he is certain
that accused
two was there. Ultimately, he stated that he assumed
that accused two was there. Re-examined by the state, the witness
said that
accused three had said ‘Jesus, don’t forget the
money, air time and beer’. Jesus is one of the names by which

accused two is known: indeed, the indictment reflects that name as
his third name. The witness then said that he should have indicated

that accused three called accused two by his name.
[21]   As
previously stated, the owner of the store is Mr Zondi. He was on his
way to the store at about 18h20 on
that day when he received a
telephone call reporting that shots had been fired at the store. He
arrived there at 18h30. The store
was empty. On the veranda, he
observed the body of Golden. The lights to the store were on, both
within and without. He entered
the store calling out his sister’s
name but received no response. Whilst shouting, he heard a voice
coming from under the
pool table in the public area of the store. It
was Mr Mthethwa. Mr Mthethwa extricated himself from under the pool
table. Mr Zondi
then made his way to the storeroom where he found the
body of Mr Gumede in the storeroom. He noticed that the electric pot
used
for cooking chips and vetkoek was still on and was boiling. He
switched it off by unplugging it. The plug was at floor level and
in
bending down to pull it out he came upon the body of his sister lying
in what he described as ‘a hiding position’
under a
table. Photographs revealed her to be in a crouched position, with
her forehead resting on the floor. Mr Zondi did not
touch her because
after shouting her name he realised that she was dead. Mr Mthethwa,
having emerged from under the pool table,
then telephoned the South
African Police Services (SAPS). Mr Mthethwa mentioned to Mr Zondi the
name of one of those involved as
being ‘Sipho’, which is
the name of accused one. Mr Zondi confirmed that about R800 was
missing from the store.
[22]   Mr
Mthethwa is the boyfriend of the first state witness, Nqobile. At
about 17h45 on 24 August 2019 he was
at the store, in the company of
Golden. He and Golden had both attended a funeral service at the
Mdlalose homestead earlier in
the day. At the store, they were joined
by Mr Gumede and Sanele. Having purchased some beer, Mr Mthethwa
returned to the interior
of the store in order to purchase some
cigarettes. He could not immediately be attended to as two young
girls were then being attended
to by the shopkeeper, Ms Zondi. Mr
Mthethwa was sitting on the pool table, watching a television,
awaiting his turn to be served
when he heard shots being fired
outside. He turned and saw three men outside the store, about nine
metres away. He confirmed that
the lights to the store were on and he
recognised accused one and accused two. Both had hand guns and both
were firing them. Realising
he could not leave the interior of the
store, Mr Mthethwa took cover under the pool table with one of the
small girls who was being
attended to by Ms Zondi. From his position,
he had a restricted view of what was going on. The men then came into
the shop and
he heard another gunshot and then further gunshots. He
heard them taking the money and the till falling to the ground.
[23]   After
the shooting stopped, he saw the owner of the store, Mr Zondi,
arrive. He then came out from his hiding
place and informed Mr Zondi
that accused one had fired shots. Mr Mthethwa went with Mr Zondi to
the store room where they came
across the bodies of Ms Zondi and Mr
Gumede, the former under a table and the latter slumped over some
bread crates. Outside the
store, Mr Mthethwa saw the body of Golden
lying on the veranda. The SAPS were summoned and thereafter Mr
Mthethwa testified that
he heard a further gunshot in the distance.
He testified that accused one was wearing a brown jacket and striped
shirt and green
pants and accused two wore a black jacket and green
pants normally worn by workmen. He was later referred to exhibit F1,
photograph
12, and identified therein the brown jacket that he said
accused one wore.
[24]   Mr
Mthethwa testified that he knew accused one very well, having grown
up with him, and he said that he knew
him ‘as I know myself’.
He had grown up with accused two as well and had known accused three
for about 15 years. Mr
Mthethwa indicated that at the time of the
shooting he had been unemployed, bore no animosity to the accused and
personally had
no links to the taxi industry. He indicated that he
had knowledge of the message that Nqobile received from accused one
in respect
of Khumbelane.
[25]   Under
cross examination, Mr Mthethwa said that he had been shocked by what
happened but that this was not
the first time that he had endured
such an experience. He testified that on the day, his mind had been
working well and he immediately
conceived of a plan to hide himself.
To a suggestion that he was mistaken in his identification of the
culprits, he denied this
and in response to being told of the alibis
of the accused, he said that perhaps accused one and three had gone
to Sweetwaters
after the shooting. It was put to him that he was
either mistaken or had been improperly influenced to falsely
implicate the accused
by the members of the SAPS at Edendale and the
Edendale Taxi Association. He denied this.
[26]   Questioned
by the court, Mr Mthethwa indicated that he did not see accused three
on the day of the shooting.
He consequently never saw him with a
firearm or discharging a firearm. The only basis that he could say
that accused three was
involved was because of things that he had
heard subsequent to the shooting. He confirmed that he was in a
witness protection plan.
Evidence
relating to the second crime scene
[27]   The
second crime scene was at the Mdlalose homestead. On 24 August 2019
the funeral of the father of the homestead
was being held there.
During the early evening that day, Mr Mziwakhe Michael Mdlalose (Mr
Mdlalose) was shot and killed by an assailant.
The state alleged that
his killer was accused one. Accused one is the only one of the three
accused charged for this offence.
[28]   Mr
Sphelele Mthunzi Zuma (Mr Zuma) testified that he was presently under
witness protection as a consequence
of the events of 24 August 2019.
He indicated that he knew accused one very well although accused one
was older than him. He explained
that he had had some dealings with
the warring taxi factions when he helped arrange, and spoke at,
meetings convened with the purpose
of regularising transport to and
from Esigodini. According to him, the Edendale Taxi Association had
permits for the routes to
and from Esigodini whereas the Esigodini
Taxi Association did not.
[29]   He
testified that he attended the funeral held at the Mdlalose
homestead. He was in the company of Khumbulani,
the brother of
Nqobile, the first state witness. At one stage, he was at an outside
toilet at the Mdlalose homestead, which was
lit by electric light.
The homestead also had electric lighting and, in fact, extra lighting
had been installed for the night vigil
associated with the funeral
held the previous night. Whilst in the toilet he heard gunshots and
got off the toilet to see accused
one running in the opposite
direction from where he was. Accused one was about 20 metres away.
Accused one was wearing a brown
jacket. He then saw that Mr Mdlalose
had fallen to the ground. He estimated that there were two to three
shots but could not be
certain of the number. He was, however,
certain that there was more than one shot fired. Accused one carried
a firearm in his right
hand. He confirmed that Mr Mdlalose was
involved in the taxi industry and was the rank manager for the
Edendale Taxi Association.
[30]   Regarding
his relationship with accused one, Mr Zuma indicated that there was a
time when accused one was
in detention when he, accused one,
telephoned accused one’s younger brother. Mr Zuma was at the
time of the telephone call
at accused one’s homestead for a
marriage ceremony. During the course of the telephone conversation,
accused one inquired
from his brother whether Mr Zuma was at their
homestead. When told that he was, accused one asked to speak to Mr
Zuma. He then
proceeded to tell Mr Zuma that he was taking accused
one for granted and inquired why he was at accused one’s
homestead.
He stated further that Mr Zuma was the cause of his arrest
and that when he got out of detention he would shoot him.
[31]   Mr
Mbatha denied in cross examination that accused one had spoken to Mr
Zuma on the telephone or that he had
made any threats to him. It was
asked of Mr Zuma if according to him, it was the Edendale Taxi
Association’s taxis that were
coming under attack. He confirmed
this and was then asked if he knew who was behind these attacks. Mr
Zuma said that he believed
the person behind this was one Mluleki
Mshengu. He confirmed that he also believed that accused one and two
were assisting Mluleki
Mshengu. He indicated, however, that he could
not be sure about accused one, as he had been in detention. It was
then put to him
that accused one had not been at the Mdlalose
homestead and had not shot Mr Mdlalose and that Mr Zuma had been
‘paid to come
and give evidence against them’. This was
denied. It was also put to Mr Zuma that he was being factional
because he was in
favour of the attacks on the Edendale Taxi
Association taxis stopping because they were the taxis that possessed
the necessary
permits.
[32]   Regarding
his identification of accused one on the evening of 24 August 2019,
and regard being had to the
fact that accused one was running away
from him, Mr Zuma said that he knew accused one very well. They had
played soccer together
and he claimed that he was able to identify
accused one ‘in all positions’. Importantly, he went on
further and said
that they had grown up in a small rural community
and there were no new people that had come into the area. If
strangers came into
the area they would be noticed.
[33]   Mr
Zuma did, however, concede that approximately three years before the
shooting, he had owned a taxi but
he would have applied for a permit
to operate that taxi under the aegis of the Esigodini Taxi
Association and not the Edendale
Taxi Association. He had, however,
abandoned his interest in the taxi industry. It was put to him that
he was biased and that he
had been told by the Edendale SAPS and the
Edendale Taxi Association to implicate accused one, which was denied
by Mr Zuma.
[34]   In
re-examination, Mr Zuma indicated that the distance between the
Mdlalose homestead and the store was not
great: one could be heard if
one shouted from the homestead to the store.
[35]   Mr
Nkosinathi Shange (Nkosinathi) is the cousin of accused one. He
testified that during 2019, his brother
had got married and there was
a function at their homestead. He confirmed that Mr Zuma had attended
the function. Nkosinathi was
helping prepare food when his cellular
telephone rang. He did not immediately recognise the number that
appeared on his cellular
telephone but when he answered he realised
that the call was from accused one. During the conversation, accused
one asked if Mr
Zuma was present at the homestead. When told that he
was present, Nkosinathi handed the cellular telephone to Mr Zuma and
they
had a conversation that he did not hear. At the end of the
conversation, Mr Zuma brought the telephone back and left the
homestead.
[36]   Mr
Mbatha asked Nkosinathi whether he was sure that the telephone call
had come from accused one. He replied
that he was sure. It was put to
him that accused one would deny making the call to him. Asked how
accused one would have known
that Mr Zuma was present, Nkosinathi
indicated that he did not know. It was put to him that he had been
influenced by Mr Mthethwa
and other members of the Edendale Taxi
Association to give false evidence, a fact that Nkosinathi denied.
[37]   Mr
Khumbelane Shange testified that Nqobile, the first state witness,
was his cousin. He said that he was
not involved in the taxi industry
and, in fact, had never even owned a motor vehicle. At approximately
18h15 on 24 August 2019
he was at his neighbour’s homestead,
being the Mdlalose homestead. He described the Mdlalose homestead as
being about five
minutes’ walk to the store. On that day, Mr
Zuma, who he was with, received a telephone call that Roshi Maharaj
(who he referred
to as ‘Christopher’) had been shot and
killed. Khumbelane indicated that he had initially gone to the
Mdlalose homestead
because he had heard gunshots in the area and he
believed that he would be safer there. Whilst at the Mdlalose
homestead, Mr Zuma
felt the urge to relieve himself and Khumbelane
went with him to the outside toilet, as both were afraid of what was
going on.
Whilst Mr Zuma entered the toilet, he remained outside,
near the toilet door. In response to a question from the court,
Khumbelane
testified that he believed the shots that he had
previously heard were coming from the store. Whilst standing outside
the toilet,
he observed accused one walk down what he described as a
‘passage’ outside the Mdlalose home. The electric lights
at
the homestead were blazing. Because he was standing on the dark
side, he believed that accused one did not see him. We understand

that to mean that he was standing in the shadows. Accused one had a
firearm in his hand and was wearing a brown jacket and dark
pants.
Accused one proceeded to the house of Mr Mdlalose, watched all the
way by Khumbelane. Mr Mdlalose stood up and tried to
flee but was
felled by a fusillade of bullets. Khumbelane estimated that accused
one was approximately 20 metres from him but that
accused one and Mr
Mdlalose were not far apart when Mr Mdlalose was shot.
[38]   Khumbelane
confirmed that accused one and he were brothers, indicating that they
shared the same father. Khumbelane
further confirmed that his sister
had given him a message from accused one indicating that he should
not be friendly with certain
people, who included Mr Zuma and Sifiso
Jola Phungula. Accused one had allegedly said that when he got out,
if Khumbelane did not
listen to him, he would kill all of them one by
one and would end up with Khumbelane. Khumbelane was shocked by what
he was told
and informed his parents and the people that he was
admonished to stay away from. Two of the persons named were
subsequently killed,
namely Roshi Maharaj and Sifiso Jola Phungula.
Neither of these deaths were the subject matter of this trial. At the
relevant time,
Khumbelane said that he was unemployed. He had no
links to the taxi industry. He, however, stated that accused one was
linked to
the taxi industry as a guard that worked for the Emgodini
Taxi Association. The deceased, Mr Mdlalose, was a rank manager for
the
Edendale Taxi Association, as was the deceased Mr Maharaj.
[39]   Mr
Mbatha in cross examination put it to Khumbelane that there was,
indeed, bad blood between him and accused
one. This was denied. The
reason for the bad blood was that Khumbelane’s side of the
family believed that accused one wanted
to be the sole heir of their
common father. In addition, it was believed that Mr Shange’s
side of the family believed that
accused one was jealous that his
father had decided to marry Khumbelane’s mother. A further
cause of complaint put by Mr
Mbatha was that when Khumbelane drank
liquor he was disrespectful to accused one. All of these propositions
were denied by Khumbelane.
It was further put that accused one would
deny being at the Mdlalose homestead. Khumbelane could not be
persuaded to change his
evidence regarding what he saw. Khumbelane
agreed that Thula Shange was involved in the taxi industry, being
affiliated to the
Edendale Taxi Association. It was suggested to him
by Mr Mbatha that he was part of a bigger conspiracy involving the
Edendale
Taxi Association and the Edendale SAPS. This was denied. As
regards whether he mentioned the alleged threat made by accused one

to anyone else, Khumbelane indicated that he had spoken to those that
he resided with that were contactable. This had included
Nqobile. It
was pointed out that Nqobile had testified that there was no family
meeting.
[40]   Mr
Mandlenkosi Royal Makhaye has the nickname ‘Dititi’
(Dititi). He was unable to tell the court
what the nickname meant. He
confirmed that before August 2019 he had worked as a taxi driver for
Thula Shange. Thula Shange was
affiliated to the Edendale-Isigodini
Taxi Association. Dititi indicated that he was now a rank marshal for
that association. He
indicated that he knew accused one as he had
grown up with him. He and accused one, together with accused one’s
cousins,
Wandile Shange and Lucky Shelembe, had formed a friendship
group. Dititi also knew accused two. They were from the same area but

he was not close to accused two. Accused two had, however, dated his
sister, Khanyisile Makhaye. Accused three was also known to
him from
the area and had grown up in front of him. Dititi had served with
accused three’s father in the community policing
forum and
accused three called him ‘uncle’. In addition, Dititi had
a daughter born out of accused three’s family.
Dititi also
indicated that Golden was his brother in law.
[41]   On
24 August 2019, Dititi indicated that he attended the funeral at the
Mdlalose homestead. He was there the
whole day, until 17h00. However,
at about 18h20, he found himself at the Bhengu residence. Whilst
there he received a telephone
call from his niece. As a consequence
of that call, he urged those that were present at the Bhengu
homestead to proceed with him
to the store. No-one, however, was
interested in accompanying him, so he set out alone even though he
confessed to being ‘terrified’.
As he approached the
store, he receive another telephone call. He then called Mr Zuma and
asked where he was. On being told that
he was at the Mdlalose
homestead, Mr Zuma urged Dititi to go there rather than to the store.
Dititi accepted this advice and proceeded
to the Mdlalose homestead.
[42]   He
testified further that there is foot path past the Mdlalose
homestead. A tent had been erected next to
the footpath for the
funeral proceedings at the homestead. Affixed to the tent were lights
which were on. As Dititi was about to
get to the tent, accused one
emerged from between the tent and the Mdlalose House. He was carrying
a hand gun. He fired a shot
and Dititi made a U-turn and fled. Before
doing so, he was face to face with accused one. Whilst fleeing, he
heard a further three
shots being discharged. He described accused
one as wearing dark clothing, having on a brown jacket usually worn
by correctional
officials. The witness drew the scene on a
whiteboard, which was later photographed and marked as exhibit C3.
The person who had
been shot was Mr Mdlalose, who had been at the
front of the dwelling with other people. When the first shot struck
Mr Mdlalose,
he cried out ‘What have I done?’. At this
point, Dititi was already fleeing.
[43]   Dititi
rejected the notion that he could be mistaken in his identification
of accused one or that accused
one was not at the scene but was at
Sweetwaters. He stated that he could never mistake accused one, whom
he could recognise even
if he was facing away from him. He confirmed
that he knew of the threat that had been delivered by accused one to
Nqobile and then
relayed to Khumbelane. He knew that his name was on
the list of people that Khumbelane was required to desist from
associating
with.
[44]   Mr
Mbatha asked Dititi whether he had driven a taxi for Thula Shange,
which Dititi admitted he had. He indicated
that there was but a
single taxi association: Edendale Taxi Association and Esigodini Taxi
Association allegedly joined together
in 2007. He confirmed that he
was a rank marshal for the Edendale-Esigodini Taxi Association. He
would not be swayed that there
two taxi associations. He indicated
that he and accused one grew up together and he denied that he was
part of a conspiracy that
involved the Edendale SAPS and the Edendale
Taxi Association.
Evidence
relating to the third crime scene
[45]   This
crime scene apparently involved a charge of attempted murder of one
Lloyd Zondi and the malicious damage
inflicted to his motor vehicle.
Only accused one was charged with this offence. Unfortunately for the
State, Lloyd Zondi was reluctant
to appear and testify. No evidence
was consequently led on these charges and in due course the
inevitable outcome of this fact
will occur.
Evidence
relating to the fourth crime scene
[46]   This
crime scene was the private residence of Mr Siphesihle Bright Kheswa
(Mr Kheswa). The state alleged that
he was at home with his
girlfriend, Yolanda Azola Mzekandaba (Ms Mzekandaba). It was alleged
that the three accused entered the
home, demanded that he hand over
certain firearms, shot Bright twice and then killed Ms Mzekandaba
after Bright fled.
[47]   Mr
Kheswa is presently in a witness protection scheme as a consequence
of events that he observed on 24 August
2019. Around 19h00 on that
day, he was at home with his girlfriend, Ms Mzekandaba. He had just
returned from a local shop where
he had purchased some cigarettes. On
his return, he was looking for a light to ignite a cigarette when the
three accused came into
the residence. The door to his residence was
closed but not locked. To enter, the three accused had opened the
door. He had known
accused one for two years, he had known accused
two for many years and had worked with him in a construction company
for a period
of approximately three years and he was a peer of
accused 3 and at one stage they were in the same grade at primary
school.
[48]   Mr
Kheswa stated that accused one had pushed open the door to his house.
The electric lights were on in the
house. Accused one told him to sit
down. His girlfriend remained seated on the sofa. He complied with
the instruction of accused
one. Accused two was standing in front of
the door and accused three stood in front of Mr Kheswa with accused
one. Accused one
wanted to know from Mr Kheswa where Mr Kheswa’s
late brother’s firearms were. Accused one discharged a shot
near Mr
Kheswa’s foot, but did not hit his foot. The question
was repeated by accused one. This time, accused one shot him above
the left knee. Accused one and accused three simultaneously asked him
where the firearms were. Mr Kheswa repeatedly told them that
he did
not know. He was then shot again, this time in his groin. Accused one
then clicked his tongue and aimed the firearm at Mr
Kheswa’s
head and fired. Mr Kheswa moved his head and the bullet missed. Mr
Kheswa leapt to his feet, struggled with accused
two at the door and
fled out of the house into the night. As he bolted from the house, he
heard four gunshots from inside the house.
He ran headlong into the
night, passing by two homesteads until he came to a third homestead
with an outside building. He entered
the outside building and took
refuge under a bed. After a while, he emerged and removed his pants
and tried to tie off the areas
of his body where he had been shot. He
also removed his shirt for this purpose.
[49]   Having
opened the door of the room where he was hiding, he saw a lady in the
main building of the homestead
come out to throw water away. He
attracted her attention and asked her to go to his house to see what
was going on there. Her name
was Ms Manini Hlatshwayo. Before going
to Mr Kheswa’s house, she put him in the main building of the
homestead. Upon her
return from Mr Kheswa’s house, Ms
Hlatshwayo reported that it appeared that Ms Mzekandaba was dead. Mr
Kheswa went back to
his house and found Ms Mzekandaba dead on the
floor of the house. The SAPS and an ambulance were summoned. Mr
Kheswa was taken
to hospital in a critical condition. He was
hospitalised for a period of three weeks, underwent surgery to a
portion of his intestines
and had a stoma fitted, which was still in
place.
[50]   Mr
Kheswa admitted that there had been bad blood between his late
brother and accused three and his friends.
His late brother believed
that accused three had been involved in the murder of a friend of
his, one Deon Zondi. Mr Kheswa confirmed
that he also believed this
to be the case. On the night in question, he described accused one as
wearing a brown jacket and black
jeans, accused two wore a black
jacket and accused three wore a black hoody jacket. All three of them
were armed. Mr Kheswa described
all of the weapons as being hand
guns.
[51]   Mr
Kheswa was crossed examined by Mr Mbatha. On behalf of the accused,
Mr Mbatha accepted that Mr Kheswa knew
all of them. The defence of
the accused was put to Mr Kheswa, who rejected the proposition that
the accused were never in his house.
The accuseds’ alibis were
disputed by the witness. Mr Kheswa denied that he had been influenced
to give the evidence that
he gave and stated that he had no
connection to the taxi industry.
[52]   Ms
Zintle Kheswa (Ms Kheswa) is the sister of Mr Kheswa. She resides at
their parent’s home, which is
directly across the street from
Mr Kheswa’s residence. At around 19h00 on 24 August 2019, she
was taking a bath when she
heard a gunshot. She did not initially
believe that it came from her brother’s home. She went to his
house not because of
the gunshot, but because of the fact that she
needed money for bread. She knocked on the kitchen door. She heard a
noise inside
the dwelling and then a gunshot went off. The noise that
she heard was people arguing. She moved her position to the corner of
the house, then heard another gunshot and the sound of people
fighting inside the dwelling. She then ran to an incomplete mud house

on the property and hid there. She heard footsteps of people chasing
someone. She confirmed that it was dark, but stated that there
was a
street light at her home that cast light onto the road. The street
light is depicted in photographs 9, 11 and 12 in the photograph
album
E3 and was identified by Ms Kheswa. Whilst she was hiding in the half
complete structure, Ms Kheswa heard a firearm go off.
Some people
moved past her hiding spot and went to stand on the road. From the
light of the street light she was able to identify
them as the three
accused in this matter. She testified that she had known accused one
for about five to ten years, she knew accused
two as he had been
involved in a love relationship with a lady who lived near her home
and estimated that she had known him for
ten years and she knew
accused three for between five and ten years as his father was a
security guard at her school and accused
three attended the school.
[53]   Ms
Kheswa testified further that after the accused stood in the road,
they moved off down a road that leads
to Bobonono. It is worth
mentioning that the place that accused one and three indicated that
they were at when explaining their
alibis was at Bobonono. Ms Kheswa
indicated that accused one wore a brown jacket like a prison warder’s
jacket. Accused two
wore black clothing and a hat. She did not see
what accused three wore. She confirmed to the court that she had not
seen her brother
running from his house, but she had heard the sound
of someone being chased. She also confirmed going into the home and
seeing
Ms Mzekandaba dead on the floor, bleeding from her nose and
mouth.
[54]   Under
cross examination, Ms Kheswa admitted that she could only identify
the men when they stood on the road.
Given that this was a very
frightening incident, it was put to her by Mr Mbatha that it was
quite unlikely that Ms Kheswa could
make a positive identification of
the people involved. This was disputed by Ms Kheswa. The accused’s
alibi was put to Ms
Kheswa, but she said that the accused were at her
brother’s house.
Evidence
relating to the fifth crime scene
[55]   This
crime scene is located at a homestead referred to as ‘the
Sikhakhane homestead’. This is
the place at which the three
accused were ultimately arrested. The arrests occurred on 25 August
2019, the day after all the shootings
to which reference has already
been made. When all the accused were arrested, accused two was found
at the Sikhakhane homestead
to be in possession of an unlicenced
firearm and three live rounds of ammunition.
[56]   The
owner of the homestead, Mr Nkosiyezwe Cyprian Sikhakhane (Mr
Sikhakhane) confirmed that his home is at
Sweetwaters, which is also
known as Bobonono. Residing at his homestead is his daughter and her
children and a male known as Scelo.
Asked to comment on whether he
knew any of the accused, he said he only knew accused three. He came
to know accused three when
he came to the Sikhakhane homestead with
his late son Gift Mntandeni Sikhakhane (Gift). He confirmed that he
did not see any of
the accused at his homestead over the period 22
August 2019 to 25 August 2019. On 25 August 2019, a Sunday, he
testified that he
awoke and left home at 07h00 to attend a meeting
with the local induna. While still at the meeting, he received a
telephone call
that the SAPS were at his homestead. He hastened home
and found a lot of policemen at his home. His son, Gift, was among
those
that were arrested, but he was later released. He spoke to the
police and introduced himself as the head of the household. He was

told the police had found people at his homestead that had killed
certain people. His home was searched and he confirmed that certain

items in photograph 12 of photo album F2 were seized at his
homestead. The photograph depicts some clothing lying on the floor.

Principle amongst the clothing items depicted is a brown jacket. Mr
Sikhakhane testified that he did not see the accused prior
to leaving
for his meeting with the induna. As to whether they may have been
there at his home before his departure, he said that
it was possible
as his home is quite big and there are four structures on his
property. However, if someone was staying at his
home, he would
expect them to seek him out and report that they would be staying. He
received no such report. Mr Sikhakhane clearly
did not know which of
the accused was accused one and which was accused two. He had to ask
which of the accused was accused one,
before confirming that he did
not know either accused one or accused two.
[57]   Mr
Mbatha indicated to Mr Sikhakhane that accused one had been staying
at Mr Sikhakane’s homestead since
20 August 2019. Mr Sikhakhane
had no knowledge of this. It was put to him that Mr Sikhakhane’s
late son, Gift, had taken
accused one in, as accused one had been in
fear of his life when he was released from prison. Mr Sikhakhane
stated that he knew
nothing of this. It was further put to him that
accused one invited his girlfriend to come and stay at the Sikhakhane
homestead
as well. They had stayed in Gift’s room. Mr Mbatha
disputed that Mr Sikhakhane did not know accused one, it being put
that
accused one had spoken to him and Mr Sikhakhane was aware that
accused one’s girlfriend was on the premises. This was denied

by Mr Sikhakhane. It was put to him that he had been influenced to
give the evidence that he gave by the Edendale SAPS. Mr Sikhakhane

stated in reply that he did not know a single member of the Edendale
SAPS. Mr Mbatha stated that accused two had arrived at the
homestead
on the morning of his arrest whereas accused three would say that he
had been staying at the Sikhakhane homestead for
three months. This
was denied but Mr Sikhakhane did acknowledge that accused three had
come home with Gift immediately after the
death of Mr Sikhakhane’s
wife and had helped get the homestead spruced up for the funeral by
doing some painting, changing
some locks and helping with the
installation of some electricity cables. Mr Sikhakhane was not aware
of accused three being at
his homestead beyond his wife’s
funeral. As far as he was concerned, he left after the funeral.
[58]   Significantly,
Mr Mbatha put it to Mr Sikhakhane that he was supposed to be accused
one’s alibi witness.
This was denied by Mr Sikhakhane. The
version was developed further when it was put that at a lower court
appearance, Mr Sikhakhane
had said he would support accused one’s
alibi. This was vehemently denied by Mr Sikhakhane who said that he
never went to
the lower court. Mr Sikhakhane said that he was
unemployed and would consequently ordinarily be at home, unless he
picked up some
piece work. He said that he had picked up some piece
work over the period 22 to 25 August 2019.
[59]   Eshnanith
Mahadave is a warrant officer in the SAPS (WO Mahadave) with 30
years’ service. He, together
with other SAPS members, was
involved in the arrest of the three accused three. After receiving
information, they proceeded to
the Sikhakhane homestead at about noon
on 25 August 2019. The homestead was pointed out by an informer. On
arrival, he and Sergeant
Nkosi got out of the vehicle they were
travelling in and noticed some males sitting outside a dwelling. One
of them moved away
suddenly and Sgt Nkosi set off after him. In the
suspect’s possession was found a 9mm Norinco firearm with no
discernible
serial number. It had a magazine in place with three live
rounds. A search of the suspect’s pockets revealed an empty
magazine.
The suspect was asked for a licence to possess the firearm
but did not have one. He was arrested.
[60]   WO
Mahadave indicated that the information that they received indicated
that accused two was at the Sikhakhane
homestead and it was
specifically for him that they were looking. Initially, WO Mahadave
pointed out accused one as being accused
two. To be fair to him, all
the accused were wearing substantial face masks while seated in the
dock because of the COVID-19 pandemic.
He testified that the person
that they were looking for, and who possessed the firearm and
ammunition, was named Sibusiso Jesus
Zondi. That was not accused one,
but was accused two. The warrant officer indicated that accused two
was washing his takkies when
the police arrived at the Sikhakhane
residence. A search of the premises revealed the clothing previously
referred to, and photographs
were taken thereof.
[61]   The
second accused, through Mr Mbatha, denied that he ran away or that he
possessed the firearm and ammunition.
WO Mahadave indicated further
in cross examination that the firearm was found in the waistband of
accused two’s trousers
and the empty magazine was in his
trouser pocket. The witness confirmed that accused two had a smell of
alcohol about him. Mr Mbatha
put it to WO Mahadave that he was part
of the conspiracy concocted against him by the Edendale SAPS. The
witness retorted that
he was not part of any conspiracy and clarified
for the court that he was not stationed at Edendale but rather at
Oribi.
[62]   The
final witness for the state was Colonel Bhekinkosi Bongani Ntshangase
(Colonel Ntshangase). He is a detective
based at the Organised Crime
Unit in Durban and was the investigating officer in all the cases.
His evidence served two purposes:
he explained that besides his best
endeavours he could not get Lloyd Zondi to court to testify about
events at the third crime
scene and he drew a sketch on a whiteboard
that was later photographed and marked as exhibit A2. To describe the
sketch, it is
necessary to imagine a capital letter ‘T’
that has fallen from a vertical position to its right so the crossbar
at
the top of the letter is now on the right, with the body of the
letter extending to the left. All of the crime scenes can be plotted

on the letter ‘T’, save for the second one and the fifth
one. The first crime scene, that at the store, may be found
at the
base of the letter ‘T’. Away from the letter ‘T’
and above and to the right of crime scene one,
is crime scene two at
the Mdlalose homestead. Crime scene three, being that involving Lloyd
Zondi, is back on the ‘T’,
roughly half way up the long
portion thereof. Crime scene four is at the end of the left side of
the crossbar. The purpose behind
this evidence was to bring some
perspective to the locations of the various crime scenes.
[63]   The
state closed its case after the evidence of Colonel Ntshangase, who
was not cross examined by the defence.
The
evidence of accused one
[64]   Accused
one is currently 45 years of age. On 15 March 2019, he was in prison,
that being the date when Nqobile
alleged she had been telephoned by
accused one and told to pass on his message to Khumbulani. He
testified that he had only been
released on 20 August 2019. Accused
one denied that he had made that telephone call. He indicated that he
had been implicated in
the matter because of the dispute between the
two taxi associations. He indicated that from what he could see,
there was a conspiracy
against him brought by people unknown to him
in respect of which he did not even know their names. He testified
further that accused
three is not involved in the taxi industry but
insofar as accused two and himself were concerned, they were the only
two alive
of the Esigodini Taxi Association, the others all having
been shot.
[65]   Accused
one testified that on being released from prison on 20 August 2019,
he had proceeded to the Ncwabe
homestead where he hoped to see one
Andile. He ultimately found him and sat chatting with him for a
while. He was advised that
it would not be safe for him in the area
but he did not have anywhere else to go. After two telephone calls
with one Zonke Ngcobo,
he was advised that her husband was on the
road from Nqutu, and that he should wait for him and he would take
accused one to where
he resides. While so waiting, Pearl arrived and
returned his identity document and bank card to him. It transpired
that Zonke’s
husband was Gift Sikhakhane and he duly uplifted
accused one and took him to the Sikhakhane homestead. Upon his
arrival there,
he found accused three. He met Mr Sikhakhane senior
who shook his hand and conversed with him. The next day, he left the
Sikhakhane
residence with Gift and proceeded to the Standard Bank
where he tried to draw money. He returned, via Napierville, with Gift
to
the Sikhakhane homestead where he remained until he was arrested,
save for short excursions to a nearby tuck shop.
[66]   Every
witness that had placed accused one at any of the crime scenes was
dismissed by him with the same epithet,
namely that they were all
‘blatant liars’
[67]   Accused
one was cross examined by Ms Harrison. Asked about his relationship
with Golden, he said that he had
no problem with him. Asked what
association Golden was affiliated to, accused one said that he would
not answer that question.
When the court required him to answer it,
his initial response was that he did not know but surmised that
perhaps he was not a
member of any association. The people that
Golden was close to were members of the Edendale Taxi Association. He
ultimately agreed
that Golden was on a different side to the side he
was on. He gave the same type of answer when asked about which taxi
association
Mr Gumede was associated with. He could not bring himself
to state that Mr Gumede was associated with the Edendale Taxi
Association,
but acknowledged that the people Mr Gumede lived with
were associated with that association.
[68]   Accused
one agreed that Sanele knew him very well and that the area where
they all live is very small. He
indicated that accused two was
involved with the Esigodini Taxi Association and that he knew him. He
also admitted that accused
three could favour the Esigodini Taxi
Association although accused three had no direct ties to that
association. He confirmed that
he had made no plans to meet up with
accused two when they had both been released on 20 August 2019, nor
had he made any such plans
with accused three. It was a coincidence
that they all ultimately found themselves at the Sikhakhane
homestead.
[69]   Accused
one mentioned further that he had heard that accused three had been
hospitalised after an assault
by guards of the Edendale Taxi
Association. This had been instigated by Mr Zuma and Dititi. He again
repeated his belief that the
Edendale Taxi Association were involved
in laying false charges against him. Why they should do this, he did
not know. But he stated
that the Plessislaer SAPS were biased against
him and that the conspiracy had been cooked up by the community, the
taxi association
and the SAPS. Explaining why he never ventured out
of the room he occupied at the Sikhakhane residence, accused one
rather coyly
indicated that he was ‘shy’. Thus accused
three had brought him the food and drink that he needed over the
period of
his residency at the Sikhakhane homestead. Accused one
admitted that the takkies in one of the photos were his. He indicated
further
that accused two had come to the Sikhakhane residence between
07h30 and 08h00 on the day that they were all arrested. He confirmed

further that accused two, after arriving, had washed his shoes at the
Sikhakhane residence.
[70]   Accused
one indicated that there were people at the Sikhakhane homestead who
could verify that he had been
there at the time of the offences for
which he had been charged. Mr Mbatha indicated that there may be some
difficulty in getting
the witnesses to court and the court
accordingly requested the state to assist in this regard. By virtue
of the court calendar
and the scheduled appearance of former
president Zuma at the court and the occurrence of a long weekend,
accused one had four days
to arrange for his witnesses attendance.
Because the alibi of accused one and that of accused two was based on
different facts,
accused one’s case was provisionally closed
and the court proceeded to hear the evidence of accused two with the
clear understanding
that accused one’s case would be reopened
once the witnesses he wished to call appeared.
[71]   Accused
two, Sithembiso Michael Zondi, who is also known as ‘Jesus’,
testified in his defence.
He is 43 years of age. He testified that on
24 August 2019, he was in Pietermaritzburg from about 17h00 onwards.
He was in the
company of a friend, Sanele Khanyile (Mr Khanyile). He
had met Mr Khanyile at an establishment known as ‘Frasers’
in
East Street. They had sat drinking there until the establishment
closed at about 22h00 to 24h00 and had then moved uptown to a place

called ‘Skunkani’, which is apparently near the train
station. They consumed more alcohol there until sunrise. Accused
two
then telephoned Gift, who indicated that he was at his parental home,
namely the Sikhakhane homestead. Notwithstanding that
accused two had
spent the night drinking, he told Gift that he was thirsty. Gift said
that he should come to the Sikhakhane homestead.
Accused two agreed
and took transport there, arriving at between 08h00 and 08h30. At the
Sikhakhane homestead, he found Gift and
accused one and three. He
testified that he thought that accused one was still in prison.
Because he was still thirsty, he took
out what liquor he had and they
continued drinking. Photographs taken by the SAPS depict two beer
bottle lying on the grass outside
one of the dwellings at the
Sikhakhane homestead. Accused one was inside the house with his
girlfriend and accused three was in
the toilet when he saw the SAPS
approaching. At that stage he was sitting outside with Gift. The SAPS
searched everyone and his
cellular telephone was taken by the police
and it is apparently still with them. Nothing incriminating was found
on his person
when he was searched and he denied possessing the
firearm and magazine that WO Mahadave claimed was found upon him. He
did not
see a firearm either. As to why a number of witnesses had
implicated him in the events of 24 August 2019, he variously
attributed
this to a witness ‘adding on’, meaning
including him in the events or he attributed it to the dispute
between the two
taxi associations. He indicated that he worked for
the Esigodini Taxi Association as a rank manager. He and accused one
were being
falsely implicated because they were the only two people
‘left behind’, meaning the only two people left alive.
[72]   Accused
two was cross examined by Ms Nyakatha. He was asked why he had washed
his takkies at the Sikhakhane
homestead, it being suggested that this
was a rather strange thing to do particularly in view of the fact
that he had never been
to the homestead before. He indicated that he
had done so because he had been released from prison without washing
them. He indicated
that he had arrived at between 08h00 and 08h30. He
was asked why he had not washed them after his release from prison,
which occurred
on 20 August 2019. He could not give a reason but
seemed to indicate that it had something to do with the fact that he
could not
stay at home. He testified that when the police arrived,
they had wanted to know which person was Gift. It was pointed out
that
WO Mahadave had specifically testified that they were looking
for him and the policeman’s evidence had not been challenged

with the suggestion that Gift had actually been their target.
[73]   On
the question of the firearm, ammunition and magazine allegedly found
in his possession by Sgt Nkosi, accused
two was asked whether it was
just a coincidence that the firearm was positively linked to the
shooting at the store. His response
was that he could not deny that.
He could provide no reason why WO Mahadave would implicate him in the
matter. As regards events
at the store, he confirmed that Sanele and
him were on good terms. Asked why Sanele would implicate him, accused
one became extremely
evasive and had to be directed to answer the
question. Accused one was challenged on whether he was a rank manager
for the Esigodini
Taxi Association as a previous state witness had
indicated that he was a guard for that association. Accused one
indicated that
he did not understand what guarding meant. As to why
the evidence that identified him as a guard was not challenged,
accused one
indicated that he would not challenge that evidence
‘until I could speak for myself’.
[74]   Challenged
with the evidence of Mr Mthethwa who said that he saw accused two at
the gate to the store, accused
two again became evasive and had to be
requested to answer the question. Accused one ultimately conceded
that he had no previous
problems with Mr Mthethwa and could only
ascribe his evidence to the fact that he was associated with the
Esigodini Taxi Association.
Ms Nyakatha drew accused two’s
attention to the fact that Mr Mthethwa at crime scene one and Mr
Kheswa and Ms Kheswa at crime
scene four all described him as wearing
a black jacket. Accused two denied that he had been so attired. Asked
whether it was a
coincidence that many of the state witnesses
identified the three accused as being involved in the various crimes
and that when
arrested all three were together, accused two indicated
that he had not been with the other accused. That he was mentioned as
being
a participant in the crimes was part of a conspiracy against
him. Asked if the Kheswas were part of that conspiracy, accused one

said that they were not. He could not provide an answer as to why
they then implicated him. Confronted with the evidence of Mr
Kheswa
that he struggled with accused two at the door of his home, accused
two’s only response was that Mr Kheswa was mistaken.
Ms Kheswa
gave evidence implicating accused one after she was schooled on what
to say, according to accused two.
[75]   As
regards where he was before leaving for Pietermaritzburg for his
drinking session with Mr Khanyile, accused
two had indicated that he
had left from his girlfriend’s home. Asked further whether she
would be called to confirm this,
accused one said that she would not
be as the police had told his girlfriend never to speak to him again.
As to whether the Plessislaer
police station was involved in the
conspiracy against him accused two said that they were not. Accused
one indicated that he could
not call Mr Khanyile to testify as he was
now dead, having died when accused two was in prison.
[76]   The
court inquired of accused two whether the police had brought anything
to the Sikhakhane residence on 25
August 2019. Accused two said that
he saw nothing in this regard. He was then asked how the clothing
that was discovered there,
which was depicted in several photographs
and which included a brown jacket and a black jacket, came to be at
that residence. Accused
two could provide no answer. In his
testimony, accused two had indicated that there were two rank
managers in Isigodini and two
at the rank in town. The court asked if
he could indicate why he was being implicated in events and not the
rank managers in town
if the conspiracy existed and had been brought
about by the rivalry between to taxi associations. Again, no
meaningful answer was
forthcoming.
[77]   The
final accused, accused three, is Siphosihle Emmanuel Gasa. He also
elected to give evidence in his defence
and had no witnesses to call.
He testified that he knew accused one and accused two. He indicated
that he had no ties to the taxi
industry. He repeated the version
that had been put to the state witnesses, namely that he had not been
at any of the crime scenes
but had been at the Sikhakhane homestead
at Sweetwaters. He mentioned that others had been there with him,
namely accused one,
Gift (now deceased), the two sisters of the
homestead, Mr Sikhakhane and accused one’s girlfriend. None of
these people were
prepared to testify in support of accused three’s
alibi. Mr Sikhakhane had earlier testified that he had not seen
accused
three at his homestead and accused three’s explanation
for that was that Mr Sikhakhane was trying to protect the integrity

of his homestead. He denied leaving the Sikhakhane homestead save to
go to a nearby tuck shop.
[78]   As
to the evidence of Sanele that he had recognised the voice of accused
three at the store, accused three
stated that this was unlikely if
one was traumatised and shocked. He also denied the evidence of Mr
Kheswa that he had been in
his home when he was shot by accused one
and his girlfriend subsequently murdered. As to why he was implicated
in this way, he
indicated that he remembered that he had been a
suspect in the murder of one Bandile Zondi, who was a friend of Mr
Kheswa’s
late brother. He reasoned that Mr Kheswa held a grudge
against him as a consequence and further rationalised that this was
why
he had been implicated by the Kheswas. He admitted, however, that
he had no tangible evidence of this but was merely speculating.
[79]   Ms
Nyakatha cross examined accused three. He had mentioned that he had
previously opened a case against Mr
Zuma and others but that his
complaint had not been properly investigated. He disclosed that this
was a case of assault. This had
not been put to Mr Zuma and accused
three was asked why this had not been done. It was pointed out that
Mr Zuma had never mentioned
accused three in his evidence. If the
case against him was a fabrication and Mr Zuma had been part of the
conspiracy against him,
he was asked why Mr Zuma had not mentioned
his name and implicated him in the crime at scene two, the Mdlalose
homestead. His response
was that Mr Zuma had not mentioned him but
the community regarded him, accused three, as a bad man. He confirmed
that there was
no bad blood with Mr Kheswa but stated that he did not
know Ms Kheswa and saw her for the first time in court. It was
pointed out
by Ms Nyakatha that Ms Kheswa had testified that she knew
him very well, a fact that had not been denied. He agreed that this
had
not been denied and ultimately stated that he had forgotten to
remind his attorney that he did not know her.
[80]   Accused
three confirmed that he knew Mr Kheswa but denied that he had been in
his home on 24 August 2019.
He could only explain Mr Kheswa’s
conduct in identifying him as one of the participants in the crime
committed at his home
on the basis that he held a grudge against him
due to the rumours surrounding the death of Bandile Zondi. Accused
three indicated
that while Mr Kheswa may not have planned his
denouement of him, he had taken the opportunity to do so when the
events complained
of occurred. He was asked by the court how he could
insist that his version of the grudge held by Mr Kheswa was true in
light of
the fact that, on his own version, he had no facts to
support that theory. The question was repeated but the answer was
difficult
to comprehend. The best that he could state was that he
interpreted Mt Kheswa’s evidence as an indication that he bore
a
grudge towards him. What that interpretation was based upon was not
revealed.
[81]   Accused
three denied that he had been at the store on 24 August 2019. He
stated that there was no bad blood
between him and Sanele and he
could not explain why Sanele had implicated him in the events there.
He estimated the distance between
the home of Andile, the boyfriend
of Pearl, to the store as being 300 metres, a distance that he
estimated it would take 15 minutes
to walk. He denied that he had
been at that homestead on 24 August 2019. He further confirmed that
there was no bad blood between
him and Pearl either and he could
likewise not explain why she had falsely stated that he had been at
Andile’s home. He was
taxed over the fact that he gave a false
surname when arrested and was asked why he had done so. The answer
provided was lengthy
and complicated but appeared to be that a
daughter in law at the Sikhakhane residence, whose surname is Ngcobo,
had taken to calling
him her son and had caused him to believe that
he was an Ngcobo. When asked by the police what his surname was, he
replied ‘Ngcobo’
because of this experience and because
it is a popular name in the area and it was the first name that had
come to mind.
[82]   Finally,
in response to his theory of there being a conspiracy hatched against
him, the court asked him whether
he knew the names of the persons
involved in the conspiracy and chose not to reveal them or he could
not reveal the names because
he did not know them. He replied that it
was the former. He indicated that he would not reveal the names
unless he was given a
guarantee of his safety.
[83]   That
constituted the evidence heard by the court.
The
law
[84]
It
is trite that the state is required to establish the guilt of an
accused person beyond reasonable doubt. An accused person is
entitled
to be acquitted if there is a reasonable possibility that his version
may be true, a fact stressed by Mr Mbatha in his
argument at the end
of the evidence. In dealing with the relationship between these two
concepts, the court in In
S
v van der Meyden
,
[1]
explained that:
‘
These
are not separate and independent tests, but the expression of the
same test when viewed from opposite perspectives. In order
to
convict, the evidence must establish the guilt of the accused beyond
reasonable doubt, which will be so only if there is at
the same time
no reasonable possibility that an innocent explanation which has been
put forward might be true. The two are inseparable,
each being the
logical corollary of the other. In whichever form the test is
expressed, it must be satisfied upon a consideration
of all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order to determine whether there
is proof
beyond reasonable doubt, and so too does it not look at the
exculpatory evidence in isolation in order to determine whether
it is
reasonably possible that it might be true.’
[85]   It
is acceptable in evaluating the evidence in its totality to consider
the inherent probabilities that exist.
In
S v Chabalala
,21
Heher AJA explained the correct approach as follows:
‘
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,

having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such as
the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an ex post facto determination
and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it
in the context
of the full picture presented in evidence. Once that approach is
applied to the evidence in the present matter the
solution becomes
clear.
’
[86]
On
counts 1 to 5 and counts 7 to 9, the state indicated that it relies
on the doctrine of common purpose to seek the conviction
of the
accused. Reliance on common purpose also has its own requirements
which must be proved to exist before a court can return
a guilty
verdict based on that doctrine. Before the state can rely on the
doctrine of common purpose it must first prove the commission
of the
offence against the accused person. Liability based on common purpose
can only be based on one of two possibilities which
are liability
based on prior agreement and liability based on active association.
The leading cases in this regard are
S
v Safatsa and Others
1988
(1) SA 868
(A)
and
S
v Mgedezi and Others
1989
(1) SA 687
(A).
In
S
v Safatsa supra
Botha
JA stated the requirements for liability on common purpose as
follows:
‘
(a)
that the accused person must have been present at the scene of
the crime when the offence was committed;
(b)
that he or she must have been aware of the commission of the
offences;
(c)
that he or she must have intended to make common cause with the
person or persons committing the offence;
(d)
that he or she must have manifested his sharing of common purpose by
himself or herself performing some act
of association with the
conduct of others;
(e)
that the accused must have had the requisite
mens rea
to
commit the offences.’
[87]   The
following definition of common purpose appears in Jonathan Burchell
–
Principles of Criminal Law,
3
rd
ed
(2008) at 574 and reads:
‘
Where two or more
people agree to commit a crime or actively associate in a joint
unlawful enterprise each will be responsible for

the specific criminal conduct committed by one of their
number which falls within their common design.’
[88]
In
S
v Mzwempi
2011
(2) SACR 227
(ECM)
Alkema J analysed the requirements of common purpose at 248-249 para
[51]-[53] as follows:
‘
The definition
embodies two elements or stages. The first stage refers to the
conditions which must be fulfilled before the principle
of imputation
of conduct can operate; and the second stage refers to the scope and
extent of imputing the conduct of one party
to the others. The second
stage, to repeat, only comes into operation when the conditions of
the first stage are fulfilled.
The conditions in the
first stage which trigger the principle of imputation are either a
prior agreement or an active association
in the joint venture. Any
one of these conditions must exist.
The second stage of the
definition imputes conduct to an accused which “falls with the
common design or purpose”. Conduct
which falls with the
common purpose seems to be any or all conduct in the execution of the
common design or purpose. In the case
of a prior agreement,
therefore, all the parties thereto will be held liable for the act of
any one of their members which either
falls within the common design
or is executed in the course of the implementation of the agreement
(provided, however, the other
definitional requirements such
as
dolus
are also present).”
[89]   All
three accused rely on an alibi defence to the multiple charges that
they face. Accused one and three’s
alibi is identical and they
allege that they were both at the Sikhakhane homestead at the
relevant time. Accused two alleges that
he was drinking in the
Pietermaritzburg CBD at the relevant time with a friend, since
deceased.
[90]
It
is also trite that an accused bears no onus of proof to establish the
truthfulness of an alibi defence and, at best, the defence
carries
only a temporary onus of rebuttal depending upon the quality of the
State’s incriminating evidence.
[2]
Once a court accepts that an alibi defence might reasonably be true
it follows that the prosecution’s evidence is mistaken
or
false.
[3]
The alibi should not
be considered in isolation from other evidence. The correct approach
is to consider the alibi in the light
of the totality of the evidence
presented before court. In
R
v Hlongwane
,
Holmes JA stated as follows:
‘
At the
conclusion of the whole case the issues were: (a) whether the alibi
might reasonably be true and (b) whether the denial of
complicity
might reasonably be true. An affirmative answer to either (a) or (b)
would mean that the Crown has failed to prove beyond
a reasonable
doubt that the accused was one of the robbers.
’
[4]
[91]
This
reasoning is consistent with the approach to alibi evidence laid down
by the Appellate Division nearly 70 years ago in
R
v Biya,
[5]
where
Greenberg JA said:
‘
If there is
evidence of an accused person's presence at a place and at a time
which makes it impossible for him to have committed
the crime
charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime.’
[6]
[92]
In
S v
Musiker,
[7]
the Supreme Court of Appeal held that once an alibi has been raised,
it has to be accepted, unless it can be proven that it is
false
beyond a reasonable doubt. In
S
v Burger and others
,
[8]
it was held that where an alibi is presented and it contradicts
evidence presented before the court, and the alibi later turns
out to
be a lie, the lie together with the other evidence of the accused as
a whole may point towards his guilt in certain cases.
[93]   The
court and the state assisted accused one and three to have two alibi
witnesses that they wished to call
brought to court. After being
interviewed by Mr Mbatha, neither of them were called to testify. No
such assistance could be offered
to accused two as his principal
witness was no longer alive and he was no longer speaking to his
girlfriend. The alibis of the
accused are accordingly largely to be
considered on the evidence of the accused themselves.
[94]   Finally,
the question of what constitutes housebreaking must be considered. Mr
Kheswa testified that the door
to his dwelling was closed but not
locked when the accused opened the door and entered his dwelling.
[95]   Snyman,
in
Criminal Law
(6
th
ed, 2014), said
the following at page 547 when dealing with the element of
'breaking':
'The "breaking"
consists of the removal or displacement of any obstacle which bars
entry to the structure and which forms
part of the structure itself.
Thus, to push open a closed (though not locked) door or window or
even to push open a partially closed
door or window will amount to
breaking, but there is no breaking if one merely walks through an
open door... '
[9]
Assessment
of the evidence
[96]   From
the evidence set out in detail in the first part of this judgment, it
is evident that there are two mutually
exclusive versions of events
on 24 August 2109: the state’s version which implicates all the
accused (save for those offences
in respect of which only a single
accused is charged), and the defence version that all the accused
were somewhere else on the
day in question at the time the crimes
detailed in the indictment occurred. Both versions cannot be correct.
As Mr Mbatha correctly
pointed out on several occasions, the accused
could not be in two places at the same time.
[97]
During
argument, Ms Harrison handed up the case of
Stellenbosch
Farmers’ Winery Group Limited and another v Martell and Cie SA
and others
.
[10]
Paragraph 5 of that judgment provides a guide to solving disputes of
facts those that exist in this matter. The Supreme Court of
Appeal
found that to resolve such disputes, a court should make findings on:
(a)
the credibility of the witnesses;
(b)    the
reliability of the witnesses; and
(c)
the
probabilities of the matter.
[98]   Each
of the factors referred to above has its own discrete sub categories.
For example, the credibility of
a witness would involve a
consideration of the veracity of the witness, his candour and
demeanour, his bias, both latent and blatant,
internal contradictions
in his evidence and external contradictions, as well as the
probability or improbability of particular
aspects of his version.
Utilising the guidance of the criteria referred to above, the
evidence adduced by both parties must be
considered.
[99]   As
a general proposition, the state witnesses impressed the court. It
must have been difficult for the family
members of accused one to
testify against their kinsman, yet they did so. We are accordingly
not here talking about distant relatives:
we are dealing with
half-brothers and cousins of accused one. Moreover, all of the
witnesses lived in the same area and had grown
up with, or lived
near, the accused. Their association with the accused was not
momentary or fleeting, but one of substance built
up over a long
period. The accused were accordingly not strangers who could be
implicated without any qualms or consequences: the
accused were real
people living amongst them and forming part of the broader community.
As Mr Zuma put it, the community was small
and had any strangers
intruded therein, they would have been noticed.
[100]   None
of the state witnesses appeared hostile or biased towards the
accused. Pearl testified that she had
been happy to see accused one
after not seeing him for a long time. The opportunity for expanding
on their evidence existed in
virtually every witnesses testimony. For
example:
(a)     Sanele
could have testified that he saw accused three in the store, but did
not, confining his
evidence only to the fact that he heard the voice
of accused three;
(b)     Mr
Zuma could have testified that he saw accused one in the company of
the other accused at the
Mdlalose homestead if he had been intent on
implicating all the accused instead of only accused one;
(c)     Had
Mr Kheswa held a grudge against accused three as suggested by the
defence, he could have substituted
him for accused one as the person
that shot him, but he did not do so.
[101]   These
are not the only instances where witnesses could have embroidered on
their evidence and made the case
darker for the accused. There are
other instances where this could have been done but was not. That the
witnesses did not tailor
their evidence or embroider upon it
generates confidence that they were prepared to confine their
evidence only to that which they
actually saw and were not prepared
to stray into the realms of speculation or the giving of false
evidence.
[102]   The
state witnesses were by no means perfect witnesses. Sanele did
concede that he had made an assumption
about the presence of accused
two at the Danangwe General Dealership, but he later clarified this
by indicating that the name of
accused two had been spoken by accused
three and that is how he had come to know of his presence at the
store. The witness Dititi
indicated, contrary to the overwhelming
volume of evidence of other witnesses, including the accused, that
there were not two taxi
associations that were at war with each
other. He insisted that there was only one taxi association. Given
the ample evidence at
odds with his view, it is safe to conclude that
his evidence was not correct on that aspect and it is disregarded. It
follows that
the court accepts that there were two taxi associations
and that a relationship of hostility existed between them.
[103]   The
state witnesses were both credible and reliable.
[104]   In
view of the finding that there were two warring taxi associations,
the court must carefully scrutinise
the evidence to detect whether
there is any truth in the version of the accused that they are being
falsely implicated by the Edendale
Taxi Association by virtue of
their association with the Esigodini Taxi Association.
[105]
This
was a central tenet of the accused’s defence. Every witness was
confronted with an allegation that he formed part of
a conspiracy of
which the Edendale Taxi Association and the Edenvale SAPS were the
guiding forces. At the outset of this line of
cross examination with
the first witness, I inquired from Mr Mbatha whether there was to be
factual evidence of this conspiracy
or whether it was merely a theory
and speculation. I was told that it was merely a theory. That is what
it remained. No evidence
whatsoever was adduced of its existence in
fact. Negating any possibility of any truth in the theory, it is
worth pointing out
that the arresting officers were not part of the
Edendale SAPS, being stationed at Oribi, and neither was the
investigating officer,
who is based in Durban.
[106]
The
conspiracy theory was expanded to include members of the community
who allegedly spoon-fed witness on what to say in their testimony.

Many of the witnesses testified that they had no relationship with
the Edendale Taxi Association. Examples of this may be found
in the
evidence of Pearl, Sanele, and Ms Kheswa. Notwithstanding such
denials of personal affiliation to a taxi association, attempts
were
made to link the witnesses to members of the community, or other
family members, who might have had an association with the
Edendale
Taxi Association. This desperate attempt at creating a link to a taxi
association to bolster the theory being propounded
by the accused had
all the strength of a cracked egg. It is very easy to make
allegations if one does not have to prove what is
being alleged. I
indicated to Mr Mbatha that the court could not be expected to make
findings based on speculation. Findings are
made on facts. The truth
of the matter is that there was not a scintilla of evidence led by
the defence to demonstrate that the
Edendale SAPS or the Edendale
Taxi Association or the local community or any other entity or
persons played any part in convincing
the multitude of state
witnesses to pervert their evidence by substituting the identity of
the true killers for the accused. No
right-thinking person could
allow themselves to be so led and there was nothing from the
demeanour of any of the state witnesses
that demonstrated that they
were not right-thinking members of the Esigodeni community. As Ms
Harrison put it in argument, would
Mr Kheswa, who suffered very
serious internal injuries that required surgery and the insertion of
a stoma which he still has, conceal
the true identity of the person
who shot him and substitute that person for accused one? The question
merely has to be posed to
be rejected. There was no evidence either
to establish that the witnesses were ‘spoon fed’ on what
to say in their
evidence either.
[107]   Whilst
the state witnesses did not embroider on their evidence, the accused
did. The initial suggestion was
that the Edendale SAPS were behind
the conspiracy to implicate the accused. This was later expanded to
include the Plessislaer
SAPS.
[108]   The
respective crime scenes were not widely spaced and were within
walking distance of each other. The drawing
prepared by Colonel
Ntshangase helped crystallise the location of the various crimes
scenes in relation to each other. The locations
of the crime scenes
were within walking distance of each other. Their proximity to each
other is demonstrated by the evidence of
Mr Zuma who testified that
he had gone to the Mdlalose residence after he heard gunshots that he
believed came from the store.
Mr Mthethwa likewise testified that
that he heard a gunshot at the store after he emerged from under the
pool table. This could
only have come from the Mdlalose homestead and
demonstrates the proximity of the store to the Mdlalose homestead.
[109]   The
times at which each of the offences occurred at the various crime
scenes reveals the following time line
on 24 August 2019:
(a)    the
accused had been present at Pearl’s boyfriend’s residence
and had departed at 17h30;
(b)    at
17h45 they were seen at the store, approximately 300m from Pearl’s
boyfriend’s residence;
(c)    at
18h15, accused one was seen at the Mdlalose homestead, a five minute
walk from the store;
(d)    at
around 19h00 all the accused were seen at the home of Mr Kheswa. This
was the furthest point from
the store.
The time line would
appear to be feasible given the compact nature of the area in which
the various crime scenes were located.
[110]   In
addition to the accessibility of all the crime scenes within the time
line, there was a consistent theme
in the state witnesses evidence
regarding the clothing worn by the accused. Virtually every witness
who saw accused one, testified
that he wore a brown jacket similar to
that worn by a prison warder. When the accused were ultimately
arrested, photographs reveal
the presence at the Sikhakhane homestead
of a brown jacket similar to that worn by prison warders. Witnesses
also described accused
two as wearing a black jacket. A black jacket
was also discovered at the scene of the arrests and was photographed.
[111]   The
proposition that it is impossible to be at two different places at
the same time, which is self-evidently
true, was put to a number of
state witnesses by Mr Mbatha. Accused one and three could not at the
same time have both been at Sikhakane’s
homestead and the store
(or any of the other crime scenes for that matter). That all the
accused were at that homestead when arrested
is beyond question. But
that is a different matter altogether. As a number of state witnesses
suggested, once the shootings were
over, the accused could have
retired to the Sikhakhane homestead.
[112]   There
is a wealth of evidence from the state witnesses that places the
accused at the various crime scenes.
Could all those persons be
mistaken? The answer must be a resounding ‘no’. If that
was to be accepted by the court,
it would mean that each witness that
testified about the crime that occurred in their presence, would have
had to have been persuaded
to substitute the identity of the real
criminals for the accused. It is undisputed that all of the crimes
for which the accused
have been charged did, as a matter of fact,
occur. The substitution alluded to would have had to have happened at
not one or two
crime scenes but at all the crime scenes in respect of
which evidence was led. This is improbable and there was no evidence
of
this having occurred. Together with the knowledge that all of the
witnesses testified to having about the accused, and the
circumstances
under which the identification of the accused occurred
with all the crime scenes having electric lighting, the likelihood of
mistaken
identifications can be ruled out.
[113]
The
accused were thoroughly unimpressive witnesses. Accused one was a
prime example of someone who preferred to use 1000 words when
one
would suffice. At one instance it was noted that he spoke for eight
minutes without interruption or pause. He peppered his
evidence with
remarkable detail most of which, if not all, related to events before
24 August 2019 and which were accordingly irrelevant
to the issues at
hand. His only retort to the veritable flood of allegations that
identified his clothing and his presence at all
the crime scenes was
that the state witnesses were mistaken or that they were complicit in
the general conspiracy against him.
None of those allegations were
backed up by any facts. The likelihood of mistake is, as previously
stated, rendered non-existent
by virtue of the fact that accused one
was a well-known member of the community. All of the witnesses had
known him for many years
and a number of them were related to him.
That all of them, scattered amongst the various crime scenes, could
be mistaken merely
needs to be mentioned to be rejected. I have
already indicated that not a single fact was adduced to demonstrate
the existence
of the conspiracy that was so heavily relied upon by
the defence.
[114]
Accused
two was equally unimpressive. He was evasive and questions had to be
repeatedly put to him before an answer was forthcoming.
He had a
generally sullen approach to the delivery of his evidence, especially
when cross examined. His general demeanour was not
impressive. As
accused one did, he grasped onto the rubric of mistaken identity and
the existence of a conspiracy against him.
No evidence of either of
these was advanced other than accused two’s say so.
He
posited that the firearm, ammunition and magazine alleged by the
state to have been found on him was planted evidence. The question

that he could not answer was how the police knew that the firearm
allegedly planted on him would be later be forensically linked
to the
first crime scene at the store. The police could not have known that
such a link would be forthcoming as the analysis was
only carried out
some time later.
[115]   Accused
three fared no better in his evidence. No better details of those
involved in the conspiracy against
him emerged from his evidence,
this notwithstanding that he claimed to know the names of those
people who were behind it. It appeared
that he would rather be stoic
in his silence than reveal the truth of what he claimed to know. His
evidence mimicked the evidence
of his co-accused.
[116]   Could
the respective alibis be reasonably possible true? Mr Mbatha
indicated that they could be despite there
being no evidence thereof
other than the say so of the accused. It was also argued that the
accused’s’ explanations
that they were not at the crime
scenes was reasonably possibly true. It has already been acknowledged
that the state has the onus
of disproving the accused’s alibis
and the accused do not need to prove their respective alibis. The
state produced a plethora
of compelling evidence that conclusively
established the presence of the accused at the various crime scenes.
The sheer weight
and volume of this evidence, given by a variety of
different persons at each of the crimes scenes is so persuasive as to
render
the accused’s alibis untrue.
[117]   As
regards the validity of the conspiracy against each accused, Mr
Mbatha argued that because it was difficult
for the accused to break
down the witnesses with contrary factual allegations this meant that
the witnesses had been very well
schooled on what to say. The
argument is fallacious and it is rejected. Because a witness cannot
be exposed as a liar it cannot
be accepted that he has been taught
how to lie properly. There would be no purpose in permitting cross
examination then: if a witness
was discredited in cross examination
his evidence falls to be rejected but on this theory if the witnesses
evidence was not discredited
it also falls to be rejected because the
witness has been properly primed on how to lie without being exposed
as a liar.
[118]   The
fundamental difficulty with the conspiracy theory is when did it come
into existence? Accused one was
immediately identified by Mr Mthethwa
at crime scene one at the store. How were the terms of this
conspiracy communicated to the
other state witnesses at the various
other crime scenes? There simply was no time for this to occur. The
conspiracy theory must
accordingly founder.
[119]
The
court finds that there was no conspiracy to falsely implicate the
accused by the state witnesses and no evidence to suggest
that the
state witnesses were influenced to give false evidence against the
accused by any person or body of persons, including
the SAPS.
[120]   The
only remaining aspect is to consider the existence of a common
purpose between the accused. The telephone
call from prison made by
accused one to Nqobile predicted that people would be killed upon his
release. Accused two was with accused
one in prison and it is
tempting to consider that there may well have been an agreement in
advance to commit the crimes. But that
would perhaps be pushing
speculation too far and any such agreement would not include accused
three who was not in custody. The
common purpose to be considered is
accordingly that arising from active participation in the crimes.
Having accepted the evidence
of the state witnesses as to the
identity of those involved at the five crime scenes, it follows that
all were present when the
respective crimes were committed. All the
accused were aware of the commissions of the various offences. They
had all gone to the
crime scenes armed. At the store, they all played
a part in events with, for example, with accused three instructing
accused two
not to forget to take the money and airtime. The events
at the store and the events at the Kheswa residence establishes that
they
intended to make common cause with each other. After the
commission of the crimes at the store, the accused roamed around the
area.
Had any one of them wished to have withdrawn from the common
enterprise there was opportunity to do so. None of them did and they

remained together on 24 August 2019 until crime scene four. The next
day, they were all found together at crime scene five. At
the Kheswa
residence, there was again evidence of active participation by all
the accused: accused one demanded firearms from Mr
Kheswa as did
accused three. Accused two guarded the door. Accused one shot Mr
Kheswa twice without any objection from the other
accused. Accused
two and three associated themselves with accused one’s conduct.
We are accordingly satisfied that the state
has established that in
respect of those offences in respect of which all the accused are
charged, common purpose has been shown
to exist.
[121]   It
follows that the court accepts the evidence of the state that:
(a)     all
three accused were at the first crime scene, where they all
participated in the murders of
Golden, Mr Gumede and Ms Zondi, the
attempted murder of Sanele and the robbery of the store. In addition,
accused two is linked
by forensic evidence, namely the firearm found
in his possession at arrest was determined to have fired three
cartridges found
at that scene.
(b)    accused
one shot and killed Mr Mdlose at the second crime scene, the Mdlalose
homestead;
(c)     all
three accused broke and entered the home of Mr Kheswa, attempted to
murder him and did murder
his girlfriend, Ms Mzekandaba; and
(d)     when
arrested at the Sikhakhane homestead, accused two possessed an
unlicenced firearm and three
rounds of ammunition.
[122]   In
the circumstances:
(a)    Accused
one is acquitted on counts 10 and 11 for want of any evidence being
led on those two counts but
is convicted on:
(i)       count
one, being the murder of Thamsanqua Golden Shange;
(ii)      count
two, being the murder of Thabani Ernest Gumede;
(iii)     count
three, being the murder of Nobuhle Ntombikhona Zondi;
(iv)     count
four, being the attempted murder of Sanele Makhaye;
(v)     count
five, being the robbery with aggravating circumstances of Nobuhle
Ntombikhona Zondi;
(vi)    count
six, being the murder of Mziwakhe Michael Mdlalose;
(vii)   count
seven being the housebreaking with intent to commit robbery at the
home of Siphesihle Kheswa;
(viii)   count
eight, being the murder of Yolanda Azola Mzekandaba; and
(ix)     count
9, being the attempted murder of Siphesihle Kheswa.
(b)     Accused
two is convicted on:
(i)      count
one, being the murder of Thamsanqua Golden Shange;
(ii)     count
two, being the murder of Thabani Ernest Gumede;
(iii)    count
three, being the murder of Nobuhle Ntombikhona Zondi;
(iv)    count
four, being the attempted murder of Sanele Makhaye;
(v)     count
five, being the robbery with aggravating circumstances of Nobuhle
Ntombikhona Zondi;
(vi)    count
seven being the housebreaking with intent to commit robbery at the
home of Siphesihle Kheswa;
(vii)    count
eight, being the murder of Yolanda Azola Mzekandaba;
(viii)   count
9, being the attempted murder of Siphesihle Kheswa;
(ix)     count
twelve, being a contravention of
section 3
of the
Firearms Control
Act, 60 of 2000
being found in possession of a Norinco 9mm pistol
without holding a licence, permit or possessing any authorisation in
terms of
that Act to possess that firearm; and
(x)     count
thirteen, being a contravention of
section 90
of the
Firearms Control
Act, 60 of 2000
being found in possession of three rounds of 9 mm
ammunition without holding a licence for a firearm capable of
discharging that
ammunition or a permit to possess that ammunition or
any other licence or permit to possess that ammunition in terms of
the aforesaid
Act or any authorisation to possess that ammunition.
(c)     Accused
three is convicted on:
(i)      count
one, being the murder of Thamsanqua Golden Shange;
(ii)     count
two, being the murder of Thabani Ernest Gumede;
(iii)    count
three, being the murder of Nobuhle Ntombikhona Zondi;
(iv)    count
four, being the attempted murder of Sanele Makhaye;
(v)     count
five, being the robbery with aggravating circumstances of Nobuhle
Ntombikhona Zondi;
(vi)    count
seven being the housebreaking with intent to commit robbery at the
home of Siphesihle Kheswa;
(vii)   count
eight, being the murder of Yolanda Azola Mzekandaba;
(viii)   count
nine, being the attempted murder of Siphesihle Kheswa;
[1]
1999 (2) SACR 79
(W) at 80.
[2]
S
v Majiami en Andere
1999
1 SACR 204
(O)
at 209G-210B.
[3]
R
v Hlongwane
1959
3 SA 337
(A)
at 340 H
[4]
1959
(3) SA 337
(A) at 339C-D.
[5]
R
v Biya
1952
(4) SA 514 (A).
[6]
Ibid
at
521C-D.
[7]
2013
(1) SACR 517
(SCA) at para 15-16.
[8]
2010 (2) SACR 1
(SCA) at para 30.
[9]
Cele v S (AR383/18) [2020] ZAKZPHC 14 (14 May 2020) at para 20.
[10]
2003 (1) SA 11
(SCA).