S v Mpeyi and Others (CC20/2020) [2021] ZAECMHC 41 (16 November 2021)

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[2021] ZAECMHC 41
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S v Mpeyi and Others (CC20/2020) [2021] ZAECMHC 41 (16 November 2021)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE LOCAL
DIVISION: MTHATHA]
CASE NO. CC20/2020
In the matter between:
THE STATE
VS
MSIMELELO
MPEYI

Accused No.1
AZOLA
SHAI

Accused No.2
LINDIKHAYA
KRATSHI

Accused No.3
REANETSE
TSOSI

Accused No.4
NKOSISIVE
JIKA

Accused No.6
CINGICEBO
NGXAMA

Accused No.7
JUDGMENT
JOLWANA J
[1] The accused were
indicted in this Court on charges of kidnapping, robbery with
aggravating circumstances and murder. At the
beginning of the trial
the State withdrew all the charges against accused no.5 indicating
that she would be called as a State witness
in terms of section 204
of the Criminal Procedure Act 51 of 1977 (the CPA). The State
provided a summary of substantial facts of
the case.
[2] The State’s
summary of substantial facts reads as follows:
“
1.
On the 26 September 2019 accused 6 (Nkosivumile Zinto Jika) was in
company of the deceased. Deceased arrived at Achumile Mtibe’s

place with accused no.6 driving his Toyota Hilux 4X4. Accused no.6
called upon Achumile telling her that the deceased was interested
in
a love relationship with her. Then accused no.6 introduced Achumile
to the deceased.
2. Accused no.6 and the
deceased left Achumile saying they will come back later. Indeed
around 18h30 accused no.6 and deceased come
back to fetch Achumile.
Lindikhaya Kratshi [accused no.3] joined them after being invited by
accused no.6. They all left proceeding
to Moyikwa tarven and on the
way accused no.6 asked deceased how much he had in his bank account.
3. The four were later
joined by Azola Shai [accused no.2]. Msimelelo Mpeyi [accused no.1
and Cingicebo [accused no.7]. The accused
persons demanded deceased’s
bank cards and they assaulted the deceased with fits and open hands
to submit. Deceased was forcefully
removed from the driver’s
seat into the back seat and tied with his shoe lace.
4. Cingicebo took
deceased cell phone using force and after paging it, he told the
others that the deceased had an amount of R10 000.00
in his bank
account. Msimelelo Mpeyi drove the vehicle to town at FNB where
Cingicebo alighted and withdrew cash at the ATM using
deceased’s
bank card.
5. They drove to Mokhesi
location where deceased was stabbed with a knife, stoned and left to
die. Deceased’s motor vehicle
was dumped a few metres and they
left the scene on foot with deceased’s bank cards. Msimelelo
Mpeyi and Cingicebo Ngxame
transferred deceased’s money using
their cell phones into their Capitec Bank Accounts. A sum of
R10 500.00 was withdrawn
from deceased’s bank account.
6. The deceased died as a
result of head injuries following:
- blunt force trauma
- stab chest.”
[3] The accused pleaded
not guilty to all the charges and elected not to disclose the basis
of their defence save for accused no.6
and accused no.7 who gave a
plea explanation outlining their defence.
Accused no.6’s
plea explanation.
[4] Accused no.6’s
plea explanation was that on 26 September 2019 he met Sandile Ntloko
(the deceased) during the day and
they travelled together and drank
beer that whole day. They also picked up their co-accused and
travelled with them. He and the
deceased were very drunk as they had
been drinking alcohol almost the whole day. It was suggested that
somebody else must drive
the vehicle and accused no.1 was phoned and
was later picked up. The deceased gave accused no.6 some money to go
and buy bears.
At no stage did he force the deceased to give him
money or take his money out of his account at all. He did not
participate in
killing the deceased.
Accused no.7’s
plea explanation.
[5] On the date of the
incident he was at his father’s homestead at Kwa-Gcina location
where there was a traditional ceremony.
Between 20:00 and 21:00 in
the evening he decided to go home at Teresa location. He hitch-hiked
and after a while a vehicle stopped
for him and he boarded the
vehicle which was a double cab bakkie with a canopy. He boarded in
the load bin under the canopy. He
noticed that Achumile and all the
other accused as well as the deceased were in the vehicle, in the
front part of the vehicle.
The deceased was unknown to him. The
vehicle was at that stage, driven by accused no.3. Accused no.1 was
not present. The vehicle
drove off towards the direction of Macacuma.
When the vehicle reached Teresa bus stop he alighted from the
vehicle.
[6] After alighting from
the vehicle he saw accused no.1 who was his friend and neighbor going
to board the vehicle. He asked accused
no.1 if they were going to
drink alcohol and accused no.1 confirmed. Accused no.1 took over the
driving of the vehicle from accused
no.3. He jumped back into the
vehicle at the back thereof under the canopy again. The vehicle drove
towards town. As the vehicle
was moving accused no.6 opened a small
window and handed him a cellphone from inside the vehicle. Accused
no.6 requested him, to
check the balance of money using the said
cellphone. He checked and noticed an amount of R10 000.00
reflecting as the balance.
He did not know to whom the cellphone
belonged nor the money reflecting therein. Accused no.6 instructed
him to transfer R1000.00
into the bank account of accused no.1 and he
did so. The vehicle continued to drive towards town.
[7] He heard accused no.1
saying that he had forgotten his bank card at home and would
therefore not be able to access the R1000.00
which had been
transferred to his account. One of the accused asked him if he had
his own bank card with him and he responded affirmatively.
He was
then told to transfer money into his own bank account and he did so.
The vehicle continued driving towards town and stopped
near FNB in
Sterkspruit. He alighted and accused no.6 instructed him to withdraw
R600.00. He returned to the vehicle and handed
both the cellphone and
R500.00 to accused no.6. He noticed another vehicle nearby and the
people in that vehicle were pointing
firearms towards their vehicle.
Accused no.1 then sped off together with all other the accused,
Achumile and the deceased. The
vehicle drove into a gravel road
towards Mokhesi and suddenly stopped in a dark area. After the
vehicle stopped everybody opened
the doors, alighted and ran away.
He, however, could not open the door of the canopy from inside the
bakkie. Accused no.6 opened
for him and he then got out.
[8] He and accused no.6
ran in the same direction as the others. As he and accused no.6 were
running he could hear that there was
some struggling ahead of them
but he did not know what was going on. They reached the other accused
and found them assaulting the
deceased. Achumile was at a distance
from where the deceased was being assaulted. He and accused no.6
intervened trying to stop
the other accused from assaulting the
deceased. Their co-accused ignored them and continued assaulting the
deceased who was lying
on the ground. Accused no.3 said that the
deceased must be killed because he knew them and their places of
residence. Accused no.2
had a knife and he stabbed the deceased. As
all of that was happening he saw police vehicles which were
flickering their blue lights.
At that stage they all ran in different
directions except the deceased. He never met the other accused again
until they were all
arrested.
[9] On 27 September 2019
he was surprised to notice R1500.00 being transferred into his bank
account. He never withdrew the said
amount of money as he did not
know who deposited it or where it came from. After they were arrested
he enquired about the sum of
R1500.00 which had been deposited into
his account. Accused no.1 told him that he had deposited the sum of
R1500.00 into his account
as he still had the deceased cellphone. He
had intended to fetch the money at a later stage but never got a
chance to do so. Accused
no.1 further told him that he had also
transferred R1000.00 to his own bank account from the deceased
account. Accused no.7 concluded
his plea explanation by saying that
he had no intention of committing any crime and he did not commit any
crime. He never acted
in common purpose with anyone to commit any
crime.
The case for the
State.
[10] The first witness
for the State was Achumile Mtibe (Achumile), a witness called by the
State, in terms of section 204 of the
CPA and was warned accordingly.
Achumile testified that as at the date of giving evidence she was 20
years old but was 19 years
old when the offences was committed. She
knew all the accused as they all resided in the same locality as
herself. However, accused
no.3 was also a friend of hers and accused
no.1 was her boyfriend.
[11] During the afternoon
of the 26 September 2019 she was at accused no.3’s home with
accused no.3, his mother, Leti Vanga
and Zikhona Vanga. Accused no.6
arrived and told her that the deceased wanted to see her. She
initially refused to go and see the
deceased who was unknown to her
but accused no.6 came back again begging her to go and see the
deceased, even if to just listen
to what he wanted to say. Eventually
she went with accused no.6 to the deceased’s vehicle. The
deceased greeted her saying
hello Achumile. The vehicle was a double
cab bakkie which she described as dusty pink in colour. The deceased
invited her to come
into the vehicle which she did.
[12] The deceased asked
her if she knew him and she said she did not know him. The deceased
told her that he knew her as he once
saw her at Teresa school. The
deceased asked her if she consumed liquor and she respondent
affirmatively and indicated that she
preferred castle larger beer.
The deceased took out R200.00 and gave it to accused no.6 to go buy
castle larger beer. He then proposed
love to her and indicated that
he would like to take her out on a date. She indicated to the
deceased that she was cooking inside
and wanted to return to her
cooking. This was because she did not want to remain alone with the
deceased after accused no.6 had
left. The deceased then indicated
that he would call her when accused no.6 returned.
[13] At some point
accused no.6 came back with some beers. The deceased gave her one
beer and told her that he and accused no.6
were leaving for the
Moyikwa tavern and that they would return later. The deceased and
accused no.6 left thereafter. They came
back at about 18:30 in the
early evening. Accused no.6 came into the house and told her that the
deceased wanted to take her out
on a date.
[14] They eventually all
left being herself, the deceased, accused no.6 and were joined by
accused no.3. She sat in the front passenger
seat. The deceased was
driving. Accused no.3 and no.6 were seated in the back seat. When
they were near the Moyikwa homestead accused
no.6 asked the deceased
to stop the vehicle and asked him how much money he had. The deceased
indicated that he did not have any
cash with him. Accused no.6
enquired how much he had at the bank and the deceased said he had
R1000.00 at the bank. The vehicle
drove off. When they were somewhere
near the town the deceased indicated that his wallet was not with
him. Accused no.6 asked him
if there was no one who could meet them
halfway with the wallet. The deceased agreed and phoned somebody who
was on voicemail.
Accused no.6 suggested that another person should
be called. Indeed another person was called. The deceased asked this
person to
bring his wallet and meet them halfway.
[15] She indicated that
it was late and she wanted to go home. The vehicle turned driving
back to Kwa-Gcina taking her home. When
they were near the Moyikwa
homestead accused no.6 said that the vehicle should drive up into a
gravel road. It then stopped and
accused no.6 alighted and went away.
He returned with accused no.2 and accused no.4 and they all got into
the vehicle. Accused
no.6 borrowed the deceased’s cellphone
from him. Accused no.6 phoned accused no.1 and told him to wait for
them at the bus
stop so that they should go to town with him. The
vehicle was getting nearer to her home but she also wanted to meet
accused no.1.
She then changed her mind about going home. The vehicle
turned back driving towards town. Along the way accused no.7 was
hitch
hiking. The vehicle stopped for him and he indicated that he
would alight at a place called Nquthu.
[16] When the vehicle
reached Teresa bus stop where they found accused no.1 accused no.6
said that accused no.1 must drive. At that
stage accused no.7 had
alighted and the deceased was now seated at the back seat. Accused
no.7 enquired as to where the vehicle
was going. He was told that it
was going to town. He then decided to board the vehicle again and
join them. He again boarded in
the load bin under the canopy. She and
accused no.3 were in the front seat and accused no.1 was driving.
When the vehicle was near
Katberg accused no.7 got the deceased’s
phone but she was not sure who gave it him. Accused no.7 exclaimed at
how much money
reflected on that phone. Those accused persons who
were seated at the back seat wanted to know how much it was and
accused no.7
said it was R10 000.00. The accused who were seated
at the back seat requested a pin code for the phone but the deceased
would
not give it to them. The deceased was assaulted but she did not
know who assaulted the deceased. Accused no.2 was carrying a knife

and she noticed that the deceased was bleeding through the nose.
[17] Eventually the
deceased gave the accused the pin code. When the vehicle reached town
and near FNB accused no.7 alighted from
the vehicle and went to an
ATM where he withdrew R500.00. He thereafter returned and got into
the vehicle. Another vehicle, arrived
and one person alighted from it
and fired a gun shot. Accused no.1 then quickly drove off through
Mokhesi location until the vehicle
stopped on a certain gravel road.
One of the accused asked as to what should be done with the deceased.
Accused no.6 said that
he must be tied with a shoe lace. She agreed
with accused no.6 about the deceased being tied with a shoe lace.
Accused no.6, no.4
and no.2 alighted and took the deceased out of the
vehicle. Thereafter they used a language that is used in prison. The
deceased
then ran away. Accused no.1, 2, 3, 4 and 6 pursued the
deceased. She was at that stage left behind with accused no.7. She
heard
some continuous thumping sound after which she heard the
deceased snoring. Accused no.3 later came to her and held her by her
hand
saying they should run away. The thumping sound was not far from
where she and accused no.7 were standing.
[18] Visibility in the
area was not good as there were no lights and it was at night between
21:00 and 22:00. Accused no.1 and accused
no.6 took the deceased
vehicle driving it away from the area where the deceased was. Accused
no.7 ran to a different direction
with the money he had withdrawn in
town. She, accused no.2, 3 and 4 also ran away. They hid whenever
they saw vehicle lights. They
left accused no.1 and 6 behind. They
reached their locality which is Nquthu at about 04:00 in the morning.
Accused no.2 and 4 took
a different direction and she continued
walking with accused no.3. At some stage accused no.3 phoned accused
no.1 asking about
their whereabouts. His phone was on loud speaker so
she could hear the conversation. Accused no.1 said that they were in
town at
his friend’s place and that they were safe. She and
accused no.3 went to buy cigarettes from a local shop. When they
returned
they found accused no.1 and 6 at accused no.3’s
homestead. Accused no.1 and 6 suggested that they should go to town
but she
refused because she was tired. Accused no.1, 3 and 6 left
going to town. Accused no.3 returned alone without accused no.1 and
6.
When accused no.3 returned from town he brought her and Zikhona
Vans sneakers. Later on accused no.1 arrived at accused no.3’s

homestead. He enquired from her if the sneakers fitted her and if she
liked them and she responded affirmatively. She then requested

accused no.1 to give her R100.00 and he did so.
[19] Thereafter she and
Zikhona walked to Moyikwa’s tavern where they consumed some
liquor. They later came back home. On
Saturday she and Zikhona again
went to Moyikwa’s tavern. On this occasion they had no money.
While she and Zikhona were still
at that tavern she was approached by
accused no.2. Accused no.2 told her that he intended to stab accused
no.1 saying that accused
no.1 and his crew had robbed them by giving
them only R400.00 from the money that had been robbed from the
deceased. Achumile then
informed accused no.1 who was also at the
tavern about what accused no.2 was saying. Thereafter she saw accused
no.1 and accused
no.2 stabbing each other there at the tavern.
Thereafter accused no.2 was lying on the floor and accused no.4
commented that the
stabbing between accused no.1 and 2 was as a
result of spilling the blood of a human being. Their fight resulted
in the incident
in which the deceased died being publicly known.
Achumile concluded her evidence in chief by pointing out that when
they were at
Katberg the deceased asked that he should not be killed.
Accused no.6 responded that he was not going to be killed because all
they wanted from him was his money. When accused no.6 made those
utterances he was in a bad mood. She was asked by the prosecutor
what
prompted the deceased not to drive his vehicle. She testified that
she did not know but it was accused no.6 who told accused
no. 1 to
drive the vehicle of the deceased.
[20] Achumile was
cross-examined at length on behalf of accused no.1 and accused no.4.
She testified that she was arrested sometime
in October 2019 and was
released on bail on 9 December 2019. After her arrest she was
interviewed by the police. During that interview
she told the police
the truth about the events of the 26 and 27 September 2019 as they
related to the incident and she told the
police everything. She
confirmed that she had an interview with captain Dinga who took a
statement from her. However, captain Dinga
did not read the statement
back to her.
[21] She testified that
had she not been arrested she would not have told the police about
the incident. This was because the accused
had said on the day of the
incident that if anyone of them said anything about the incident that
person would have to stand for
it alone. One of the accused found the
deceased’s wallet in the vehicle. The wallet had his bank cards
and that is how they
got to be in possession if the deceased’s
bank cards after he had said his wallet was not with him. It was
accused no.7 who
told them that he had withdrawn R500.00.
[22] Achumile was
cross-examined on her warning statement which was taken from her by
captain Dinga. She confirmed that when she
made her warning statement
she told the police everything about the incident. It was pointed out
to her that during her evidence
in chief she had testified that
accused no.7 was given R200.00 by the deceased to go and by liquor
whereas in her warning statement
the figure was reflected as R300.00.
Achumile responded by saying that captain Dinga made a mistake in
reflecting the amount as
R300.00 instead of R200.00. The correct
figure was R200.00. She further testified that captain Dinga made a
mistake in reflecting
that accused no.6 had a knife as that was not
what she said to captain Dinga. She further pointed out that when she
made the statement
to captain Dinga she said that all the accused
chased the deceased. During her testimony she had said that it was
accused no.1,
2, 3, 4 and 6 who chased after the deceased. She
explained that when she made the statement she was afraid. She
testified that
she would have told captain Dinga about the events of
the 27 September 2019 as she told her everything. It was pointed out
to her
that in her warning statement there was nothing about what
happened on 27 September 2019 and that had she mentioned the events
of that day to captain Dinga she would have written it down as well.
[23] She testified that
when the vehicle stopped in the Mokhesi area where they ultimately
ran away a suggestion was made to tie
the deceased with shoe laces.
She explained that she agreed with the tying of the deceased. This
was because accused no.6 had said
that the deceased should not be
killed, he should just be tied so that if he ever laid charges
against them, they would be arrested
for taking his money only. She
insisted that accused no.1 also chased after the deceased and that
she saw them chasing after the
deceased. She denied implicating
accused no.1 because she had been offered indemnity by the State. She
confirmed that near FNB
shots were fired and accused no.1 sped off
running away from the people that were firing shots at them. She
however, disputed that
at Mokhesi accused no.1 stopped vehicle and
they immediately ran away.
[24] Achumile disputed
that after the vehicle stopped at the Mokhesi area accused no.4
immediately ran away. She insisted that accused
no.4 had made a
comment at the Moyikwa tavern that accused no.1 and 2 were stabbing
each other as a result of the spilling the
blood of a human being.
She disputed that the fight between accused no.1 and 2 related to a
misunderstanding between them at a
traditional ceremony the previous
weekend.
[25] Under further
cross-examination Achumile confirmed that she and accused no.3 were
friends. They are also maternal cousins.
It was confirmed on behalf
of accused no.3 that they are indeed cousins. Other aspects of her
evidence in chief were also confirmed
on behalf of accused no.3. She
also confirmed that she was the one who invited accused no.3 to join
her, accused no.6 and the deceased
as there was going to be drinking
liquor. She testified that the deceased was taking her out to town
that evening. When they left
accused no.3’s home it was
herself, accused no.3 and accused no.6 and all three of them boarded
the deceased’s vehicle
and went with him and the deceased was
driving the vehicle at that time.
[26] The vehicle was
driven towards town but on the way to town the vehicle turned back
when the deceased indicated that his wallet
was not with him. The
mood in the vehicle was still good. When the conversation about the
deceased’s wallet started accused
no.2 and 4 had not yet joined
them. The vehicle stopped near Moyikwa’s tavern. Accused no.6
got out of the vehicle and went
away. When he returned he was with
accused no.2 and 4 who also joined the rest of the group in the
deceased’s vehicle. The
mood in the vehicle was still good even
though there was no conversation in the vehicle. Accused no.2 and 4
got into the back seat
of the vehicle joining accused no.6. The
deceased was still driving at that point.
[27] After accused no.2
and 4 had joined them in the vehicle and the vehicle was in motion
accused no.6 borrowed a phone from the
deceased who then gave him his
phone. The mood in the vehicle was still good even at this stage and
the deceased was driving the
vehicle. When accused no.1 joined them
in the vehicle she told accused no.1 that she was being taken out by
the deceased. Accused
no.1 was her boyfriend and he did not show any
sign of unhappiness about her being taken out.
[28] Accused no.1 had
taken over driving the vehicle and the deceased was seated at the
back seat. Accused no.7 had also joined
in the vehicle. The mood in
the vehicle changed and became bad after accused no.7 informed the
other accused that the deceased
had R10 000.00 appearing in his
cellphone and the discovery of the deceased’s wallet in the
vehicle. The deceased was assaulted
by one of the accused sitting at
the back seat but she did not notice which one of the accused
assaulted the deceased. It was dim
in the vehicle as there was no
source of light. Accused no.2 had a knife which she saw while the
deceased was being assaulted.
The knife was in his hands but he was
not using it. It was a folding knife. As she was sitting in the front
passenger seat, she
had looked back and this is when she saw accused
no.2 carrying a knife. At that time accused no.1 was driving. She was
sitting
in the front passenger seat with accused no.3 sharing the
front seat. Accused no.2, 4 and 6 were at the back seat with the
deceased
and accused no.7 was in the load bin under the canopy. When
she had turned and looked back she saw blood coming out of the
deceased
and accused no.2 holding a knife.
[29] The vehicle drove
towards town and stopped near FNB. Accused no.7 got out of the
vehicle and went to withdraw money from the
bank. As accused no.7 was
coming back from the bank a car stopped at a distance from their car
and the occupants of that car opened
fire. Accused no.7 got into the
deceased vehicle and the vehicle drove towards Mokhesi where it
eventually stopped. She confirmed
that accused no.2, 4 and 6 got out
of the vehicle and took the deceased out of the vehicle. They spoke
what she described as prison
language. The deceased ran away and they
gave chase. She heard a thumping sound and thereafter she heard the
deceased snoring from
a distance. As the vehicle was driving away
from FNB she was under the impression that the vehicle whose
occupants had fired shots
was chasing after them. She would not
dispute that all of them including the deceased were under the same
impression and they feared
for their lives.
[30] She however,
maintained her evidence that when the vehicle stopped at Mokhesi
accused no.2, 3, 4 and 6 took the deceased out
of the vehicle. She
thought that the person who fired shots near FNB was known to the
deceased. She disputed that when the deceased’s
vehicle reached
the dead end at Mokhesi where it stopped, accused no.2 and 3
immediately ran away. She explained that accused no.3
only grabbed
her hand and said they should run after returning from chasing the
deceased. She disputed accused no.2 and 3’s
version that they
did not assault the deceased and that accused no.2 never had a knife
on that day. She further disputed that the
fight between accused no.1
and 2 was not related to the incident. She testified that she could
not dispute that accused no.3 bought
takkies for Zikhona which he had
planned to buy and could do so because he was working. She confirmed
that accused no.3 was working.
It was also put to her that accused
no.3 was able to drive a vehicle. After he boarded the vehicle of the
deceased the deceased
had indicated that he had been consuming liquor
the whole day and wanted somebody else to take over driving. At that
stage accused
no.3 drove the vehicle of the deceased. Achumile
disputed this version of accused no.3 having driven the deceased’s
vehicle.
[31] The next witness was
Mr Tembinkosi Mangciphu (Mr Mangciphu). His evidence was that the
deceased was his cousin and they grew
up together. He did not know
any of the accused. On 26 September 2019 he was asleep at his home
when he received a call on his
cellphone from the deceased about
23:00. In that call the deceased told him to phone Whitey who is the
brother of the deceased
so that they both could fetch his Capitec
Bank ATM card. The deceased said that the said card was at the
deceased’s business
called Shukushukuma which is a liquor
outlet. He told him that when they bring the card they should come
with Sithembiso and Olwethu.
He testified that Sithembiso and Olwethu
were local police officers who resided at Macacuma locality. They
were not friends of
the deceased and were not related to deceased.
When he enquired why they should come with Sithembiso and Olwethu the
deceased hung
up. He suspected that the deceased might be in some
kind of trouble because he did not understand why they needed to
bring Sithembiso
and Olwethu along. Furthermore, the deceased was
speaking in a rush. The deceased phoned him again and told him that
they should
come quickly. He asked the deceased where he was and the
deceased said he was at Cobweb. After he said he was at Cobweb, he
heard
a voice saying “
we told you not to mention where you
are
”. Thereafter the deceased hung up.
[32] Mr Mangciphu
testified that he then phoned Whitey whom he described as Mr
Mhlabunzima Ntloko. He told Whitey about what the
deceased said to
him. Whitey told him that he had also been phoned by the deceased
earlier that night but he did not answer the
phone. He and Whitey
drove to town in two separate vehicles. He was driving behind Whitey
and they spotted the deceased’s
vehicle parked near FNB in
Sterkspruit town. Whitey stopped in front of the deceased’s
vehicle and he stopped across the
road. Whitey tried to block the
deceased’s vehicle but it sped off. He went back to his vehicle
to chase after the deceased’s
vehicle which drove through
Mokhesi locality. As he followed the deceased vehicle he realized
that Whitey was no longer driving
behind him and that the deceased’s
vehicle was driving through a very dark area. He became afraid and
decided to no longer
pursue it. He phoned Whitey and told him that
the deceased’s bakkie was driving through Mokhesi location. He
had noticed
that the deceased’s vehicle had many passengers in
the front seat such that one passenger was sitting on top of another
passenger.
[33] He and Whitey
proceeded to the police station where they reported the incident. One
police vehicle and himself went to the
Mokhesi area while another
police vehicle and Whitey went to the Mlamli Hospital direction where
the police said the deceased’s
vehicle might exit. The police
who were with him received a call from the other police officers who
had taken the Mlamli Hospital
direction saying that the deceased
vehicle had switched off its lights at or near a grave yard in the
Mokhesi area. He and the
police proceeded to where the vehicle was
spotted. They found the deceased’s vehicle with no occupants.
They searched the
area looking for people but they did not find
anyone. The police vehicle blue lights were also assisting in
providing light.
[34] He eventually found
the deceased at about 06:00 in the morning. He observed that the
deceased was severely injured on his face.
He observed that near the
deceased’s body there were stones with blood stains, the
deceased’s teeth were scattered
on the ground and his month was
wide open. The deceased body had a lot of blood and it seemed to him
that the deceased had been
assaulted with stones. The deceased was
unrecognizable and his hands were tied to the back with shoe laces.
Mr Mangciphu was not
cross-examined on his evidence. The evidence of
Mr Ntloko also known as Whitey largely corroborated that of Mr
Mangciphu in most
material respects. Therefore no purpose will be
served by repeating it.
[35] The next witness for
the State was warrant officer Tsoaeli who was a member of the SAPS
and working at the Aliwal North Local
Criminal Record Center. He
attended the murder crime scene at Mokhesi in the morning of the 27
September 2019 where he took photographs
and also made a video
recording of the crime scene. He confirmed that the deceased’s
hands were tied to the back. The deceased’s
vehicle was 171
metres away from the deceased body. He was not really cross-examined
and his evidence was not disputed.
[36] Admissions in terms
of section 220 of the CPA were entered into the record about issues
that were not disputed. They all related
to the deceased being the
person referred to in the indictment, the date and place of death as
well as the cause of death being
blunt force trauma injuries to the
head and chest stab wounds. The details regarding some of these
admissions is contained in the
post mortem report compiled by Dr
Jwaqa. The photo album compiled by constable Tsoaeli depicting the
crime scene, the key thereto
as well as the contents thereof were
also admitted.
Documentary evidence
in terms of section 236.
[37] The evidence of the
State also included bank statements of the deceased, accused no.1 and
accused no.7 from the 26 September
2019 to the 10 October 2019. This
documentary evidence was admitted into the record in terms of section
236 of the CPA. It is common
cause that the deceased had a bank
account with Capitec Bank Limited being account number [....]. The
bank card related to that
account number is reflected in the
statement as ending with the numbers 5069. The relevant transactions
as reflected in the deceased’s
bank statement for the period 26
September 2019 to the 30 September 2019 are the following:
·
On 26 September 2019 a mobile payment of
R1000.00 was made into account number [....] which it was common
cause that it is accused
no.1’s bank account. Before that
transaction the deceased’s bank account had a credit balance of
R11 449.16. The
account number to which the payment of R1000.00
was made is accused no.1’s, account number with Capitec Bank
Limited. Its
card number ends with numbers 2456. There is a
corresponding credit amount of R1000.00 credited into accused no.1’s
bank
account before which it appears that he only had a credit
balance of R16.60 on 26 September 2019. On 27 September 2019 accused
number 1’s bank account received a further R1000.00 from the
deceased bank account number.
·
On 26 September 2019 another mobile
payment from the deceased bank account was made into account number
[....] in the sum of R2000.00.
This is accused no.7’s Capitec
Bank account number. Accused no.7’s bank statement also
reflects a credit transfer of
R2000.00 from the deceased’s
account number. It appears that he made a cash withdrawal of R600.00
using a card ending with
numbers 8110 which is linked to his above
mentioned account number.
·
There is only one cash withdrawal from the
deceased’s account number in the sum of R5000.00 on 27
September 2019. The said
cash withdrawal was made using the
deceased’s bank card linked to his account number as reflected
above.
·
There were also various card
purchases made from the deceased’s account number ranging from
R50.00 to R260.00. The purchase
of R260.00 was made at Zaba Motors in
Sterkspruit on 26 September 2019 using the deceased’s bank
card. After all these transactions
and small bank charges the
deceased’s account was almost depleted with a balance of
R538.95 from R11449.56 which was his
credit balance before these
transactions.
[38] It appears from
accused no.1’s bank statement that soon after his account was
credited with the two amounts of R1000.00
each on 26 and 27 September
2019 referred to above he wasted no time in spending it. His Capitec
Bank account reflects the following
debit transactions:
·
On 27 September 2019 payment of R990 was
made to account no.[....].
·
On 27 September 2019 a payment of R650.00
was made to account number [....].
·
On 27 September 2019 a payment of R150.00
was made to account number [....].
·
On 30 September 2019 a cash withdrawal of
R190 was made from his account. All these transactions basically
depleted the two amounts
of R1000.00 each which had been received
from the bank account of the deceased.
[39] It appears from the
bank statement of accused no.7 that from the total amount of R3500.00
made up of two separate transactions
of R2000.00 and R1500.00
referred to above the following debit transactions were made:
·
On 27 September 2019 a cash withdrawal of
R600.00 entry appears from his Capitec Bank account. This is
obviously the withdrawal
which he said he made at FNB on 26 September
2019 before the shots were fired at their vehicle.
·
On 28 September 2019 a cash withdrawal of
R1000.00 was made.
·
On 06 October 2019 a purchase for R320.59
was made at Sterksppruit Liquor Shop which included a cash back of
R150.00.
·
A small transaction of R40.00 was also made
at Sterkspruit Liquor Shop on 06 October 2019.
[40] After all these
transactions were made accused no.7’s, bank account was still
left with a healthy balance R1441.98 after
bank charges were
deducted. There does not appear to have been any other transactions
made on his account. A simple mathematical
calculation of all these
transactions add up to the amount that was in the deceased’s
account before the first of these transactions
was effected. No
further witnesses were called by the State.
The case for the
defence.
Accused no.1.
[41] The defence opened
its case with accused no.1 giving his evidence. He testified that he
was 25 years old and passed grade 12.
He knows Achumile, the first
witness for the State who was also a section 204 witness. Achumile
was his girlfriend. He confirmed
Achumile’s evidence that he
was phoned by accused no.6. After receiving that phone call he left
his home and proceeded to
the bus stop. While still on the way to the
Teresa bus stop he saw a vehicle standing there at the bus stop.
Accused no.7 alighted
from the said vehicle. Accused no.7 asked him
where he was going and he told him that he had been called by accused
no.6 asking
him to drive them to town. Accused no.6 was in the same
vehicle from which accused no.7 had alighted. The time was between
21:00
and 22:00. Accused no.6 had told him that they were going to a
tavern or club called Impolo to drink liquor.
[42] He boarded the said
vehicle and took over the driving of the said vehicle. The people in
that vehicle were accused no.s 2,
3, 4, 6, 7, Achumile and the
deceased who was unknown to him. He drove to town and when they
arrived in town in Sterkspruit it
was said that he must stop at FNB.
Accused no.7 alighted from the vehicle and proceeded to FNB. After
accused no.7 had returned
from FNB and boarded the vehicle he
switched on the ignition. As he was doing that another white vehicle
stopped in front of their
vehicle. Two people alighted from the said
vehicle carrying firearms. Two shots were fired by those people. He
then sped off towards
Mokhesi area. He drove into Mokhesi trying to
avoid that vehicle from which shots were fired. They reached a dead
end at Mokhesi.
Everyone from the vehicle alighted and immediately
ran away in different directions. At some point he came across
accused no.6.
They walked together to town.
[43] He and accused no.6
went to TO’s place in Zwelitsha where they spent about an hour
not knowing where to go being shocked
and afraid. Accused no.6 said
that they should go to New Rest where he had a relative. He decided
to remain at TO’s place
while accused no.6 left for New Rest.
They were to meet again in the morning. They met in the morning and
got a hike. He alighted
at Teresa while accused no.6 proceeded to
Ndingishe locality. He later met accused no.6 in town and accused
no.3 phoned him asking
about their whereabouts and telling him that
they were already home.
[44] With regards to
Achumile’s evidence that at Mokhesi where they had reached a
dead end they alighted and took the deceased
out of the vehicle, he
said that he did not see that happening. He also denied Achumile’s
evidence that the deceased ran
away after prison language was spoken
and that he, accused no.s 2, 3, 4 and 6 chased him. He testified that
the deceased was never
pursued adding that there was no time for
that. He confirmed Achumile’s evidence that on the following
day on 27 September
2019 she met him and asked for R100.00 which he
gave to her. On Achumile’s evidence that on the following
Saturday she met
accused no.2 at a tavern and accused no.2 told her
that he was going to stab him, he testified that his fight with
accused no.2
happened during the weekend following the Mokhesi
incident weekend. He confirmed that he and accused no.2 did stab each
other.
About the reason given by accused no.2 for wanting to stab him
which, according to Achumile, was that accused no.2 felt that they

had been short changed by accused no.1 and his crew by giving them
only R400.00 from the deceased’s money, accused no.1 testified

that the stabbing between himself and accused no.2 was not related to
the incident of the 26 September 2019. It was just a misunderstanding

between the two of them which had happened on the Friday before the
Saturday on which the stabbing occurred.
[45] He confirmed that
the bank statement reflecting his details was his bank statement. He
testified that the R1000.00 deposited
into his bank account was
transferred into his account by accused no.7 when they were near FNB
on 26 September 2019. The second
amount of R1000.00 credited to his
bank account on 27 September 2019 came from the same account number
as the previous amount.
When he saw the second amount on 27 September
2019 he assumed that it was also deposited by accused no.7. He denied
accused no.7’s
plea explanation that the amount of R1500.00
transferred into his account was transferred by him and that he had
told accused no.7
that he had transferred that amount to him
intending to get it back at a later stage because the deceased’s
phone was still
with him. He testified that it was not true that he
advised accused no.7 that he had also transferred R1000.00 to his own
bank
account. He testified that he never touched the deceased’s
phone and that he never met accused no.7 on 27 September 2019 and

that he last saw accused no.7 on 26 September 2019 until they met
again after they were arrested.
[46] Under
cross-examination by the attorney for accused no.7 accused no.1
testified that accused no.3, 6 and 7 were his friends.
He just knew
the other accused but they were not his close friends. The deceased
was unknown to him and that he saw him for the
first time that day.
When they reached the dead end at Mokhesi he did not know what
happened to the deceased as they all ran to
different directions. He
disputed Achumile’s evidence that at some stage after they had
alighted from the vehicle at the
dead end at Mokhesi he had moved the
deceased’s vehicle. He testified that when they reached the
dead end there was no chance
to move the vehicle because they were
being pursued by the vehicle they saw near FNB. When they saw that
vehicle they decided to
run away. He testified that the thumping
sounds that Achumile said she heard were as a result of them falling
because that place
is a rocky place. He confirmed accused no.7’s
version that the first amount of R1000.00 was transferred to his
account so
that it could be used for the liquor drinking that they
intended to do. However, because it transpired that his bank card was
not
with him R2000.00 was transferred from the deceased’s
account to accused no.7’s account for drinking liquor. Accused

no.1 testified that he spent the sum of R1000.00 which was deposited
to him with accused no.3, accused no.6 and Achumile. When
the first
R1000.00 was transferred to his bank account he understood that it
was transferred from the bank account of the deceased.
[47] Under further
cross-examination on behalf of the State accused no.1 testified that
when he arrived at the bus stop the driver’s
seat was empty and
therefore he did not know who was driving the vehicle before he got
there. He was asked by accused no.6 to drive
the vehicle. Achumile
and accused no.3 were in the front passenger seat and accused no.7
was in the load bin under the canopy of
the vehicle. He also noticed
that accused no.2, 4, 6 and the deceased were in the vehicle. He
drove the vehicle towards town. He
did not see the deceased being
assaulted while he was in the vehicle. He did not see accused no.7
being given the cellphone of
the deceased. He could not dispute that
the phone used to phone him was the deceased’s cellphone as
that number was not on
his contact list and he did not know the
deceased’s number. He could not dispute that accused no.7 was
given the deceased’s
cellphone in which he saw that the
deceased had R10 000.00 in his bank account. He did not dispute
that after it became known
in the vehicle that the deceased had
R10 000.00 in his bank account he was assaulted to force him to
give out his pin code
but he did not know that and did not see it.
The music was playing in the vehicle but the volume was low.
[48] He confirmed that
before they reached town R1000.00 was transferred from the deceased’s
account to his account using
the deceased’s cellphone by
accused no.7. He also confirmed that before the transfer took place
accused no.7 got his banking
details or his capital bank link from
him. He used it to transfer the deceased’s money to him which
was going to be spent
at Impolo tavern. Accused no.7 asked for his
Capitec Bank link. At the time accused no.7 was at the load bin. It
was when they
had stopped near FNB that he realized that his bank
card was not with him. When at some stage while they were still near
FNB the
vehicles with the people who were carrying firearms arrived
and fired shots at them he quickly drove away running away to save
their lives. He did not have a chance to turn and go to the police
station. He testified that if indeed the deceased was assaulted
to
force him to surrender or give out his pin code that would be robbery
but he did not see it. He did not hear the deceased giving
out his
pin code.
[49] When the vehicle
reached the dead end at Mokhesi he stopped the vehicle and they
alighted and ran away immediately. When they
alighted he did not
notice where Achumile was or where she ran to. He did not know
whether the deceased was taken out of the vehicle
or whether he got
out on his own because he got out of the vehicle and immediately ran
away. He testified that there was no reason
for the deceased to be
killed from his observation. He did not hear accused no.6 saying that
the deceased should not be killed.
He ran away and in fact he was at
the front as they were running away while others were slightly behind
him. He testified that
with regards to accused no.7’s plea
explanation that it was accused no.3 who said that the deceased
should be killed because
he knew them and their homesteads, he was
not sure that the deceased knew his home as he had never been to his
home. He also did
not know about accused no.6’s suggestion,
according to the evidence of Achumile, that the deceased should be
tied as he did
not see any reason for him to be even tied.
[50] He could not
remember to whom he transferred R990 from the money that was
transferred to him from the deceased’s account
but confirmed
that it was the deceased’s money. He also confirmed that he
transferred R650.00 to account number [....]. He
also confirmed
making a cash withdrawal of R190.00 at an ATM in Sterkspruit and that
he spent the deceased’s money on liquor.
He denied accused
no.7’s version that when they met in prison after they were all
arrested he told him that he had transferred
the sum of R1500.00 to
accused n.7’s account with the intention of collecting it at a
later stage. He confirmed spending
the deceased’s money but
denied participating in killing the deceased. He testified that he
contributed R350.00 to the buying
of takkies for Achumile by accused
no.3 and that it was also part of the deceased’s money. He also
testified that at the
dead end in Mokhesi he was the one who switched
off the ignition and the lights of the deceased’s vehicle. He
further testified
that he did not withdraw R5000.00 from the
deceased’s bank account and that he was never in possession of
the deceased’s
bank card.
The case for accused
no.2.
[51] The evidence of
accused no.2 was that on 26 September 2019 he was at his home with
accused no.4 in the evening at about 18:00.
He was asleep when he
heard a knock on the door and on opening the door it turned out that
it was accused no.6 who was knocking.
Accused no.6 asked him about
the whereabouts of accused no.4 and he told him that accused no.4 was
in the room sleeping. He already
knew accused no.6 from the locality
but they were not friends. Accused no.6 was friends with accused
no.4. Accused no.4 got up
and attended to accused no.6. Accused no.6
asked him if he did not want to drink liquor and he indicated that he
was interested
in consuming alcohol. Accused no.6 did not say where
the drinking he was inviting them to was going to take place. They
all went
together to a vehicle which was standing some distance from
his home, about 17 minutes’ walk away. They all boarded the
vehicle
at the back seat. He boarded on the right hand side behind
the driver. Accused no.3, Achumile and the deceased were in the
vehicle
and he already knew Achumile and accused no.3 from the
locality. The deceased was sitting in the middle between the driver’s

seat and the front passenger seat. Achumile was seated in the front
passenger seat and accused no.3 was occupying the driver’s

seat. At the back seat it was himself, accused no.4 and accused no.6.
[52] Thereafter the
vehicle drove away and proceeded to Moyikwa’s tavern. Accused
no.3 was driving at the time. At Moyikwa’s
tavern he and
accused no.6 alighted and proceeded to buy beers. Accused no.6 gave
him four beers and told him to take them to the
vehicle and he was
carrying two bears. They drank the beers in the vehicle and they left
and on the road they saw a person who
was hitch-hiking. Accused no.6
said he knew the person and the vehicle stopped for him. That person
was accused no.7 who boarded
and the vehicle continued towards town.
They picked up accused no.1 on the way. Accused no.1 had been phoned
to come as well by
accused no.6. When the vehicle stopped for accused
no.1 the deceased came to seat at the bank seat on his own volition
between
accused no.6 and accused no.4 as Achumile did not want to
seat at the back seat. Accused no.3 shifted from the driver’s
sit
to seat in the middle and accused no.1 took over driving the
vehicle. The deceased did not get out of the vehicle, he merely
jumped
from the middle at the front to the back seat.
[53] Accused no.6 told
accused no.1 to drive the vehicle because the deceased was drunk. The
vehicle proceeded to town and stopped
near FNB. Accused no.7 alighted
to go and withdraw some money. He came back with R500.00 which he
gave to accused no.6. Then a
white vehicle approached and two men
alighted from it and a single shot was fired followed by another shot
to their vehicle as
it was driving away. They drove towards Mokhesi
until the vehicle reached a dead end. At the dead end the vehicle
stopped and they
immediately alighted and ran away. Accused no.1 fell
and he ran past him. He came across Achumile, accused no.3 and
accused no.4
and they walked together going towards Kwa-Gcina
location. Accused no.3 and Achumile walked together taking a
different direction
while he together with accused no.4 went to their
home to sleep. He and accused no.4 are cousins and they stayed
together.
[54] They got home at
about 7:00 in the morning on the 27 September 2019 since leaving home
at about 21:00 on 26 September 2019.
Throughout he was never at any
stage in possession of a knife. He disputed the evidence of Achumile
and the plea explanation of
accused no.7 that he had a knife at any
stage on 26 September 2019. He disputed that he stabbed the deceased.
He said that upon
alighting from the vehicle at Mokhesi they all ran
away because they were scared. He disputed Achumile’s evidence
that when
the vehicle stopped there at the dead end in Mokhesi he
participated in forcefully taking the deceased out of the vehicle, in
chasing
him when he tried to run and in assaulting the deceased. He
never heard any jail language being spoken. He never fought with
accused
no.1 about money. His fight with accused no.1 had nothing to
do with what had happened on 26 September 2019. They had quarreled

the previous weekend. He never met Achumile after the 26 September
2019. He had run away at the Mokhesi area at the dead end because
the
vehicle from which shots were fired in town was following them and
chasing after them.
[55] On cross-examination
by the prosecutor, accused no.2 testified that he did not hear the
pin code of the deceased being demanded.
He disputed Achumile’s
evidence that the deceased was assaulted at the back seat where he
was seated. He further denied that
he was carrying a knife. He
testified that never saw accused no.7 being given the deceased’s
phone to check the balance in
the deceased’s bank account. He
disputed taking the deceased out of the vehicle at the dead end in
Mokhesi. He alighted there
and immediately ran away and did not
participate in chasing the deceased. He disputed accused no.7’s
plea explanation that
he stabbed the deceased. He testified that when
he ran away he left the deceased in the vehicle and never
participated by stabbing
the deceased on the chest or killing him in
any way. As far as his quarrel with accused no.1 was concerned it was
just a misunderstanding
between them on a previous Saturday. He
confirmed that the fight between them took place on Saturday the 28
September 2019 at Moyikwa’s
tavern. He denied meeting Achumile
there or speaking to her about intending to stab accused no.1 over
R400.00 that he gave him
from the money that was robbed from the
deceased. He however, confirmed that he was stabbed by accused no.1.
He confirmed that
after accused no.7 withdrew R500.00 from the bank
at FNB he gave it to accused no.6.
The case for accused
no.3.
[56] Accused no.3
testified that he resided at Ndingishe locality which is part of
Kwa-Gcina Administrative Area. He was born in
1988 on 25 December. He
went to school as far as grade 9 or standard 7. He testified that
Achumile who was a State witness is his
cousin. When he arrived at
his home on 26 September 2019 although he did not remember what the
time was he saw a vehicle whose
owner he did not know parked near his
home. As he walked past the said vehicle he saw a person he did not
know, the deceased in
that vehicle with Achumile. At the time
Achumile stayed at his home as she would sometimes stay at her home
and sometimes stay
at his home. He entered the premises at his home
and saw accused no.6 drinking beer. Achumile alighted from the
vehicle and came
to towards him and accused no.6. He then proceeded
into the house and as he was getting into the house accused no.6 said
that they
would talk again and went to that vehicle.
[57] Achumile said that
they were going to a place called Impolo in town. He knew that they
would be going there for fun and drinks.
At that time Achumile was
cooking. The vehicle came back and accused no.6 alighted from the
vehicle. He enquired from accused no.6
about the vehicle and accused
no.6 said he did not know the driver of that vehicle but the driver
had said to him that he wanted
to see Achumile and that he was sent
by that man to buy some beers. He was invited by Achumile to come
with her and he and accused
no.6 boarded at the back seat while
Achumile sat in the front passenger seat. The vehicle was a double
cab bakkie. The owner of
the vehicle drove off. While they were still
on the way accused no.6 indicated that he wanted to go to accused
no.4’s home
to see his girlfriend. Indeed the vehicle went to
accused no.4’s home but accused no.6’s girlfriend was not
there.
They continued driving and stopped at a certain tavern. After
that accused no.6 went back to accused no.4’s home on foot.

Accused no.6 went in and returned with accused no.4 and accused no.2.
The deceased said he was tired as they had been driving around
the
whole day and they had been drinking. He then said he could drive but
he did not have a driver’s licence and the deceased
allowed him
to drive. The deceased shifted towards the middle leaving the
driver’s seat so that he could drive. Achumile
took the
passenger seat. During this conversation accused no.6, 2, 3 and 4
were standing next to the vehicle. Accused no.6 invited
accused no.2
and 4 into the vehicle. At some point accused no.2 and no.6 alighted
from the vehicle and went to the tavern. On their
return they were
carrying some beers.
[58] Accused no.6
commented about the fact that accused no.3 was driving and said that
there was another young man who has driver’s
licence. He took
his cellphone to call that young man. It turned out that he did not
have airtime. He borrowed the deceased’s
phone from the
deceased and phoned that young man who it later turned out was
accused no.1. As accused no.6 was phoning accused
no.1 there was
another person who was hitchhiking at the tarred road as they were
joining it. He enquired from the deceased if
he should give him a
lift. The deceased asked if Achumile knew the person who was
hitchhiking. He himself said he knew that person.
Accused no.6 looked
through the window and said he also knew the person. He then stopped
the vehicle. That person who was hitchhiking
was accused no.7.
Accused no.7 said he was going to his home at Nquthu and would alight
at Teresa bus stop. Accused no.7 boarded
the vehicle at the load bin.
He then drove off until they reached Teresa bus stop for accused no.7
to alight. As accused no.7 alighted,
accused no.1 emerged there at
Teresa bus stop. He then indicated to the deceased that accused no.1
was the person accused no.6
had said has a driver’s licence.
[59] The deceased moved
to the back seat and sat next to accused no.6 without getting out of
the vehicle. He then moved from the
driver’s seat to where the
deceased had been sitting and accused no.1 took over driving the
vehicle. Accused no. 7 who had
alighted went back into the vehicle
and boarded at the load bin where he had been sitting after learning
that they were heading
for Impolo. The passengers at the back seat
were chatting and they at the front seat were also chatting but he
heard accused no.6
asking for accused no.1’s banking details.
Accused no.1 gave out his banking details. Accused no.1 later said he
had realized
that he left his bank card at home. The deceased then
said that that should not be a problem as they could first go to his
home
in Macacuma. But before they could go to Macacuma where the
deceased stayed, somebody in the vehicle said that accused no.7 had

his bank card with him. They then continued driving to town and
stopped near FNB. Accused no.7 alighted at FNB and went to the
bank.
[60] Shortly after
accused no.7 returned from FNB another vehicle stopped next to their
vehicle. Two men alighted from that vehicle.
One of the men was
wearing a gown and they were carrying firearms. Those men fired shots
at them as accused no.7 was boarding the
vehicle. Accused no.1 sped
off and another shot was fired. There was silence in the vehicle
until the vehicle reached a dead end
at Mokhesi where it stopped.
Accused no.1 immediately got out of the vehicle and he also got out
of the vehicle from the driver’s
side. After getting out of the
vehicle he went to Achumile and held her by her hand saying they
should leave. They left there on
foot and at some point accused no.2
and 4 emerged. They walked until they reached Kwa-Gcina location and
parted ways at Ndingishe
locality. He and Achumile proceeded to their
home while accused no.2 and 4 proceeded to their own home. When he
got home he phoned
accused no.1 and asked him where he was. As he was
phoning accused no.1 his phone was on loud speaker. Accused no.1 said
he was
in town with accused no.6 and that they were safe and were in
a taxi going home.
[61] Accused no.6 arrived
at his home with accused no.1. They had a conversation about the
previous day. He said to them that he
wanted to go to town to check
for his identification card and also wanted to buy shoes for a
certain child. At some point he, accused
no.6 and accused no.1 went
to town. They parted ways at the taxi rank because he needed to start
at Home Affairs for his identification
card. Accused no.1 and 6 said
they would go to a bottle store. After he had finished at Home
Affairs he phoned them. They met near
Boxer supermarket and walked
together. He and accused no.1 went to a shop and he bought Vans shoes
for the child. Accused no.1
indicated that he also wanted to buy
shoes for Achumile but only had R350.00. He took the R350.00 from
accused no.1 and paid for
two pairs of Vans shoes on the basis that
accused no.1 would refund him the difference as the shoes cost about
R600.00. They thereafter
took a taxi going home. He went home and
gave Achumile her pair of shoes which had been bought for her by
accused no.1 and he gave
the second pair to Zikhona, the child.
[62] Accused no.3
disputed accused no.7’s plea explanation that he said the
deceased must be killed because he knew them and
their places of
residence. He also denied assaulting the deceased with stones. He
also disputed Achumile’s evidence that
he was one of those who
spoke language used in prison or chasing the deceased. He testified
that he never heard the thumping sound
that Achumile mentioned. All
he heard was that somebody said that they should run away. He also
heard the deceased saying he was
not going to run away and leave his
vehicle there. He said that there was no chance for chasing anyone as
they were all running
for their lives. They were running because they
were scared as he could see the lights of the vehicle they were
running away from.
They did not want that vehicle to find them. He
had also looked for his cousin Achumile which was why when he found
her he grabbed
her by her hand and said they should run.
[63] His evidence under
cross-examination was that he did not hear the conversation about the
deceased’s money or bank card
or that somebody could be called
to bring the deceased’s bank card. He testified that he did not
dispute Achumile’s
evidence that somebody was phoned to bring
deceased’s bank cards or that indeed Whitey and Mr Manciphu
were phoned, he just
did not hear any of that. He accepted that
Whitey and Mr Manciphu went to town because they were phoned. He
testified that he was
seated at the back seat with accused no.6 but
did not hear the phone calls or the conversation by accused no.6
about bank cards.
He would not dispute that the deceased’s bank
pin was demanded by the people at the back because at that time he
was sitting
at the front with Achumile. He did not see the deceased
being assaulted or bleeding from his nose or accused no.2 carrying a
knife.
He heard somebody asking accused no.1 for his banking details
or cellphone banking details.
[64] He testified that
when they were near FNB accused no.7 went to the bank and when he
returned, shots were fired from another
vehicle. At Mokhesi he
alighted from the driver’s side after accused no.1 had already
done so. He did not hear accused no.6
saying that the deceased should
not be killed but should be tied as Achumile testified. He testified
that accused no.7 was lying
in his plea explanation when he said that
he said the deceased should be killed because he knew them and their
places of residence.
He denied robbing the deceased of his money and
vehicle. He said that the deceased gave him his vehicle himself to
drive because
he was drunk. He did not hear the thumping sound that
Achumile testified about. When they left Mokhesi he was with
Achumile, accused
no.2 and accused no.4. He said that he knew nothing
about the killing of the deceased and that Achumile was falsely
implicating
him. The case for accused no.3 was closed.
The case for accused
no.4.
[65] Accused no.4
testified that he was 27 years old and went to school up to grade 11.
On 26 September 2019 he was at home when
accused no.6 arrived.
Accused no.6 invited him to go for drinking alcohol. He was with
accused no.2 when accused no.6 arrived and
they all left together and
proceeded on foot to a vehicle that already had some occupants.
Amongst the people in that vehicle it
was Achumile and accused no.3
and the deceased whom he did not know. They got into that vehicle
which drove them to a tavern. Accused
no.2 and no.6 alighted and went
into the tavern to buy some beers. They returned with some beers and
the vehicle drove away. Accused
no.6 indicated that they were going
to town. They met accused no.7 at a bus stop hitchhiking. They gave a
lift to accused no.7
and somewhere along the way the deceased said he
had too much to drink and asked if anyone could drive the vehicle as
they were
going to town. Accused no.6 suggested that accused no.1
should be phoned because he has a driver’s licence. Indeed
accused
no.1 was called and at a certain bus stop accused no.7
indicated that he was alighting there. He alighted but when he saw
accused
no.1 coming to the vehicle he changed his mind and boarded
the vehicle again.
[66] The vehicle drove to
town and stopped near FNB where accused no.7 alighted and went to the
bank to make a cash withdrawal.
He later returned and again boarded
the vehicle. Suddenly another vehicle appeared in front of their
vehicle and stopped. Two men
alighted from it carrying firearms and
fired some shots. He was not sure whether only one or both of them
were carrying firearms.
In fact he did not see a firearm, he only
head a gunshot sound. Accused no.1 immediately sped off to run away
from that vehicle
and drove towards Mokhesi. He drove until he
reached a dead end where he stopped the vehicle and alighted. He and
accused no.2
also alighted and ran away going home. On the way
somewhere there they met Achumile who was with accused no.3. The four
of them
walked together. He did not know what happened to the
deceased person.
[67] He disputed
Achumile’s evidence that he took part in taking the deceased
out of the vehicle saying there was no chance
for that. He also
disputed as lies accused no.7’ plea explanation that he and
other accused assaulted the deceased saying
that the deceased was not
assaulted. He also disputed Achumile’s evidence that on their
way to town the deceased was bleeding
through the nose and that near
FNB a pin code was demanded from the deceased. He testified that he
was present when accused no.1
and accused no.2 stabbed each other but
denied having commented that they were stabbing each other as a
result of having spilled
the blood of a human being.
[68] He testified under
cross-examination that he and accused no.2 left home together on 26
September 2019 and accused no.2 was
not carrying a knife. He
therefore disputed Achumile’s evidence that accused no.2 had a
knife and accused no.7’s plea
explanation that accused no.2
stabbed the deceased with a knife. Accused no.4 testified that he was
sitting in the middle at the
back seat of the vehicle flanked by
accused no.6 and no.2. The deceased was seated on the extreme right
near the window and accused
no.2 was near the other window on the
extreme left. When he boarded the vehicle the deceased was at the
front seat with accused
no.3 and Achumile. When the deceased said he
was tired and would not be able to drive the deceased moved to the
back seat to make
way for accused no.1 to drive. He disputed
Achumile’s evidence that on the way to town the deceased was
assaulted, bled through
the nose and that accused no.2 had a knife.
He did not hear when the deceased’s pin code was demanded. He
also did not hear
when somebody asked for the banking details of
accused no.1 and when accused no.7 exclaimed that the deceased’s
phone reflected
that the deceased had R10 000.00 in his bank
account. He never heard anything about the money.
[69] He ran away at
Mokhesi because he was scared as the vehicle that was chasing them
and from which shots were fired in town was
pursuing them. He
testified that Achumile was lying to say that the deceased was caused
to alight from the vehicle and accused
no.6 said that he should be
tied. He also disputed accused no.7’’s plea explanation
that accused no.3 said the deceased
should be killed. He disputed all
of Achumile’s evidence relating to the tying of the deceased,
the speaking of the jail
language, the thumping sound and the snoring
sound of the deceased. He denied that he and his co-accused killed
the deceased saying
that accused no.2 did not have a knife and denied
that accused no.2 stabbed the deceased saying there was no chance for
any of
that as they alighted from the vehicle and immediately ran
away from the vehicle that was pursuing them.
[70] Accused no.4
confirmed that on Saturday 28 September 2019 there was a fight
between accused no.1 and no.2 at Moyikwa’s
tavern. He said
however, that that fight during which accused no.1 and 2 stabbed each
other was about liquor at a traditional ceremony
(umgidi). It took
place on Saturday 28 September 2019 at Moyikwa’s tavern but it
started at a traditional ceremony about
liquor a week earlier. He
said that Achumile was lying in her evidence that the fight was about
sharing the spoils of the robbery
of the deceased’s money. He
testified that when Achumile came out of the tavern where accused
no.1 and 2 fought they had
already stabbed each other. He denied
participating in the robbery and the killing of the deceased. The
case for accused no.4 was
closed.
[71] It will be recalled
that Achumile was charged with the other accused as accused no.5.
When this trial commenced the State indicated
that she would testify
as a State witness in terms of section 204 of the CPA. Accused no.6
closed his case without taking the witness
stand or giving any
evidence.
The case for accused
no.7.
[72] The evidence of
accused no.7 was that on 26 September 2019 between 20:00 and 21:00 in
the evening he was at his father’s
homestead where he had
attended a ceremony. His father’s homestead is different from
his own homestead. He decided to go
home by hitchhiking in order to
get a lift from any vehicle that was heading in his direction. At
some point a double cab bakkie
with a canopy stopped and gave him a
lift. He boarded in the load bin of the said vehicle. He alighted at
Teresa and after alighting
he saw accused no.1 there and asked him
where he was going. It transpired that accused no.1 was going for
alcohol consumption in
town with other accused. He decided to join
them and boarded the vehicle again. When he got a lift earlier that
vehicle was driven
by accused no.3 and at the Teresa bus stop where
he alighted and accused no.1 emerged, accused no.1 took over driving.
On the way
before they reached town accused no.6 gave him a phone and
asked him to transfer R1000.00 to accused no.1’s account and he

did so. He did not know accused no.1’s bank account number but
he used accused no.1’s cellphone number to do the transfer.
He
already knew accused no.1’s cellphone number. After
transferring the money he returned the cellphone to accused no.6.

When he did the transfer he noticed that the account number from
which he transferred the R1000.00 had a balance of R10 000.00.

Accused no.1 later indicated that his bank card was not with him.
When this was taking place he did not suspect any criminal activity.
[73] After accused no.1
had said that his bank card was not with him he decided to transfer
some money into his own bank account.
Accused no.6 then gave him back
the cellphone he had returned to him to enable him to transfer money
to his own bank account. He
transferred R2000.00 into his own bank
account and returned that cellphone to accused no.6. When they
reached town he alighted
near FNB to make a cash withdrawal. He
withdrew R600.00 from his bank account and returned to the vehicle
and boarded in the load
bin as before. He gave accused no.6 R500.00
and left R100.00 for himself. While inside the vehicle and as the
vehicle was driving
off he saw a white vehicle through the back
window of the bakkie. There were two men standing outside of that
vehicle. One of those
men was carrying a firearm and he fired a shot
and their vehicle sped off towards the Mokhesi area. It entered the
Mokhesi area
driving on a gravel road and stopped somewhere there. He
assumed that the vehicle was stopping there because it had a
mechanical
breakdown or that it had run out of fuel.
[74] When the vehicle
stopped there his co-accused and the deceased alighted from the
vehicle. He realized that he could not open
the canopy from inside.
He knocked at the window and accused no.6 opened the canopy door for
him. Achumile was also there. As he
alighted accused no.1, 2, 3, 4
and the deceased ran. The four accused grabbed the deceased as he was
running and assaulted him
with stones. He and accused no.6 tried to
stop them from assaulting the deceased by telling them to stop
assaulting him. The assault
was taking place about seven metres from
where he and accused no.6 were standing. Achumile was not far from
him and accused no.6
was about three metres from him. There was no
source of light there other than a quarter of a moon. Accused no.2
stabbed the deceased
with a knife. Accused no.3 said that that man
must be killed but he was not sure whether it was before or after the
stabbing. He
urged them not to kill the man but accused no.3 insisted
that the man must be killed because he knew them and their places of
residences.
At some point he saw police vehicle lights and they ran
in different directions. He took the direction that was going to town
and
boarded a taxi going home.
[75] He testified that
when he was given a phone by accused no.6 he was not told whose phone
it was. He knew that accused no.6 was
not working and in the vehicle
there was the man he did not know and it had been said that there was
going to be liquor consumption.
He thought that the R2000.00 which he
transferred to his account belonged to that man, the deceased. On 27
September 2019 another
R1500.00 was transferred to his account. He
did not know who transferred the money to him and from whose account
the money was
transferred. He did not spend the R1500.00 and it must
still be in his account. He was referred to the transactions which
reflected
in his bank statement. On 28 September 2019 a cash
withdrawal of R1000.00 was reflected. He testified that he made that
withdrawal
himself. His intention was to withdraw the whole balance
of R1400.00 which was the balance from the R2000.00 that he had
transferred
to himself on 26 September 2019 and from which he had
withdrawn R600.00 at FNB. However, his withdrawal limit was R1000.00
hence
he made a cash withdrawal of R1000.00. He kept the said
R1000.00 at home but he did not know if it was still there since his
arrest
and detention.
[76] His intention at
that time was to keep it for the owner so that he would not have to
go to town to make a cash withdrawal if
the owner thereof came and
wanted it back. He further testified that he made a cash withdrawal
of R150.00 through what is referred
to as a cashback on the 08
October 2019. He admitted that that money was not his money. He used
it on the basis that he would refund
it from the money he kept at
home. He also made the other transactions at a liquor store on the 08
October 2019 using his bank
card.
[77] After they were all
arrested in relation to the incident of the 26 September 2019 he had
a conversation with accused no.1 while
they were all in custody. He
told accused no.1 about an amount of R1500.00 which he did not know
about. Accused no.1 told him that
he was the one who transferred the
said amount to him. His intention at the time was to collect it later
but they were arrested
before he had a chance to collect it as they
never met after the incident until they were arrested. He also had a
conversation
with accused no.6 about the incident. Accused no.6 told
him that he never intended that the deceased be killed. He just
wanted
them to use his money on liquor consumption.
[78] Under
cross-examination by the legal representative for accused no.1 and 4
he testified that accused no.1 and accused no.4
assaulted the
deceased and he saw them assaulting him. He also testified that it
was his own decision to transfer R2000.00 to his
own account. Nobody
told him to transfer the said R2000.00. He did not give the balance
from that amount to any of the accused
because he never got a chance
to do so. He never met any of the accused after the 26 September
2019. He never left his home or
the locality. He surrendered himself
to the police after his co-accused were arrested. He received a
report that the police had
come to his home looking for him when he
was not at home. He then went to the police station to hand himself
over. At the time
he transferred money to the account of accused no.1
and to his account he did not suspect any criminal activity with what
was happening.
He pointed out that if he had suspected that criminal
activities were taking place, he would have alighted from the vehicle
and
left the other accused alone.
[79] When he witnessed
the assault on the deceased at Mokhesi he tried to intervene but his
attempts to stop his co-accused from
assaulting the deceased fell on
deaf ears. After witnessing that tragic assault, he became scared.
When police vehicles appeared
whilst they were at Mokhesi he ran
away. He, Achumile and accused no.6 witnessed the other accused
assaulting the deceased. When
they ran away they left the deceased
there at the crime scene injured. He knew that the money that had
been transferred to him
in the sum of R2000.00 was the deceased’s
money. He kept some of the money hoping that if the deceased
recovered he would
try to trace them to get it back. However, he
never made any attempt to trace the deceased or ask his co-accused
about him because
he did not even want to meet them. He did not
report the incident to the police because he was scared.
[80] When it was put to
him that accused no.1 denied having been the one who transferred
R1500.00 to his account, he testified that
even when they discussed
the matter while in detention accused no.1 had said he would deny it.
About Achumile’s evidence
that he kept the amount he had
withdrawn at FNB with him he said that she was mistaken, perhaps she
did not see him when he handed
it to accused no.6. He testified that
he did not see it when the deceased was being tied as depicted in the
photos. He, however
saw him being chased by accused no.1, 2, 3 and 4
and when they assaulted him at Mokhesi. The accused chased the
deceased and when
they caught up with him they immediately assaulted
him.
[81] Under
cross-examination by the legal representative for accused no.2 and 3
he confirmed his evidence that after he alighted
from the vehicle at
Mokhesi he saw accused no.1, 2, 3 and 4 chasing and getting hold of
the deceased. He saw them assaulting him
and the assault was taking
place about seven meters from where he was standing and accused no.6
was standing about three meters
or so from him towards where the
assault was taking place. He intervened trying to stop them from
assaulting the deceased by word
of mouth. They ran when they saw the
lights of the police vehicles. He could see who was pelting the
deceased with stones from
the light that was from by the quarter
moon. He insisted that he saw his co-accused assaulting the deceased
including accused no.2
and 3 and denied misleading the court. He also
saw it when the deceased was being stabbed by accused no.2. He denied
that the accused
alighted from the vehicle at Mokhesi and immediately
ran away running for their lives from the motor vehicle they had seen
near
FNB whose occupants had firearms thinking that they were still
chasing them. He maintained that he and accused no.6 intervened
trying to stop them from assaulting the deceased by word of mouth. He
testified that all the accused benefitted from the deceased’s

money because they all consumed the liquor bought with it.
[82] Under
cross-examination by the prosecutor accused no.7 testified that he
was sitting in the load bin of the vehicle which had
a canopy. He
communicated with his co-accused on the front part of the vehicle
through a small window fixed on the canopy. He confirmed
exclaiming
that the phone which had been handed to him by accused no.6 reflected
a balance of R10 000.00. That phone had a
message that showed
that amount as the balance. He transferred R1000.0 to the account of
accused no.1 and later R2000.00 to his
own account. He confirmed that
he used some of the deceased’s money for his own benefit. But
he was going to give back the
R1000.00 he had withdrawn and which he
kept at home until his arrest. About the R1500.00 which was
transferred to him, he did not
know to whom it belonged hence he
never withdrew it and should still be in his bank account. The case
for accused no.7 was closed
which brought to an end the defence case
as a whole.
The analysis of
evidence.
[83] The six accused have
been charged with kidnapping Mr Sandile Ntloko, robbing him of his
vehicle, described as a toyota hilux
4X4 and a sum of R10500.00 and
thereafter intentionally killing him during the night of the 26
September 2019. The events that
culminated in the death of the
deceased started with what escalated into a craftily conceived plan,
unbeknown to the deceased,
involving the use of a nineteen-year-old
woman, Achumile, with her consent and participant, to lure him for
his money. It appears
that the deceased was at some point, put into a
situation of helplessness where he would be subjected to violence and
part with
his money by force. To get this done successfully accused
no.6 invited and collected all the other accused from their homes.
The
evidence of Achumile understood together with the plea
explanation of accused no.6 indicates quite clearly that the deceased
was
interested in a love relationship with Achumile. It is not clear
where and how accused no.6 met the deceased. However, it appears
from
Achumile’s evidence that the deceased already knew Achumile.
The deceased who, apart from his other small business ventures,
was
also a teacher by profession.
[84] When the deceased
and accused no.6 arrived at accused no.3’s home where Achumile
stayed at the time, he parked his vehicle
outside. Accused no.6 went
into that homestead to call Achumile telling her that somebody wanted
to see her. Initially Achumile
refused but eventually she went out to
the vehicle of the deceased. The deceased’s vehicle’s
doors were open and the
deceased greeted her by saying hello Achuma.
The deceased told her he knew her from school at St Teresa. The
deceased offered Achumile
liquor and accused no.6 was given R200.00
by the deceased to go and buy some beers and he left leaving Achumile
with the deceased.
At some point the deceased left and returned later
with accused no.6 bringing some beers to Achumile. Eventually the
deceased and
accused no.6 left saying that they were going to
Moyikwa’s tavern but would return later to fetch her. The
deceased had indicated
that he intended to take Achumile out on a
date. When the deceased and accused no.6 returned to fetch Achumile,
they were joined
by accused no.3.
[85] The deceased drove
off and stopped near Moyikwa’s tavern where accused no.6 told
the deceased to stop the vehicle. He
asked him how much he had. The
deceased said he did not have any cash with him. Accused no.6 asked
the deceased how much he had
in his bank account. The deceased said
he had R1000.00. They drove off and along the way the deceased said
he did not have his
wallet with him. Accused no.6 then asked if there
was no one who could be phoned and asked to meet them halfway and
bring the wallet.
The first person the deceased phoned was on
voicemail. Accused no.6 asked the deceased whether there was no other
person. The deceased
phoned the second person, Mr Mangciphu and asked
him to bring his wallet. During all of this Achumile’s evidence
was that
the mood in the vehicle was still fine. The vehicle turned
driving back towards Kwa-Gcina and got into a gravel road. While
Achumile’s
evidence was that the mood was still good in the
vehicle, I think that things had started to escalate at this stage as
the evidence
of Whitey and Mr Mangciphu indicated. It is clear from
the evidence that when Mr Mangciphu and Mr Mhlabunzima Ntloko were
phoned
by the deceased he was already in trouble and he was no longer
in control of what was happening in his vehicle.
[86] The undisputed
evidence was that when the deceased called Mr Mangciphu, he could
tell that he was in trouble. This explains
why they went to look for
his vehicle. Accused no.6 alighted somewhere and returned with
accused no.2 and 4 who boarded the vehicle
as well. Accused no.6
borrowed the deceased’s phone from him. Accused no.6 phoned
accused no.1 telling him to wait for the
vehicle at the bus stop. But
before they got to that bus stop accused no.7 was picked up at a
hiking spot and alighted at Teresa
bus stop going home. This is where
incidentally accused no.1 was going to be picked up. When accused
no.7 saw all the people in
the vehicle being joined by accused no.1
he enquired where they were going. He was told that they were going
to town. He came back
into the vehicle boarding in the load bin where
he was before alighting. Accused no.1 was told by accused no.6 to
take over the
driving of the vehicle from accused no.3. It appears
from the evidence that at some point a decision was taken that
accused no.3
must take over driving from the deceased. The
circumstances in which this happened are not clear. In fact Achumile
did not have
a recollection of accused no.3 driving. However, accused
no.3 testified that the deceased indicated that he was tired and had
had
too much to drink.
[87] The evidence of
accused no.3 about the deceased not driving because he was tired and
drunk is clearly false. Deceased’s
kidnaping must have been
taking place at this stage. Accused no.3’s evidence was that
when he took over driving, the deceased
shifted from the driver’s
seat, squeezed himself between Achumile and the driver and accused
no.3 took over driving. If he
voluntarily decided not to drive as
suggested by accused no.3, I do not understand why he did not occupy
one of the passenger seats
at the back or ask Achumile to go to the
back seat with him. It appears from the evidence of Achumile that
somewhere along the
way two significant events occurred. The first
one is that it was established that the deceased had R10 000.00
or so in his
bank account. Secondly, the deceased’s wallet
containing his bank card was found in the vehicle at some point.
According
to the evidence of Achumile it was about this time that the
mood changed in the vehicle. The pin code was demanded from the
deceased
but he refused with it but later gave them his pin code.
This could not possibly have been done voluntarily by the deceased.
The
timing and the actual sequence of events is somewhat fuzzled.
However, this should not be confused with whether or not the deceased

was kidnapped, robbed and eventually killed on that day.
[88] Achumile testified
that the deceased was assaulted and she noticed that accused no.2 was
carrying a knife. The deceased was
bleeding through the nose which
must have been because of the assault. This assault was most probably
intended to force the deceased
to disclose his pin code after his
wallet was found in the vehicle. This is the pin code that was used
to make a cash transfer
of R2000.00 to accused no.7’s bank
account from which accused no.7 withdrew R600.00 according to his
evidence. This was after
a sum of R1000.00 had been transferred by
accused no.7 to the bank account of accused no.1. None of these
transactions could have
been done voluntarily with the deceased’s
permission or consent. Accused no.1 and 7 to whose bank accounts
these amounts
were transferred never testified that the deceased
consented to the transfer of his money to them. Kidnapping must have
been in
motion when accused no.3 took over driving the deceased’s
vehicle. Accused no.1 was phoned and fetched to drive everybody
to
town where the withdrawal of the deceased’s money was to take
place which had earlier been transferred to the bank accounts
of
accused no.7 and no.1. The evidence of accused no.7 that when he
transferred money into his and accused no.1’s bank accounts
he
did not suspect that criminal activities were taking place must be
rejected as being so improbable as to be false. He did not
know the
deceased, neither did accused no.1. How they thought he voluntarily
allowed his money to be transferred by them to themselves
is another
glaring falsity. On a proper understanding of all this evidence,
circumstantial as it is, it is clear that the deceased
had been
kidnapped and robbery was in progress and all the occupants of the
vehicle were aware of it and none of them, on the evidence,

dissociated themselves from the obviously criminal activities taking
place in that vehicle.
[89] Sight should not be
lost of the fact that Mr Mangciphu testified to receiving a phone
call from the deceased. During that phone
call he sensed that the
deceased was not making sense and he kept on calling him. The
deceased told him that he would send some
people to his place of
business to fetch his Capitec Bank card. At some point he said he
should come with Kanyile and Mbolekwa.
Mr Mangciphu testified that
the deceased had never before asked him to bring his bank cards and
he did not know where the cards
were kept. During these conversations
with the deceased who clearly was speaking in riddles Mr Mangciphu
heard voices saying that
“
we said to you that you must not
mention where you are
”. At that stage the deceased had
already said he was at Cobweb. He suspected that the deceased was in
some kind of trouble.
Mr Mangciphu and Mr Mhlabunzima Ntloko then
drove their vehicles looking for the deceased in town. Mr Mangciphu
spotted the deceased’s
vehicle in town and he phoned Mr
Mhlabunzima Ntloko who was in his own vehicle and told him to come
quickly as he had spotted the
deceased’s vehicle. Mr Ntloko
arrived quickly and tried to block the deceased’s vehicle near
FNB. It was also the evidence
of all the accused that they did go to
FNB where they were shot at by two occupants of a vehicle as a result
of which they drove
away towards the Mokhesi area. Both Mr Mangciphu
and Mr Ntloko denied firing any shots. This is immaterial to the
question of whether
or not the deceased was kidnapped and robbed. In
any event Achumile did also testify about the shooting taking place.
[90] On the consideration
of all the evidence I am satisfied that all the accused participated
in various degrees in the kidnapping
and robbery of the deceased.
None of them dissociated themselves from what was taking place. They
were all in the vehicle where
all the criminal activities started.
Accused no.2, 4 and 6 were sitting with the deceased at the back seat
when he was assaulted
by one or some of them and bled through the
nose. Accused no.6 had, throughout, been giving instructions
coordinating the activities
in their presence after cunningly and
unbeknown to the deceased, putting the team together and collecting
all of them from their
various homes. At some point accused no.6
handed the deceased’s phone to accused no.7 who happily
transferred R2000.00 to
himself. Could it be that when he transferred
money to himself he did not know that the money was that of the
deceased? I do not
think so. He must have seen through the back
window between the load bin where he was sitting and the back seat
where accused no.6,
2, 4 and the deceased were sitting, that the
deceased was subdued and he actively transferred some of the money to
himself.
[91] On the proper
understanding of his own evidence, he had no difficulty at all in
communicating with his co accused especially
accused no.6 while he
was sitting in the load bin of the deceased’s vehicle. On his
own clear evidence he only withdrew R600.00
from his bank account,
presumably for drinking with others. He was the only one who knew at
that stage how much he had transferred
to himself even though they
all knew that the deceased had R10 000.00 in his bank account
after he had told them. The recipients
of the deceased’s money
that was transferred from his account were the two accused, accused
no.1 and accused no.7. The documentary
evidence in the form of bank
statements shows that between the two of them they received about 50%
of the deceased’s money
directly into their bank accounts. The
following day accused no.1 went to town with accused no.3 and accused
no.6. I must point
out though that it is not clear from the evidence
who withdrew R5000.00 cash from the account of the deceased and for
what purpose.
There is no evidence of accused no.7 being in town on
that day the 27 September 2019. The circumstantial evidence in this
matter
makes the conclusion that accused no.1 and 6 went to town to
withdraw the balance of the deceased money to be shared with other

members of the group unavoidable.
[92] In kidnapping and
robbing the deceased the accused including Achumile, on the evidence,
worked together to achieve a common
objective, which was to rob him
of his money. They succeeded in this enterprise by working jointly
with various degrees of participation.
The evidence also shows that
the deceased’s phone was at some point, in the hands of accused
no.6 who co-ordinated most activities
from the onset. He is the one
who was clearly giving instructions as to what should happen. His
attempt at projecting himself,
through his plea explanation, as
having been acting innocently is rejected as false. So too should
that of accused no.7. He wasted
no time after hearing that the bank
card of accused no.1 was not with him. He transferred to himself
R2000.00 and according to
his own evidence, nobody told him how much
to transfer to himself, not even accused no.6. It was his personal
decision. He also
took another decision of withdrawing only R600,00
from his bank account whereas, on his own evidence, his card limit
was R1000.00.
These were not, by any stretch of imaginations, actions
of an innocent man but those of an active participant in the criminal
activities
and who ensured that he got himself a good share of the
robbery.
[93] The following day he
received a further amount of R1500.00 from the deceased’s
account. He claims not be have known where
the said money came from
but he could see that it was from the same account from which he had
transferred to himself R2000.00.
On the other hand, accused no.1
received the second amount of R1000.00 from the deceased’s
account. The deceased cellphone
which was used to make these
transactions was, on the evidence of accused no.7, returned to
accused no.6. Accused no.1 and 6 were
together throughout after the
everybody ran away at Mokhesi leaving the deceased there. They were
together in town the following
day. There is evidence that the wallet
of the deceased was found in his car which obviously had his bank
card. There is evidence
that he was forced to reveal his bank pin
code. This explains the cash withdrawal of R5000.00 from the bank
account of the deceased
at the FNB ATM in Sterkspruit the following
day after his murder.
[94] While it is not
clear from the evidence which one of the accused did the cash
withdrawal and how it was split or shared, it
could only have been
some of the accused. There is no evidence of accused no.2 meeting
accused no.1 at any time after the murder
until the 28 September 2019
at the tavern where they fought. The evidence of Achumile was that
she was told by accused no.2 that
he was going to stab accused no.1
because accused no.1 and others had given accused no.2 and presumably
his cousin, accused no.4
only a sum of R400.00. They indeed stabbed
each other. The evidence of Achumile was that the stabbing occurred
on Saturday 28 September
2019 at Moyikwa’s tavern.
[95] Accused no.2
corroborated this evidence regarding the stabbing and the date it
occurred. Accused no.1 confirmed in his evidence
that the stabbing
occurred but only a week after the 26 September 2019. This evidence
of accused no.1 that the stabbing occurred
a week later must be
rejected as being false and a clear attempt at deflection. In any
event it is contradicted by accused no.2
who was the one he stabbed.
It also flies in the face of accused no.2’s medical records. It
is understandable why accused
no.2 would be upset about the money not
being shared equally which explains the reasons for their fight.
After all, they all knew
that the deceased’s account had
R10 000.00. For him to be only given R400.00 after he had
ensured that the deceased
died by stabbing him on his chest must have
been annoying. The medical records of accused no.2 show that on 28
September 2019 he
went to hospital and reported that he had been
assaulted by a known person, which it is not disputed it was accused
no.1.
[96] I emphasize that
there is no clear evidence of how the sum of R5000.00 was shared
after it was withdrawn and who withdrew it.
I however, do not think
that it was a co-incidence that the following day after the
kidnapping, robbery, and murder of the deceased,
there is evidence of
accused no.2 fighting with accused no.1 over the money of the
deceased. Similarly accused no.3 went to town
on the 27 September
2019 with accused no.6 and 1. Accused no.3 and 1 bought two pairs of
Vans takkies. One pair was for a child
named Zikhona who is a member
of accused no.3’s family. On the other hand, accused no.1
bought a pair of takkies for his
girlfriend Achumile who, no doubt,
played a very important role. She was involved in fooling the
deceased into thinking that the
only plan was for him and Achumile to
spend time together on a date. Achumile and her friends including her
boyfriend, accused
no.1 had a different agenda. That agenda
culminated in the kidnapping, robbery and the murder of the deceased.
[97] On the conspectus of
all the direct and circumstantial evidence in this matter all the
accused including Achumile worked together
to achieve a common goal
of kidnapping and robbing the deceased. On the basis of the doctrine
of common purpose it is not necessary
for the State to prove the role
each accused played in the sequence of events. What is necessary is
for the State to prove an agreement
between the accused to commit the
crimes. There is no evidence of an agreement having been reached by
and amongst the accused or
even discussed. The alternative
requirement of the doctrine of common purpose is active participation
in the common criminal enterprise.
[98]
The
locus
classicus
on the doctrine of common purpose is the celebrated case of
Mgedezi
[1]
in which Botha JA restated the requirements of the doctrine of common
purpose as follows:
“…
There
is no suggestion of an express agreement and there is no proof of an
implied agreement. As to the latter, the acts that accused
no.6 was
proved to have committed in the vicinity of blocks 4 and 5 do not
give rise to an inference beyond reasonable doubt that
he had agreed
with any other person that the occupants of room 12 were to be
killed. At the time when, and the place where, accused
no.6
participated in the activities of the group who were calling for
impimpis to be killed, those activities constituted no more
than
threats and intimidation, which had not reached any stage of actual
execution, as we knew from what happened in room 108,
and it would be
too much of a leap in time and place to infer from those events that
accused no.6 had agreed to the events that
occurred at room 12.
In the absence of proof
of a prior agreement, accused no.6, who was not shown to have
contributed casually to the killing or wounding
of the occupants of
room 12, can be held liable for those events, on the basis of the
decision in
S v Sefatsa and Others
1988 (1) SA 868
(
A
),
only if certain prerequisites are satisfied. In the first place, he
must have been present at the scene where the violence was
being
committed. Secondly, he must have been aware of the assault on the
inmates of room 12. Thirdly, he must have intended to
make common
cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of a common
purpose
with the perpetrators of the assault by himself performing some act
of association with the conduct of the others. Fifthly,
he must have
had the requisite
mens rea
; so, in respect of the killing of
the deceased, he must have intended them to be killed or he must have
foreseen the possibility
of their being killed and performed his own
act of association with recklessness as to whether or not death was
to ensue. (As to
the first four requirements, see Whiting
1986 SALJ
38
at 39). In order to secure conviction against accused no.6 in
respect of the counts on which he was charged, the State had to prove

all of these prerequisites beyond reasonable doubt”.
Did the accused act
with common purpose?
[99] When Whitey and Mr
Mangciphu arrived at FNB accused no.7 had already returned from
withdrawing some of the money, which on
his evidence he gave to
accused no.6 together with the phone of the deceased. Achumile and
all the accused save for accused no.6
who did not testify, testified
that the two men who arrived there which it was Whitey and Mr
Mangciphu, fired shots at them. This
led to the vehicle being driven
by accused no.1 to the Mokhesi area until it reached a dead end. The
evidence of Achumile was that
there was a discussion in the vehicle
about what to do with the deceased. Only accused no.7 did not
participate in this discussion.
Accused no.3 said that the deceased
must be killed because he knew them and their homesteads. Accused
no.6 did not agree with the
idea of killing the deceased. He
suggested that the deceased must be tied up with his shoe laces.
Indeed the photo album compiled
by constable Tsoaeli depicts, in some
of the photos, the deceased’s hands tied to the back with shoe
laces. The deceased
was caused to alight from the vehicle. At some
point after he was caused to alight he ran away clearly trying to
save his life.
Accused no.1, 2, 3 and 4 chased after him. Not far
from where she was Achumile heard thumping sounds which she
understood to have
been the deceased being assaulted with stones and
then heard the deceased snoring. According to accused no.7 he and
accused no.6
tried to intervene dissuading the four accused from
assaulting the deceased, to no avail. He saw accused no.2 stabbing
the deceased
with a knife. It should be remembered that in her
evidence Achumile had said that she had seen accused no.2 carrying a
knife in
the vehicle when the deceased was being assaulted.
[100] The evidence of
constable Tsoaeli was that he found the vehicle about 171 metres from
the body of the deceased. This is in
line with Achumile’s
evidence that after the accused had returned from killing the
deceased accused no.1 and 6 moved the
vehicle from where it had
stopped initially. This is the time at which its lights must have
been switched off. At this stage the
deceased had already been
killed. When accused no.7 saw the deceased being assaulted with
stones and being stabbed by accused no.2
he was about 7 metres from
where the assault and stabbing were taking place. I therefore accept
as being reliable accused no.7’s
evidence of who participated
in the killing. Besides, there was no evidence of other people being
there other than the accused
themselves and Achumile and the
deceased. Accused no.7 knew all the other accused very well and he
saw them chasing the deceased.
The fact that the only light there was
that of a quarter moon does not mean he could not have seen them
killing the deceased. Accused
no.7’s evidence was also that
accused no.6 did not participate in the chasing and assaulting of the
deceased. Accused no.6
was standing about 3 or 4 metres from where
the assault and killing were taking place. Achumile was also nearer
to accused no.7
although she did not see which one of the accused
assaulted the deceased. However, she accepted under cross-examination
that accused
no.6 did not chase after the deceased. This aligns well
with the evidence of accused no.7 that accused no.6 did not
participate
in the chasing, the assault and the murder of the
deceased. It should be recalled that Achumile testified that accused
no.6 had
said during the discussion on what to do with the deceased
that he did not want the deceased to be killed. He wanted him to be
tied and left there so that if he ultimately went to the police they
would be arrested for robbing him and not his murder.
[101] While there is no
evidence of some of the accused playing specific roles in the
kidnapping and robbing of the deceased, the
evidence, considered as a
whole, proves beyond reasonable doubt that they were all present in
the deceased’s vehicle. They
associated with the kidnapping of
the deceased. Not a single one of them disassociated themselves from
the kidnapping and robbery.
The evidence shows that at some point the
deceased was squeezed in the limited space between Achumile and
accused no.3 who on his
evidence, took over the driving of the
vehicle despite not having a driver’s licence because the
deceased said he was drunk
and tired. Clearly the deceased had
alternatives, like people he could have called if he felt he could
not drive either because
he was tired or too drunk. In fact when he
said he had left his wallet at home it was decided that he should
phone somebody. Indeed
he phoned Mr Mangciphu and Whitey. These are
the same people he could have called if he was free and not
kidnapped, to come and
fetch him instead of giving his vehicle to
accused no.3 who was both a stranger to him and did not have a
driver’s licence.
The evidence shows overwhelmingly that
accused no.1 was roped in because amongst the whole group he was the
only one with a driver’s
licence. They needed to drive to town
after all, where the risk of being stopped by the police was higher.
He drove the vehicle
to town where some of the deceased’s money
was withdrawn by accused no.7 who falsely claims innocence after
transfers to
his and accused no.1’s bank accounts were
effected.
[102] I therefore find
that accused no.1, 2, 3 and 4’s participation in chasing after
the deceased and in assaulting and killing
him was intended to hide
the earlier crimes of kidnapping and robbery after the discussion on
what to do with the deceased. I just
do not see how they could have
participated so decisively in his murder if it was not because of
their involvement in the deceased’s
kidnapping and robbery. In
any event the circumstantial evidence shows clearly that all the
accused were not only present during
the kidnapping and robbery but
some also participated even in the murder itself. Therefore, the
evidence of Achumile considered
with that of accused no.7, the
evidence of some of the accused and the rest of the circumstantial
evidence establishes beyond reasonable
doubt the guilt of all the
accused in respect of kidnapping and robbery. It also establishes the
guilt of accused no.1, 2, 3 and
4 in respect of the murder of the
deceased. There is clear evidence of Achumile and accused no.7, of
accused no.6 and accused no.7
not only dissociating themselves from
the murder of the deceased but also trying to stop others from doing
it.
[103] Achumile’s
evidence was not perfect and at times unclear about some goings in
that vehicle. However, her evidence considered
as a whole and
together with the rest of the evidence, I am satisfied that she
testified honestly and answered all questions to
the best of her
ability for a 19 year old young woman who clearly was not always
concentrating on what was happening. To the extent
that some of her
evidence may have been contradictory, I regard that as having been
because of a mistake on her part than a deliberate
attempt to mislead
the court. Her evidence considered as a whole was credible and
reliable. Where it was lacking in some respects
it was corroborated
by that of accused no.7 and other circumstantial evidence. She is
therefore granted indemnity from prosecution
for any of the offences
in this matter. I reject as being so improbably as to be falls, the
evidence of all the accused that sought
to exculpate themselves from
the crimes that were committed in this matter.
[104] To the extent that
some concessions might have been made by the prosecutor when he made
submissions, on the kidnapping and
robbery charges about some of the
accused, I am of the view that such concessions are misplaced. They
are not supported by the
evidence which the State witnesses gave. The
evidence of Achumile, even as an accomplice about which cautionary
rules apply was
credible and reliable and in fact she told the truth
to the best of her memory. In any event most of her evidence was not
disputed
by the accused save where she implicated them. To the extent
that the evidence was not common cause, her evidence was largely
corroborated
by accused no.7 whose evidence was also in most material
respect both credible and reliable. This is in stark contract to the
other
accused’s evidence which appeared to have been a
rehearsed version which they all largely repeated almost verbatim. In
any
event most of it was far-fetched, defied logic and so improbable
as to be false. The State has therefore discharged the onus resting

upon it to prove the guilt of the accused beyond reasonable doubt.
[105] In the result I
find the accused guilty as follows:
1. Accused no.6 and 7 are
found not guilty of the murder of the deceased.
2. Accused no.1, 2, 3, 4,
6 and 7 are all found guilty of the kidnapping as charged.
3. Accused no.1, 2, 3, 4,
6 and 7 are all found guilty of the crime of robbery as charged.
4. Accused no.1, 2, 3 and
4 are all found guilty of the murder of the deceased as charged.
____________________________
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Counsel for the
State           :
L. POMOLO
Instructed
by

: NPA
UMTATA
Legal representative for
accused nos. 1 & 4: A. NOHIYA
Instructed by

: Legal Aid South Africa
UMTATA
Legal representative for
accused nos. 2 & 3: B. KREWU
Instructed by

: Legal Aid South Africa
UMTATA
Legal representative for
accused no.6: V. NTSHANGASE
Instructed by

: Legal Aid South Africa
UMTATA
Legal representative for
accused no.7: Z. NOMLALA
Instructed by

: Legal Aid South Africa
UMTATA
Date
heard

: 22 June 2021
Delivered
on

: 15 & 16 November 2021
[1]
S
v Mgedezi and Others
1989
(1) SA 687(A)
at 705-706