S v Mafahle and Others (4/2018) [2019] ZAFSHC 266 (5 July 2019)

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[2019] ZAFSHC 266
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S v Mafahle and Others (4/2018) [2019] ZAFSHC 266 (5 July 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
.
4/2018
In
the matter between:
THE STATE
and
DITHABA PETRUS MAFAHLE
& 12 OTHERS
CORAM
:
I VAN RHYN, AJ
HEARD
ON
:
JUDGMENT
BY
:
I VAN RHYN, AJ
DELIVERED:
2 JULY 2019 & 5 July 2019
INTRODUCTION:
[1]
The fifteen (15) Accused before Court have been indicted on seven (7)
charges which include three (3) counts of murder read
with the
relevant provisions of Section 51(1) and Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (the “CPA”).

The Accused are also charged with three (3) counts or robbery with
aggravating circumstances and one (1) count of contravening
Section
9(1)(a) of the Prevention of Organized Crime Act 121 of 1998
(“POCA”), alternatively contravention of Section
9(2)(a)
of POCA also known as “gang-related offences”.
[2]
Counts 1 to 6 of the indictment relate to the attack, murder and
robbery of three (3) minor males, the 19-year old Lefa Soaisa,
the
16-year old Vuyani Jacobs Makhapela and Mojalefa Nathan Franse who
was 17-years old at the time of his death.
[3]
The allegations as elaborated upon in the summary provided by the
State, against the Accused are that upon or about 30-31 January
2017
and at or near Limo Mall, Bloemside, in the district of Bloemfontein,
the Accused who are members of the Born to Kill gang,
(the “BTK’s”)
met with the three (3) deceased.  The three (3) deceased were
members of the Maroma gang.
Under the false pretence that the
Accused were also members of the Maroma Gang the three (3) deceased
were lured to the “
shack
” of Accused no. 5 in  the
Pieter Swarts Settlement.
[4]
The deceased indicated that they were looking for a specific member
of the BTK gang known as Dimeche.  Under the false
impression
that the Accused were also members of the Maroma gang, the three (3)
deceased were informed by the accused that they
should all go to
Namibia Square to look for members of the BTK gang.
[5]
At Limo Mall the deceased were instructed to sit whereafter the
Accuseds’ allegiance with the BTK’s were revealed.

The Accused encircled the three (3) deceased and attacked them with
knives.  Some of the Accused removed shoes and a K-way
beanie
(hat) from the deceased’s bodies which were left at an open
space behind Limo Mall where the bodies were later discovered.

Counts 4, 5 and 6 deal with the three (3) charges of robbery with
aggravating circumstances as defined in Section 1 of the (“CPA”)

read with the provisions of Section 51(2) of the CPA in that on the
30
th
to 31
st
January 2017 and at or near Lima
Mall the Accused did unlawfully and intentionally assault the
deceased and with force took from
Lefa Soaisa one (1) pair of shoes,
from Vuyani Jacobs Makapela, one (1) pair of black and white Adidas
shoes and a blue K-way hat
and from Mojalefa Nathan Franse one (1)
pair of shoes.  Aggravating circumstances being present in that,
during the commission
of these offences the Accused were in
possession of dangerous weapons.
[6]
The State alleged that the Accused acted in the execution of a common
purpose when performing the acts described in Counts 1
to 7 of the
indictment.  The common purpose existed prior to and during the
commission of the offences on which the Accused
are arraigned.
[7]
All the Accused have been charged with Count 7.  The basis of
the crimes created by the POCA legislation have bearing on
the
criminal gang activities and provides that any person who actively
participates in or is a member of a criminal gang and who
wilfully
aids and abets any criminal activity committed for the benefit of, at
the direction of, or in association with any criminal
gang or who
performs any act which is aimed at causing, bringing about, promoting
or contributing towards a pattern of criminal
gang activity, shall be
guilty of an offence.
[8]
All the Accused pleaded not guilty to all the charges and elected not
to provide plea explanations or to make any admissions.
When
the trial commenced Accused no. 14, who was still a minor at the time
of his arrest and not held in custody awaiting trial,
failed to
appear at Court.  A warrant for his arrest was issued upon
request of the prosecutor.  The Court was furthermore
informed
that the charges against Accused no. 2 are withdrawn.  Due to
Accused no. 14’s failure to appear an application
for a
separation of the charges in terms of the provisions of Section 157
of CPA of Accused no. 14, Karabo Kenneth Thita, to facilitate

continuation of the case against the other Accused was granted.
For the remainder of the trial only thirteen (13) of the
original
fifteen (15) Accused were involved.
[9]
Advocate Ferreira, who appeared for the State called more than fifty
(50) witnesses, some of whom testified more than once during
the
trial.  Counsel on behalf of the State furthermore led evidence
in six (6) trials within a trial and exhibits “A”
to
“JJJ” were handed in as documentary evidence.  The
State also tendered exhibit “1” consisting of
a pair of
black and white Adidas Superstar shoes (“tekkies”) and
exhibit “2” a blue K-way hat as evidence.
[10]
All thirteen (13) Accused were legally represented contended that
they are innocent. With the exception of one or two
of the
Accused, they are not acquainted with each other and only met while
being in custody awaiting trial.  Even though it
is not denied
that they used to be members of the BTK gang before their arrest,
they, at least since their arrest, broke all ties
with the BTK gang
and have no knowledge of the three (3) young males whose bodies were
found at Limo Mall.  According to their
evidence, anything they
did or alleged to have done, whilst in custody, was done under duress
due to the assaults perpetrated on
them by members of the South
African Police Service (“SAPS”) during their arrest up
until their detention.  Due
to assaults and due to fear of
further assaults some of the Accused caused to sign statements
against their will which constitutes
manufactured evidence against
them.  They furthermore aver that all the members of SAPS, for
various reasons and with the
intent to secure their conviction on the
charges, told untruths to this Court.
[11]
During the course of the trial the Court gave rulings in six (6)
trials within a trial and delivered judgment subsequent to

application in terms of the provisions of Section 174 of the CPA
launched by several of the Accused.  My reasons for
provisionally
allowing the pointing outs and/or statements allegedly
made by the Accused are contained in this judgment.
[12]
Prior to the charges being put to the Accused, the Court appraised
the Accused that the provisions of Sections 51(1) and 51(2)
of the
CPA are applicable.  At the outset of the trial it was
pertinently brought to their attention that, in terms of the
minimum
sentence regime, a minimum sentence of fifteen (15) years will be
applicable with regard to the robbery charges and a minimum
sentence
of life imprisonment for the murder charges, unless compelling and
substantial circumstances allows this Court to deviate
from the
prescribed minimum sentences.
THE
PREVALANCE OF GANG-RELATED ACTIVITIES IN THE DISTRICT OF
BLOEMFONTEIN
:
[13]
It is appropriate to elaborate on a factor, presented by the State,
that has become a growing phenomenon not only on the so-called
Cape
Flats and Mannenburg, but apparently throughout our country. The
offences in this case were manifestations of gang-related
violence in
the suburbs of Bloemfontein, where the accused and the deceased lived
and had grown up.  The State adduced evidence
of Captain Mthunzi
Dasheka (“Captain Dasheka”) and Warrant Officer Jacobus
Cornelius Lombaard, regarding the prevalence
of gang-related
activities in the Free State Province.  Captain Dasheka, who is
stationed at the Crime Intelligence Cluster
at Park Road Police
Station in Bloemfontein explained, that a constant war between the
rival gangs are fought on the streets and
countless youngsters from
the tender age of 11-years are engulfed in this battle.  During
the past eighteen (18) years he
had gained extensive experience in
the investigation of gang-related crimes and the prevalence of
gangsterism in the Bloemfontein
area.  Relevant to this matter
is the two (2) rival gangs namely the BTK’s and the Maroma gang
also referred to as the
“Romans”.
[14]
Since 2014 the numbers of allegiance with the BTK’s grew
tremendously and throughout this case, this Court became acutely

conscious of the socio-economical challenges that so many children
and young adults face.  The constant pressure and enticement
to
become involved in gang membership and gang-related activities are
factors that are real and therefore I take cognisance thereof.

The reasons for their allegiance to certain gangs are due to
unemployment, poverty and obviously also because of the prevailing

social norms in the local suburbs, which seem to accept gang culture
as part of the way of life.  Since 2014 the incidents
of
gang-related activities and crimes in the Greater Bloemfontein area
escalated each year and the membership of the two (2) rival
gangs,
the BTK’s and the Romans, grew in numbers.
[15]
Captain Dasheka explained that members of the BTK gang tend to be
more mature than their counterparts, the Romans, who recruit
young
boys and girls from the age of 11.  The BTK members range from
the age of 16 up to the age of 40 years.  The various
gangs
operate in certain territories within a suburb where they rule and
hold influence, for example, in the Pieter Swarts Township
most of
the Romans have moved out and the BTK’s rule the area.
Members of these gangs drop out of school at an early
age and roam
the streets day and night or as described by one of the accused in
this matter they “
do their rounds
” apparently
looking for fellow gang members, drugs and guarding their territory.
[16]
Members of the BTK gang adhere to a code, they have specific hand
signs and obtain promotion within the hierarchy of the BTK’s
by
committing certain acts of violence for example, to join the BTK gang
each prospective member has to commit a murder.
The members of
the BTK’s have tattoos, some affix these tattoos on their arms,
legs or even their faces where these tattoos
are clearly visible and
are indicative of their rank and membership to the BTK gang.
Once a member of the BTK’s, there
is no way out and you remain
a member for life.
[17]
The members of the Romans are generally much younger and give
preference to wearing clothing with certain labels such as K-way,

Nike, Adidas and Puma.  They also wear Rosaries normally used by
members of the Roman Catholic Church.  On photograph
12 and in
the closer view on photograph 13 of exhibit “A”, an
example of such a Rosary is visible.  The Rosary
visible on
photograph 13 is made of red beads and a few green ones in between,
with a white cross and was discovered close to the
bodies of the
three (3) young victims behind Lima Mall., Heidedal in Bloemfontein.
[18]
The forty seventh (47) witness for the State was Warrant Officer
Jacobus Lombaard, a Crime Information Analysis Officer stationed
at
Bloemspruit Police Station.  Information is gathered from
suspects in criminal matters and Warrant Officer Lombaard has

interviewed an estimated eighty (80) gang members and also family
members of suspects with a view to compile profiles which he
then
captured on a system for use by SAPS.  Warrant Officer Lombaard
became interested in the growing phenomenon of gang activities
and
started investigating the gang structure, the specific crimes gang
members tend to commit and the inner workings of how these
gangs
operate.  Through his investigations he gained knowledge on the
BTK gang, 666 gang and the Natural Born Killers (the
“NBK’s”)
and also assisted gang members who expressed the desire or wish to
leave the gangs and end their membership
by providing means to
relocate these ex-gang members.  He testified that he encounters
BTK cases on a daily basis and has
testified in approximately seven
(7) High Court cases relating to gang-related crimes in the past
year.
[19]
Only one of the trials in which he testified related to the
Maroma’s.  The Maroma’s came about due to constant

attacks and crimes perpetrated against Lesotho citizens living
illegally in the Republic of South Africa.  Due to their illegal

status, they were prevented from obtaining legal assistance from the
SAPS and joined forces to protect themselves from the BTK’s.

Recently, South African Citizens also joined the Maroma’s in an
effort to combat the onslaught of the BTK’s in the
townships.
The BTK’s is part of a larger gang called the 666 gang.
The BTK’s resort as a separate leg of
the 666 and are actually
the “
money-makers
” of the larger conglomerate
comprising of the BTK’s, the NBK’s and the 666 gang.
According to the information
obtained by Warrant Officer Lombard the
666 gang is a satanic group which encapsulates or comprises western
Satanism with African
witchcraft.  The 666 gang is accountable
to a higher order referred to as the “evil church”.
The “
spiritual leaders” control the 666, the BTK’s
and the NBK’s
”.  The second leg comprises of the
NBK’s who are the soldiers.
[20]
During 2011 to 2012 a war raged between the BTK’s and the
International Junior Portuguese (“IJP’s”)
and the
IJP’s were overpowered by the BTK’s.  Many of the
IJP’s crossed over to the BTK’s and embraced
the goals of
the BTK’s.  The IJP members were identified by a tattoo on
the left or right shoulder and since their allegiance
with the BTK’s
these tattoos were removed in a horrific way which would leave a
plastic surgeon in amazement.  A peace
of molten plastic will be
placed on the tattoo which left disfiguring scars where the IJPs’
tattoos were removed.
[21]
The most prominent crimes committed by members of the BTK’s,
are robberies, burglaries and murders.  Warrant Officer
Lombaard
testified that many of the gang members join voluntarily for
protection or to gain wealth, however many minors are forced
to
join.  These minors are usually from poor dysfunctional families
or single parent homes.  A number of gang members
are lured into
gangs with drugs, while female members seduce young men with sexual
favours in an attempt to make gang life seem
attractive and
glamorous.
[22]
Warrant Officer Lombaard corroborated the evidence presented by
Captain Dasheka concerning the seven (7) ranks in the BTK gang

commencing with the first rank associated with the number “2 –
20 – 21”.  To be accepted as a member
of the BTK’s
a prospective member has to complete three (3) tasks, firstly show
his skill with a knife for example to rob
or scare a victim with a
knife.  The second task will be to kill a victim, anyone of his
own choosing and the third task will
be to commit a murder on
instruction.  The number “7” is of special
significance in the BTK gang.
THE
STATE’S CASE
:
[23]
The first witness in the case against the Accused was Constable
Daniel Khumalo, who was stationed at Heidedal Police Station
and was
on duty on the morning of 1 February 2017 when he received a call
from the control office concerning a murder scene behind
the Limo
Mall.  On his arrival he found three (3) bodies of young black
males with obvious stab wounds.  He further noticed
that the
victims were without shoes.  The area were cordoned off for
further investigation. The photo album marked exhibit
“A”
was provisionally handed in and with reference to the photographs
depicting the crime scene Constable Khumalo indicated
what he
observed regarding the three (3) bodies.  The bodies were found
as if positioned in close proximity to each other
behind heaps of
soil and rubble.  He furthermore observed that the victims’
shoes had been removed as one of the victims
still had a blue sock
visible on his left foot.
[24]
Dimakatso Makate (“Mrs Makate”), a 25-year old female
residing in a shack in Pieter Swarts Township testified that
she came
upon “
Chippa
”, whom she identified as Accused no.
5 (Lebohang George Teele) on the morning of 1 February 2017.
She had known him
for approximately a year and regularly saw him in
the vicinity of her place of residence.  She was in the company
of a friend
called Keke and Accused no. 5 was in the company of
another unknown male.  Accused no. 5 was in possession of a
white plastic
bag containing a pair of Adidas Superstar tekkies.
[25]
Mrs Makate referred to questions that Keke put to Accused no. 5 which
evidence was provisionally allowed as the State indicated
that Keke
will be called to testify in this case.  Keke indicated that she
owns a similar pair, but white in colour and declined
Accused no. 5’s
offer to purchase the tekkies.  Mrs Makate then expressed her
willingness to purchase the tekkies but
explained that she does not
have the financial means.  Keke thereupon immediately
volunteered a loan in the amount of R100.00.
The selling price being
R150.00, Mrs Makate concluded an arrangement to pay the remaining
R50.00 by the 9
th
February 2019, when her husband will be
receiving his salary.  The deal was done and Mrs Makate, after
obtaining Accused no.
5’s assurance that the tekkies belonged
to him and was not stolen merchandise, left with the black tekkies
with white stripes
on the sides.  The black and white Adidas
Superstar tekkies were submitted as exhibit “1” and
identified by the
witness.
[26]
On 9 February 2017 an unknown member of SAPS arrived at Mrs Makate’s
place of residence and requested her to hand over
the tekkies that
she bought on the 1
st
February 2017.  In
cross-examination it was put to Mrs Makate that Accused no. 5 was in
the company of two (2) other males.
Mrs Makate could not
dispute the fact that other males could have accompanied Accused no.
5, but she was only aware of one (1)
other person.  Accused no.
5’s version of the conversation was that the tekkies belonged
to one of his companions and
after receiving the R100.00 from Mrs
Makate he immediately handed the money to the owner of the tekkies.
It was furthermore
denied that Accused no. 5 indicated to Mrs Makate
that he was the owner of the tekkies.  Mrs Makate testified that
she did
not pay the remaining R50.00 to Accused no. 5 due to the fact
that the police claimed the tekkies before she made the final
payment.
[27]
By agreement, the State handed in documentation regarding the
identification of the three (3) deceased bodies.  Exhibit
“C”
concerns the identification of Lefa Soaisa, the deceased on Count 1
by his brother with death register number:
BDR 79/2017.
The deceased was born on 29 July 1997 and resided at Chris Hani
Square, Bloemfontein.  Exhibit “D”
concerns the
identification of the deceased on Count no 2, Vuyani Jacobs Makhapela
by his mother, Nombulelo Melita Greinhout of
Chris Hani Square,
Bloemfontein.  The death register number is:  BDR 80/2017.
Exhibit “E” concerns
the identification of the deceased
on Count 3, Mojalefa Nathan Franse, with BDR number: 81/2017.
[28]
On 2 February 2017 Dr Vincent De Wet Brandt conducted a post-mortem
examination on the body of Lefa Soaisa as per exhibit “KK1”

(BDR 79/2017).  The cause of death is recorded as multiple stab
wounds, comprising of forty six (46) stab wounds, mostly to
the
chest, back and right hand of the deceased.  The position of the
injuries was indicative of an attack launched from multiple
sides on
the deceased.  Photographs of the body, depicting the injuries
sustained during the attack as well as photographs
depicting the
clothing worn by the deceased at the time of his death were handed in
as exhibit “KK2”.
[29]
Dr Brandt conducted a post-mortem examination on the same day, on the
body of Vuyani Jacobs Makapela, the 16-year old victim
in Count 2.
The post-mortem report was handed in as exhibit “LL1”
with reference number BDR 80/2017.  Dr
Brandt testified that
sixty seven (67) stab wounds, ranging between five (5) – twenty
(20) mm in length were found and noted
in his report.  The stab
wounds were of such severity that it appeared as if no skin remained
intact on the left side of the
victim’s neck.  Fifty (50)
stab wounds were located over the lateral and posterior aspect of the
deceased’s neck.
With reference to photograph 7 and 8 of
exhibit “A”, depicting the position of the bodies on the
crime scene, Dr Brandt
opined that not a lot of blood is visible on
the photographs and the bodies appeared as if grouped together after
they had been
killed, possibly elsewhere.
[30]
Photographs taken of the body of the deceased and of the clothing
worn at the time of his death were handed in and marked exhibit

“LL2”.
[31]
Dr Ignatius Stephanus Ferreira conducted the post-mortem examination
on the deceased in Count 3, the 17-year old Mojalefa Nathan
Franse as
per exhibit “NN1” with reference number BDR 81/2017.
On 2 February 2017 Dr Ferreira found that the
slender victim weighed
a mere 48.9 kg at the time of his death, was the victim of a vicious
attack and approximately seventy (70)
stab wounds were recorded.
Once again fourteen (14) incision wounds were noted on the left side
of the victim’s neck,
three (3) incision wounds on the left
side of the head and two (2) incision wounds on the left side of the
deceased’s face.
Forty (40) stab wounds were located on
the victim’s back.    Point 6 of Dr Ferreira’s
report refers
to diffuse subarachnoid bleeding of the brain,
indicative of blunt trauma to the head.  Even though Dr Ferreira
had conducted
between 1 500 and 2 000 post-mortem examinations he
described the injuries found on the body of the deceased as a vicious
attack
beyond the normal, usually referred to as an “overkill”.
[32]
Photographs of the body with reference number BDR 81/2017 depicting
the severe stab wounds to the neck, upper back as well
as the
bleeding found on the brain as well as the clothing of the victim
were handed in as exhibit “NN2”.
[33]
During the post-mortem examination conducted on the three (3)
deceased, blood samples were taken for the purposes of DNA analyses.

The blood sample taken from the body on Count no 1, (BDR 79/2017) was
marked (05D4BA9212MX) and handed to FPO MP Khumalo by Dr
Brandt.
[34]
The blood sample taken from the body of the deceased in Count no 2,
(BDR 80/2017) was marked (05D3BB3501) and handed to FPO
MN Stonga.
[35]
The blood sample retrieved from the body of the deceased on Count no
3, (BDR 81/2017) was marked (05D3BB3485) and handed to
FPO M N
Stonga.
[36]
The defence did not dispute the evidence placed on record by the
State relating to the bodies of the three (3) victims found
behind
Limo Mall on 1 February 2017 nor the contents of the three (3)
post-mortem reports.
[37]
The State presented the evidence of Mrs Melita Nombulelo Greinhout,
the mother of the deceased relating to Count 2 (Jacobs
Vuyani
Makapela).  She last saw her son on Monday, 30 January 2017 at
approximately 17H00 at their place of residence located
at Chris Hani
Square, Bloemfontein.  Her son was in the company of his friend,
Mojalefa Franse, the deceased in Count 3.
Her son was wearing a
black t-shirt, a camouflage trousers and black Adidas Superstar
tekkies with white stripes on the sides.
He was wearing a blue
hat referred to as a “
beanie
” with a white mark.
Mrs Greinhout identified the contents of exhibit “1” as
the Adidas Superstar tekkies
that she bought her son.  The
tekkies does not only resemble the same label, colour and markings to
those she bought her son
but also the size namely size 6.  She
paid R600.00 at a Chinese shop located at Central Park for the Adidas
tekkies.
[38]
Mrs Greinhout identified the blue beanie, exhibit “2” as
similar to that worn by her son on the day he disappeared.
It
is a blue K-way beanie.  She however did not know where her son
obtained the beanie from and once questioned him about
this beanie.
He however refrained from answering her questions.
[39]
Her son never returned after he left with his friend Mojalefa Franse
and the following day she enquired as to his whereabouts
from her
eldest son and her daughter-in-law who resides at Phase 4,
Bloemfontein.  Being unsuccessful in searching for her
son, she
decided to contact the police.  Detectives of the SAPS, who was
accompanied by Mojalefa Franse’s brother arrived
at her home to
inform her that three (3) bodies had been found behind Limo Mall and
she was requested to visit the State mortuary
in an effort to
identify whether one of the deceased was her missing son.
[40]
In an effort to spare this witness the trauma of identifying her
butchered son, she was shown photographs, seemingly of the
face of
the deceased persons and mostly of the clothing worn by the
deceased.  The witness was able to identify the body of
her son
from the black t-shirt and camouflage trousers as well as photographs
of his face.  After the burial of her son, members
of SAPS
requested her to identify the black Adidas Superstar tekkies with
white stripes at the Heidedal Police Station.  She
at that stage
also identified the blue beanie as the property of her son.
[41]
Mrs Greinhout indicated that her son left school in February 2016 due
to fear of being attacked and/or intimidated by gangsters.
She
however did not have any knowledge of her son’s possible
affiliation with a gang or not.  During cross-examination
it was
put to her that the Adidas Superstar tekkies as well as the blue
K-way beanie are both popular pieces of clothing and are
commonly
worn by members of the public, to which the witness conceded.
[42]
Captain Dasheka testified that subsequent to the discovery of the
bodies of the three (3) victims, informers were tasked to
gather
information in connection with these offences.  On the 9
th
February 2017 at 13H30 information led Captain Dasheka and his crime
intelligence colleagues to the residence of Accused no. 1
at 5636
Pieter Swarts, Bloemfontein.  Captain Dasheka received
information regarding a person called “
Seun
” or
“
Lepetla
” who turned out to be Accused no. 1,
Dithaba Petrus Mafahle. Subsequent to explaining his constitutional
rights, Accused
no. 1 was arrested and then proffered information
which prompted Captain Dasheka to take Accused no. 1 to his office.
Lieutenant
Colonel Sefuthi of the detectives unit and Captain Khene
and their teams convened at the office of Captain Dasheka and after
reaffirming
the information obtained from Accused no. 1, the
aforementioned members of SAPS as well as members of the Tactical
Response Team
(“TRT”), accompanied by Accused no. 1
proceeded to house no. 19707, Grassland, Phase 4, Bloemfontein.
At house
no. 19707 Accused no. 2, no. 3, no. 4 and 6 were arrested.
Accused no. 2, Mojalefa Karel Shangane is also known as “
Bota
”,
Accused no. 3, Kabelo Simon Senoge is known as “
KB
”,
Accused no. 4, James Teboho Makao is known as “
Crazy
”
and Accused no. 6, Mosa Ernest Mokara is  known as “
Mosa
”.
[43]
Captain Dasheka explained that at the time of their arrival at house
no. 19707, the TRT moved in to immobilise the occupants
and stabilize
the scene in order for Captain Dasheka and the investigation team to
enter the premises.  Subsequent to their
constitutional rights
being explained and effecting their arrest by Captain Dasheka, he
left the premises in the care of the investigation
team to proceed
with a thorough search of the premises.
[44]
During cross-examination by Mr Nel on behalf of Accused no. 1, no. 3
and no. 6, it was put to the witness that the accused
were assaulted
by Captain Dasheka at the time of their arrest and that they were
slapped in their faces.  The witness denied
the accusation.
During the arrest of Accused no. 3 and no. 6, the door of the
premises was broken and some of the accused
were also kicked, though
no specific allegations in this regard were put to the witness.
The Accused also denied that Captain
Dasheka was responsible for
their arrest.
[45]
Accused no. 5 disputed the evidence of Captain Dasheka that he
arrested him and it was put to the witness that Captain Khene
was
responsible for his arrest.  The Accused, more particularly
Accused no. 1, no. 3, no. 4 and no. 6 denied that their
constitutional
rights were explained to them at the time of the
arrest and Accused no. 4 was assaulted at the time of his arrest, but
not by this
particular witness.  Captain Dasheka testified that
the arrest of Accused no. 1 occurred at around 13H30 and Colonel
Sefuthi
and Captain Khene arrived at his office at approximately
15H30.  It was furthermore put to Captain Dasheka that several
of
the Accused were assaulted after their arrest at the tourism
centre located in Park Road, Bloemfontein.  Accused no. 1’s

version was that after his arrest and the arrest of the other Accused
they were taken to the Mangaung Police Station and from there
to the
Tourism Centre.  Accused no. 1’s version was that he was
slapped in his face several times and Accused no. 3,
no. 6, no. 7 and
no. 8 were also assaulted by other members of the SAPS at the Tourism
Centre in the presence of Captain Dasheka.
[46]
This judgment  does not concern the evidence lead concerning
accused      no 1, no 6 , no 9 ,
no 10 , no
11 , no 12  and no 15  since they were acquitted of all
charges on  the 31 May 2019. I will again refer
to this aspect.
The evidence by Captain Dasheka pertaining to the arrest of Accused
no. 1 placed on record in the main trial
and again in a trial within
a trial regarding Accused no. 5, no. 7 and no. 8 was not repeated as
agreed between the prosecution
and the defence and was included in
the trial within a trial of Accused no. 1.
TRIAL
WITHIN A TRIAL OF ACCUSED NO. 3 AND ACCUSED  NO. 4
:
[47]
On 14 January 2019 the prosecution presented the evidence of Colonel
Sefuthi regarding the warning statements obtained from
Accused no. 3,
Kabelo Simon Senoge and Accused no. 4, Teboho James Mokoai.  Mr
Nel, on behalf of Accused no. 3, indicated
that the inadmissibility
of the warning statement, allegedly obtained from his client is
disputed on the grounds that the statement
was not made freely and
voluntarily due to assaults by members of the SAPS perpetrated upon
Accused no. 3.  Accused no. 3
signed the documents presented to
him without being informed of the contents thereof and while certain
sections of the warning
statement were left blank at the time of
affixing his signature to the document.  Mrs Patrinos for
accused no 4 contended
that he was instructed to sign his warning
statement and due to threats of further assaults to be executed by
the members of TRT,
he affixed his signature to the document without
being aware of the contents of the document.
[48]
Colonel Tankiso Moses Sefuthi testified in the trial within a trial
that followed regarding the warning statement he obtained
from
Accused no. 3 and the warning statement obtained from Accused no. 4.
The warning statement of Accused no. 3, of which
the last three pages
were stapled together by Mrs Ferreira was handed in and marked
exhibit “OO”.  Colonel Sefuthi
who recorded Accused
no. 3 and also Accused no. 4’s warning statements testified
that on 11 February 2017 at 14H10 and at
Mangaung Police Station he
held an interview with Accused no. 3.  The witness read the
constitutional rights as contained
in the pro forma warning statement
and then proceeded to obtain Accused no. 3’s personal
particulars in order to complete
the first section of the document.
The charges against Accused no. 3 were again explained to him and the
questions contained
under the heading “
Certificate by
Suspects
” were read to Accused no. 3 whereupon the Accused
responded to the questions as indicated in the document.  These
questions
concerns the willingness of the Accused to make a statement
regarding the offence and whether the Accused is making the statement

voluntarily.  Accused no. 3’s reply to the question
whether he has any injuries was noted as follows:
“
Yes, pain in my
eye.
”
Accused
no. 3’s reply to the following question whether he was
assaulted was noted as:
“
No
”.
Page
1 and 2 of exhibit “OO” was signed by accused no. 3 in
the presence of Colonel Sefuthi.  The witness explained
that he
read the contents of exhibit “OO” in English but then
translated each sentence into Sesotho for the benefit
of the
accused.  Colonel Sefuthi affixed his signature to page 2 and
page 3 of exhibit “OO”.
[49]
Colonel Sefuthi witnessed the arrest of accused no. 3 on 9 February
2011 at no. 19707 Grassland by Captain Dasheka and confirmed
the
evidence by Captain Dasheka that accused no. 3, and for that matter
none of the other accused persons before Court were assaulted
during
the arrest, or subsequent to the arrest.  Mrs Ferreira
furthermore handed up, marked as exhibit “PP” the
Notice
of Rights in terms of the Constitution (“SAPS 14A”) form
pertaining to accused no. 3.
[50]
From exhibit “PP” it is evident that Captain Khene read
Accused no. 3’s constitutional rights to him on 9
February 2017
at 23H40 at Mangaung Police Station.  The signature of Accused
no. 3 and Captain Khene appears on exhibit “PP”.

Exhibit “QQ” was handed up provisionally during the
testimony of Colonel Sefuthi.  This particular exhibit is
a copy
of the occurrence book of commonly known as SAPS 10 indicating where
Colonel Sefuthi recorded at entry no. 392 the following:
“
Suspect
detained.  Lieutenant Colonel M Sefuthi from provincial
detectives detains Kabelo Senoge for murder and robbery as
per
Heidedal CAS 7/2/2017.
”
This
entry was recorded on Thursday, 9 February 2017 and signed by Colonel
Sefuthi at 23H40.
[51]
Colonel Sefuthi explained that the inscription “
correctly
detained
” next to his signature is indicative that the
detainee did not have any injuries and was in a good physical
condition at
the time when he was so detained.  The witness
confirmed that the warning statement obtained from accused no. 3 was
freely
and voluntarily made by the accused without any undue
influence.
[52]
With regard to the warning statement obtained from accused no. 4,
Colonel Sefuthi testified that on 10 February 2017 at 11H50
and at
Bainsvlei Police Station he conducted an interview with Accused no. 4
Teboho James Mokoai and completed the pro forma document

provisionally handed in as exhibit “RR”.  The
witness explained the procedure followed with Accused no. 4 in
obtaining the warning statement, which in essence is exactly the same
as placed on record with regard to Accused no. 3.
[53]
Accused no. 4 indicated to Colonel Sefuthi that he is willing to make
a statement, that he is without any injuries and that
he was not
assaulted or threatened and therefore the statement is made
voluntarily.  Once again, Mrs Ferreira covered the
content of
the statement of exhibit “RR” when same was handed up as
an exhibit.  The witness confirmed his signature
on the document
and identified Accused no. 4’s signature on the document.
With reference to exhibit “F”,
already handed in as an
exhibit, Colonel Sefuthi explained that Accused no. 4’s
constitutional rights were read to him at
the time of his arrival at
the cells, prior to being detained.  A copy of the SAP 14 pro
forma document completed on 10 February
2017 at 01H29 was handed to
accused no. 4 at the time of his detention.  Later the same
morning Colonel Sefuthi conducted
the interview with accused no. 4
with a view of obtaining his warning statement.  In his evidence
he confirmed that the content
of exhibit “RR” emanated
from accused no. 4 and comprised of a detailed statement concerning
the events.  Mrs
Ferreira informed the witness that the
accused’s defence will be that there were certain threats made
towards him whereupon
Colonel Sefuthi responded that both accused no.
3 and accused no. 4 made their respective warning statements freely
and voluntarily.
[54]
A copy of the SAP 10 occurrence book reflecting the date, time and
physical condition of accused no. 4 was handed in and received
as
exhibit “SS”.  On Friday, 10 February 2017 at 01H15,
entry reference number 280 reflects the issuing of SAP
14A and the
detention of accused no. 4 as well as the fact that no visible
injuries were noted.  During cross-examination
by accused no.
3’s legal representative, Colonel Sefuthi was extensively
questioned on his failure to provide medical assistance
to accused
no. 3 since his complaint concerning pain in his eyes were noted by
the witness.  The answer to this question was
rather
unsatisfactory in the sense that Colonel Sefuthi indicated that he is
not responsible for reporting medical ailments of
detainees and the
accused should have reported any medical problems to the police
officers at the station where he is detained
who will ultimately
arrange for further medical attention.  Being the investigating
officer in charge of the case, one would
have expected the witness to
at least report the complaint received from Accused no. 3 to the
officer in charge at the particular
police station, or at least
follow up on the complaint to ascertain whether the complaint was
attended to.
[55]
The second aspect that raised concerns is Colonel Sefuthi’s
response to Mr Nel’s question pertaining to the procedure

followed when obtaining a confession or pointing out by the
investigating officer of the particular case.  According to
Colonel
Sefuthi it is advisable to request assistance from a
colleague when obtaining a confession or conducting a pointing out in
order
to maintain transparency.  However, according to Colonel
Sefuthi when there is little time, the investigating officer will

obtain the confession or pointing out himself.
[56]
Accused no. 3’s version that he was punched with fists on both
eyes was put to Colonel Sefuthi who disputed this contention.

It was furthermore put to the witness that accused no. 3 was held by
his hands and feet and thrown into the air and left to fall
to the
ground.  This occurred at the time of his arrest.  While
lying on the ground he was kicked on his ribs.
It is
furthermore denied that the five (5) questions, contained in exhibit
“OO” were put to accused no. 3 by the witness.

Furthermore, certain sections of exhibit “OO” was not
completed when accused no. 3 affixed his signature to the document.

Due to this fear of being assaulted again, any statement that accused
no. 3 may have proffered to Colonel Sefuthi was therefore
not freely
or voluntarily made.  The version of accused no. 3 was denied by
Colonel Sefuthi.  Subsequent to obtaining
further instructions
from his client, it was also contended by Mr. Nel that the witness
was not present at the time of the arrest
of accused no. 3 and when
accused no. 3 met the witness for the first time at the police
station, Colonel Sefuthi introduced himself
as Mr Motseki, a
detective.  Subsequent to obtaining further instructions from
his client, Mr Nel put to Colonel Sefuthi that
photographs were taken
of the accused at the Mangaung Police Station and these particular
photographs will provide proof of his
allegation that both his eyes
were swollen due to the assault perpetrated on him by members of the
SAPS.
[57]
The version of accused no. 3 is that photographs were taken of nine
(9) of the accused now appearing in Court soon after their
arrest.
Colonel Sefuthi was not able to deny the version regarding the
photographs but denied that the accused were assaulted
in his
presence.  During cross-examination by Mr Patrinos, on behalf of
accused no. 4 Colonel Sefuthi testified that any assaults
on
detainees are investigated by the police watch dog, the Independent
Police Investigate Directorate (“IPID”) and
he again
explained that at the time of the arrest of the accused in this case,
no assaults occurred.  Mrs Patrinos also questioned
Colonel
Sefuthi regarding the preferred procedure pertaining to the taking
down of a warning statement or confession by the investigating

officer of the particular case.  Colonel Sefuthi remarked that
there is nothing prohibiting the investigating officer from
taking
down a warning statement from a detainee but conceded that it might
be preferable to request a police officer who is”
independent”
to rather obtain the statement.
[58]
Accused no. 4 denies that the five (5) questions contained in the pro
forma warning statement under the heading “
Certificate by
Suspect
” were posed to him.  The written part of the
statement furthermore did not emanate from him and Colonel Sefuthi
threatened
to call in the assistance of the TRT members to assault
accused no. 4 in the event of him refusing to sign the already
written
statement contained in exhibit “RR”.  These
contentions were denied by Colonel Sefuthi.  It was put by Mrs

Patrinos that her client did not provide the information contained
and recorded in exhibit “RR” and he does not even
know
three (3) of the names mentioned in the statement.  Accused no.
4’s eyes were red at the time of his detention
and injuries to
his chest underneath his clothing were indeed visible.
[59]
Accused no. 3 testified in his trial within a trial and mentioned
that he was assaulted by members of the SAPS and TRT at the
time of
his arrest in Bergman Square.  He explained that the members of
the SAPS hit him in his face, on both eyes, with their
fists and
others held him by his hands and feet and he was thrown into the air
and left to fall to the ground.  He was kicked
on his ribs and
according to accused no. 3 his injuries were clearly visible when he
reported his injuries at the clinic at Grootvlei.
Accused no.
3’s testimony was further to the effect that soon after his
arrest the accused persons were taken to Mangaung
Police Station
where photographs of each individual accused were taken and
subsequently a photograph of the group of accuseds were
also taken.
Accused no. 3 denied that his constitutional rights were explained to
him at the time of his arrest but conceded
that he was indeed handed
a copy of exhibit “PP”, which he signed and which
document contains his constitutional rights.
Accused no. 3
testified that Colonel Sefuthi was the police officer who detained
him but he emphasized that the injuries to his
eyes were visible.
According to accused no. 3 Colonel Sefuthi introduced himself as Mr
Motseki, a provincial detective.
The witness indicated to
Colonel Sefuthi that he was assaulted by members of SAPS at the time
of his arrest, but it appeared to
him as if this information was of
no concern to Colonel Sefuthi.  The witness signed exhibit “OO”
without any
knowledge of the content thereof and some portions of the
document were left blank.  The content of the document was
furthermore
not read back to him.  Accused no. 3 testified that
he saw the assault on accused no. 4 at the time of their arrest.
[60]
During cross-examination by Mrs Ferreira accused no. 3 testified that
he is acquainted with accused no. 4 and no. 6.
On 9 February
2019 at approximately 18H00 accused no. 3, who was in the company of
accused no. 2, no. 4 and no. 6 arrived at accused
no. 4’s place
of residence at 19707 Grassland.  The police arrived at the
residence of accused no. 4 between 18H00 and
19H00.  The witness
testified that the occupants of the premises were assaulted by the
police as they entered the premises.
Afterwards the accused
were thrown outside the house and cuffed.  Accused no. 3
explained that he was hit in his face and
after he fell to the floor,
he was grabbed by his hands and feet and thrown into the air.
He was subsequently kicked on his
ribs.  The witness testified
that the assault upon him was of a severe nature and with full
force.  The photographs taken
at Mangaung Police Station will
serve as evidence of the injuries sustained during these assaults.
[61]
The accused was questioned as to the reason why his version that he
was punched in the face with fists, thrown into the air
and
subsequently kicked were not put to Captain Dasheka.  Contrary
to his testimony in the trial within the trial it was put
to Captain
Dasheka that accused no. 3 was slapped in his face at the time of his
arrest and the assault perpetrated against him
has now escalated into
a much more severe form of assault and injuries to his eyes and
ribs.  Accused no. 3 responded that
he did not even see Captain
Dasheka at the time of his arrest, let alone being assaulted by him.
According to his testimony
he, accused no. 2, no. 4 and no. 6 were
taken in a van from the property to the direction of Phase 4 and
thereafter to Pieter Swarts.
At Pieter Swarts he noticed
accused no. 5 and no. 7 who were cuffed together.  At a later
stage they were taken to Mangaung
Police Station where photographs
were taken.  Accused no. 3 was furthermore questioned regarding
his evidence that he reported
his injuries when he arrived at
Grootvlei Prison.  The witness testified that he reported to the
clinic at three (3) different
times and complained about pain in his
eyes.  Due to the unavailability of medication at the clinic he
was advised that he
will be called as soon as medication for his eye
injury was available.  Accused no. 3 testified that a record of
visits to
the clinic is kept at Grootvlei Prison.  He however
failed to inform the Magistrate, during his first appearance about
the
assault upon him and the reason for his swollen eyes.
[62]
Accused no. 3 was confronted with the improbability that Colonel
Sefuthi, without posing any questions to him, would have known
of the
pain in his eyes and furthermore would make up an exculpatory version
on behalf of accused no. 3 and thereafter force him
to sign the
warning statement.  Accused no. 3 was furthermore confronted
with his belated version regarding his visit to the
clinic at
Grootvlei Prison, which aspect was only placed on record during
cross-examination.
[63]
The prosecution applied to reopen the State’s case in the trial
within a trial of accused no. 3 and called Sergeant L.S.
Mfazwe to
testify.  This witness testified that on 9 February 2017 he was
on duty at the Crime Intelligence Unit and was requested
to assist
with the detention of a suspect arrested during the operation where
several suspects were arrested.  Exhibit “SS”,
which
was provisionally handed in, was identified by this witness as his
recording made in the SAPS 10 register regarding the detention
of
Accused no. 4.  The witness confirmed the information contained
in the register that accused no. 4 had no visible injuries
and did
not report any injuries at the time of his detention at Bainsvlei
Police Station.  Sergeant Mfazwe furthermore confirmed
his
handwriting  on exhibit “F” and testified that he
explained accused no. 4’s constitutional rights according
to
the contents of the SAP 14A and subsequently handed a copy of the SAP
14A to accused no. 4.
[64]
The prosecution handed in exhibit “TT”, a bundle of
documents containing the Magistrates’ Court charge sheets,
the
notes made by the Magistrate on 15 June 2017 that all thirteen (13)
accused confirmed their instructions that they are abandoning
their
bail application and instructions from the Director of Public
Prosecutions, dated 21 September 2017, with the request that

photographs be taken of all the accused depicting the tattoos on
their bodies.  Furthermore the content of the bundle of
documents records the appearances of the accused in the Magistrate’s
Court and is indicative of the fact that no complaints
were lodged of
any assaults or injuries during their numerous appearances at the
Magistrate’s Court.
[65]
The prosecution called Colonel Demakatso Mabitle, the Assistant
Manager of Health Care Services at Grootvlei Correctional Services.

She has twelve (12) years’ experience in health care services
and explained that she received a request on 16 January 2019,
the day
prior to her testimony in Court, to search the registers at the
clinic at Grootvlei Prison to ascertain whether a detainee
with the
name Kabelo Simon Senoge (accused no. 3) requested medical assistance
at the clinic since February 2017.  Exhibit
“UU”
comprises of the “Health Risk Assessment” form of accused
no.3 and was compiled by Mr Motloung, a
professional nurse in the
employment of the Department of Correctional Services at Grootvlei.
The exhibit was received provisionally
on the basis that Motloung
will give evidence pertaining to the information contained in the
document.  Exhibit “UU”
evidences the questions
posed to accused no. 3 and his reply thereto on 14 February 2017 by
Mr Motloung regarding his health and/or
injuries at the time of his
detention.  The “Medical Practitioners’ History
Continuation Sheet”, marked
exhibit “VV” was
provisionally allowed, also on the basis that Mr Motloung will be
called to testify regarding the
completion of this particular
document.  Exhibit “VV” known as the “
G 335
A
” is a record of visits by a particular detainee to the
clinic and complaints received or medical attention provided to the

detainee.  It is recorded that on 14 February 2017 at 10 o’clock
in the morning, accused no. 3 raised no medical complaints
and/or
injuries at the time of his detention or  ever since being
detained at Grootvlei prison.  Exhibit “WW”

evidences that accused no. 3 did not complain of any injuries or
ailments at the time of his detention at Grootvlei.  Any

complaints received at the time when the warrant for his detention
was issued would have been noted on exhibit “WW”
or the
so-called “
J 7
”.
[66]
The prosecution handed in exhibit “XX” containing a
bundle of lists with names of inmates at Grootvlei Correctional

Facility who reported at the clinic and comprises of approximately
eleven (11) pages dating from 6 February 2017 to 17 April 2017.

Nowhere on any of these pages could any indication of accused no. 3’s
name be traced.
[67]
However, accused no. 3’s version pertaining to the testimony of
Colonel Mabitle and the exhibits marked “UU”,
“VV”,
WW” and “XX”, remained that he was assaulted at the
time of his arrest and that he has no recollection
of any
documentation compiled at the time of his detention at Grootvlei, but
that he indeed reported his injuries to his eyes at
the clinic. Mr
Motloung a professional nurse with twenty four (24) years’
experience at Grootvlei Correctional Services with
a Bachelor degree
in Nursing, testified that he completed exhibit “UU” and
explained the procedure followed after a
detainee is admitted at
prison.  The witness confirmed that accused no. 3 did not
complain of any injuries and no injuries
were visible at the time of
his detention.  During cross-examination by Mr Nel, it was put
to the witness that no interview
with accused no. 3 took place at the
time of his admission and that the documents, exhibit “UU”
and “VV”
must have been compiled since the allegations
regarding his report to the clinic was placed on record, thus on the
day prior to
the witness’s testimony in court.
[68]
The testimony of Accused no. 3 pertaining to the procedure followed
when he arrived at Grootvlei Prison was that he was interviewed
by a
lady called Tsidi concerning his medical condition but that she did
not complete any documentation during her interview with
him.
He did not receive any medical treatment for his swollen and
bloodshot eyes at the time when he was detained at Grootvlei
Prison.
Accused no. 3 testified that the documents that were handed in by the
State, indicating that he was interviewed on
the day of his admission
to Grootvlei Prison, were actually completed on the day prior to his
testimony in Court, namely on 16
January 2019.
[69]
The testimony of accused no. 4 was that he was forced to sign his
warning statement, exhibit “RR” by Colonel Sefuthi.

He conceded that his signature appeared on the said exhibit but the
contents thereof did not emanate from him.  According
to accused
no. 4 his constitutional rights were never explained to him but he
testified that he signed and received a copy of constitutional
rights
but failed to read same.
[70]
On Friday 25 January 2019 the Court made the following ruling:
1. In the trial within a
trial in which the admissibility of an admission by accused no. 4,
made to Colonel Sefuthi was placed in
dispute, the State requested
leave to cross-examine accused no. 4 on the contents of the statement
as contained in exhibit “RR”.
2. Mrs Patrinos, on
behalf of accused no. 4 objected to leave being granted on the basis
that, until the question of its admissibility
has been resolved in
the trial within a trial, the contents of the warning statement,
exhibit “RR” may not be disclosed
to the Court.
3. Having heard and
considered the arguments on behalf of the State and accused no. 4 and
the case law on this point I ruled that
the contents of the statement
contained in exhibit “RR” may be disclosed in as far as
it is deemed necessary to cross-examine
accused no. 4 for the limited
purpose, namely to resolve the question of credibility.  In
particular, it will not be used
for the purpose of considering and
deciding the question of guilt or innocence unless it is duly proven
to be admissible.
I therefore ruled that Mrs Ferreira on behalf
of the State may put questions relating to the contents of the
statement to accused
no. 4.  The reasons for this ruling are
included in the reasons for the ruling pertaining to the trial within
the trial regarding
the admission of accused no. 4’s warning
statement.
[71]
During cross-examination of accused no. 4 he conceded that his
constitutional rights were indeed explained to him by an unknown

member of SAPS.  He also testified that all the names referred
to in the statement were already written in the statement at
the time
when he signed the document.
[72]
Having heard the evidence and considered the arguments on behalf of
the prosecution and on behalf of the defence, I ruled that
the
evidence pertaining to the warning statement, exhibit “OO”
and the warning statement exhibit “RR” be
provisionally
allowed.
[73]
In accordance with the general rule, the onus of proving both facts
and conclusions relevant to the inquiry into the admissibility
of
evidence rests on the State and must be discharged beyond reasonable
doubt.  Different considerations may apply where Section
35(5)
of the Constitution of the Republic of South Africa, Act 108 of 1996
(“the Constitution”) comes into play.
It provides
that evidence, obtained in a manner that violates any rights in the
Bill of Rights must be excluded if the admission
of the evidence,
would render the trial unfair or otherwise be detrimental to the
administration of justice.  For purposes
of this ruling I
accepted that the State bears the onus of proving the two (2)
requirements in Section 35(5) of the Constitution.
The State
sought to introduce a written statement made by accused no. 3,
exhibit “OO” to Colonel Sefuthi and a written
statement
made by accused no. 4, exhibit “RR” also made to Colonel
Sefuthi as evidence in this case.  The legal
representatives of
accused no. 3 and accused no. 4 informed the Court that the contents
of these statements were not confessions
but that both statements
were of an exculpatory nature and neither were made freely and
voluntarily.  The requirement that
an extracurial statement to
someone in authority must be made freely and voluntarily is
reinforced by the two provisions in the
Constitution, most obviously
Section 35(3) under subsection (h) and (j) which guarantee an accused
the right to a fair trial by
which is also included the right to
remain silent (which would be undermined if there is, for instance,
coercion) and the right
not to be compelled to give
self-incriminating evidence; which I understand to include evidence
that may damage the accused’s
credibility.  It remains
evident that the evidence will be prejudicial to both accused and
therefore it remains essential
to ensure that if, admitted, it was
done freely and voluntarily.
[74]
The testimony of the witnesses on behalf of the prosecution were that
none of the accused were threatened or assaulted in any
way during
their arrest that occurred on the afternoon and evening of 9 February
2017.  The State witnesses denied that any
threats were made to
accused no. 3 and accused no. 4 or that they refused to sign the
written statements, exhibit “OO”
and exhibit “RR”.
Accused no. 3’s version regarding the assaults perpetrated upon
him at the time of his
arrest escalated in seriousness as the trial
progressed and so did his injuries.  Both ccused said that they
were merely told
to sign the statements but did not have it read back
to them nor were they provided with an opportunity to read these
statements.
[75]
Every one of the witnesses called in the trial within a trial
relating to accused no. 3 and accused no. 4 vehemently denied
in
their evidence that they or any one of them, maltreated the accused
in any way.  The exhibits handed in by the prosecution
provides
an evidential paper trail confirming the several occasions on which
each accused’s constitutional rights were explained,
the right
to legal representation were explained and questions posed regarding
threats of violence or injuries sustained since
their arrest on 9
February 2017 and during the period of their detention in the police
cells and at Grootvlei Prison.
[76]
When Accused no. 3 took the stand he contradicted his instructions to
counsel regarding the assault upon him at the time of
his arrest and
the seriousness of his injuries.  It became apparent that
accused no. 3’s version regarding the signing
of the warning
statement is unconvincing and can safely be rejected as false.
Accused no. 3’s initial evidence that
he was well aware of
signing documents relating to DNS samples and further documents
regarding his constitutional rights changed
as he gained more
confidence and his injuries escalated in seriousness to a point where
he could hardly see and had to be assisted
by Colonel Sefuthi to hold
a pen and sign his warning statement.  He had obviously
forgotten his initial evidence regarding
his ability to ascertain the
contents of the string of documents that he already signed in the
short period since his arrest.
[77]
Accused no. 4’s version that he was forced to sign an
exculpatory statement of which the content did not emanate from
him
can safely be rejected as unconvincing and false.  Mrs
Ferreira’s contention that all the State witnesses were good,

credible and reliable and that both exhibit “OO” and
exhibit “RR” should be allowed into evidence are
supported by the evidence.  On the other hand, both accused no.
3 and Accused no. 4 came across as untruthful and unreliable

witnesses.  The Accused clearly concocted their stories of
duress, threats of assaults and assaults by the members of SAPS.

I was at the time of my ruling, and, still am, of the opinion that
the State succeeded in establishing that the warning statements
made
by accused no. 3 and accused no. 4 were made freely and voluntarily
by both accused, while in sound and sober senses and without
having
been unduly influenced thereto.
[78]
I accordingly allowed the contents of exhibit “OO” and
exhibit “RR” into evidence and, as I was not
swayed
during further evidence in this matter or arguments to come to a
contrary conclusion, the provisional ruling to admit both
exhibits
became a final ruling and the contents of the warning statements will
be assessed together with  the other evidence.
[79]
The contents of exhibit “OO” were read into the record of
the proceedings:
“
I, Kabelo Simon
Senoge, suspect in this case hereby state that I am in my sound and
sober senses, that I know the allegations against
me and willing to
make the following statement/answer questions voluntarily. On
2017/01/30 in the afternoon I was at Mosa’s
place with Mosa and
Rasta.  I then went to the nearby shop to buy cigarettes.
Mosa and Rasta came to me and told me
that they got a phone call that
the Maroma gang members are captured at Phase 3 we must go join the
BTK’s because the deceased
were looking for Dimeche and we must
pretend to be the Maroma.  Other BTK members arrived and we all
moved to the direction
of Limo Mall except Mosa who moved
(eligible).  At the crime scene Dimeche wanted Rasta to also be
present because we left
him behind.  Rasta was (eligible) and
while moving toward the crime scene.  After Rasta’s
arrival the three deceased
were instructed by Dimeche to sit down.
Dimeche started to stab the first deceased.  Nkomo, Karabo and
Ditaba, Messi,
Zamele, Lloyd and others, whose names I don’t
know also stabbed after Dimeche.  Also Simon and Cosmo stabbed
the deceased
all of them, as well as Lebeko stabbed.
Myself and Rasta did
not take part in the stabbing and we left the whole BTK’s
stabbing all three deceased.  We went
to report the incident to
Mosa’s brother who then told us to move away because he doesn’t
want trouble at his place
and we went to Bergman Square where I was
arrested.
”
[80]
Exhibit “RR” was read into the record and contained the
following statement:
“
I Teboho James
Mokoai, suspect in this case hereby, state that I am in my sound and
sober senses, that I know the allegations against
me and willing to
make the following statement/answer question voluntarily.  On
2017/01/30 in the afternoon, I was at Mosa’s
place.  It
was myself, Mosa, Baba and Mosa’s brother with Kabelo when Mosa
got a phone call from Lebeko that they have
captured the three Maroma
gang.  We should join them.  Myself, Mosa and Kabelo went
to them.  Coming there, I saw
three Maroma gang members seated
with them.  I wanted to withdraw and me and Mosa went back to
where we were seated.
Dimeche called again and talked to Mosa
that we must join them.  Me and Mosa didn’t go join them.
Dimeche called
for the second time.  I went alone and leave Mosa
behind.  On my arrival to them I tried to stop them, but they
started
assaulting the Maroma gang with knives.  Me and Kabelo
walked away.  They then took the direction of Lima Mall and I
don’t know what happened there.  That’s all.
”
TRIAL
WITHIN A TRIAL:  ACCUSED NO. 5, ACCUSED NO. 7 AND ACCUSED NO. 8
:
[81]
On 11 October 2018 I was informed by Mrs Ferreira on behalf of the
Prosecution that she intends leading evidence concerning
a pointing
out made by accused no. 5 and also evidence regarding certain
statements made to a police officer by accused no. 7 and
accused no.
8.  Mrs Ferreira also informed me that she discussed these
aspects with the defence and was informed that the
admissibility of
the evidence regarding the pointing out as well as the statements
made by accused no. 7 and no. 8 are disputed
by the said accused.
[82]
The State then proceeded to call the first witness in the trial
within the trial, Constable Setjhaba Link Ralekgolela of the
Welkom
Detective Unit.  He testified that during January 2017 he was
stationed at the Navalsig Detective Unit in Bloemfontein.
On 10
February 2017 Colonel Sefuthi telephonically requested the witness
and his colleague, Constable Thulo to assist with the
pointing out.
They proceeded to Park Road Police Station to collect the suspect who
was then taken to hospital for a medical
check-up and to complete a J
88 form.  According to Constable Ralekgolela’s
recollection of the events the suspect then
directed him and
Constable Thulo to an unknown mall near Heidedal where he remained in
the police vehicle and the suspect and Constable
Thulo alighted from
the vehicle.  After his colleague and the suspect returned to
the vehicle they took the suspect back to
the Park Road Police
Station.
[83]
A copy of the occurrence book register evidencing that Lebohang
George Teele (Accused no. 5) was booked out by the witness
on 10
February 2017 at 13H40 was submitted and marked exhibit “G”.
Accused no. 5 did not complain of any injuries
and the witness could
not detect any visible injuries.  The witness testified that
accused no. 5 made the pointing out to
Captain Strydom who followed
the police vehicle in his private vehicle.  The witness was
unsure whether a photographer accompanied
them during the pointing
out as it was his first pointing out that he ever dealt with.
Entry number 624 on the second page
of exhibit “G”
indicates that the suspect was brought back by Constable Thulo to the
Park Road Police Station and the
suspect was without visible
injuries.  Constable Ralekgolela was unsure whether accused no.
5’s constitutional rights
were explained to him prior to the
pointing out.  Mr Kgoelenya, on behalf of accused no 5 put it to
the witness that accused
no. 5‘s rights was not explained on
the day in question.
[84]
The second witness in the trial within a trial, Captain Barend
Strydom stationed at Welkom Detective Service with thirty one
(31)
years’ experience in the SAPS testified that on 10 February
2017 he was requested to conduct a pointing out in Bloemfontein.

At his arrival at the Provincial Detective Offices in Bloemfontein he
met Colonel Sefuthi and arrangements was then made for the
pointing
out to proceed from Park Road Police Station.  At Park Road
Police Station Constable Ralekgolela and Constable Thulo
brought
accused no. 5 from the cells whereafter the interview took place.
Constable Thulo acted as an interpreter.
Exhibit “H”
was handed in on a provisional basis and consisted of the notes on
the pointing out of a scene conducted
by this witness.  The
witness testified that on 10 February 2017 at 09H30 he was requested
by Colonel Sefuthi to assist with
the pointing out and at 15H40 at
Park Road Police Station accused no. 5 was handed to him to proceed
with the pointing out.
The photographer, Constable G P Moleko
was also present in the office at the time of the interview and
during the pointing out.
[85]
Captain Strydom informed accused no. 5 that he was not obliged to
point out any scenes or places and warned him that whatever
he may
point out or may say will be noted down and photographs will be taken
of the scene or places pointed out and may be used
as evidence during
his trial.  Once again accused no. 5’s rights, pertaining
to legal representation and his right to
remain silent were explained
to him by the witness.  Captain Strydom noted that accused no. 5
wore black trousers, black and
green MTN sports top and appeared
normal.  Accused no. 5 indicated to Captain Strydom that he is
willing to show what he knows
and that he was not influenced to make
the pointing out.  Captain Strydom reassured accused no. 5 that
if he had been forced,
threatened or assaulted in any way to make a
statement or to point out anything he is able to assist him.
Accused no 5 indicated
that he understood, and that they may proceed
with the pointing out.  Accused no. 5 furthermore indicated that
the incident
took place on 2 February 2017 and again indicated his
willingness to proceed with the pointing out.
[86]
From the office where the interview took place they moved to the
State vehicle where photographs were taken.  Captain
Strydom sat
in the front left passenger seat while accused no. 5 sat behind the
driver in the back seat.  Next to accused
no. 5 was Detective
Constable Thulo who acted as the interpreter and the photographer
Constable Moleko accompanied them.
The pointing out started at
15H45 and was completed at 16H50.  Captain Strydom testified
that he did not accompany Constable
Ralekgolela and accused no. 5 to
the National Hospital, but prior to conducting the pointing out, he
convinced himself that the
person doing the pointing out was free
from injuries which information he learned from the completed J 88
medical form.  Exhibit
“J”, containing photographs
of the pointing out were handed in, however only the initial and the
very last two photographs
were left unstapled when handed in as an
exhibit.  The initial photographs where of accused no. 5 and
depicted the tattoos
on his body and was furthermore indicative that
no injuries, open wounds, blood or scars are visible.
Photograph 8 is a close-up
facial photograph of accused no. 5 and no
visible injuries are visible on the photograph.
[87]
The witness confirmed the content of photograph 21, photograph 23,
photograph 24, the full frontal photograph of the accused
showing no
visible injuries and the odometer of the vehicle.  Mr Kgoelenya
cross-examined the witness concerning the contradictions
between his
evidence and the evidence of Constable Ralekgolela who testified that
they left from the National Hospital where Captain
Strydom followed
the police vehicle in his private vehicle to the scene of the
pointing out.  The witness denied the version
put to him and
testified that he did not proceed in his white double cab bakkie to
the scene of the pointing out but everybody
travelled in a blue
Toyota Corolla motor vehicle which is visible in the photographs.
[88]
Colonel Sefuthi testified that accused no. 5 was located at an
unnumbered corrugated iron sheet house in Pieter Swarts Township..

He arrested accused no. 5 who was in the company of two (2) other
accused.  The witness explained that he informed accused
no. 5
that he was busy investigating a murder case and informed him of his
constitutional rights in Sesotho.  At Mangaung
Police Station
and during an interview with accused no. 5 he indicated that he is
willing to make a pointing out.  Colonel
Sefuthi then arranged
with Captain Strydom as well as Constable Thulo and Constable
Ralekgolela to proceed with the pointing out
on the following day.
[89]
During cross-examination by Mr Kgoelenya, accused no 5’s
version that he was arrested on the street and not in a shack,
was
put to the witness.  At the time of his arrest accused no. 5 was
immediately instructed to hand over the clothes that
he was wearing
whereafter the police started searching his shack.  It was
furthermore denied that accused no. 5 granted permission
to search
his house.
[90]
It was put to Colonel Sefuthi that accused no. 5 was not interviewed
at Mangaung Police Station but was arrested with other
accused who
were indeed taken to the Mangaung Police Station.  He was
however transferred to the Tourism Centre where he was
assaulted by
Captain Dasheka and members of the TRT.  Captain Sefuthi was
present at the Tourism Centre.  A plastic bag
was placed over
his head, covering his face which nearly suffocated him.
Captain Khene stopped the assault by Captain Dasheka
on him.
During cross-examination by Mr Kgolenya on behalf of accused no. 5,
exhibit “M”, Colonel Sefuthi’s
statement as well as
exhibit “N”, accused no. 5’s warning statement were
handed in as exhibits.  The warning
statement was obtained from
accused no. 5 on 11 February 2017 and indicates that accused no. 5
declined to make any statement.
It was placed on record that
accused no. 5 was made aware of his rights at about midnight on 10
February 2017.
[91]
Captain Alfred Khene of the Detective Unit at Park Road Police
Station, who has thirty one (31) years’ experience in
the SAPS,
confirmed that he took down the warning statement of Accused no. 5.
He confirmed the testimony of Colonel Sefuthi
regarding the arrest of
accused no. 5.  After the arrest, permission to search the
corrugated iron shack was requested and
obtained whereafter the shack
was searched.  The arrested persons were removed to Park Road
Police Station.
[92]
Exhibit “K”, the Notice of Rights in terms of the
Constitution (“SAPS 14A) indicated that accused no. 5’s

rights in terms of Section 5 of the Constitution were read to him on
10 February 2017 at 00H27 at Park Road Police Station.
No
indication of any threats or assaults were recorded on exhibit “K”.
During cross-examination by Mr Nel it
was denied that the accused
were found hiding in the corrugated iron shack..  Captain Khene
responded that the shack was locked.
It was put to Captain
Khene that accused no. 5 who was in the company of Mzwele, Messi and
Seun in the street, saw the white Polo
motor vehicle and that Captain
Khene was the driver of the vehicle at the time of their arrest.
[93]
The next witness in the trial within the trial was Captain Basil
Anthony Sandy of the Local Criminal Record Centrum and part
of the
provincial task team.  Captain Sandy has thirty two (32) years’
experience in the SAPS.  On 9 February 2017
at 20H50, Captain
Sandy met up with Colonel Sefuthi and Captain Khene in the
Bloemspruit area.  Several vehicles moved in
a convoy and
Captain Sandy was alone in his vehicle at the rear of the police
convoy.  At 21H05 the convoy stopped in front
of a corrugated
iron shack without a number in Pieter Swarts informal settlement.
Captain Khene was in the company of a young
boy and the boy, whose
further particulars was unknown to Captain Sandy, pushed open the
door of the property where a bed with
two (2) pedestals next to each
other were found.  Exhibit “O”, containing
photographs taken by the witness was
handed in and Captain Sandy
indicated the corrugated iron shack visible on photographs 1, 2 and 3
in exhibit “O”.
Photograph 4 to photograph 10
depicts a sports bag, found in the left pedestal next to the
corrugated iron wall.  Photograph
6 depicts the content of the
sports bag, a t-shirt, more clearly visible on photographs 7 to 12.
The t-shirt was removed
from the bag as seen on photographs 9 and 10
and was placed in an exhibit bag with number PA3000710996 and marked
as exhibit “1A1”.
A pair of beige/brown, Chino,
“
Oak Ridge
” pants, marked exhibit “1A2”,
depicted on photographs 14, 15 and 16 were seized and placed in an
exhibit bag
with number PA3000711002 as depicted on photographs 17
and 18.
[94]
The convoy then proceeded to house no. 9045 in Pieter Swarts
township. Photographs 21, 22 and 23 shows the inside of this
property.  At a third property, house no. 5365, Bloemside 1,
depicted on photographs 24 and 25 the witness entered through
the
kitchen door and a blue washing basket, visible on photograph 26 was
shown from which a pair of blue jeans, removed at the
top of the heap
in the basket and marked as exhibit “3A1” and depicted on
photographs 27 to 30 in exhibit “O”.
Next to the
blue washing basket was a cupboard from which a yellow t-shirt was
removed after it was pointed out to the witness.
The yellow
t-shirt (Nike) was marked exhibit “3A2” as shown on
photograph 35 and placed into an exhibit bag numbered
PA3000706213.
According to the testimony of Captain Sandy a young boy and Colonel
Sefuthi then moved to a bedroom where the
investigating officer,
Colonel Sefuthi, lifted the bedding and underneath the bed a pair of
brown shoes, which was marked exhibit
“3A3”, as shown on
photographs 38 to 39 was removed and packed into exhibit bag
PA300071100 as shown on photograph
42.  The exhibits were booked
in a register for safekeeping in the exhibit office, SAP 459, with
exhibit number 96/2017.
On 14 February 2017 the witness
compiled his forensic letter, inspected all the exhibits to ascertain
whether all the seals were
still intact and sent all the exhibits per
courier to the forensic laboratory.  The letter dated 14
February 2017, accompanied
the exhibits to the Chief Forensics
Science Laboratory and was received as exhibit “P”.
The exhibit log, part
of Captain Sandy’s crime scene report,
completed on the scene as he collects the exhibits, marked “LCRC
reference number
07/02/2017” with a reference number of each
exhibit, a description of each exhibit, the place and position where
it was found,
the date and the packing number was accepted as exhibit
“Q”.
[95]
During cross-examination by Mr Nel, Captain Sandy indicated that the
exhibit bag containing the brown shoes found underneath
the bed, was
sealed and a photograph depicting the sealed bag, though not included
in exhibit “O”, is available on
his laptop and was
subsequently handed in and marked exhibit “R”.  It
was furthermore put to the witness that
accused no. 7’s
instructions are that the property referred to as House no. 9045
belonged to a man called Lehlohonolo Motsepe,
who is much taller than
accused no. 7 and he wears a size 8 or size 9 shoe.  The shoes
found underneath the bed belong to
Lehlohonolo Motsepe, who left the
shoes at the house whereafter accused no. 7 kept the shoes underneath
his sister’s bed.
[96]
According to accused no. 7, he informed  the members of the
police that the shoes belonged to the said Lehlohonolo Motsepe
at the
time the shoes was seized by the witness.  Accused no. 5’s
version that he stayed with Thabang Makibinyane in
the shack and the
sports bag belonged to the said Thabang Makibinyane was also put to
this witness, who had no knowledge thereof.
At the time when
the sports bag was discovered, accused no. 5 made the police aware of
the fact that he is not the owner of the
sports bag, nor the contents
thereof and it was the property of Thabang Makibinyane.  Captain
Dasheka testified in the trial
within the trial and explained that on
9
th
February 2017 at around 15H30 and subsequent to the
arrival of Colonel Sefuthi and Captain Khene, and due to information
received
after the arrest of accused no. 1, it was decided to proceed
with the investigation and to secure further arrests and seize
clothing
with possible blood stains as soon as possible. Therefore it
was decided not to obtain a search warrant at the Magistrate’s

Court due to the fact that time was of the essence.  According
to Captain Dasheka, it was highly likely that, after the arrest
of
one member belonging to a gang, the message could soon reach the
other members which could lead to the destruction of evidential

material.
[97]
The witness confirmed his evidence in the main trial that suspects
were not threatened, assaulted or manhandled in any way
and further
denied that any of the accused were taken to the Tourism Centre where
they were assaulted.
[98]
It was put to Captain Dasheka by Mr Nel on behalf of Accused no. 7
and 8 that the police had sufficient time to obtain a search
warrant
prior to launching the operation, search of the properties referred
to and the seizure of the evidential material referred
to by Captain
Sandy.  Captain Dasheka was accused of assaulting accused no. 7
at the Tourism Centre by smothering him with
a surgical glove, filled
with water and held over his nose and mouth, which accusation was
denied by Captain Dasheka.  Thereafter
Captain Dasheka smothered
accused no. 7 with a plastic bag, sprayed with teargas and pulled
over his head, which accusation was
also denied by Captain Dasheka.
[99]
It was put to Captain Dasheka that accused no. 8 was slapped in his
face several times and accused no. 1, 3, 6, 7, 8 and 10
were all
assaulted by other members of the SAPS at the Tourism Centre.
[100]
Warrant Officer R.J. Motseki, who has 26-years’ experience as a
member of the SAPS, testified that on 11 February 2017
he was
requested to obtain a warning statement from accused no. 7, Pogisho
Paul Nathane, also known as Messi.  Page 1 and
page 2 of the
warning statement marked exhibit “S” was provisionally
allowed and the last paragraph on page 2 was covered
by Mrs
Ferreira.  At 14H15 and at Heidedal Police Station, the witness
questioned accused no. 7 whether he understood the
charges levelled
against him and whether he is prepared to make a statement
voluntarily to which accused no. 7 replied that he
is willing to make
such a statement.  Accused no. 7 did not report any threats of
violence, assaults nor any injuries at the
time.  After
completion of the statement it was read back to him whereafter
accused no. 7 signed the statement on several
pages.  After
completion of the interview and taking down of the statement the
witness returned accused no. 7 to the cells.
[101]
At 16H30 on the same day, the witness also took down the warning
statement of accused no. 8, Zwelinlungile Ntlathi, as per
exhibit
“T”.  The witness conducted the interview at
Heidedal Police Cells and accused no. 8’s rights were
explained
to him during the interview.  The
pro forma
document was
completed and the accused did indeed provide a statement.  The
statement was then read back to accused no. 8
and upon replying that
he was satisfied with the contents thereof, signed the statement.
There were no threat of violence
or assaults reported by accused no.
8 to the witness and the statement was given freely and voluntarily.
[102]
During cross-examination it was disputed that accused no. 7 and 8
were requested to undress to ascertain whether they might
have any
injuries to their bodies.  The witness confirmed that neither
accused no. 7 nor accused no. 8 reported any assaults
perpetrated
against them.  Both accused no. 7 and 8 denied that they
proffered any information to the witness and that the
contents of the
statements contained in exhibit “S” and exhibit “T”
were read back to them after the interviews.
It was put to the
witness that both accused no. 7 and 8 were assaulted by members of
the SAPS even though they did not display
any visible injuries at the
time of the interview with the witness.  It was also put to
Warrant Officer Motseki that both
accused no. 7 and no. 8 were
terrified of being assaulted again and it was furthermore denied that
the content of the statements
were written in the presence of accused
no. 7 and 8.  It was put to the witness that both accused no. 7
and 8 merely signed
the documents handed to them for their signature
without knowing the contents thereof.
[103]
Accused no. 5, a 25-year old male who, according to him  resided
with Thabang Makibinyane at the time of his arrest on
9 February
2017, testified that he was arrested in the street close to his
residential address.  At the time of his arrest
he was in the
company of accused no. 7 and accused no. 8 as well as Lehlohonolo
Motsepe also known as Mediele.  At the time
when the police
vehicles approached them, Mediele ran away but he was arrested and
later released at Mangaung Police Station.
Accused no. 5 was
informed that he was arrested in a murder case whereafter they were
removed to the Mangaung Police Station.
Accused no. 7 and 8 and
Madiele was in the police van with him.  At Mangaung Police
Station, Madiele alighted from the police
vehicle and Accused no. 5,
no. 7 and no. 8 were taken to the Tourism Centre where Captain
Dasheka took him into an office and made
him lie on his back.
Captain Dasheka sat on his chest and put a plastic bag, filled with
pepper spray on his head.
[104]
Accused no. 5 claimed that a statement was obtained from him by
Colonel Sefuthi at the Tourism Centre, however this version
was never
put to Colonel Sefuthi for his response.  Accused no. 5 saw
accused no. 1, who was placed in another vehicle at
the Tourism
Centre whereafter they left the Tourism Centre and went to Bergman
Square, to accused no. 4’s residence.
This occurred at
around 15H30 to 16H00.  Accused no. 5 was cuffed together with
Accused no. 7.  At the residence of Accused
no. 4 Captain
Dasheka, Colonel Sefuthi, the TRT members and the photographer,
Captain Sandy entered the premises.  From there
the police took
him to his place of residence where he informed the police that he
was staying with Thabang Makibinyane at the
shack.  This
information was relayed to members of the TRT, whom he also saw
during the trial when they attended the Court
proceedings.
Thabang Makibinyane joined him in 2016 and had been living with him
for a period of five (5) to six (6) months.
The last time he
saw him was at the time of his arrest.
[105]
Accused no. 5 denied granting permission for his shack to be searched
by the members of the police.  Thereafter they
left to accused
no. 7’s place of residence and thereafter to the Mangaung
Police Station.  Accused no. 5 conceded that
his Notice of
Rights as per exhibit “K” was given to him when he was
taken to the cells.  Regarding the pointing
out as per exhibit
“H” he testified that Constable Ralekgolela accompanied
him from Park Road Police Station for the
pointing out whereafter
they went to Limo Mall.  He denied the evidence presented by the
State that he was willing to make
a pointing out.  He
furthermore denied making the pointing out freely and voluntarily as
he was instructed to point to certain
spots.  According to
accused no. 5 he never met Captain Strydom before the pointing out
and he found Captain Strydom at the
Park Road Police Station while he
was completing a form.
[106]
Accused no. 5 testified that he indeed sold a pair of tekkies to the
witness, Dimakatso Makate. The tekkies belonged to three
(3)
gentlemen who came to him and requested him to assist with the sale
of the tekkies.  He confirmed her evidence that she
indeed
purchased the tekkies and paid an amount of R100.00.  Having
been told that the tekkies belonged to one of the deceased
he would
not have assisted in the selling of the tekkies.  During
cross-examination by Mrs Ferreira, accused no. 5 conceded
that there
was no assault at the time of his arrest but the assault on him by
Captain Dasheka took place at the Tourism Centre.
From the
Tourism Centre the arrest of accused no. 3, 4 and no. 6 took place
whereafter the members of SAPS returned to his place
of residence to
search his shack.  In his reply to the question how the police
knew to seize the green t-shirt and brown pants
at his shack if
nobody told the police about these particular items, he replied that
he showed them his cupboard, whereupon the
police decided which items
to seize.  Accused no. 5’s reply to the prosecution’s
question why it was put to Colonel
Sefuthi that he was ordered to
show them his shack and the clothes that he was wearing, accused no.
5 replied that he was indeed
asked to indicate where he kept his
clothes.  He however denied replying to these particular
questions.  Accused no.
5 then testified that when the police
came they did not ask him where his shack was located.  They
took him to the Tourism
Centre, and then left to arrest the other
accused whereafter they took him to his shack to search for the
clothes.  It was
therefore put to accused no. 5 that his version
now differs from the version put to Colonel Sefuthi.  It was
furthermore put
to accused no. 5 that it is unlikely that Colonel
Sefuthi, while conducting an illegal search would request a
photographer to photograph
the illegal search.  Accused no. 5
replied that he does not have the answer to these questions as he was
outside during the
search and whatever happened inside his shack he
does not have any knowledge of.
[107]
During cross-examination accused no. 5 testified that the plastic bag
that contained pepper spray was held over his face while
members of
the TRT was holding his hands and legs in order to immobilise him.
It was put to him by Mrs Ferreira that in his
evidence in chief he
explained that the plastic bag, apart from the pepper spray, also
contained water.  Accused no. 5 then
informed the Court that
when you pour pepper spray into a bag it forms a liquid, something
like water and that is why he referred
to water inside the bag during
his evidence in chief.
[108]
It was put to him that his version that he informed the police
that the clothes that were seized belonged to Thabang
Makibinyane was
not put to Colonel Sefuthi nor Captain Khene when they testified.
Accused no. 5 replied that he did inform
members of the TRT at the
time of the search but not Colonel Sefuthi nor Captain Khene nor
Captain Strydom.  Due to his distrust
of the police officers, he
did not inform Captain Strydom of any threats or assaults perpetrated
against him and did not ask his
assistance to arrange protection
against any further harm.  Accused no. 5 conceded that he
informed the police about the black
and white Adidas Superstar
tekkies sold to Dimakatso and provided information to the police
regarding the sale of the tekkies.
[109]
Accused no. 5 testified that the office where he was tortured at the
Tourism Centre was located on the ground floor and there
were no
other businesses or shops at the particular centrum.  Accused
no. 5 was taken to the Tourism Centre during the day
at approximately
14H30 to 14H45.  According to accused no. 5, the police vehicle
parked in front of the door where they entered
the building. He was
not able to provide a description of the parking area where the
police vehicle stopped in relation to the
Tourism Centre and whether
the parking area was at the side of the building or not.
[110]
Accused no. 7, Pogisho Paul Nathane, testified that he was arrested
while standing with accused no. 5 and no. 8 in the street.
He
knew accused no. 8 from the soccer but only met accused no. 5 on that
particular day.  Accused no. 7 corroborated accused
no. 5’s
version that, at the time of the arrest, Madiele ran away and  was
caught by Captain Khene. After their arrest
they went to Mangaung and
did not see Madiele afterwards.  From Mangaung they departed to
the Tourism Centre.  Accused
no. 7 testified that accused no. 5
was made to lie face down whereafter he changed the version to say
that accused no. 5 was laying
on his back.  Accused no. 7 was
taken into a separate office and was made to lie facing downwards.
Captain Dasheka used
a glove with water and placed it on his face to
suffocate him.  From the Tourism Centre they went to Bergman
Square where
Accused no. 2, 3, 4 and 6 were arrested whereafter they
returned to accused no. 5’s shack and where he was cuffed with
accused
no. 5 when they alighted the vehicle.  Accused no. 7
testified that the police requested the clothing that he was wearing
on the previous Monday and he agreed to this request.  He
testified that the police demanded the shoes that he was wearing
on
the Monday.He replied that he was still wearing the very same shoes,
but the police proceeded to a bedroom where they found
a pair of
dirty Caravella shoes whereupon he informed the police that the shoes
belong to Madiela.  Madiela informed him that
the particular
pair of shoes were too small and he left the Caravella shoes with the
witness and borrowed a pair of flip flops
(from accused no. 7). The
witness did not provide the information as per exhibit “S”
but merely signed the document
due to fear of further assaults.
During his evidence in chief accused no. 7 conceded that he indeed
received a document containing
his rights.  Accused no. 7
confirmed that the contents was read to him but not explained and his
signature does indeed appear
on the document.
[111]
During cross-examination, Accused no. 7 testified that the police
were not interested in the shoes that he was wearing on
the Monday
and they did not remove the shoes from his feet.  Accused no. 7
then testified as follows:
“
I then showed
them the other shoes that were there.  I took them out under the
bed.  They then took them because they
were dirty.
”
And
further:
“
I did not give
them.  I only showed them that these were the only shoes that
are there.  They then took them.
”
[112]
It was put to the accused that he is adjusting his version regarding
the size of the shoes as it was put to Captain Sandy
that
Lehlohonolo’s shoes were a size 8 or 9, but during his
testimony in chief he replied that Lehlohonolo wore a size 7
or 8
shoe.  Accused no. 7 replied that even though Lehlohonolo’s
feet were much bigger in size he was still able to
comfortably wear
his “flip flops” and even kept accused no. 7’s
shoes for a period of more than two (2) weeks.
However, accused no 7
adjusted his version to a period of a week or a few days. According
to accused no. 7 he learned from Captain
Dasheka that Lehlohonolo was
killed by a person called Satan.
[113]
Subsequent to the testimony of accused no. 5 and no. 7 in the trial
within the trial the State applied for the reopening of
the State’s
case and presented the evidence of Johan Abraham Putter, a Captain
with the HAWKS and stationed at the Tourism
Centre, Bloemfontein.
(Park Road, Bloemfontein).  Captain Putter has twenty seven (27)
years’ experience and is stationed
at the Directorate of
Priority Crimes Investigation, also known as Organized Crime.
Their offices are situated on the first
Floor of the building which
was shared with a training centre.  Access to the first floor is
gained by lifts or stairs.
There are two glass doors at the
entry leading to a communal entry hall and the offices are situated
to the right of the entry
hall.  Entry to the offices situated
at the Tourism Centre can only be obtained upon signing a register
controlled by security
guards.  There are approximately twenty
five (25) offices occupied by the DPCI and all of the offices are
occupied by investigators.
There are no vacant offices.
[114]
Due to the seriousness of the crimes investigated by the DPCI it is a
general practice to lock one’s office as soon
as you leave your
office and therefore it is highly improbable for other SAPS members
to gain entry to these offices to assault
suspects and if any
assaults took place at these offices it would have become known due
to the fact that the walls are not soundproof.
The ground floor
of the Tourism Centre is occupied by various businesses for example a
bus service, an optometrist, a security
firm, a hair salon and a
restaurant as well as the general inquiry offices of the Tourism
Centre.  A pharmacy is also located
on the ground floor.
[115]
Accused no. 8 Zwelinlungile Ntlathi testified that he was arrested on
9 February 2017 in the street at Pieter Swarts township.
He was
accompanied by Madiele, accused no. 5 as well as accused no. 7 whom
he knows as “Messi” from playing soccer.

At the time of his arrest his rights were not read to him and he was
taken to the Mangaung Police Station whereafter he was also
taken to
the Tourism Centre with accused no. 5 and no. 7 and testified
regarding the allegations that they were assaulted.
Accused no.
8 testified that he did not make a statement as per exhibit “T”
but merely signed the statement due to
fear of further assaults.
The document was not read back to him and he denies any knowledge of
the incident.
[116]
Accused no. 8 called his mother, Ellen Hlengiwe Ntlathi to testify as
a witness.  She corroborated accused no. 8’s
version that
the blue K-way beanie was bought by her other son, Simphiwe Jolimvava
who lives and works in the Eastern Cape and
who gave the particular
K-way beanie to accused no. 8 during November 2016 as a Christmas
present.  Her son in fact bought
three (3) K-way hats which he
gave to his siblings for Christmas.  During cross-examination
she was able to remember the dates
when Simphiwe brought the beanies
during November 2016 but was unable to provide clear information
regarding the damage to her
cell phone, which only happened
approximately three (3) months prior to her testimony in court, as
being the reason why she was
not able to provide the police with the
contact number of her son, living in the Eastern Cape.  Accused
no. 8, in his testimony
in chief testified that his brother brought
him the beanie during December 2016, but in the trial within the
trial he testified
that it was during November 2016.  During her
evidence the mother of Accused no. 8 was not aware of the fact that
Accused
no. 8 failed at school on several occasions and indicated
that he was actually a good student.  The witness furthermore
testified
that soon after Accused no. 8’s arrest she relocated
and refrained from informing Accused no. 8 that she no longer stayed

at her former address.  It was actually clear that Accused no.
8’s mother did not have contact with Accused no. 8 since
his
arrest during February 2017, however she was able to provide precise
information regarding the three (3) K-way beanies which
her children
received as presents. That was actually the only aspect of which she
was sure of.
[117]
On 24 October 2018 I, subsequent hearing the evidence of members of
SAPS as well as the evidence of Accused no. 5, 7 and 8
pertaining to
severe assaults, threats as well as the fact that their
constitutional rights were breached, ruled that the evidence

pertaining to the pointing out by accused no. 5 made to Captain
Strydom as well as the evidence concerning the statement made to

Warrant Officer Motseki by accused no 7 and the statement made by
accused no. 8, are provisionally allowed.
[118]
All the State witnesses made a favourable impression during their
testimony and there were no material contradictions in their

evidence.  It was however clear that Constable Ralekgolela, as
conceded by Mrs Ferreira, was obviously mistaken concerning
the
events that took place during the pointing out conducted by Captain
Strydom of Accused no. 5.  Constable Ralekgolela was
unsure of
the procedures that were followed, the sequence of events and the
fact that Captain Strydom was driving with the witness
in the police
vehicle.  He was a poor witness, uncertain about his assertions
and obviously confused.  On the other hand,
Captain Strydom, who
appears to be a highly experienced police officer and who explained
that his colleague, Constable Ralekgolela
who travelled with him to
testify in the trial within a trial, was inexperienced and nervous at
the time when he testified.
The other witnesses on behalf of
the prosecution corroborated each other in all material respects and
I can find no reason to question
the reliability of the testimony of
each of them.  Accused no. 5, no. 7 as well as accused no. 8
however were generally vague
and uncertain about events, which
obviously led to accused no. 5’s adaptation of his version
pertaining to the pepper spray
becoming water through the process of
condensation and their vague description of the offices at the
Tourism Centre.  In this
regard the evidence of Captain Putter
pertaining to the description of the location of their offices at the
Tourism Centre is accepted
as the truth while the testimony of
accused no. 5, accused no. 7 and accused no. 8, that no other
businesses are located at the
Tourism Centre can safely be rejected
as false.  It actually became clear that accused no. 5, no. 7
and no. 8 has no indication
of where the Tourism Centre is located or
the fact that several businesses are located in this double storey
building.  It
is furthermore highly improbable that the accused
were interrogated and tortured in the way described as it was obvious
that the
version that they were suffocated with a surgical gloves and
plastic bags containing liquid pepper spray were fabrications.
[119]
Accused no. 7’s version concerning the shoes found underneath
his sister’s bed is obviously an adaptation of his
initial
version that he pointed the shoes to the police but later testified
that he did not make any pointing outs at the time
and the police
searched underneath the bed and found the shoes without his
assistance.  Accused no. 7’s version that
he handed a pair
of “flip flops” to Lehlohonolo, which would have been,
according to his own version, too small for
Lehlohonolo, is rather
opportunistic and is rejected as false.
[120]
The Court is fully aware of the possible dangers lurking in the
acceptance of the evidence of Accused no. 8’s mother
who
obviously refrained from visiting her son while incarcerated but
provided support for Accused no. 8’s version that his
received
the K-way beanie as a present from his brother.
[121]
The notes pertaining to the pointing out by Accused no. 5 was
accepted as exhibit “H1”. The contents read as follows:

“Captain Strydom noted that Accused no. 5 gave directions to
proceed to an open area where he and his friends met three (3)
males
who enquired as to the identity of “
Match
”.
The three (3) males were informed that Accused no. 5 and his friends
are members of the BTK group and revealed their
BTK tattoos
whereafter Match was pointed out to the three males.  Match then
instructed the three (3) males to lie down on
their sides and to
close their eyes.  According to Accused no. 5 they then took out
their knives and stabbed all three (3
males in their necks.  He
himself and all the members of his BTK group then took “big
stones” and threw the stones
at the heads of the three males.
Match then took his knife and cut the three victims’ throats.
After realizing
that the victims were dead they then left them at the
scene, split up and took different directions.  Accused no. 5
then told
Captain Strydom that he and his group came back the next
morning and found the bodies of the deceased still on the scene.
[122]
The notes were signed by Accused no. 5 as well as Captain Strydom.
Further evidence regarding the procedures followed
as soon as Captain
Strydom and Accused no. 5 returned to the Park Road Police Station
were then placed on record.  The contents
of exhibit “S1”,
the warning statement of Accused no. 7 was then revealed and placed
on record. On the second page
the contents thereof read as follows”
“
On Monday, 1
February 2017 at about ± 20H00 I left my residing place Pieter
Swarts and I went to my friend’s shack.
BTK’s where
we always meet.  The owner shanti belongs to Lebohang Tele.
Also known as Lebeko.  On my arrival
at Lebeko place shanti I
found unknown male and Zweli standing outside.  On my arrival
this unknown male came to me and told
me that the t-shirt that I am
wearing is short and my tattoos of BTK can be seen.  And I must
not get inside the shanti because
they capture three guys of Maroma
gangsters.  Then I asked him to explain further.  This
unknown male explained to me
that this three guys met with them at
Bangladesh tuck shop in Phase 4.  They said that they are
looking for Dimach.
This three Maroma gangsters.  This
unknown male asked them why are they looking for Dimach and they did
not answer him and
left.  And afterwards this unknown male went
to Dimache and told Dimach that this three guys are looking for him.
Then
Dimach went to this three guys then asked them whether they are
looking for Dimach.  Then this three guys did not answer
Dimach.
Then Dimatch while he realized that this three guys are
not answering him, he then asked guys it seems as if you belong to
BTK’s.
This three guys respond by saying no they do not
belong to BTK.  Then Dimatch told them he heard that they are
looking for
Dimatch.  Then he asked them to which gangster are
they belonging.  As they are looking for Dimatch.  They
told
Dimatch that they belong to Maroma gangster.  Then Dimatch
show a sign of Maroma and told them that he also belonged to Maroma

gangsters and he is also looking for this Dimatch and also gangsters
known as Makauta are also looking for Dimatch at Pieter Swarts.

Dimatch and this three guys went to shack and found BTK members.
Then Dimatch and some BTK’s members and this three
guys
‘Maroma’ were smoking ndanda drug inside the shack while
I was still outside with this unknown male who was telling
me this
whole story.  I told this unknown male that I am going to change
the t-shirt that I was wearing.  After I have
change I met
Lavas, Pule and we went back to that shanti where Maroma have been
captured.  The same day at about 22H00 we
left the shanti, K7,
KB, Zweli, Cosmo, Bongani, Zamile, Rasta, Mokome, Lepetla, Lebeko,
Frans, Lehlozi, Pina, Dimatch and others
are unknown to me as they
are residing in Phase 4 and are known to Dimatch.  Cosmo was in
possession of knife, Zamile was
in possession of a panga, Rasta
Mokome was in a possession of a panga, Lebeko was in possession of a
long knife, KB was in possession
of long knife called stainless
steel.  Lehlozi was in possession of a Rambo knife, Poke was in
possession of a knife, 3Star
and also this unknown Phase 4 BTK were
also in possession of knives.  Along the way we are just saying
we are going to Dimeche
place in Namibia.  On our arrival behind
Limo Mall then Dimeche instructed us to sit down so that passing cars
must not see
us.  Rasta was behind and KT called him with his
cell phone and Rasta arrived.  Then after that the Dimeche
instructed
us to sit in a circle but this three Maroma were a little
out of the circle.  Then Dimeche asked them to join the circle
properly.
Afterwards they were put inside the circle.
While sitting there Dimeche stand up and hold this three Maroma guys
with their
hands and told them, guys you have been looking for
Dimeche and here I am and if you can scream I am going to kill you.
Then
Dimeche said to Cosmo he must borrow him his 3Star knife he is
going to cut this guy’s testicles and he took a 3Star from

Cosmo and cut the first guy or slaughter him and he give Cosmo his
knife back and told him that his knife is slow.  Dimeche
took a
stainless knife and cut the second one throat with it and Cosmo
stabbed the last one who was a little bit younger and fall down
after
that.  Dimeche again cut his throat.  After that Dimeche
said no one is going to chop this three guys Maroma we
are only going
to stab them.  Then they started to stab them.  Then
Bongani asked to break the three guy’s eyes
and he only breaks
one guy’s eyes with his knife.  Lebohang Tele, Cosmo, KB,
Zamile, Poke were part of the people who
were stabbing this three
guys.  Zwele took a K-way blue hat from one of the deceased.
Cosmo took an All Star tekkies
black and white from the deceased.
Lebohang Tele and Bongani Pitso took Adidas called Superstar from the
deceased and they
were arguing for it.  Then at last Bongani
took it but the agreement was that they are going to sell it both of
them.
Rasta Mokone took the power land tekkies blue in colour
from the deceased.  Myself, Zwele also he has took a blue hat
and
Soso, Pina, Rasta, Lepetla did not stab the deceased our duty was
only to escort.  All people who has took the deceased’s

property are the last persons who has left the scene. Cosmo was in
possession of a (eligible) Zwele blue K-way hat, Lebohang Tele
Pitso
Adidas Superstar, Rasta took a power land tekkies.
”
[123]
Exhibit “T”, page 2 was forthwith read into the record
and contained the following:
“
On Monday, 1
February 2017 at about ± 21H00 I met with Soso in Pieter
Swarts.  Soso was with Messi.  Soso informed
me that there
are three guys at Lebeko’s shanti and that they belong to
Maroma gangster and told me that on my arrival I
must do the sign of
BTK but of … and Soso further told me that he is going to look
for other members of BTK then Soso and
Messi left and I went to
shanti where Maroma gangsters have been captured.  On my arrival
I find Lebeko, Cosmo, Dimeche and
BTK and this three guys belonging
to Maroma gangster and they were smoking ndada drugs.  While
sitting there Rasta, Mosdef,
KB, Rasta Nkomo arrives.  While
relaxing Dimeche was saying we must go and look out for Dimeche.
Afterwards Frans and
Messi arrived, Frans went into the shack and
Messi remained behind.  Someone informed Messi not to enter the
shanti because
his tattoo of BTK is visible.  We went outside
one by one and Dimeche informed us we are going to coronation.
After
we had an agreement that we are going to coronation, Dimeche
said that we are going to kill them.  Some few minutes after we

have left the shack Dimeche told us that we are no more going to
coronation but we are going to Namibia.  This three guys
of
Maroma were also in our company.  Behind Limo Mall Dimeche
instructed us to sit there to take a decision where are we going.

Then Dimeche said we must relax behind Limo Mall to wait for the
other group which was still coming.  On arrival of the other

group we formed a circle and this three Maroma gangsters were inside
the circle.  The Dimeche hold them by their hands and
told them
guys I am Dimeche you don’t scream or else I am going to kill
you.  Then Dimeche instructed them to lie down
and these three
Maroma lie down.  After that while lying Cosmo took a knife and
stabbed one of the guys on the neck then Dimeche
took a knife from
Cosmo and stabbed this other two and was busy cutting their throats.
Then K7, Frans, Zamile, KB and other
unknown BTK stabbed the three
Maroma.  Bongani took a knife and stabbed one deceased eyes.
Some of the BTK left and
stay behind and I took a K-way hat from the
deceased, Cosmo took a black All Star from one deceased.  Lebeko
took power land
tekkies from the deceased.  After that we left
the scene.
”
TRIAL
WITHIN A TRIAL:  ACCUSED NO. 13
:
[124]
Evidence pertaining to a warning statement obtained from Accused no.
13, Sefale John Molefe were as follows:  Mrs Patrinos
who by
then also appeared on behalf of Accused no. 13 since Mr Nell’s
retirement indicated that Accused no. 13 was informed
to sign the
warning statement and due to fear of assaults he affixed his
signature to the document.  Therefore the element
of “freely
and voluntarily” is absent.  Warrant Officer Ramodula, who
was stationed at Park Road Police Station
during February 2017 was
called to testify and informed the Court that he was requested to
obtain a warning statement from Accused
no. 13.  The witness
identified his handwriting on exhivit “YY”.  The
witness conducted an interview with
Accused no. 13 on 22 February
2017 at 13H17 at Heidedal Police Station where the suspect was
informed of the witness’s rank
and informed of his rights in
Sesotho whereafter the certificate by suspect on the first page of
exhibit “YY” was completed.
[125]
It is evident from the document that the five (5) questions  put
to Accused no. 13 were responded to  in the following
ways;
that he understands the alleged offence and that he is prepared
to make a statement on a voluntarily basis.  Accused
no. 13
indicated that he did not suffer any injuries nor was he assaulted or
threatened.  During cross-examination Accused
no. 13’s
version was put that he did not give any statement to the witness.
Accused no. 13’s version was that
he was slapped by Sergeant
Jona in the face and that he informed Warrant Officer Ramodula of the
assault upon him.
[126]
The next witness, Sergeant Shadrack Jona is stationed at Provincial
Organized Crime with fourteen (14) years’ experience
and
testified that he does not recall Accused no. 13 and only became
involved in this case on the 15
th
February 2017. He denied
Accused no. 13’s version that he assaulted him or threatened
him into making a statement.
Sergeant Jona had no recollection
that he attended the Comtech School where Accused no. 13 was arrested
and due to the fact that
he has knowledge of this particular school,
he would have remembered if he was involved in the arrest.
[127]
Sergeant Kenneth Motaung, stationed at Provisional Organized Crime
with eighteen (18) years’ experience in the SAPS
testified that
he was on duty on 21 February 2017 at Heidedal Police Station when
Colonel Sefuthi arrived with three (3) or four
(4) suspects.  He
was tasked to detain three (3) of the suspects and testified that he
followed the normal procedure to explain
their rights and to check
whether they had any injuries.  Exhibit “ZZ”, the
SAP 14A of Accused no. 13 was received
as an exhibit.  Sergeant
Motaung recognized his handwriting on exhibit “ZZ”.
Exhibit “AAA”,
the copy of the occurrence book was signed
by Sergeant Motaung when he handed the accused over to the cells at
Heidedal Police
Station.  Accused no. 13 was detained at 15H40
and did not report any police brutality to him nor was any bruises or
injuries
observed.  The witness was able to identify accused no.
13 in Court and explained that even though he met the suspect two (2)

years ago he is able to remember his face.  Colonel Sefuthi
testified that he as well as other members were involved in the

arrest of Accused no. 13 on 21 February 2017 at Comtech School.
[128]
Accused no. 13 testified that he was 19 years old at the time of his
arrest at Comtech School, where he was called to the
Principal’s
office and met with Captain Kene, Sergeant Jona and Colonel Sefuti.
Accused no. 13 denied that his rights
were explained to him at the
time of his arrest.  He testified that along the way Sergeant
Jona told him that he is not telling
the truth about the incident and
he was slapped with an open hand on his face, more than once.
His injuries were not visible.
Accused no. 13 identified his
signature on Exhibit “YY”, but explained that it was
affixed to the document under duress.
Accused no. 13 denied
that the questions under the heading “Certificate by Suspect”
were posed to him and that he provided
the answers recorded on
Exhibit “YY”.  He in effect denied that his rights
were explained to him and he furthermore
cannot recall telling
anybody about a murder  and therefore the content of the warning
statement did not emanate from him.
During cross examination
Accused no. 13 testified that his personal particulars were taken in
the Principal’s office at the
school and once again in the
kombi, but he could not provide a reason why it was necessary for the
police to obtain his personal
particulars twice.  This aspect
was also not put to the State witnesses for their response.  The
threat made towards
accused no. 13 consisted of a warning that he
will be assaulted in the same manner as Constable Jona assaulted him,
if he refused
to sign the warning statement.  Accused no. 13
could not provide any explanation from whom the content of the
warning statement
emanated from, if not from him.
[129]
On 13 May 2019, the ruling in the trial within a trial of accused no.
13 and subsequent to the evidence of four State witnesses,
Warrant
Officer Ramadula, Sergeant Jona, Sergeant Kenneth Motaung and Colonel
Sefuti as well as the evidence of accused no. 13,
was that the
contents of the warning statement of Accused no. 13, Sefali John
Molefe, Exhibit “YY” is provisionally
allowed as evidence
in this matter.
[130]
The contents of Exhibit “YY” reads as follows:
“
On Monday
2017/01/30 I was at my residence at Phase 4 with my friend Lerato.
One of our friends, Lebeko phoned Lerato on his
phone and informed
him that our gang Group BTK caught some other three guys are at a
certain corrugated iron house and they were
brought by Dimesh.
We went there and we found the three guys.  We, a group of men
belonging to the gang BTKs.
We went near Lemo Mall and these
three guys were encircled.  Dimesh asked these guys whether they
have knives with them and
they said they don’t have any knives
with them.  Dimesh asked them again that how can they come to a
fight without knives.
Dimesh borrowed a knife from one of the
group members and started stabbing one of these guys several times in
the neck.  Other
gang members also started stabbing all these
three guys with knives all over their bodies until all three of them
died.  Thereafter
we left the scene leaving all the deceased
there.  We parted to different direction.  I never
participated in the stabbing
of these three men.  I don’t
know who were those three men that were killed.  The people that
I saw stabbing these
guys are Dimesh,
(illegible),
Rasta.
The others I don’t know their names.  That is all.
[131]
The State also presented evidence in a trial within a trial
pertaining to Accused no. 15, Teboho Solomon Ntsheno, and called

several witnesses regarding the arrest of Accused no. 15.  The
disputed document was ruled inadmissible and it is therefore

unnecessary to recount the testimony of these witnesses.
THE
CASE AGAINST THE ACCUSED:
[132]
The State in this case has no direct evidence against the accused and
argued that due to the fact that the members of the
community fear
the gangsters, the availability of witnesses, willing to testify
against gang members remains a problem.  Mrs
Ferreira conceded
that the onus rests on the State to prove beyond reasonable doubt
that the Accused are guilty as charged on each
count.  Only
accused no. 5, no. 7 and no. 8 testified in their own defence.
At the last day of the hearing of this matter,
on 31 May 2019, and
subsequent to the address by Mrs Ferreira as well as the arguments on
behalf of the defence, the State conceded
that the burden of proof
beyond reasonable doubt has not been met with regard to Accused no.
1, no. 6, no. 9, no. 10, no. 11, no.
12 and no. 15 on counts 1 to 7
and that the said accused are entitled to their acquittal.
[133]
Subsequent to hearing the arguments on behalf of the state and the
Accused represented by Mr Kgolenya and Mrs Patrinos and
in
consideration of the right to freedom of movement entrenched in the
Constitution, this Court immediately proceeded with the
judgment in
this matter.  Due to the concession made by Mrs Ferreira that
the guilt of the seven accused mentioned on all
seven (7) charges
were not proved beyond reasonable doubt by the evidence adduced
during the trial and furthermore that the accused
mentioned, are
therefore entitled to their acquittal and due to the unavailability
of some of the legal representatives to proceed
with the judgment in
this matter during June 2019, it was of paramount importance to
proceed with the immediate acquittal of the
accused so mentioned.
I was satisfied that no evidence, proving their guilt beyond
reasonable doubt was placed before this
Court and therefore Accused
no. 1, no. 6, no. 9, no. 10, no. 11, no. 12 and no. 15 were found not
guilty relating to all the charges
against them and they were
discharged
[134]
The trial was postponed to 2 July 2019, and further postponed to 5
July 2019, to proceed and finalize the judgment in this
matter.
[135]
The case presented by the State comprised of more than fifty (50)
witnesses, however no eyewitnesses testified during this
trial.
[136]
At the close of the State’s case Accused no. 1, no. 3, no. 4,
no. 6, no. 7, no. 9, no. 10, no. 11, no. 12 and no. 13
applied for
their discharge in terms of Section 174 of the CPA in submitting that
there was no
prima facie
case linking them to the charges
against them.  Evidence in this case commenced on 8 October 2018
and numerous witnesses on
behalf of the State testified and 6 trials
within a trial pertaining to statements, pointing outs and admissions
by the accused
were held. After hearing evidence in a trial within a
trial concerning the admissibility of the warning statements made by
Accused
no. 3 and Accused no. 4, both warning statement were allowed
as evidence in this case.
[137]
Subsequent to a trial within a trial the warning statement of Accused
no. 7, marked Exhibit “S” and the warning
statement of
Accused no. 8, Exhibit “T”, were found admissible as
evidence. Furthermore the pointing out by accused
no 5 was also
admitted as evidence.
[138]
The warning statement of Accused no. 13, Exhibit “YY” was
also ruled to be admissible as evidence in this case.
Regarding
Accused no.9, 10, no. 11 and no. 12, no warning statements or other
evidence apart from their arrest in this case were
placed before this
Court.  Section 174 provides the Court with a discretion, which
must be exercised judicially in deciding
whether to discharge an
accused at the conclusion of the State case.  With regard to the
general principles that a Court must
act judicially, with sound
judgment and in the interest of justice and due to the evidence
before this Court which connects all
the Accused in this matter with
the BTK gang through photographs depicting the tattoos on the bodies
of the Accused as is evident
from the more than 90 photographs
comprising exhibit “U” and an inference that all the
Accused associated with, at
least the BTK gang, if not the NBKs or
666 gang, as well as the items handed in as exhibits which linked
some of the Accused to
the deceased in count one (1), the application
for discharge of the Accused referred to, were refused.
[139]
Mr Kgoelenya, who ultimately argued the case of Accused no. 3,
accused no. 5, accused no. 7 and accused no. 8 contended that
accused
no. 3 did not testify in this trial and the only evidence that links
Accused no. 3 to the murder of the three deceased
found at Lemo Mall,
is contained in the warning statement of accused no. 3, Exhibit
“OO”.  Mr Kgolenya argued
that the warning statement
was provisionally allowed as evidence against accused no. 3 and due
to the nature of the warning statement
being exculpatory in that
accused no. 3 stated that he as well as Rasta did not take part in
the stabbing of the deceased and left
the other members of the BTKs
at the scene, accused no. 3 is entitled to his acquittal.
[140]
On behalf of the prosecution, Mrs Ferreira submitted that the State
produced sufficient evidence to establish a
prima facie
case
against accused no. 3 and that his failure to testify placed him at
risk and that the Court is entitled to draw a negative
inference from
his silence.  On the evidence before Court accused no. 3 was
present at the scene of the murder and robbery
and the court cannot
speculate in his favour and his association with the rest of the gang
as they carried out the offences.
[141]
The same arguments were proffered with regard to the situation of
accused no. 4 regarding the available evidence as contained
in his
warning statement, exhibit “RR”.
[142]
Mrs Patrinos, who represented accused no. 4 throughout the trial,
contended that the contents of the warning statement, Exhibit
“RR”,
obtained from accused no. 4 are in essence exculpatory of nature and
therefore accused no. 4 should be acquitted
of the charges against
him.  Accused no. 4 did not testify and none of the accused who
testified in the trial implicated accused
no. 4 in any way.
[143]
Mrs. Ferreira argued that accused no. 4’s failure to testify
placed him at risk and the provisions of the POCO Legislation

requires that not only accused no. 4, but also accused no. 3 and
accused no. 13, being members of the BTK gang, proves a connection

between the accused and the murders that occurred at Limo Mall.
The contents of the statements made by accused no. 3, accused
no. 4
as well as accused no. 13 placed them at the scene of the crime and
one must therefore accept that the accused knew about
the crimes, did
not report the crimes committed nor did they disassociate themselves
from the BTK gang.  Mrs Ferreira therefore
argued that at least
Section 9(1) of POCA becomes relevant to this matter.  On behalf
of the prosecution it was contended
that the court cannot simply
accept the content of accused no. 3, accused no. 4 and accused no.
13’s statements for the truth,
nor can the court speculate in
their favour and therefore their failure to testify posed a real risk
to them in the absence of
version from them on record.  None of
the accused before court came to explain his presence on the crime
scene and therefore,
so the argument goes, at least accused no. 3,
no. 4 and no. 13 were all wilfully aiding and abetting the BTK gang
with any criminal
activity committed for the benefit of, or at the
direction of, or in association with the gang.  Accused no. 3,
no. 4 and
no. 13 therefore made the statements, not necessarily
truthfully but downplaying their roles at the crime scene and in
essence
to confuse the police and ultimately the court regarding
their role in the crimes committed against the deceased.
[144]
Mrs. Patrinos’s argument that taking cognisance of the fact
that the police formed a task team from the outset with
the view that
the murders and crimes relevant to this case were gang related and
the perpetrators were BTK members, the police
only arrested BTK
members as suspects in this case.  The mere fact that an accused
was a member of the BTK gang, does not
imply guilt pertaining to the
crimes outlined in the indictment and therefore the mere fact that an
accused can be identified as
a BTK member due to the tattoos on his
body does not automatically indicate his allegiance with the BTKs nor
guilt beyond reasonable
doubt.
[145]
On behalf of the accused it was argued that an accused is entitled to
be acquitted if it is reasonably possible that he might
be innocent
and even if a court subjectively disbelieve an accused’s
version of the events, the court is still required to
consider
whether there is a reasonable possibility of his version being
true
[1]
.  Regarding the
warning statement of the accused and also the pointing out by accused
no. 5, the legal principles stipulating
that admissions of an accused
cannot be used against a co-accused remains applicable and the Court
was referred to the matter of
S
v Litako
2014 SACR 431
(SCA)
.
[146]
Warrant Officer Surprise Mnisi’s affidavit in terms of
Section
212
of the
Criminal Procedure Act, 51 of 1977
, handed in by the
prosecution as Exhibit “MM” on 1 November 2017, evidences
the DNA analyses and results. The findings
of Warrant Officer Mnisi
can be summarized as follows:
The
DNA result from a pair of trousers [blood] (PA3000711002) matches the
DNA result from the reference sample (05D3BB3485MX(FSC-1029774))

“BDR81/2017”.
[147]
The DNA result from the pair of shoes [blood] (PA3000711000) matches
the DNA result from the reference sample (05D4BA9212MX(FSC-1029908))

“BDR79/2017”.
[148]
It was not disputed by accused no. 5 that a pair of beige/brown
trousers were found at the shack where he resided on 9 February

2019.  The reference sample (05D3BB3485MX) retrieved from the
body of Mojalefa Nathan Franse, BDR81/2017 matches the DNA result
of
the bloodstains found on the trousers.
[149]
The pair of brown shoes seized by the police at the residence of
accused no. 7 was tested for blood stains and the DNA results
found
on the pair of shoes (PA3000711000) matches the DNA results from the
reference sample retrieved by Dr. Brandt on 2 February
2017 from the
body of the 19 year old Lefa Soaisa mentioned in count 1.
[150]
The pointing out by Accused no. 5, conducted by Captain Strydom,
connects accused no. 5 with the murder charges, counts 1
– 3 as
well as the robbery charges count
s 4
–
6
.  The DNA
evidence furthermore links accused no. 5 to the death of the
deceased.  Accused no. 5 did not dispute the sale
of the black
Adidas Superstar tekkies and was corroborated in this regard by the
witness, Dimakatso Makate.
[151]
Accused no. 5’s evidence, that the clothing found in the sport
bag belonged to his friend, David Makibinyane, (Exhibit
“CC”),
also a former BTK member and his evidence that he immediately upon
retrieval of the sport bag informed the police
as to who the owner of
the clothing were, was denied by the State witnesses causes his
evidence to be regarded as untruthful.
As Mrs Ferreira argued,
accused no. 5’s reliance on an alibi came to late.
Accused no. 5’s testimony that the
Adidas tekkies belonged to
Sizwe and his friends furthermore came at a late stage during the
trial and his failure to present corroborating
evidence pertaining to
his evidence that he kept his own clothes at his parental home,
causes his version to be improbable and
actually ridiculous.  It
is therefore regarded as false.
[152]
Accused no. 7’s version that his Constitutional rights were not
read upon his arrest, nor during the pointing out of
the clothes and
that no permission were obtained to search his parental home can
safely be rejected.  Accused no. 7’s
is furthermore linked
to the death of the 3 victims by the DNS (blood) found on the pair of
brown shoes found at his place of residence.
The Court is
satisfied that Accused no. 7 is untruthful in his version pertaining
to the pointing out of the shoes and in this
regard the version that
he himself pointed out the shoes to the State witnesses is held to be
truthful, reliable and probable.
[153]
The untruthfulness of Accused no. 7 in this respect and the concocted
version that the shoes belonged to Medeila, who passed
away in the
meantime, can safely be rejected as fabricated and false.
[154]
Accused no. 8’s version pertaining to the blue K-Way beanie,
pointed out to the police at his place of residence, but
which, as
the time passed had nothing to do with the murders but was a gift
from his elder brother is a further example of a complicated
and
contrived story by Accused no. 8 since being incarcerated pending
trial.  Accused no. 8’s mother was called as a
witness by
him, but her evidence was not convincing since the State also placed
evidence on record that her daughter, Nombuyiselo,
attended the Court
proceedings on 24 May 2019 as per the register held at the security
of which a copy, was handed in, Exhibit
“JJJ”.
Accused no. 8’s mother furthermore informed Colonel Sefuthi,
according to his testimony that she,
prior to his enquiries regarding
the beanie, already had knowledge concerning this aspect due to
information received from her
daughter.  Accused no.8’s
mother’s evidence in this regard is therefore rejected.
With regard to the alibis
of accused no. 5, no. 7 and no. 8, it would
surely have been the first thing that the accused would have told
their respective
legal representatives who would have canvased the
alibi defences at the outset of the trial during October 2018.
The Court
therefore accept that accused no. 8 was also being
untruthful in his evidence relating to his allegations of assaults
and the gift,
the blue beanie received from his brother during 2016.
[155]
The evidence reveals that the murder and robbery of the three
deceased were a well organised joint operation, most likely
by all 15
the initial accused as well as other BTK gang members who are not
before court. They obviously contacted each other per
cell phone and
lured the deceased into a trap to the crime scene, as suggested in
the summary provided by the State. The accused
must have foreseen the
possibility that the deceased will be eliminated in pursuit of the
common purpose of killing the members
of the rival gang and that
they, as members of the BTK gang were reckless as regard that
result.
[2]
Our law
recognises a concept known as “the doctrine of common purpose”.
In line with this doctrine, an accused
may be found guilty of an
offence where he or she did not necessarily and actively participate
in the physical commission of the
crime, if the conduct of such a
person fulfils certain requirements.
[156]
An example of such an instance is in the case of S v Shaik
[3]
where the court stated the following: “O
ur
law provides that where two or more people, having a common purpose
to commit a crime, act together in order to achieve that
purpose, the
conduct of each of them in execution of that purpose is imputed to
the others”
It
is required among others that the accused actively associates him or
herself with the common purpose.
[4]
The requirements for proof of common purpose were outlined in the
case of S v Mgdezi
[5]
and S v
Safatsa
[6]
as follows: In the
first place the accused must have been present at the scene where the
violence was being committed. Secondly
he must have been aware of the
assault. Thirdly, the accused must have intended to make common cause
with those who were actually
perpetrating the assault. Fourthly the
accused 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, the accused must
have had the requisite
mens rea in respect of the killing of the
deceased, he must have intended them to be killed, or he must have
foreseen the possibility
of them being killed and performed his own
act of association with recklessness as to whether or not death was
to ensue.
[166]
Mrs Ferreira submitted that Accused no. 3, no. 4, no. 5, no.7, no. 8
and no. 13 must be convicted on counts 1 – 7 as
per the
indictment.
[167]
I am not convinced of the guilt of accused no. 3, no. 4 and no. 13.
Although the requirement of being present at the scene
of the crime
and aware of the attack are met concerning these three accused,
the State failed to prove the other three requirement
as set out
above. Although the accused placed themselves to some extent on the
scene, all three of them made exculpatory statements.
There is
no evidence before court that they manifested a common purpose with
the perpetrators of the assault by performing some
act of association
with the conduct of the others. To the contrary the three accused
stated that they did not participate in the
attack on the deceased.
This court is not willing to speculate about their participation in
these acts. Therefore accused no. 3,
no.4 and no. 13 are found not
guilty and discharged on all charges against them.
[168]
Regarding accused no. 5, no. 7 and no. 8, I am satisfied that the
State has proved, beyond reasonable doubt that the accused
are guilty
on all counts they were charged with. Therefore accused no 5, no7 and
no 8 are found guilty on counts 1-7 as charged.
_______________________
I
VAN RHYN, AJ
[1]
S v Van der Meyden
1999 (1) SACR 447
(W); S v Trainor 2003 (1) SACR
35.
[2]
Lungile and another v The State
[2000] 1 ALL SA 179
(SCA); S v Nkosi
2016 (1) SACR 301
(SCA) para 13.
[3]
1983 (4) sa 57 at 65A
[4]
CR Snyman, Criminal Law (Fifth Edition) at p 267.
[5]
1989 (1) SA 687
(A) 705 I- 706 C.
[6]
1988 (1) SA 686
(A)