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[2018] ZAGPJHC 564
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Dladla v S (SS274/2004) [2018] ZAGPJHC 564 (13 September 2018)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DISION, JOHANNESBURG
Case no: SS274/2004
13/9/2018
In the matter between:
SEBASTIAN JOLIE
DLADLA                                                            Accused
And
THE
STATE
JUDGMENT
MSIMEKI
J
:
INTRODUCTION
[1]
This judgement has been necessitated by the application
which the accused made in the Supreme Court of Appeal seeking leave
to appeal
and permission to lead further evidence. This, because the
accused’s application for leave to appeal had been dismissed by

the Court. The Supreme Court of Appeal, on 17 March 2015, granted the
following order:
“
1. Application for
condonation is granted.
2. Special leave to
appeal is granted to the full Court of the High Court Gauteng Local
Division, Johannesburg.”
BRIEF
SUMMARY OF WHAT HAPPENED WHEN THE APPEAL WAS HEARD
[2]
On 3 March 2017, the appeal was heard by the Full Court
of this Division as directed by the Supreme Court of Appeal.
[3]
The appeal turned on the affidavits which the accused
(then applicant) used in the Supreme Court of Appeal when he sought
leave
to appeal and permission to lead further evidence. These are
the affidavits of-
1.
Tshepo sipho Mokwana;
2.
Siphiwe Mzolo;
3.
Sibonginkosi Moyo; and
4.
Risimati Thomas Hlungwane.
[4]
It is noteworthy that the record of the accused’s
first trial (as this is his second trial) had to be reconstructed.
The record
could not be traced and the appeal formed part of the
so-called “delayed appeals” project, where the records
could
not be traced or had to be reconstructed or where the appeal
was brought a long-time after the conviction and sentence of an
appellant.
[5]
The appellant and the respondent were, respectively,
represented by Adv JT Bauer (Mr Bauer) and Adv L Mashiane (Mr
Mashiane). Adv
Thompson, in the first trial, represented the accused
while Mr Mashiane represented the State.
[6]
The Full Court, on hearing the appeal, found that:
“
The
evidence brought forward by the affidavits of witness Mokwana boils
down to a complete recantation of his evidence in the trial”

and that “it accords with his version advanced in his guilty
plea.” The trial, the Full Court referred to herein, is
the
first trial of the accused. The guilty plea relates to the trial of
Mokwana that served before my sister Satchwell J. The affidavits,
as
the Full Court further found, had been brought to the Supreme Court
of Appeal only in 2015 which was years after the conviction
and
sentencing of the accused in his first trial.
[7]
It is noteworthy that Mr Mashiane, during the bail
application which the accused brought after the Full Court set aside
his conviction
and sentence, submitted that the State (respondent in
the application) only became aware of the accused’s application
in
the Supreme Court when they received the Order of the Supreme
Court of Appeal. It was Mr Mashiane’s further submission that

the State, as a result, could not deal with the matter at that level.
This could not be gainsaid.
[8]
Mr Bauer and Mr Mashiane argued their matter in the Full
Court which, after the arguments and submissions, made the following
order:
“
1. The
conviction and sentence of the Appellant are set aside;
2. The matter is
remitted to the trial court on the following basis:
(
i)
The affidavit of the appellant together with the affidavits and the
supporting documents accompanying it is (sic) admitted into
evidence
(ii)
The State’s case is re-opened for hearing of further evidence;
(iii)
The defence is permitted to re-open its case should it so decide
(iv)
Should the need arise to call other witnesses in relation to any
relevant issues the trial court is not precluded from allowing
and
hearing such evidence.” (
My
emphasis)
[9]
The Full Court, after realising the errors in its
judgement handed down on 20 March 2017, corrected the said errors as
follows:
1.
Paragraph [3] is to be deleted and replaced with
the following: Special leave to appeal was granted by the Supreme
Court of Appeal
to the Full Court of the High Court, Gauteng Local
Division, Johannesburg on 17 March 2015.
2.
The first sentence in paragraph [11] is to be
deleted and replaced with the following: The evidence brought forward
by the affidavits
of witness Mokwana boils down to a complete
recantation of his evidence in the trial. It accords with his version
advanced in his
guilty plea.
3.
Prayer 2 of the order is to be replaced with the
following:
2. The matter is remitted
to the trial court on the following basis:
(i)
Tshepo Sipho Mokwana is to be recalled as a witness and the defence
is permitted to cross-examine him on the further affidavits:
(a) dated 11 September
2013 (G1)
(b) dated 4 September
2013 (G2)
(c) dated 2012 (G3)
(ii)
the State’s case is re-opened for hearing of further evidence;
(iii)
the defence is permitted to re-open its case, should it so decide,
and
to lead the evidence of:
(a)
Siphiwe Mzolo (F)
(b)
The investigating officer Lietenant Hlungwani (G)
(c)
Sibonginkosi Moyo (H)
(iv)
should the need arise to call other witnesses in relation to any
relevant issues, the trial court is not precluded from calling
and
hearing such evidence.
[10]
I need to mention that the Court, on 25 May 2017,
dismissed the application for bail which the applicant had brought.
[11]
It is important to mention that the accused, in this
Division, stood trial facing the following charges:
1.
Count 1: Robbery with aggravating circumstances
as defined in Section 1 of the Criminal Procedure Act 51 of 1997 (the
“CPA”),
read with section 51 of Act 105 of 1997
2.
Count 2: Murder read with Section 51 of Act 105
of 1977;
3.
Count 3: Murder, read with Section 51 of Act 105
of 1997.
4.
Count 4: Contravention of Section 2 of Act 75 of
1969- Unlawful possession of a firearm;
5.
Count 5: Contravention of Section 36 read with
Section 1 and 39 of Act 75 of Act 75 of 1969- Unlawful possession of
ammunition.
[12]
The accused, on 24 November 2004, was convicted as
charged and sentenced on 1 December 2004 as follows:
1.
Count 1: 15 years imprisonment;
2.
Count 2: Life imprisonment;
3.
Count 3 Life imprisonment;
4.
Count 4: 3 years imprisonment;
5.
Count 5: 3 years imprisonment.
The
sentence in counts 1,4 and 5 run concurrently with the sentences in
count 2 and 3.
[13]
The accused, initially, was indicted together with
Tshepo Sipho Mokwana (Mokwana) who pleaded guilty to the charges.
Their trials
were separated. Mokwana’s trial served before
Satchwell J while that of the accused served before me. Mokwana
turned State
witness in the trial of the accused.
[14]
The Full Court, on the basis of the fresh evidence, set
aside the accused’s conviction and sentence and referred the
matter
back to this Court as alluded to above.
[15]
On 26 June 2017, Mr Guarneri replaced Mr Bauer and took
over the defence of the accused. Mr Mashiane proceeded and
represented the
State.
[16]
The State and the defence reopened their cases. The
accused’s first trial was presided over by the Court which sat
with an
assessor who is now unavailable. Mr Mashiane, in terms of
Section 147(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA)
applied that the trial proceed before me alone as that would be in
the interests of justice. The defence had no difficulty with
the
application which I granted.
[17]
At the very outset, I must point out that what revived
the matter is the application which the accused brought in the
Supreme Court
of Appeal.
[18]
Evidence was presented to the Supreme Court of Appeal by
way of affidavits. Based on the affidavits which became evidence, the
Supreme
Court of Appeal was persuaded to refer the matter to the Full
Court of this Division for its consideration.
[19]
The Full Court, too, having considered the evidence
which was placed before the Supreme Court of Appeal together with
Counsel’s
arguments, referred the matter back to the trial
court with specific directions referred to in paragraph 8 above.
[20]
The accused’s case is that he should not be
convicted if regard is had to the affidavits of:
1.
Tshepo Sipho Mokwana
2.
Siphiwe Mzolo;
3.
Sibonginkosi Moyo; and
4.
Risimati Thomas Hlungwani.
These
affidavits, according to him, confirm his version that he is innocent
and that the version is reasonably possibly true. This
simply means
that he is entitled to a verdict of not guilty in respect of all the
charges.
[21]
The State, on the other hand, argued that even after the
Court considered the affidavits referred to in paragraph 20 above,
the
accused remained guilty. The State contended that the affidavits
were an invention of the accused and that they were devoid of the

truth.
[22]
The duty of this Court was to hear new and further
evidence and thereafter to decide whether or not the original verdict
in the
first trial should stand.
[23]
Section 316 of the Criminal Procedure Act 51 of 1977
(“the CPA”) governs the hearing of new and further
evidence. In
subsection 5(a) the section provides that:
“
5(a) An
application for leave to appeal under subsection (1) may be
accompanied by an application to adduce further evidence (hereafter

in this section referred to as an application for further evidence)
relating to the prospective appeal.
Subsection (5)(b)
provides that:
“
(b) An
application for further evidence must be supported by an affidavit
stating that-
(i)
Further evidence which would presumably be
accepted as true, is available;
(ii)
If accepted the evidence could reasonably
lead to a different verdict or sentence.
Subsection 6 provides:
(6) Any evidence
received under subsection (5)
shall for
the purpose of an
appeal
be deemed to be evidence taken or admitted at the trial in question.”
(My emphasis)
[24]
It is noteworthy that-
1.
The Supreme Court of Appeal granted the accused
special leave to appeal to the Full Court of the High Court Gauteng
Local Division,
Johannesburg
2.
The Full Court heard the appeal, set aside the
conviction and sentence and referred the matter to this Court to hear
new and further
evidence.
3.
This Court, simply, had to hear the evidence and
then decide whether the accused was still guilty or deserved to be
acquitted.
[25]
This court, in arriving at its decision, had regard to
the provisions of section 316 of the CPA. The Court had to determine
if-
1.
There was truth in the new evidence , and
2.
Whether or not the evidence led to a different
verdict.
[26]
Du Toit, De Jager, Paizes and Skeen, in their work:
Commentary on the
Criminal Procedure Act at
31-21 state that:
“
The reopening of a
case for the purpose of a retrial was not the scenario contemplated
by the Legislature with the introduction
of
Section 316(5)
, but a
special procedure to reach a fair decision in special circumstances.”
[27]
Of significance is the fact that the accused placed a
lot of reliance on the affidavits of Tshepo Sipho Mokwana. The State
was very
sceptical about the emergence of these affidavits. It
referred to them as “an invention of evidence by the accused.”
[28]
To prove that Mokwana had nothing to do with the
affidavits which were allegedly said to be his, the State called six
(6) witnesses.
[29]
The defence, to prove that the affidavits were made by
Sipho Mokwana, called four (4) witnesses.
[30]
MDUDUZI MANDLOPA
He
was the witness that the State called first. He repeated his evidence
that he gave in the accused’s first trial. He specifically

testified that Ekha Moyo was shot by the accused he referred to as
“the gentleman in the accused’s box, light in
complexion.”
His further testimony was that the accused drove
the Toyota Camry motor vehicle which, according to him, was never
shot at. He
testified that the accused and his friend were the ones
that had fired shots at Ekha Moyo and not vice versa. The name of
Tshepo
Mokwana being mentioned, he testified that accused’s
friend he was referring to was indeed, Tshepo Mokwana who is dark in

complexion. Ekha Moyo, according to him, had no firearm when he was
shot. He accompanied Innocent Mbatha to where Ekha  Moyo,
who
was in their company, was shot and injured. Ekha Moyo later died in
hospital. Mbatha was looking for his missing combi and
driver, Lunga
Zungu. Mandlopa and Ekha Moyo walked into the basement of King Ramson
Building. They used a Toyota Corolla when they
went to the building.
Mandlopa worked with Mbatha in the taxi industry for a long time. He
helped Mbatha who had various businesses.
Mbatha had shops, taxis and
a funeral parlour. Mandlopa specifically denied that he had been paid
some money by Percy Mashiane
in order to implicate the accused in
this case. He testified that he did not even know Percy Mashiane. He
started knowing Tshepo
Mokwana on the day that Ekha Moyo was shot. He
and Ekha found the accused and Tshepo in the basement.
[31]
Mr Guarneri informed the Court that he was going to
cross-examine the witness while avoiding repeating what was said in
the accused’s
first trial. This, because he understood what was
to be done as directed by the Full court. Mr Mashiane informed the
court that
he had, to a large extent, concentrated on the new
evidence.
[32]
CROSS-EXAMINATION BY MR GUARNERI
He
testified that Ekha Moyo had informed them that he was there when
Mbatha’s combi was robbed. He testified that two people
shot at
Ekha in the second basement. He ran away following the Toyota Camry
that the accused was driving when he chased the deceased
Ekha Moyo.
Mandlhopa testified that the accused fired about four shots at Ekha
while Mokwana fired about three shots. The accused,
according to him,
fired further shots at Ekha at the time he was fleeing. Mandlhopa
testified that the second basement was well
lit and that he was never
fired at. This, in my view, showed honesty on his part. It was,
according to him, highly likely that
Ekha was already wounded when he
ran out of the second basement. Dealing with the number of shots that
were fired and who shot
first between the accused and Mokwana, the
witness testified that the incident had taken place many years ago
and that he would
easily forget some of the things. Reminded that he
in the first trial had testified that Mokwana was the first to shoot
he repeated
that he was testifying about an incident that had taken
place about ten years before the second trial and that, with time, he
would
forget some of the things. This, indeed, is understandable.
[33]
They travelled from Soweto to the building after Ekha
had informed them that Lunga was in the basement. Advised by Ekha,
they left
their motor vehicle at a distance of approximately 150 to
200 Metres from the building. Ekha suggested that Mbatha remain in
their
motor vehicle. Mbatha’s combi was found in the basement.
Tshepo told them that the driver of the combi had been killed.
Indeed,
he was found dead. Ekha was unarmed. He testified that he was
aware that Tshepo, accused and Ekha had hijacked the Combi. He was

not concerned about the criminals in the basement as he was looking
for Lunga who was like a son to him. He was unaware that there
was a
plan in place that the accused be killed. It was to him news that
Percy Mashiane had given instructions that accused be killed.
He did
not know that. He had no knowledge that Ekha had telephoned the
accused and asked him to come to the basement.
[34]
The witness did not know that the accused’s combi
had been stolen and that Ekha had telephoned the accused telling him
that
he had wanted to apologise to him for stealing the combi. He
denied that Ekha wanted the accused to drop the charges against him.

He also had no knowledge that Percy Mashiane would pay the accused’s
killers who would be Mokwana, Ekha and Makhosini Nkosi.
He did not
know that the accused had to be killed because he had refused to make
Percy Mashiane a partner in his business named
SJ Security. He denied
that Ekha fired shots at the accused. He denied what
Exhibit
G1,
which is said to be Mokwana’s
affidavit, says regarding a telephone call which he (Mokwana)
received from Percy Mashiane
who had wanted to know if accused had
been killed. He had nothing to do with Percy Mashiane.
[35]
He knew nothing about Nkosi and Paul driving in a stolen
Peugeot motor vehicle. He maintained that he had gone to the basement
with
Ekha. He confirmed that Ekha fell down at the entrance where the
police found him.. He agreed that accused came out of the basement

driving his Camry Motor vehicle. He was adamant that the accused had
shot Ekha. He agreed that Mbatha was not in the basement but
he
denied that Percy had paid him, Mbatha and Mokwana to implicate the
accused in the murder of Ekha. He also denied that he and
Mbatha
visited Mokwana in prison to update him about what was happening in
court.
[36]
Asked about his firearm he testified that it used a
magazine. He, without hesitation, told the Court that the accused
shot Ekha
in the basement. He again shot at Ekha who, at the time,
was fleeing.
[37]
Siphiwe Mzolo’s version of the incident of the 24
December 2002 was put to the witness. The witness disagreed therewith
stating
that he had gone there with Ekha and that he had not signed
Mzolo’s register. According to him there was no security
officer
when they went in. He testified that they found the accused
in the basement when he went there with Ekha Moyo. He did not know
Mokwana, Paul and Makhosini Nkosi. The witness seemed surprised by
Mzolo’s version and testified that maybe Mzolo was testifying

about an incident which might have taken place before he and Ekha
arrived. He stuck to his version of what transpired on 24 December

2002. He specifically denied that Ekha apologised to the accused
while he was on his knees next to the entrance. He denied that
Ekha
was asked if accused had shot him. He testified that he could not
remember everything as the incident had taken place in 2002
which was
a long time ago.
INNOCENT
MBANTANA MBATHA
[38]
He was the next witness called by the State. He
confirmed his testimony that he gave in 2003/2004 and stood by it.
Informed that
there was evidence which said that he, Mandlhopa and
Mokwana had been paid to falsely testify against the accused, he
testified
that that was not true and that he did not even know
Mashiane. No one paid him to implicate the accused, he said. He was a
business
man in 2002-2004 owning taxis, shops, petrol station,
garage, panel beating shop as well as a mortuary. He also owned a
soccer
club called Zola Juventus. He testified that he, Ekha and
Mandlhopa came to town in a Toyota Corolla.
[39]
He, in the main, confirmed Mandlhopa’s evidence.
He testified that Mandlhopa and Ekha walked into the basement and
that Ekha
never entered the basement driving a Peugeot motor vehicle.
He proceeded to where Ekha Moyo had fallen down after the shooting.

Here, according to him, was where the accused was arrested. He did
not know the accused who was in the back of the Metro Police
motor
vehicle. He asked the accused why he had shot the young man,
referring to Ekha. The accused answered that he had shot Ekha
because
he (Ekha) had stolen his car and not that he had defended himself
when Ekha Moyo and others shot at him. He heard that
Ekha Moyo died
in hospital. He saw the accused’s motor vehicle which had no
bullet holes on the left side of the window and
door. That was the
Camry that the accused was driving. He had his Parabellum pistol but
never shot at the accused. Madlhopa merely
informed him that the
young man had been shot.
[40]
Mbatha remained in his motor vehicle. He and Mandlhopa
had gone to town to look for Lunga Zungu, his taxi, driver who had
been hijacked
with his taxi before Ekha was shot. Ekha came to his
panel beating shop and informed him that his motor vehicle had been
hijacked
the previous day in Florida. His manager confirmed that the
motor vehicle and the driver had not returned. He arranged to go to

where Ekha said the motor vehicle was in the basement of one of the
buildings in town. They found the motor vehicle which he identified

as his. Mandlhopa drove the motor vehicle home. Lunga Zungu was not
found.
[41]
He gave Ekha money to use to get Lunga for him. He got
information that Lunga was with the accused and the other people. He,
Mandlhopa
and Vilakazi rushed to where it was said Lunga was in the
basement. Ekha said Mbatha should not accompany him and Mandlopa to
the
basement. Mandlhopa and Ekha entered the basement where Ekha was
shot. They ultimately found the body of Lunga at Florida Mortuary.
[42]
He arrested Tshepo who knew him well as a result of
information that he had received. Tshepo told him that the accused,
himself
and Ekha Moyo had shot Lunga in the bush in Florida. Mbatha
reported the missing of his motor vehicle and Lunga, his driver, at

Naledi Police Station. The police arrived and Tshepo confessed to
them. Tshepo’s information helped them find Lunga at the

mortuary. He testified that Tshepo would be lying if he said Mbatha,
Mandlhopa and himself fabricated lies to implicate the accused.
[43]
Cross examined
, he testified
that he had his firearm concealed on the day of the incident. He
confirmed Mandlhopa’s evidence that he did
not go to the
basement but remained in the motor vehicle. It appeared Mbatha too no
longer recalled everything when he testified.
This included whether
he had his licensed firearm when Mandlhopa and Ekha went to the
basement.
[44]
Ekha told him that Lunga was in the basement. He agreed
that Tshepo had told them that Ekha had been involved in the robbery
of
Mbatha’s motor vehicle. Ekha confirmed this saying he had
been with them. He agreed that Ekha possibly lied to him when he
said
that Lunga was in the basement. Ekha advised him not to get to the
basement. He testified that not much was said about Vilakazi
because
they did not want to involve him as he also did not go to the
basement. Mandlhopa was brought up by him and he also imparted

business skills to him. Ekha did not want the people in the basement
to recognise Mbatha as there could be problems. Ekha said
the people
could do Mandlhopa no harm and it happened like that as he was not
shot at. Ekha told him that Lunga worked together
with the robbers.
He agreed that Lunga then betrayed him as his employer. He agreed
that Ekha had been dishonest to him about the
presence of Lunga in
the basement. However, there was truth regarding the other things.
[45]
The witness contradicted himself when he said that he
only had given Ekha Moyo R1500.00 for going to look for Lunga. This,
because
he, in the first trial, had said that he had given Ekha
R100.00 to enable Lunga to contact them. This, in my view, is not
that
material. He testified that the matter was very old and that he
could not recall everything. He again agreed that Ekha knew that

Lunga was not in the basement. He testified that Ekha, accused and
Tshepo did not tell him directly that Lunga was dead. It, however,

later emerged that Ekha Moyo, accused and Tshepo were together when
Lunga was killed. He agreed he was not there but testified
that
Tshepo disclosed the truth to them and even helped them find Lunga’s
body.
[46]
Informed that the day Ekha was shot Mokwana, Ekha and
Paul had planned to kill the accused, he answered that this was news
to him
as Tshepo had never said this to him or Court. Told that Percy
Mashiane gave instructions that accused be killed he said he could

not agree as he did not even know Percy Mashiane.
[47]
The contents of Mokwana’s affidavit were put to
the witness and he denied them adding that that appeared new to him.
As the
version of Mokwana’s evidence was put to him he kept on
saying that that was definitely something new to him. He did not know

that. The witness specifically testified that accused had never told
him that he shot Ekha in self-defence but, instead, said he
had shot
Ekha because Ekha had stolen his motor vehicle. Indeed, the evidence
had not even been placed before the Court. He denied
the version that
Percy phoned Mokwana wanting to know if accused had been killed and
that Mokwana told Percy that Ekha had failed
to kill the accused who
then had to be killed by Mokwana. He testified that the further
version had been unknown to him. The witness
agreed that Ekha was
chased by the accused who was driving his Camry; that Ekha was
already lying down when he approached them
at the entrance and that
the accused was arrested by the Metro Police. He denied that he was
part of the scheme to frame accused
as the killer. He called it a lie
that he and Mandlhopa visited Mokwana in prison to update him on the
evidence in court. He agreed
that he was not in the basement when
Ekha was shot. Told that Mokwana said that Mandlopa was not in the
basement he answered that
Mokwana was forgetful. It was, according to
him, not true that he and Mandlhopa had been paid R20 000.00 each.
[48]
Mzolo’s version was put to the witness and he
emphatically told the Court that he knew nothing about the version.
He told
the Court that he never saw bullet holes on the left door and
window of the Camry. He testified that he remained in the motor
vehicle
when Mandlhopa and Ekha went into the basement. Mandlhopa
came to him and reported to him that Ekha had been shot. He and
Mandlhopa
only signed the register when they went to fetch the combi
and not when they left.
SIFISO
NDLOVU
[49]
He was the next witness that the State called. He was a
constable in the South African Police Services based at Mondeor
police station.
He was shown
Exhibit “G2”
on page 125 of the court record. The document is an affidavit of
Tshepo Sipho Mokwana which is dated 4 September 2013. The witness

briefly testified that he assisted the Sipho Mokwana but did not know
him. Sipho just walked into the charge office with no one
guarding
him. He was not cuffed and his legs were not chained. Mokwana asked
the witness to write the affidavit in English for
him. His name and
Johannesburg Medium B prison were already written. The contents of
the affidavit came from Mokwana. The witness
and Mokwana signed the
affidavit. The document was stamped and given to Mokwana as it was
his. I need to mention that the document
which was still blank had
been given to Mokwana by the witness.
[50]
The witness did not know the accused. He was surprised
to learn that Mokwana had been in custody since January 2003 to June
2017
when the witness testified. This, because the one who walked
into the charge office had been a free man. He wondered if the one

who walked into the charge office did not share the same names with
the one who was in custody. He testified that the one who walked
into
the charge office or client service centre could not have been the
one who was in custody. Tshepo Sipho Mokwana was brought
into Court
and shown to the witness who immediately said that that was not the
Mokwana that he had helped on 4 September 2013.
I need to mention
that this Tshepo Sipho Mokwana was in leg chains and accompanied by a
prison official called Khampepe Lekhotla
from Johannesburg Prison
which is commonly known as Sun City.
[51]
Mr Guarneri cross-examined the witness who testified
confirming his evidence in chief, namely that the man he helped had
been a
free man when he came to the Mondeor Police Station. He was
honest to tell the Court that due to the lapse of time he would not

be able to recognise the man but all he was sure of was that the man
was not chained and cuffed. He saw the person for the first
and last
time on 4 September 2013.
[52]
Mr Guarneri asked the witness to describe the man that
he had helped and he told the Court that the man was dark and short
although
he did not mention it in his statement which became
Exhibit
“SN”
which stands for Sifiso
Ndlovu. He recalled that he helped the man because he basically wrote
the statement for the man while others
wrote their own statements
themselves. He testified that because of this case a standing order
came into being that people who
come to make statements be properly
identified. He testified that he asked the man about the address
which was Johannesburg Medium
B and the man informed him that he was
recently released from prison. However, he did not regard the issue
of the address as serious
and it did not even cross his mind to
pursue the issue.
[53]
He testified that he took down the statement the
contents of which did not concern him and he, as a result, never
brought the contents
of this statement to the attention of his
superior. He conceded that he went to prison to take statements as
Mondeor Police Station
is the nearest Police Station to Johannesburg
Prison. These would, for example, be statements involving assaults
that took place
in prison.
[54]
The witness was asked about the
SAP13
store Stamp on
Exhibit “G2”
on page 125 of the court record and he testified that they were
allowed to use the stamp. He used the stamp and realised thereafter

that there were stamps he could have used. He called it a lie if
accused said he (the witness) had gone to prison with a female

investigator, a certain Mrs Fannie, on 4 September 2013. He
emphatically denied this. He further called it a lie to say that he

was in an internal security office in prison with the accused, Mrs
Fannie, Mr Modise from prison, female police officer in uniform
and
Tshepo Sipho Mokwana. It was another lie that Tshepo Sipho Mokwana
signed
Exhibit
“
G2”
in their presence after he took down the statement.
[55]
He denied that a copy of the statement was made for
Tshepo Sipho Mokwana; that Mrs Fannie made the copies; and that the
accused
was given a copy. The person who walked into the client
service centre, according to him, must have used the names of Tshepo
Sipho
Mokwana. He denied that he left with the original of
Exhibit
“G2”;
shook accused’s
hand and said good luck to him. He called accused a good liar. He
testified that he saw the accused for the
first time in court. He was
honest enough to tell the court that he greeted the accused in court.
He denied that he had greeted
accused once the court adjourned
calling him by his name. He was again honest enough to say he started
knowing accused’s
name when he came to court.
[56]
He denied that he had told the accused that he had
denied taking Mokwana’s statement in prison simply because he
had been
told to do so. These were all lies according to him.
Interesting enough, Mr Guarneri said to the witness: Accused says I
should
ask you, who told you to deny having taken the statement in
prison? The answer was, no one, because the statement was never taken

in prison, according to him. The witness was re-examined and he
testified that they did not take the police stamps to prison.
RISIMATI
THOMAS HLUNGHWANI
[57]
He was a Captain in the South African Police Service
attached to the detectives’ unit in Orlando. He joined the
Police force
in 1989. He agreed that he, in December 2002,
investigated a case of a missing person Lancelot Zungu. The docket
became a murder
docket. Informed that, subsequent to the murder trial
of the accused, one Siphiwe Mzolo alleged that he (the witness) had
approached
him as a witness in the matter, he answered that he did
not know Siphiwe Mzolo. He denied visiting him. He took statements
only
from those he visited. He denied that Siphiwe Mzolo had informed
him that he would be available if the court needed him as a witness.
[58]
He and Constable Motswalo visited Ekha Moyo in hospital
on 25/26 December 2002. He heard that Ekha passed on. He did not ask
Ekha
as to who had shot him. He, however, heard that Ekha was shot in
town. He denied that Ekha had told him that he was shot by Sipho

Tshepo Mokwanna.
[59]
He agreed that he made an affidavit on 12 April 2017
which is
Annexure
“
GL3”
. He
testified that a car hijacking CAS:
Naledi CAS
743/12/2002
and murder case Florida
CAS
685/12/2002
were consolidated. The witness
testified that he made several affidavits and explained how it came
about. His evidence included
hearsay evidence which the parties
agreed could be received provisionally. He testified that a certain
Mrs Mzamani introduced herself
to him as the accused’s
attorney.  He knew the accused at the time. She wanted to know
who had killed Zungu and he told
her that Ekha had told him that
Tshepo had killed Zungu. He then made such an affidavit and gave it
to her.
[60]
He testified that a lady unknown to him telephoned him
in 2016 asking to see him. The lady had an envelope containing typed
documents
which Mrs Mzamani had wanted him to sign. He was not
prepared to sign the documents and he, telephonically asked Mrs
Mzamani to
come with the documents as she knew the procedure. Mrs
Mzamane then telephoned him and brought the documents to the police
station.
She had two affidavits. He was only happy with the contents
of one of the affidavits. The signatures on the two documents were
his but the contents of the one affidavit, according to him, were not
his. He refused to sign the affidavit and made an affidavit
which
disclosed that Tshepo had killed Zungu. She took the affidavit. He
confirmed that he did not have any of the affidavits when
he
consulted with Mr Mashiane.
[61]
Cross-examined by Mr Guarneri he denied that he had
visited Mzolo. He did not go to King Ramson Building where Mzolo
worked as a
security guard. He denied the version of Mzolo on the
basis that he had never visited Mzolo. He testified that he had only
met
Ekha in hospital. He was not the investigating officer and never
investigated the case which involved Ekha. He admitted having
interviewed many witnesses and handling many dockets but testified
that he had never paid Mzolo a visit. He was honest enough to
tell
the Court that he would not remember all the witnesses he
interviewed. This, according to him, did not mean that he would
not
remember if he had visited Mzolo.
[62]
At this stage, Mr Guarneri requested the Court to admit
hearsay evidence including what Ekha said to Captain Hlungwani in
hospital.
Mr Mashiane welcomed the request and referred the Court to
Exhibit “G”
which is an affidavit which Captain Hlungwani made on 30 July 2014.
The affidavit forms page 120 of the Court record. The affidavit
of
the witness dated 23 December 2016 was received by the Court as
Exhibit “RTH”. It is similar to Exhibit “G.”
NATHANIEL
TUMELO SEKHULA
[63]
The witness was a member of the Johannesburg Metro
Police Unit where he was a policeman since January 1996. He agreed
that he had
testified in the first trial of the accused. He stood by
that evidence. He confirmed that he and his colleagues had arrested
the
accused on 24 December 2002. The accused’s red Toyota Camry
which he, at the time, drove was searched. They used a Patrol
JMPD
car on the day in question. Members of the public stopped them. They
stopped facing the entrance of the building. A man later
identified
as Ekha came and held on to their motor vehicle, he was bleeding. He
explained that people in the Camry which was coming
from the basement
had shot him.
[64]
The Camry which was identified as that belonging to the
accused emerged driven by the accused. The accused cooperated when
asked
to come out and even allowed them to search the motor vehicle.
A firearm which was  found was licensed and belonged to the

accused. The Accused, upon being asked about Ekha, told them that he
had shot him because he (Ekha) had stolen his combi, a mini
bus. He
never saw the Camry with bullet holes. The windows were all intact.
He remembered receiving Mr Mashiane’s call early
in 2017 when
he was informed that 14 years after the first trial of the accused
new evidence had come to the fore.
[65]
He testified that the accused, at the scene, did not
tell them of any bullet holes on his motor vehicle or its windows
which were
not shattered. Significantly the accused never told them
that he was attacked and that he had defended himself.
[66]
Cross examined he testified that his job was, inter
alia, to inspect motor vehicles. He would not remember the number of
motor vehicles
he inspected in the past 14 years nor their make and
models. He could not remember how many motor vehicles he found with
bullet
holes or shattered windows. He did not remember inspecting
motor vehicles with bullet holes in 2002 and he would be lying if he

said he had stopped a motor vehicle which had bullet holes.
[67]
Mzolo’s version of the events of 24 December 2002
was put to the witness. The witness denied the version and testified
that
he knew nothing about it.  He denied specifically that Ekha
apologised to the accused. He agreed that Ekha had been bleeding.
He
testified that he never saw the members of the South African Police
Services pointing to the accused and asking him if he had
been the
person who had shot him and that Ekha by means of turning his head
sideways had said no. Ekha had been crawling when he
saw him. He
agreed that the red Camry motor vehicle came out of the basement
moving slowly. He further agreed that there were members
of the
public on the scene. The accused was handed to the South African
Police Service at Hillbrow Police Station. In the main,
the witness
stuck to his evidence in the first trial.
TSHEPO
SIPHO MOKWANA
[68]
Mr Mashiane submitted that the witness’s evidence
against the accused was on record. He further submitted that the
witness’s
further evidence by way of affidavits was also on
record.
[69]
Mr Mashiane further informed the Court that the evidence
of the witness in the accused’s first trial and the new
evidence
was contradictory and this, according to him, amounted to
the witness recanting his evidence in the first trial.
[70]
Mr Mashiane submitted that the Full Court of this
Division, on the basis of the fresh evidence, set aside the accused’s
conviction
and sentence and referred the matter back to this court to
hear the evidence as directed.
[71]
To use Mr Mashiane’s words: he did not want “to
play chess against himself”. He, accordingly, on 12 October
2017,
and in terms of Section
190(1)
of the
CPA,
applied that Mokwana be declared a
hostile witness. Mr Guarneri apposed the application which, in the
interests of justice, was
granted. The matter was rolled over to 13
October 2017.
[72]
On 13 October 2017, Tshepo Sipho Mokwana testified. He
confirmed that the Court had convicted him and sentenced him. He
served his
sentence at Zonder Water Prison. He went to Zonderwater in
2010 and returned to Johannesburg Prison where he was at the time of

giving his evidence.
[73]
Someone, he did not know, appealed his conviction and
sentence on his behalf in 2015. He agreed that his appeal was heard
on 7 August
2015. He did not know that his appeal was handled by Adv.
W.A Karam who, according to Mr Mashiane, was an experienced and able
advocate. Mr Mashiane informed the witness that although he might not
have known it his appeal had been successful and that he was,
at the
time of giving evidence, serving a term of 25 years imprisonment. The
two life sentences were each converted to 25 years
imprisonment in
respect of the two counts of murder and the sentences were running
concurrently. This, to him, became welcome news.
[74]
Mr Mashiane took the witness through his heads of
argument which were drawn by Adv Karam to show him that the new
evidence appeared
nowhere therein between 2012 and 2016. The document
was given to the witness to go and read. The matter was then
postponed to 16
October 2017.
[75]
On 16 October 2017 the matter was postponed to 18
October 2017. Mokwana was unwell on 18 October 2017 resulting in the
postponement
of the matter to 19 October 2017.
[76]
On 19 October 2017 the matter proceeded. The witness
agreed that the new version, in the form of affidavits, did not form
part of
his heads of argument. Mr Mashiane put it to the witness that
if it did, indeed, the new version would be in the heads of argument.

The witness had no comment to give.
[77]
The witness testified that he shared a prison cell with
the accused once he was taken back to Johannesburg Prison. He denied
that
that was when the new evidence started surfacing.
[78]
The witness was handed three sets of documents which
formed part of his new evidence. These are:
1.
Exhibit “G3”
appearing
on page 126 of the court record which is a confession statement
“allegedly” made by Tshepo Sipho Mokwana dated
21 January
2012.
2.
Exhibit “G2”
being
an affidavit allegedly made by Tshepo Sipho Mokwana dated 4 September
2013 and
3.
Exhibit “G1
”
being
an affidavit allegedly made by Tshepo Siopho Mokwana dated 11
September 2013.
Exhibit
“G1” appears on page 124 of the court record.
[79]
Mr Mashiane explained to Mokwana that the Exhibits
formed part of the new evidence which had been placed before the
Courts. He was
asked to look at
Exhibit “G3
”
which has two pages. He was further told that the Exhibit was stamped
and signed and also had the name Tshepo Sipho Mokwana.
Asked if the
signature was his, his answer was an emphatic “it is not my
signature”. Asked if he was sure, he answered
“it is not
mine.” He was asked to take time and scrutinize the signature.
The answer remained the same.
[80]
He was asked to look at
Exhibit
“G2”
and do what he did in
respect of
Exhibit “G3.”
He told the Court that the signature of the deponent was not his.
Given time to again look at the signature, he reiterated that
the
signature was, indeed, not his.
[81]
Taken to the third document Exhibit “G1” and
asked to do what he had done with
Exhibit “G2
”
he, without doubt, told the court that the signature was not his.
Asked to take time and to carefully examine the signature,
his answer
remained the same, namely, that the signature was not his. The effect
of this exercise was that he denied knowing all
the three signatures
appearing in
Exhibits “G1,” “G2”
and “G3.”
[82]
Mr Mashiane told Mokwana that the three documents had
caused us to return to Court in the case of the accused. Asked to
comment
his answer was “they are not my signatures” and
added that he was sure.
[83]
Informed that the accused had submitted the documents to
the SCA stating that the signatures appearing therein were his
(Mokwana),
the witness appeared stunned and then said that he had no
comment. Mr Mashiane then told the witness not to worry as the
accused
would later tell the Court as to who had signed the Exhibits.
Asked again if he was not making a mistake he answered that the
signatures
were definitely not his. Mr Mashiane’s approach was
suggestive enough to the accused telling him that he had to help us
out.
The accused did not rise to the occasion. He did not testify.
[84]
Reminded that at some stage, during the second trial, he
was asked to come into the court for Constable Sifiso Ndlovu to see
him,
he remembered and testified that he did not know him before but
had seen him in prison with a file of documents which he  asked

him to sign. The witness asked him where the documents were coming
from and upon getting no answer he (witness) refused to sign
the
documents which Ndlovu walked away with.
[85]
Shown
Exhibit “G2”
and asked if he had seen it before, he testified that he first saw it
in Court on that day when it was shown to him. He did not
know where
the original was. Informed that it was put to Constable Ndlovu when
he was cross-examined, that a copy was handed to
him (witness) he
answered that that was incorrect.
[86]
Referred to the top part of
Exhibit
“G2”
which had the name: Tshepo
Sipho Mokwana, and asked if he had written the name, he answered that
he had not. He also did not write
the “JHB Med-B”
appearing on the second line of
Exhibit “G2”
.
He stressed that he had never made a statement to Constable Ndlovu.
[87]
He testified that he saw
Exhibit
“G3”
for the first time in court
when he was testifying. He never saw it in 2012. He never typed
Exhibit “G3”
nor give it to the accused to type. He had nothing to do with
Exhibit
“G3”
and he was very sure. Mr
Mashiane, according to him, would be unfair to ask him about the
contents of the Exhibit. He did not know
how the Exhibit ended up in
the SCA. He could not type.
[88]
Going back to Exhibit “G1” the witness
testified that he did not know the ex-officio Commissioner of Oaths
Jeremy Angelo
Bossr. He testified that he did not meet him on 11
September 2013. He did not sign
Exhibit “G1”
which he first saw in court. It, again, would be unfair to ask him
about the contents of
Exhibit “G1,”
he said. He denied that Exhibits “
G1,”
“G2,” and “G3”
were
his statements and that he had signed them.
[89]
He testified that he and the accused knew each other
very well when they shared a cell in Johannesburg Prison in 2010. He
agreed
that he and the accused discussed about their incarceration
and accepted what had happened.
[90]
At this stage, Mr Guarneri asked for the postponement of
the matter because he had not expected what he was hearing. The case
was
postponed to 11 December 2017. Mr Mashiane informed the Court
that Mokwana was his last witness.
[91]
Mr Guarneri started his cross-examination on 11 December
2017. The witness recalled that he was taken into court while
Constable
Sifiso Ndlovu was testifying. He also explained that the
Constable once visited him in prison wanting him to sign a statement.
He agreed that he had been charged together with the accused with the
murder of Lunga Zungu and Ekha Moyo and that he had pleaded
guilty to
the charges. He was referred to his
Section 112(2)
statement forming
pages 130 to 135 of the court record and he confirmed that the
signature on page 135 of the court record was
his. He testified that
he was not good in English.
[92]
He was referred to paragraph 5.8 of the statement and he
confirmed that the paragraph explained how Lunga Zungu was killed in
the
veld in Roodepoort. He confirmed that paragraph 5.9 contains what
happened when Lunga was killed. He agreed that there was a plan
to
kill Ekha if he (Ekha) did not bring back the combi which had been
removed from the basement on the day that Lunga Zunga was
killed.
[93]
Mokwana testified that Ekha Moyo had agreed to meet the
accused in the basement of King Ramson building. Dladla fired shots
at those
who were shooting at him in self-defence. They then fled the
scene. Asked as to who fired first between Eka and accused, he
answered
that he did not recall. He testified that Ekha was shot in
the basement. The cross examination revealed that there were two
camps.
The one camp consisted of Ekha, Makhosini and Paul while the
other camp consisted of the accused and Mokwana. The witness did not

know which group initiated the fight in the basement.
[94]
I need to mention that Mr Mashiane conceded that Mokwana
was not an intelligent man. This was supported by Mr Guarneri. The
other
aspect that needs mentioning is that Mokwana testified for the
second time after many years.
[95]
The contradictions are not surprising if regard is had
to the fact that the second trial took place many years after the
first trial.
One finds contradictions where the evidence relates to
the witness’s section 112(2) statement
(Exhibit
“F”),
his confession to the
magistrate and his statement to the police. This becomes even more
understandable if regard is had to the
fact that Mokwana is not
intelligent and educated.
[96]
Mokwana’s evidence remains significant in that it
is supported by independent witnesses. In sum, Mokwana’s
evidence
in a number of respects is supported by the witnesses such
as Mbatha, Mandlhopa and the Metro police officers as my analysis of

the evidence will demonstrate later.
[97]
Mokwana, for instance, contradicted himself in the first
trial and in the second trial. This, as I said, resulted from the
lapse
of time between the two trials, his education and intelligence.
[98]
Mokwana denied that Percy Mashiane paid him to lie in
court and that Mduduzi Mandlhopa and Innocent Mbatha visited him in
prison.
He testified that he knew Innocent Mbatha and not Mduduzi
Mandlhopa. He, however, contradicted himself regarding how Ekha went
into the basement. He disagreed that Ekha arrived in the basement on
foot.
[99]
Mokwana agreed that Lunga was killed first and in fact
his evidence was: “we killed Lunga first before the incident of
the
basement.” Mokwana was asked if Ekha came with the plan
that the accused be killed in the basement and his answer was “no.”
[100]
Mokwana testified that the accused was not involved in
the killing of Lunga but strongly disagreed that he was not there
when Lunga
was killed. He testified that the people who planned to
rob Lunga of the combi were the same people that took it. The
witness,
in the first trial, testified that Lunga was shot in
Rodepoort while he was in the motor vehicle and after he had been
dragged
out of the motor vehicle.
[101]
Mokwana testified that the accused was not present when
Lunga’s combi was stolen and when he was killed. Reminded by Mr
Guarneri
that he, in the first trial, had testified that the accused
was present he asked: “what made me say accused was there when

the car was taken, where was it taken to?” The Court then asked
him if the accused was present at the time and he said that
he was
telling the truth. Lunga was enticed to go to Roodepoort where he met
with his death. He denied that Lunga was a passenger
next to him in
the Camry. Asked if he drove the Camry on their way to Roodepoort he
answered that he did not recall. The witness
‘again
emphatically denied that he had signed any document in prison or at
the police station. He testified that he had been
in prison for many
years and that there were things that he no longer remembered.
However, he remembered that he pleaded guilty.
[102]
At this stage Mr Guarneri submitted that the State was
allowed to reopen its case in order to lead further evidence. He
submitted
that the State needed to accept that the alleged statements
were made by Mokwana as declaring him a hostile witness was
irregular.
I do not agree.
Exhibit “G2”,
according to Mr Guarneri, ought to be excluded from the equation.
Exhibit “G3”,
according to him, did not appear to be an affidavit as it was a
letter. He accepted that
Exhibit “G1”
was, indeed, an affidavit.
[103]
Mr Mashiane’s submission was that the order that
remitted the matter to the trial court did not exclude
Exhibit
“G2.”
Indeed, it included
it. What needed to be born in mind, according to him, was that the
accused approached the Court with
the alleged new evidence consisting
of the affidavit of the accused accompanied by the supporting
documents which were admitted
into evidence.
[104]
Mr Mashiane correctly submitted that if Mokwana
disavowed the evidence all it meant was that the new evidence did not
exist as it
would have been fraudulently procured. There is merit in
this submission.
[105]
It was, indeed, in a situation such as this that it was
incumbent upon the accused to explain to the Court that the evidence
came
from Mokwana. The accused would then have to confront Mokwana
telling him that he, indeed, produced the evidence. This then would

result in the accused testifying in order to deal with the disavowal.
[106]
Mr Mashiane submitted that the State did not have a
choice as it had to regard the evidence as having been accepted. What
the Full
Court directed, according to him, was not being reviewed.
The view is correct as the Full Court’s order has to be
implemented.
It was Mr Mashiane’s submission that the Full
Court only set aside the conviction and sentence and not the
proceedings. This
is again correct.
[107]
What the Court needed to consider, according to Mr
Mashiane, was whether the affidavits were Mokwana’s or not. If
the answer
was yes, then Mokwana would have to explain why he
recanted his evidence during the first trial. If not that would end
the enquiry.
[108]
Mokwana testified that the signatures appearing on the
exhibits were not his. He emphatically denied this. Mr Mashiane
informed
the Court that the State was not conceding that the
signatures were Mokwana’s. Mokwana specifically denied that he
had the
habit of making statements which he later distanced himself
from.
[109]
Mr Mokwana denied a substantial number of what Mr
Guarneri put to him. These were versions which would assist the
accused which
the accused needed to testify about, had he so decided.
[110]
Mr Guarneri, dealing with
Exhibit
“G1”
reminded Mookwana that he
denied most of its contents. Mokwana remembered. He however, denied
that that contradicted his evidence
in the first trial. It must be
remembered that Mokwana explained that he was not the author of
exhibits “G1” up to
“G3.” Mokwana denied that
accused was framed and that he had not committed the crimes. He
specifically denied that
those that agreed to implicate the accused
were remunerated. Again sight should not be lost of the fact that
Mokwana testified
that he had nothing to do with the exhibits and
their contents. This, again, required the accused to deal with in the
witness box.
[111]
The version of Siphiwe Mzolo was put to Mokwana and he
denied the version. He testified that the version was replete with
lies.
[112]
Mr Guarneri asked Mokwana if he made a written statement
on 11 January 2018 and his answer was in a question form. He asked if
the
Court had sent people to prison to get him to make a statement to
them and and the Court, because it had not done so, answered in
the
negative. The significance of this question will become clearer later
in this judgement. He testified that someone who was
later identified
as Mr Matshidza, an Attorney of this court, visited him in prison and
wanted him to sign the statement and that
Mr Kroukamp, an officer of
the Department of Correctional Services, later joined them.
[113]
He was given a copy of a document by Mr Guarneri and
asked to identify a signature appearing on the second page of the
document
and he identified it as his. He testified that he used
Sesotho when he signed the document. Asked if Attorney Matshidza was
present
he answered that that was what led him to ask the Court if it
had sent someone to him for the purpose of getting him to make a
statement. He testified that the statement had been typed and only
needed his signature. He told the Court that Mr Matshidza instructed

him to sign the document. The Court asked him if he was instructed to
sign and he answered that he, in fact, was ordered to sign
the
document.
[114]
Mr Guarneri showed Mokwana the last page of
Exhibit
“G1
” and asked him if he signed
it and he denied signing it.
[115]
Mr Guarneri indicated that he wanted a trial within a
trial to be conducted. Mr Mashiane did not object and Mokwana was
excused.
The trial within a trial was to deal with the admission of
the document which Mokwana signed on 11 January 2018.
[116]
Mr Mashiane submitted that the witness that Mr Guarneri
intended calling was Vhonani Rollert Matshidza. Mr Matshidza is an
attorney
and an officer of the Court. He further submitted that the
witness surely was aware why he was needed and that it would be
difficult
for him to claim privilege if Mokwana happened to be his
client. Mr Mashiane cautioned that the Court could make a credibility
finding which might have negative results. Mr Guarneri and Mr
Matshidza were happy to proceed with the trial within a trial.
[117]
Mr Guarneri then called Mr Matshidza as his first
witness. Mr Matshidza testified that he was an attorney who practiced
from his
house at […] P Road, The Reeds, Centurion, and that
he had 17 years’ experience. He told the Court that he received

several calls from the accused in 2014 and 2015. The accused informed
him that he needed his assistance as he had initiated an
urgent
application. The request related to his release from prison. It
appeared to him that the accused had received advice from
his inmates
in prison. The accused also appeared to have no money. He further
testified that the accused again called him around
November- December
2017. Mr Matshidza testified that the accused told him that Mokwana
had made an affidavit which only needed
to be signed by Mokwana and
commissioned in prison. The witness was to take the document to
prison.
[118]
The accused’s mother, in Sandton, hand delivered
the handwritten document to the witness in December 2017. The
document is
Exhibit “G(4)(1)”.
The handwriting was not very legible. He then typed the contents of
Exhibit
“
G(4)(1)”
leaving space for Mokwana to sign. He made arrangements with the
prison and sent his candidate attorney to go and get the document

signed and commissioned. He identified Mokwana in court. Mr
Ngoasheng, the candidate attorney, took the handwritten and the typed

documents to the prison. The report that he later received was that
Mr Mokwana had refused to sign the document that became Exhibit
“G4”
on the basis that he had not agreed with its contents.
[119]
About three weeks after Mokwana refused to sign Exhibit
“G4” he received a call from Mokwana . He reminded
Mokwana that
he had refused to sign the document whereupon Mokwana
told him that there had been a misunderstanding between him and Mr
Ngoasheng
and insisted that the witness take the document to him for
his signature. He prepared another document changing only the date.
He made an appointment and went to prison to see Mokwana on 11
January 2018. He made two copies of the document and gave Mokwana
one
of the copies. Mr Guarneri gave him the original which was received
by the Court as
Exhibit “G4”.
He met Mokwana in Johannesburg prison. Mokwana preferred to
communicate in Sepedi. He testified that Mokwana had no question. The

witness asked Mokwana why he, in the past, had refused to sign the
document and his answer was that there had been a misunderstanding

between him and Mr Ngoasheng. Mokwana explained that he was happy
with the document. The witness was worried about Mokwana’s

small signature but Mokwana confirmed that that was how he signed and
that removed his concern.
[120]
A prison official called their senior who came with the
stamp. Their senior, a white official, put a stamp on the document
after
he asked Mokwana if he had understood the contents. He did not
ask for the name of the prison official. Mr Mashiane asked Mr
Matshidza
to bring his file the next day which would be 30 January
2018. In the main, Mokwana had to say that he had killed the deceased
and not the accused. Mokwana told the witness that he had not been
threatened when he signed the affidavit. He testified that Mokwana

used a cellular phone with numbers 0608873238 when he phoned him.
Mokwana, according to him, was not ordered to sign the affidavit.
The
Commissioner of Oaths asked Mokwana if he had understood the contents
of the affidavit and said to Mokwana that he understood
that he
(Mokwana) was to sign the affidavit. Mokwana was asked to raise his
right hand and say “so help me God”. The
witness was not
related to the accused in any way and he would not have gone to
Johannesburg Prison had Mokwana not called him.
Mr Matshidza
testified that he had destroyed the original document.
[121]
Mr Mashiane cross-examined Mr Matshidza who, by then,
had brought his file to court. He confirmed that he, in the file, had
detailed
notes relating to consultations and payments. He agreed that
the file was the property of his client. Told that he was telling the

Court that he had destroyed the original instructions he testified
that they were not legal instructions per se as that was meant
to
assist him. He did not open a file regarding the issue of the
statement. This was not understandable to Mr Mashiane who had
asked
for the file which was then handed to him to peruse. The Court did
not understand it either. Mr Matshidza, later in his evidence,

conceded that he had been given instructions. I need to place it on
record that the yellow file that was brought to court by Mr
Matshidza
had accused’s name.
[122]
Mr Mashiane demonstrated to the witness that he worked
on the matter when he typed the contents of Exhibit “G(4)(1).
The witness
agreed. The witness further agreed that he had not noted
what he did in the file and that he had not shown in the file that he
had received
Exhibit “G(4)(1)”
which is what he was supposed to have done in
the first instance. Told that he had destroyed a document without
instructions he
testified that he had told the accused that they had
been misleading him in that Mokwana had refused to sign the
affidavit. Mokwana’s
question to the Court, from here onwards,
became understandable.
[123]
Mr Matshidza testified that he had destroyed the
original document because he thought that the document had been made
up by the
accused and his mother thinking that Mokwana would sign. Mr
Mashiane immediately told Mr matshidza that his view was in line with

the State’s case, namely, that the document had not come from
Mokwana. He conceded that he was supposed to have given the
document
to the accused and not to shred it. He testified that the accused and
the mother did not respond when he told them that
they had been
misleading him. Asked about the destroyed document, he testified that
he destroyed the document when he came back
from holiday on 6 January
2018. He went to Mokwana after the document had been destroyed. Mr
Matshidza did not answer the simple
question when Mr Mashiane needed
to know if he had told Mokwana that he had destroyed the document.
He, instead, told the Court
that Mokwana did not ask for the
original. He finally told the Court which had repeated the question
that he had not told Mokwana.
[124]
Mr Matshidza was not ready to admit that he definitely
had worked on the matter, however, he finally conceded that he worked
on
the matter. He reported to the accused and the mother
telephonically that Mokwana refused to sign the affidavit. Mr
Matshidza conceded
that most of the things he testified about were
not in the file. This included the fact that they acted for the
accused pro bono.
[125]
Mr Mashiane put it to the witness that the fact that
Mokwana    refused to sign the affidavit should have
impelled him
to keep the original handwritten document safe. The
answer to the question was not helpful. At this stage the witness
started talking
of the “instructions” that he was given.
The question remained unanswered. He testified that Mokwana did not
know that
the original handwritten document existed.
[126]
Mr Matshidza was asked another simple question which was
that it must have surprised him that it was not Mokwana but the
accused
who was producing the affidavit. Instead of answering the
question, the witness testified that he would not have participated
and
assisted in the matter if he had known that Mokwana, at the time,
was under cross-examination. This was after Mr Mashiane had explained

that it was strange that the affidavit,
Exhibit
“
G4”
was
created on 11 January 2018 when Mokwana was being cross-examined on
the evidence that he had tendered in chief. The matter
had been stood
down for further cross-examination in January 2018. Confronted with
this, Mr Matshidza told the Court that both
Mokwana and the accused
were laymen when it involved issues of law. Mr Matshidza ended up
conceding that the way things had happened
had, indeed, been
suprprising.
[127]
Mr Mashiane told the witness that it was most unusual
that while Mokwana was being cross-examined, accused would approach
Mokwana
for an affidavit recanting his (Mokwana’s) evidence. Mr
Matshidza answered that a person could plead not guilty and then in

the middle of the trial change the plea to guilty. This, in no way,
answered the simple question of Mr Mashiane.
Mr
Matshidza then came with derogatory answers telling the Court that
Mokwana was showing signs of abnormality and that he was mentally

challenged and looked like a hobo. This, indeed, was very much
uncalled for particularly if regard is had to the fact that that
was
not how the Court perceived Mokwana. In addition, Mr Mashiane and Mr
Guarneri were in full agreement that Mokwana was not intelligent.
Mr
Matshidza then apologized. He later conceded that how Exhibit G4 was
procured had, indeed, been very surprising. Mr Matshidza
further
conceded that Mokwana could have been assisted by the prison
officials if he, indeed, had needed help.
Mr
Matshidza was further asked if he did not find it very surprising
that it was the accused and the mother who wanted the affidavit

signed by Mokwana who was being cross-examined. He answered saying
that he would not have assisted if he had known that the matter
was
partly heard. This, abundantly evinced that the witness was
distancing himself from the accused’s wrong conduct. The
Court
had to repeat the question whereupon Mr Matshidza agreed that it was
indeed surprising. It seemed very clear to Mr Matshidza
that accused
and his mother communicated with Tshepo during trial.
[128]
At this stage the witness informed the Court that he had
found the original of
Exhibit “G4”
which was to be signed by Mokwana. This affidavit and the one that
Mokwana signed on 11 January 2018 differ only in dates and that
the
original had required Mokwana to disclose his ID number. The draft
taken to Mokwana discloses his prison number.
[129]
Mr Ngoasheng did not leave Mokwana with a copy of the
document which Mokwana refused to sign. Mr Matshizdza did not comment
when
it was put to him that
Exhibit “G4
”
was not the brain child of Mokwana who distanced himself from the
affidavits referred to in
Exhibit “G4”.
He did not comment when told that the contents of
Exhibit
“G4”
did not accord with the
evidence of the independent witnesses.
[130]
Mr Mashiane demonstrated to the witness that the
contents of
Exhibit “G4”
were to a greater extent not factually correct, For instance, he
submitted that Tshepo (Mokwana’s) evidence was that he did
not
have any attorney by the name of Jeremy Angelo Bossr appearing on
Exhibit “G1”
page (124 of the court record). The witness testified that he would
not be able to tell the Court if there was or not an attorney
by the
name of Bossr.
Mr
Mashiane told Mr Matshidza that
Exhibit “G4”
could not have come from Mokwana as evidenced by paragraph 6 thereof
which states: “
I further confirm that on
the 24
th
day of December 2002, I did made (sic) and sign an affidavit under
oath with my attorney Angelo Jeremy Bossr that I shot and kill
(sic),
Ekha Moyo with a firearm.”
Told by Mr
Mashiane that there was no affidavit dated 24 December 2002 he said
he had no comment. He further had no comment when
told that the
accused procured the services of Bossr.
[131]
To further prove that
Exhibit
“G4”
was not factually correct
the witness was referred to paragraph 7 of
Exhibit
“G4”
which states:
“
I do confirm
that I made and sign (sic) another affidavit under oaths with two
police officers from Mondeor Police Station commissioned
by one
Sifiso Ndlovu with his blank paper and his stamp of the presence of
Fannie Modise and Sebastian Dladla on the 4
th
day of September 2013 and attest my signature thereof marked “G2”.
“
G2”
is “Exhibit G2” appearing on page 125 of the court
record.
Mr
Mashiane then asked if the witness would be able to dispute that the
evidence of Sifiso Ndlovu to the effect that the person
he assisted
came to Mondeor Police Station and that the person was not Tshepo the
witness answered that he would not be able to
dispute that.
[132]
Mr Matshidza was again referred to paragraph 9 of
Exhibit “G4” and told that he would not know how the
document would
have come from Tshepo to accused’s mother and he
answered that he would not know.
[133]
The re-examination did not advance the accused’s
case.
[134]
The Court, to get clarity, asked the witness a few
questions and he testified that the accused’s mother gave him
the original
handwritten document. The document, according to him,
did not qualify to be called an affidavit. He gave shape to it
because certain
aspects were not there, however, he did not discuss
the additions he effected with Mokwana.
[135]
Mr Guarneri then called Mr Kroukamp, the Deputy
Director, employed by the Department of Correctional Services and
based at Johannesburg
Prison. He had 34 years’ service and 10
years as Deputy Director. He testified that he commissioned
Exhibit
“G4”
on 11 January 2018. He saw
Tshepo in the corridors of the court building. A clerk called him on
11 January 2018 and he went to
meet the lawyer in a glass office. The
lawyer was still consulting when he joined them. He moved to the
other side of the office
where there was what he called a trapdoor.
The glass was between him and the lawyer who was with the offender.
The Lawyer, who
is Mr Matshidza, asked him to commission
Exhibit
“G4.”
He handed him the
Exhibit
“G4”
through the opening
(trapdoor.)
[136]
He read the document which he handed back to the Lawyer
and asked the offender to initial each page and sign the document. He
put
the stamp on the second page. He asked the questions appearing on
page 2 of the document and wrote down the responses. The document
was
signed by him and the offender. He asked the offender who was
Mokwana, to say “so help me God”. The offender first

raised his left hand and he corrected that. He then handed back the
document to the lawyer. Mokwana was not bullied to sign the
document.
Mokwana appeared sober minded and he would not have commissioned the
signing of the document had the offender been coerced
to sign. He did
not put pressure on him to get him to sign the document. Mokwana
would be wrong to say that he was ordered to sign
the document. He
was satisfied that Mokwana knew what he was doing.
[137]
Mr Mashiane cross-examined the witness who agreed that
paragraphs 9, 10, 11 and 12 refer to other documents. He testified
that these
other documents were not there when
Exhibit
“G4”
was signed and commissioned.
He agreed that Mokwana struggled with simple things such as raising
his right hand. He spoke in English
with Mokwana as Mokwana was one
of his cleaners who could speak English. The witness testified that
the conversation between the
offender and the lawyer had been in
English. This contradicted the evidence of Mr Matshidza who told the
Court that he spoke Sepedi
with Mokwana. He did not know the highest
standard that Mokwana passed. He was also not in a position to
dispute that the Lawyer
had to translate the contents of
Exhibit
“G4”
for Mokwana. The witness had
an understanding that Matshiidza and Mokwana were Lawyer and client.
He testified that he was not
there when Matshidza consulted with
Mokwana. He agreed that Mokwana would regard the witness as a man in
authority. In fact that
is what the witness was. Put to him that
Mokwana testified and told the Court that people came to see him and
that he was under
the impression that they were sent by the Court and
that he was ordered to sign a document, the witness told the Court
that he
had no comment to offer.
[138]
The accused closed his case in the trial within a trial.
Mr Guarneri told the Court that the candidate attorney was made
available
to the State. Mr Mashiane informed the Court that he, in
the interests of justice, would call Mr Ngoasheng as a witness.
NKUNYANE
CEDRICK NGOASHENG
[139]
Mr Ngoasheng testified that he was employed by Mr
Matshidza as his candidate attorney. He confirmed that he was sent to
Mokwana
in December 2017 with the handwritten document together with
Exhibit “G4.” Mokwana was to sign
Exhibit
“G4”
unfortunately he refused
telling Ngoasheng that he had nothing to do with the two documents.
He and Mokwana did understand each
other. The witness spoke in Sepedi
while Mokwana spoke Southern Sotho. This confirmed Mokwana’s
evidence.
[140]
Mr Ngoasheng returned the documents to Mr Matshidza
because Mokwana refused to sign them. Mokwana, according to him,
looked at the
documents and told him that they were not his
documents.
[141]
Mr Ngoasheng was cross-examined by Mr Guarneri. He
testified that Mokwana took time to read the documents. The witness
was shown
Exhibit “
G4(1)”
and
he agreed that the document was the one that accompanied Exhibit
“G4.” There was no other document. He accepted
that
Mokwana could read English although he took long to get to the next
page. The witness did not know Mokwana’s level of
education. He
did not ask Mokwana if he could read and write English.
TSHEPO
SIPHO MOKWANA
[142]
Mokwana was recalled to give evidence in the trial
within a trial. Mr Mashiane informed him why he was needed and that
he was under
cross-examination in the main trial.
[143]
Exhibit “G4(1)”
did
not appear to be an original to all of us. It was a copy that Mokwana
denied that he had written. He also did not commission
anyone to
write it. He did not know how the document came to be in the hands of
the accused’s mother. The signature “Tshepo”
at the
bottom was not brought about by him. He also did not know how the
signature happened to be there. Mokwana testified that
the signature
on
Exhibit “G4”
was his. He testified that Matshidza came to prison the day he signed
the document and told him to sign it.
Exhibit
“G(4)(1)”
was the handwritten
document.
[144]
Mr Mashiane asked him why he had asked the Court about
the documents his answer was that he had wanted to know if the Court
had
sent Matshidza with the documents. He testified that someone
explained to him what the document contained as he had been given a

copy and he realised that it was not his statement.
[145]
Mokwana testified that Mr Ngoasheng read the statement
to him and he told Ngoasheng that it was not his statement and he
refused
to sign it. His further testimony was that he had signed
Exhibit “G4”
because Mr Matshidza told him he had to sign it. He testified that he
did not agree with the contents of the document.
[146]
Asked if he had called Mr Matshidza telling him that he
was ready to sign the document he testified that he could not call
someone
he did not know. Mr Matshidza, at the time, was unknown to
him. He did not know cellular telephone number 060 8873 238. He
testified
that he, at the time, was only using a public phone. He did
not have a cell phone in prison during January 2018. He testified
that
he never called Mr Matshidza giving him any kind of instruction.
The document that he signed, aside from  the handwritten
document, was not accompanied by any document. He testified that he
never discussed the matter with the accused while he was under

cross-examination. He never asked the accused or his mother to assist
with the drawing up of
Exhibit “G(4)(1).”
[147]
Mr Guarneri cross-examined Mokwana who testified that he
did not properly understand English. He did not communicate with
people
in English. He was honest enough to tell the Court that his
communication with Mr Kroukamp was not worth writing home about as it

was limited to very simple things. He never had a real conversation
with him. One, according to him, did not just see Mr Kroukamp
as that
needed special request and arrangement. He agreed he was a cleaner
who was sometimes given instructions by Mr Kroukamp
and said that Mr
Kroukamp would do that on seeing Mokwana doing his job. He testified
that he would see Mr Kroukamp once a month.
[148]
Mokwana vehemtly denied that he had written
Exhibit
“G(4)(1)”.
He testified that he
had never seen an inmate with a cell phone in prison. He again
emphatically denied that he, in January 2018,
had called Mr Matshidza
who was unknown to him and whose cellphone number he never had. He
denied having any telephonic conversation
with him. He specifically
testified that he used Southern Sotho when he spoke to Mr Matshidza
who told him he was Venda speaking.
He was, however, honest to tell
the Court that he spoke and understood Sepedi. He testified that Mr
Matshidza did not even take
ten minutes with him. He denied that Mr
Matshidza translated the contents of
Exhibit
“G4”
to him and testified that a
Prison Warder called Mr Kroukamp as he, at the time, was the only
director available.
[149]
He testified that Mr Matshidza told him that he had been
sent to him by the Court and this, according to him, resulted in him
asking
for confirmation from the Court. He told the Court that Mr
Matshidza told him that he was an advocate. Told that Matshidza had
never ordered him to sign
Exhibit “G4”
he answered that Matshidza told him to sign and this, indeed, is
different from asking someone to sign somewhere. He testified
that Mr
Kroukamp, too, did not ask him to sign but told him to sign. He
denied that Mr Kroukamp asked him to raise his right hand
and that
he, instead, raised his left hand. Mr Matshidza did not disclose this
to the Court.
[150]
In the meantime, Mokwana was released on parole and the
matter was postponed to 6 March 2018 as he was not in court on 5
March 2018.
Mr Mokwana testified that he saw Mr Matshidza for the
first time in January 2018. He testified that Matshidza could not
have got
the contents of
Exhibit
“
G4”
from
him as he did not even know him.
[151]
Mr Guarneri addressed the Court and submitted that Mr
Matshidza and Mr Kroukamp were reliable witnesses. Mokwana, according
to him,
was the author of
Exhibit  “G4”,
which was worthy of admission.
[152]
Mr Mashiane addressed the Court and submitted that it
was easy to see that Mokwana was not the author of Exhibit “G4.”

Mr Mashiane further submitted that the following had to be noted:
1.
The origin of
Exhibit
“G(4)(1)”
was not known. The
accused’s mother was also not called as a witness to give an
explanation as to where she had obtained
Exhibit
“G(4)(1)”
from. The accused
himself did not give evidence to demonstrate that Exhibit G(4)(1)
had, indeed, come from Mokwana. The absence
of this explanation is
damning.
2.
The contents of
Exhibit
“G4”
were not in line with the
evidence before the Court. This, indeed, is so. Mr Mashiane submitted
that it would be strange and improbable
to get statements such as the
alleged statements where the deponent was testifying against the
accused. Indeed, Mokwana testified
that
Exhibit
“G4”
was not his statement.
3.
Significantly, Mr Mashiane submitted that
Mokwana, even before he answered Mr Guarneri’s question, when
cross-examined, asked
the Court if it had sent people with documents
for him to sign in prison. Indeed, Mokwana, responding to Mr
Guarneri’s question
said that what happened in prison impelled
him to ask the question. This, also, begs the question why Mokwana
would ask the question
if there was nothing seriously wrong. This
question is suggestive of the fact that Mokwana must have been very
sceptical of what
was happening.
4.
Mr
Ngoasheng told the Court that Mokwana told him that the statements
were not his and that he was not prepared to sign. He did
not sign
the document.
5.
Mr
Matshidza acted for the accused and not Mokwana. There is no evidence
from the accused or his mother to properly deal with the
fact that
Mokwana refused to sign his document. The explanation would
demonstrate that despite the denial, Mokwana was the author
of
Exhibit “G4”
6.
That Mokwana telephoned Mr Matshidza asking him
to bring the documents that he had previously refused to sign and
then telling him
that he was, at the time, ready to sign the document
does not seem convincing. Besides, Mokwana testified that he did not
know
Mr Matshiidza. He also did not know or have his cell phone
number.
7.
If
Exhibit G4 had been created by Mokwana how, on earth, would he refuse
to sign it. Having regard to the fact that Mokwana neither
had Mr
Matshidza’s cell phone number nor knew him, logic would dictate
that this could not have happened as Mr Matshidza
testified.
8.
Mr
Matshidza testified that because he needed space for Mr Mokwana’s
signature and that Exhibit G(4)(1) did not qualify as
an affidavit,
he had to have it typed. It is noteworthy that:
8.1
Exhibit G(4) (1)
has
been signed by a Tshepo. It has space for the prison official and
Tshepo to use.
8.2
The signatures on
Exhibits
“G(4)(1)”
and “
G(4)”
are conspicuously different. Mr Guarneri also so conceded.
There is no explanation
for this difference. The explanation that Mr Matshidza gave, namely,
that he prepared
Exhibit “G4”
because of the problems highlighted above, according to Mr Mashiane,
is self-defeating. It, indeed, is.
9.
Finally, Mokwana testified that he signed
Exhibit
“G4”
because the people who came
with the document told him that they were from the Court. In the
light of Mokwana’s scepticism
it becomes difficult to gainsay
this.
[153]
The evidence, in the trial within a trial, is explicitly
indicative of the fact that Mokwana could not have been the author of
Exhibit “G4”
and
G(4) (1).
I, as a
result, ruled that Exhibits G4 and G(4)(1) were inadmissible because
Tshepo Mokwana was not the author thereof.
[154]
At this stage, Mr Mashiane closed the State’s case
in the main trial.
[155]
Before Mr Guarneri proceeded with the defence case, Mr
Mashiane asked to address the Court on
Section 60(11)(B)(c)
of the
CPA. He submitted that he had asked the Court in terms of the Section
to regard the record of the bail proceedings as forming
part of the
record of the trial. The section reads:
“
The record of the
bail proceedings, excluding the information in paragraph (a), shall
form part of the record of the trial of the
accused following upon
such bail proceedings:
Provided that if the
accused elects to testify
during
the course of the bail proceedings the court must inform him or her
of the fact that anything he or she says, may be used
against him or
her at his or her trial and such evidence becomes admissible in any
subsequent proceedings.”
(My
emphasis)
Mr
Mashiane submitted that the bail application record formed part of
the main trial as the accused was duly informed. Mr Guarneri

disagreed. Mr Mashiane then formally applied that the Court so order.
Mr Guarneri opposed the application on the basis that the
accused, at
the time of the bail application, had not been warned.
[156]
Mr Mashiane, indeed, asked the Court to warn the
applicant (the accused) before the bail application was made. Mr
Bauer who represented
the accused did not object. Mr Mashiane
informed the Court that he needed the accused, who the Court was
told, needed no interpreter
as he was comfortable with English, to
understand the implications of
Section 60(11)(B)(c).
Mr Bauer asked
to approach the accused and the two discussed.
[157]
Mr Bauer then informed the Court that the accused
understood English and that he fully understood the purport of the
section. The
Court asked the accused if it, indeed, was so and the
accused confirmed it. The Court after listening to arguments from
both sides
and considering the law, dismissed Mr Guarneri’s
objection and the contents of the section were then read into the
Court
record. The record of the bail proceedings then formed part of
the record of the trial of the accused and the evidence led in the

bail application became admissible in these proceedings.
[158]
Mr Guarneri then called the following witnesses:
LOVEMORE
MOYO
Lovemore
lived in Port Elizabeth. Sibonginkosi Moyo was his aunt. He testified
that she passed on on 20 February 2017. Ekha Moyo
was his Cousin. He
last saw him in Johannesburg General Hospital.
[159]
Mr Guarneri advised the Court that they were going to
lead hearsay evidence which, provisionally, ought to be admitted. Mr
Mashiane
had no difficulty with that provided the defence would later
duly prove it.
[160]
The witness testified that he was with his aunt and
uncle when he last saw Ekha. He testified that Ekha told his aunt and
uncle
in his presence that Tshepo Mokwana had shot him. Tshepo was
Ekha’s friend.
[161]
The witness was cross-examined by Mr Mashiane. He
testified that initially he was called to Court by a lawyer who
introduced himself
as Bossr. He testified that he was one day in the
company of the lawyer and Mokwana who told the lawyer that he had
shot Ekha Moyo.
They met Mokwana in prison. Asked what had become of
the statement that Mokwana had made, he first said that they already
knew
that Tshepo had killed Ekha. The Court repeated the question and
he answered that he did not know what the lawyer did with the
statement.
[162]
Mr Mashiane asked the witness to produce his ID and he
answered that the document was stolen from him at Johannesburg
Station on
that day. He produced a document bearing a stamp of
Hillbrow Police Station where he reported the theft of his document.
He testified
that he moved to Port Elizabeth in 2015 after he stayed
at S in Dobsonville. Getting back to the issue of the passport he
testified
that he had lost it in Hillbrow. He contradicted his
evidence that he had lost his document at Johannesburg Station.
[163]
He testified that he would be surprised to learn that he
was the first person to inform the court that the aunt passed on. She
stayed
at […] S, Dobsonville. Captain Risimati Thomas
Hlungwani was in hospital with them. He was asked if he was not
making a
mistake and his answer was that he was not. He was informed
that someone had said that Ekha had told the Captain that the accused

had not shot Ekha and that the Captain had denied this, his answer
was far from answering the question. He testified that three

policemen had taken statements from Ekha who demanded to be
discharged from hospital. He later learnt that Ekha was discharged

from hospital. He testified that Ekha died at his friend’s
house where he stayed for two days before died. This evidence

seriously contradicted the evidence that Ekha had died in hospital.
The evidence also, had never been placed in dispute.
[164]
Asked why Captain Hlungwani would deny having been told
by Ekha that he had not been shot by the accused, his answer was that
Ekha
had even asked for forgiveness from the accused. This introduced
very fresh evidence. Told that there was evidence to the effect
that
Ekha was said to have apologised at the scene of the crime and not in
hospital he came with an unhelpful answer telling the
Court that Moyo
was employed by the accused and that he had stolen the accused’s
motor vehicle. He testified that Mokwana
and Ekha were employed as
drivers by the accused. Mr Mashiane told the witness that the
evidence was heard for the first time and
that the accused, himself,
had never mentioned this. His answer was that that was what he knew.
He evaded the question. He did
not know why the accused did not tell
the Court that he had employed Ekha and Mokwana.
[165]
Told that Mandlhopa was there when Ekha was shot and
that he had given a version of how Ekha was shot , he testified that
he did
not know why Mandlhopa would testify as he did. Informed that
the accused, at the scene of crime, had told Mbatha that he had shot

Ekha because Ekha had stolen his combi, he answered that he was not
there when the shooting took place and that he did not have
such
evidence. Told that Ekha had told the Metro police officers that he
had been shot by the one who was coming from the basement
driving a
Camry motor vehicle, he answered that Ekha had told them that the
person who had shot at him was Tshepo who had intended
to shoot the
accused. This was also a new and strange version which came to the
fore as the witness introduced fresh evidence.
[166]
Mr Mashiane put it to the witness that Tshepo, at no
stage, was told that he had by mistake shot at Ekha when he wanted to
shoot
the accused. He testified that Tshepo had admitted in the
presence of attorney Bossr that he had accidentally shot Ekha. Told
that
Mr Thompson who represented the accused had never put this to
Mokwana, he said he had no comment to make. He also had no comment
to
offer when he was told that Mr Guarneri had also not put that to
Mokwana. Mr Mashiane told the witness that his evidence was
in line
with the statements that Mokwana distanced himself from, he then told
the Court that Mokwana had made such statements.
How he knew
this became very surprising. He did not know why Mokwana could deny
that the statements were his.
[167]
Reminded that Captain Hlungwani had denied that Ekha
told him that he had been shot by Tshepo, he testified that Tshepo
sent people
to go and fetch Ekha from hospital. This contradicted his
earlier evidence to the effect that Tshepo sent people to go and
fetch
Ekha from hospital and that Ekha had died at his friend’s
house. Mr Mashiane told the witness that Captain Hlungwani merely

investigated a case of a missing person whereupon he said that
Captain had made the statement and that he had been present in
hospital. Told that Ekha was said to have apologized at the scene of
the crime, he answered that he was told that Ekha apologized
at the
scene of crime and again in their presence in hospital. Fresh
evidence which contradicted his earlier evidence never stopped
coming
in.
[168]
The witness had no comment when Mr Mashiane told him
that it was never put to Captain Hlungwani that Ekha apologized to
accused
in hospital. He testified that Mokwana, in prison, had said:
brothers, I am sorry I shot Ekha by mistake”.  This made

his version very intriguing. He was surprised to learn that Bossr’s
statement that he testified about where Mokwana admitted
shooting
Ekha was not before the court.
[169]
Mr Guaraneri informed the Court that Mzolo was not in
court. The matter was then postponed to 9 April 2018. Mr Guarneri, on
9 April
2018, informed the Court that the accused needed to take a
decision regarding his way forward. The Court adjourned and upon
resumption
at 12H05 Mr Guarneri informed the Court that the defence
would not be calling further witnesses but intended to apply that
certain
hearsay evidence be admitted in terms of
Section 3(1)(c)
of
the
Law  of Evidence Amendment Act 45 of 1988
. He informed the
court that certain evidence would be admitted in terms of
Section
3(1)(a)
of the same Act. This evidence related to what Ekha told
Captain Hlungwani in hospital. This portion of the evidence appears
on
page 587 of the record of the proceedings. The Captain testified
that Ekha told him that the person who shot Lunga Zungu was Tshepo.

Mr Mashiane confirmed that he had no problem if this piece of
evidence was admitted. He, however, had problems with the admission

of the piece of evidence which related to the person who had shot
Ekha as that was not common cause.
[170]
At this stage, the interpreter was excused because the
accused indicated that he followed the English that was used in
court.
[171]
Mr Guarneri, at this stage, handed up a document headed:
“
Application
for admission of hearsay evidence in terms of
Section 3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
.” He informed the
Court that same was handed to Mr Mashiane for the State. Mr Mashiane
confirmed this.
It
is important to quote subsections 3(1)(c) and 3(4) of Act 45 of
1988..
Section
3(4) reads:
“
(4) For the
purposes of this section –
“
hearsay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of
any person
other than the person giving such evidence”
“
party”
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution.”
Section
3 provides:
3(1
)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless-
(a)
each party against whom the evidence is to
be adduced agrees to the admission thereof as evidence at such
proceedings;
(b)
………………
..
(c)
The court having regard to-
(i)
The nature of the proceedings;
(ii)
The nature of the evidence;
(iii)
The purpose for which the evidence is
tendered;
(iv)
The probative value of the evidence;
(v)
The reason why the evidence is not given
by the person upon whose
credibility the
probative value of such evidence depends;
(vi)
Any prejudice to a party which the
admission of such evidence might entail; and
(vii)
Any other factor which should in the
opinion of the court be taken into account,
Is of the opinion that
such evidence should be admitted in the interests of justice.”
[172]
It is important to note that in issue is whether or not
the evidence that, in his presence, Ekha Moyo told the witness’s
aunt
and uncle, namely, that Mokwana shot him, should be admitted
into evidence.
[173]
Mr Guarneri submitted that the enquiry is discretionary
and that the factors mentioned in section 3(c) are peremptory. This
submission
seems to be in order. (See Shaik and Others 2007(1)240 SCA
at [170]; S v Molimi 2008(2) SACR 76 CC and Zeffertt and Paizes: The

South African law of Evidence page 399.)
(i)THE
NATURE OF THE PROCEEDINGS
Everybody
agreed this is a criminal trial.
Mr
Guarneri submitted that the reception of evidence against an accused
person is different from when such evidence is adduced by
the accused
especially where the evidence is highly relevant in demonstrating the
accused’s innocence. (See Zeffertt and
Paizes (Supra) at 399; S
v Dyimbane and Others
1990 (2) SACR 502
(SE) at 504 and S v Ramavhale
1996(1) SACR 639 (A) at 647(H).
[174]
(ii) THE NATURE OF THE EVIDENCE.
Mr
Guarneri submitted that the evidence was not complicated and that
Lovemore Moyo was the deceased’s cousin. This, according
to
him, was never rebutted by the State. This, in this case, is
unnecessary to rebut. It does not further the accused’s case.

Mr Guarneri submitted that the Statement to be admitted was not
complex. The issue is not whether the
Statement
is complicated or complex but whether the statement was, after all,
made.
[175]
(III) THE PURPOSE FOR WHICH THE EVIDENCE IS TENDERED
Mr
Guarneri submitted that the evidence was tendered to prove that
Mokwana shot the deceased and that this contradicts Mokwana’s

evidence. Again, the question remains: was the statement made by
Ekha, the deceased? In the light of the available objective evidence

this is highly unlikely.
[176]
(IV) THE PROBATIVE VALUE OF THE EVIDENCE.
Mr
Guarneri submitted that the declaration had high probative value as
same was not complex. It merely informed one as to who had
shot Ekha.
Mr Guarneri further submitted that the declaration was more in line
with Mokwana’s Section 112(2) guilty plea
statement. What
should not be lost sight of is that the evidence, considered in its
entirety, does not support the submission.
[177]
(V) THE REASON WHY THE EVIDENCE IS NOT GIVEN BY THE
PERSON UPON WHOSE CREDIBILITY THE PROBATIVE VALUE OF THE EVIDENCE
DEPENDS.
The
answer is simple, the deceased is dead. Although Zeffertt and Paizes
(supra) at 408 and S v Mbanjwa and Another 2000(2) SACR
100 (D) 113e
and S v Waldeck 2006(2) SACR 120 (NCD) at 132d seem to hold the view
that death would be most compelling of the possible
explanations to
receive hearsay evidence into evidence, evidence at the disposal of
the Court, does not permit the reception of
such evidence.
[178]
(VI) ANY PREJUDICE TO A PARTY WHICH THE ADMISSION OF
SUCH EVIDENCE MIGHT ENTAIL
Mr
Guarneri relied on S v Ndlovu
2002 (2) SACR 325
(SCA) at [50] to
submit that “the very fact that the hearsay justifiably
strengthens the proponent’s case warrants
its admission, since
its omission would run counter to the interests of justice”. In
S v Ndlovu (supra) at [50] the Court
held that “where the
interests of justice require the admission of hearsay, the resultant
strengthening of the opposing case
cannot constitute “prejudice”
and cannot count as prejudice for statutory purposes, since in
weighing the interests
of justice the Court must already have
concluded that the reliability of evidence is such that its admission
is necessary and justified.”
The
problem that we face in this case is that the objective evidence of
the independent witnesses, at the disposal of the Court,
runs counter
to the admission of the hearsay evidence that Mr Guarneri asks the
court to admit.
[179]
ANY OTHER FACTOR WHICH SHOULD IN THE OPINION OF THE
COURT BE TAKEN INTO ACCOUNT
The
Court has evidence which it cannot ignore. The evidence deals, a
severe blow to the defence’s version. It, indeed, would
not be
in the interests of justice to ignore such weighty evidence. The
version of the defence is replete with contradictions and

improbabilities to an extent that it would, indeed, be very dangerous
to admit the hearsay evidence.
[180]
As alluded to above, Mr Mashiane very strongly opposed
Mr Guarneri’s application. Mr Mashiane submitted that the
following
formed the basis of his opposition:
1.
The evidence of Lovemore Moyo to the effect that
he overheard Ekha telling the aunt and uncle that Tshepo had shot him
was inconsistent
with the evidence of Captain Hlungwani. Mr Mashiane
submitted that (iv) above, was a very important consideration in
determining
whether or not the hearsay evidence should be admitted.
Lovemore told the Court that Captain Hlungwani was present when he
overheard
Ekha telling them that Tshepo had shot him. Captain
Hlungwani, in so many words, testified that Ekha never uttered such
words.
Nothing was said to indicate that the uncle could not come and
verify the declaration. It was merely said that the aunt passed on

but no death certificate was produced. There was also no evidence by
someone else which would show that the aunt indeed, passed
on. The
Aunt, Sibonginkosi Moyo, deposed to an affidavit on 11 September 2013
about the events of 2002. Mr Mashiane submitted that
no one told
Warrant Officer Senoamadi who was looking for her that she had passed
on. He, according to Mr Mashiane, was told that
she no longer stayed
at the given address. Mr Mashiane submitted that that was a
convenient way of trying to explain why she could
not come and tell
the Court more about this hearsay evidence. Who, in light of the
available evidence, would faulter Mr Mashiane
for holding such a
view?
2.
THE UNCLE
Similarly, Mr Mashiane
was told that the uncle had relocated to Zimbabwe. Nothing further
was done. No effort was made to try and
find the uncle. Mr Mashiane
submitted that no acceptable explanation was proffered for not
producing more conclusive evidence about
the uncle and that we,
resultantly, could not cross (iv) above, without this explanation.
3.
Mr
Mashiane submitted that the Act could not be used to override the
tendered evidence. The submission, in my view, has merit.
4.
Mr
Mashiane further submitted that this section could also not be used
to bypass the acceptable and objective evidence. I again
agree.
5.
Mr
Mashiane then justifiably asked what we would do with the evidence of
Mandlhopa, Mbatha, the Metro Police Officers which contradicts
the
evidence sought to be admitted. Worse still, Mr mashiane further
submitted that there was still the evidence of the accused
in the
first trial which could not be done away with. The accused told the
Court that no one else other than him shot Ekha and
that he shot Ekha
in self-defence.
6.
Admitting the hearsay evidence, according to Mr
Mashiane, would defeat the purposes of (vi) and (vii) above. I agree.
He submitted
that it, ‘indeed, would be in the interests of
justice if the court refused to admit the hearsay evidence.
7.
THE CREDIIBILITY OF LOVEMORE MOYO.
Mr Mashiiane submitted
that Lovemore’s credibility was left in tatters. He testified
that Ekha apologised in hospital when
the defence’s version is
that Ekha apologised directly to to the accused at the entrance to
the basement. While Mr Mashiane
agreed that the aspects to be
considered in (i) –(vi) were peremptory, one could not ignore
(iii), (iv) and (vi). He concluded
that the hearsay evidence in casu
materially contradicts Mokwana’s evidence and that of Mandlopa,
Mbatha and Metro Police
ofiicers. Mr Mashiane submitted that even if
the fact that Lovemore Moyo is Ekha’s cousin could not be
rebutted, it still
did not mean that Lovemore’s evidence
contained the truth. Put differently, it has to be shown that
Lovemore’s evidence
was credible and reliable.
8.
Mr
Mashiane disagreed that Mokwana’s Section 112(2) guilty plea
was in line with the hearsay evidence that ought to be admitted.
The
submission is correct. Nowhere in the Section 112(2) statement does
Mokwana say that he shot Ekha.
[181]
Mr Mashiane submitted that Mr Guarneri put it to Mokwana
that the accused was not there when Lunga was killed and Mokwana’s

immediate response was that he disagreed. Mr Mashiane conceded that
Mokwana was not one of the cleverest people. Indeed, Mr Guarneri,

too, so conceded. To substantiate this, Mr Mashiane demonstrated that
in response to a question Mokwana asked “when a car
is taken
where is it taken to?” he further said we were taking the car
to accused 1. There is, indeed, evidence that Mbatha’s
combi
was in the basement and that is where Mandllhopa found Mbatha’s
combi which was taken back to Soweto.
[182]
Mr mashiane submitted that it was common cause that
`Lunga was shot for the very same combi that belonged to Mbatha.
This, in my
view, is the most probable submission. Mokwana asked
where did you think we were taking the combi to? Ekha had to die
because of
this combi.
[183]
Mr Mashiane submitted that the evidence was very
straight forward. Indeed it remained very straight forward. He
submitted that it
was not in the interests of justice that the
hearsay evidence relating to Ekha be admitted. The submission is
plausible.
[184]
Regarding the deceased Zungu, Mr Mashiane submitted that
the accused was present when Zungu was killed. Evidence, in the first
trial,
revealed that the accused was the last to shoot Lunga Zungu
once he was dragged out of the motor vehicle where he was shot at
close
range. Evidence further evinced that the accused was part of
the plan that Zungu be killed and his combi taken. Mokwana, in the

first trial, testified that accused searched Zungu and took out from
his pocket R300-00 that Zungu had. This included Zungu’s
ID and
the keys of the combi. Mbatha testified that they had to use spare
keys to remove the combi from the basement.
[185]
Mr Mashiane validly asked why accused would shoot Ekha
if he had nothing to do with the combi. Evidence disclosed that the
accused
had said that Ekha would be killed unless he produced the
combi which had been removed from the basement. Mr Mashiane submitted

that different people, in this case, had different duties to do. This
is the evidence that is at the disposal of the Court.
[186]
Mr Mashiane reiterated that the accused was convicted on
the basis of the doctrine of common purpose. There is abundant
evidence
confirming this.
[187]
Mr Mashiane finally submitted that the hearsay evidence
deserved to be thrown into a dustbin.
[188]
The Court, for reasons I have disclosed above, and in
the interests of justice, refused to admit the evidence that
Lovemore, in
hospital overheard Ekha telling his aunt and uncle that
Mokwana had shot him.
[189]
At this stage, Mr Guarneri brought an unclear
application. The application became clearer after Mr Mashiane asked
for clarity as
it was difficult to follow what Mr Guarneri was
saying.
[190]
The Court asked if Mr Guarneri’s application was
that the State ought to furnish the defence with copies of
Exhibits
“G”
and “H.” Mr
Guarneri confirmed that that was the gist of his application.
[191]
Mr Mashiane submitted that the issue was never raised in
the first trial and that it was also not an issue on appeal. Mr
Guarneri
informed the Court that the application was based on the
fact that the State had to provide the Court record.
[192]
Mr Mashiane opposed the application. He informed the
Court that the defence was being opportunistic. This, because the
application
ought to have been brought within a reasonable time. The
accused, according to him, was convicted and sentenced 13 years ago.
He
conceded that although the State was the custodian of the
documents, the wheels of justice did not stop with the conviction and

sentence of the accused.
[193]
Mr Mashiane submitted that it was common cause that the
documents that Mr Guarneri referred to, in the meantime, went
missing. He,
however, submitted that the accused approached the SCA
after 14 years asking for leave to appeal and permission to lead
further
evidence. Mr Mashiane submitted that the accused never
complained to the SCA about the documents. The accused’s
conduct had,
according to Mr Mashiane, resulted in the second trial.
He further submitted that the accused had persuaded the SCA and the
Full
Court of this Division without the Exhibits. It must be
remembered that the accused’s case rests on the affidavits that
Mokwana
allegedly deposed to recanting his earlier evidence. Mr
Mashiane found it particularly strange that Mr Guarneri could bring
the
application when their case involved the affidavits that Mokwana
was said to have made subsequent to the conviction and sentence
of
the accused.
[194]
The issue, in my view, is crisp. It is either that
Mokwana made the statements or that he did not. I have demonstrated
that Mokwana
was not the author of the statements or affidavits and
I, accordingly, so ruled.
[195]
Mr Mashiane referred to the judgement which I delivered
in 2004 which appears on page 39 of the court record. He submitted
that
the Court, therein, extensively dealt with Exhibits “G”
and “H”. I agree. Mr Mashiane, to assist the defence,

mentioned that the Court from page 48 line 8 to page 52 line 25,
dealt with Exhibit “G.” Exhibit “H,” Mr

Mashiane proceeded, was dealt with by the Court from page 57 first
paragraph to page 59 line 10. Mr Mashiane further submitted
that the
defence could not now complain about Exhibits “G” and
“H.” in any event, the accused in this second
trial, had
to demonstrate that the alleged affidavits had been deposed to by
Mokwana and that they were his affidavits. Mokwana
distanced himself
from the affidavits telling the court that they were not his and that
he in fact had nothing to do with them.
The State led evidence to
this effect. Glaringly missing is the evidence of the accused who did
not testify in the trial within
a trial and the main case.
[196]
The most important question that one should ask oneself
is:  why did the accused not testify if, indeed, Mokwana had
made the
statements. Mokwana’s denial impelled the accused to
testify and to call his mother. He failed to do both.
[197]
Mr Guarneri referred to the case of
Klaas
Lesetja Phekane
case
CCT61/61
[PHANE v S [2017] ZACC44]
in an endeavour to
persuade the Court to grant his application. Mr Mashiane, correctly
in my view, submitted that Phakane’s
case and the case in casu,
differ remarkably in their facts. He submitted that while in the
Phakane matter the Court quoted the
statements verbatim in its
judgement, the Court, in this matter did, not quote the statement
verbatim but dealt extensively therewith
as alluded to above.
[198]
Mr Mashiane submitted that in the Phakane matter no
adequate record was provided while the Court, in this case, provided
an adequate
record which enabled the accused to approach the SCA and
the Full Court of this Division. He further submitted that this was
not
an issue when the accused prosecuted his appeal and this,
according to Mr Mashiane, demonstrated that the accused was just
opportunistic.
It appears so.
[199]
The Court carefully listened to counsels’
submissions and arguments and found that the issue now before it is
crisp. The facts
of the Phakane case are, indeed, distinguishable
from those of the current matter. I, in the result, dismissed Mr
Guarneri’s
application as baseless.
[200]
At this stage, Mr Guarneri asked that the matter be
rolled over to the following day. He had wanted to consult with his
management
at Legal Aid South Africa and he assured the Court that he
would be able to argue the matter the following day. He needed
someone
more senior to be with him in Court. Mr Mashiane strenuously
opposed the application. Reluctantly, I rolled the matter over to 11

April 2018.
[201]
On 11 April 2018, Mr Guarneri brought an application for
permission to be allowed to withdraw from the case. He advised the
Court
that he could not carry on with the matter as an impasse with
his client had arisen. This had become apparent. Mr Mashiane
confirmed
that he and Mr Guarneri had talked about it and agreed that
nothing could be done about it.  This, indeed, was unfortunate.

The matter had to be postponed to 13 April 2018 for new counsel to be
appointed. The accused confirmed that he was ready to be
assisted by
new counsel. Mr Guarneri withdrew from the matter.
[202]
On 13 April 2018 Mr Hlazo appeared for the accused and
the matter was postponed to 23 July 2018 to allow him time to
familiarise
himself with what had transpired in the case.
[203]
On 23 July 2018 Mr Hlazo was assisted by Mr Mashiane as
his record only ran up to the end of March 2018. Mr Mashiane reminded
the
Court that Mr Guarneri had informed the Court that he would not
be calling further witnesses. The accused’s case, at this

stage, had not been closed. Mr Hlazo advised the Court that he had
consulted with the accused who had instructed him to call Siphiwe

Mzolo as his witness.
[204]
SIPHIWE SKO MZOLO
Mr
Mashiane informed the Court that the witness in the box was not the
Mzolo that the defence had intended calling. However, this
aspect was
later abandoned by Mr Mashiane. He, however, had no objection that
the witness be called although Mr Guarneri had intimated
to the Court
that he would not be calling further witnesses. The witness, strange
enough, could not remember his date of birth
disclosed by his ID. He
told the Court that he was born on 12 April 1983 while his ID showed
that he was born on 5 November 1983.
He later testified that he had
made a mistake. Mr Hlazo needed time to consult and the matter was
rolled over to 24 July 2018.
[205]
On 24 July 2018 the witness testified that he knew the
accused who was Sebastian Dladla. He knew him from the time he worked
for
Sizwe Security. He worked at King Ramson building on 15 December
2002. Dlaldla, as a regular visitor, used to sign in before he
went
into the building. He also knew Mokwana and Ekha Moyo.
[206]
He testified that he was on duty on 24 December 2002
when Ekha was shot. He guarded the building. He had a register which
had information
of people who went in and out of the building. He
testified that Ekha Moyo, Paul, Makhosini and Tshepo Mokwana came to
the building.
They arrived at approximately 13H30. Ekha drove the
Peugeot motor vehicle that they came in. They signed and told him
that they
were going to basement number two. They usually came and
parked their motor vehicle in the basement.
[207]
Ekha asked him to tell the accused to follow them to
basement Number 2 when he arrived. Dladla, alone, arrived shortly
thereafter
driving a Camry motor vehicle. The accused drove into the
basement where he was needed. After 15 minutes of the accused
arriving,
he heard gunshots from the direction of the basement. He
proceeded to the basement and met Ekha and his friends exiting the
second
basement and going to the first basement. He asked them what
was happening and they informed him that nothing was happening and

that he had to go back to his post. Despite having heard the
gunshots, the witness testified that he went back to his post. It
is
most surprising that he was convinced by this. The witness, strange
enough, also did not ask them about the gunshots that he
had heard.
[208]
All four were walking when he met them. He went back to
where Jabulani Ngcobo, his colleague was. He testified that he,
again, heard
approximately four gunshots from next to the first
basement. He left Ngcobo in the guardroom and went back to the first
basement
where he found Ekha on his knees next to Mokwana, Paul and
Makhosini who had firearms in their hands. On seeing him, the three
ran away leaving Ekha behind still on his knees and crying. Again,
surprisingly enough, the witness did not ask them why Ekha was
on his
knees and crying. He also did not ask them why they ran away on
seeing him particularly after he heard the second set of
gunshots.
The witness’s behaviour was highly suspect.
[209]
He approached Ekha and asked him what was happening.
Ekha told him that he had been shot by Mokwana. He testified that
Ekha stood
up and held on to whatever he could get and walked to the
reception area. The witness did not assist Ekha who could hardly
walk.
This, again, is strange behaviour. He testified that Ekha fell
down in front of the reception. Dladla the accused, was not with
them
in the first basement.
[210]
He asked people to accompany him to the second basement
to look for the accused. He found the accused trying to make a call.
He
asked the accused what was happening and the accused told him that
Mokwana and others had tried to kill him by shooting at him.
He told
the accused that Ekha was shot in the first basement by Mokwana and
the others. He left the accused in the second basement
and proceeded
to the guardroom where he found Ekha as he had left him. He found
Metro police officers and many other people. The
accused emerged
after fifteen to twenty minutes driving the Camry motor vehicle. The
Metro Police officers stopped the accused
and asked him to alight.
They searched him and the motor vehicle and found a firearm in the
Camry. The accused was Arrested and
placed in the motor vehicle. The
South African Police removed the accused from the Metro police
officers’ motor vehicle and
placed him in their motor vehicle.
Ekha was taken to hospital in an ambulance. He never saw Mokwana,
Paul and Makhosini again.
He made a statement to the police about the
incident on 26 December 2002.
[211]
In reply to a question he testified that he did not
participate in the first trial because nobody had called him. This
was caused
by the fact that nobody knew his address at the time. The
Court asked him if he had given his address to the police officers he

answered that he had done so. This then Contradicted what he had just
said. He heard about the name of Thomas Hlungwani for the
first time
in 2003. He testified that Hlungwani came to Ramson Flat in December
2003 and introduced himself to him. Hlungwani asked
him about the
incident of 2002 and he explained everything to him. I need to
mention that this Hlungwani is Captain Hlungwani.
The Captain told
him that he would tell him (Mzolo) once he was needed in court.
Although he made the second statement to Captain
Hlungwani, no one
told him that he was needed in court. The witness had forgotten that
he had told the court that no one had his
address and that he, as a
result, could not be reached.
[212]
The witness was only told by Attorney Bossr in 2013 or
2014 that he was needed in court and that was ten years later. He, at
the
time, was not aware that the first trial had been concluded. He
testified that the attorney never told him that the trial had reached

its end. The Court asked him where he had seen the attorney, he
answered that he did not recall. This was intriguing. He testified

that he never saw the attorney again. Mr Hlazo, in July 2018, was the
one who called him and asked him to come and testify.
[213]
Mr Mashiane cross-examined him. It was very clear that
the witness was referring to attorney Bossr when he mentioned the
name of
attorney Bosswell. The clarity is evident from page 119 of
Exhibit “F” which is the statement that disclosed the
name
of the Commissioner of Oaths as Jeremy Angelo Bossr. The witness
testified that his highest level of education was Grade 12 which
is
matric. He testified that he could write and read English. He read
the statement and was satisfied with its contents.
[214]
Mr Mashiane took him to page 1 line 6 of the statement
and read the sentence into the court record. The witness, before the
interpreting
was done said “yes” confirming that the
affidavit was about the case in which the accused was convicted and
sentenced
and that he was the security guard in King Ramson building
in Joubert Park. The building is on the corner of King George and
Wolmarans
streets. The witness understood that this meant that the
accused had been sentenced and that the case had been finalized.
Asked
as to where he got this information from for him to be able to
tell Bossr, he persisted that it was Bossr who, in fact, had told
him
that. He agreed that the paragraph was not saying that Bossr had told
him as he was the one who was speaking in the paragraph.
Informed
that there was then a contradiction in his testimony, he answered
that he was telling the truth when he, himself, said
that the case
had been finalised. He was then told that if Bossr, as he then
stated, had told him then the document was not a true
reflection of
his truth.
[215]
Pressed to deal with the question he then said that
Bossr and nobody else had told him. He testified that between 2002
and 2014
nobody but Bossr had told him. The witness would either be
quite or gave wrong answers when he answered the questions. Reminded

that he, at some stage, had testified that nobody had told him and
that he, at the time, had not been telling the Court the truth,
he
answered that he had made two affidavits, the one on 11 September
2013 and the other on 9 September 2014.
[216]
The Court established that the affidavit dated 11
September 2013 was part of a larger document and page 1 thereof was
headed:
(a)
Annexure “A”
(b)
Page 60-61
Page
60 is the first page of the affidavit and page 62 is the last page of
Exhibit “F” in the matter.
Mr
Mashiane explained that he, in fact, had given the witness the
affidavit which was dated 11 September 2013. He uplifted it from
the
appellants heads which were filed by Legal Said South Africa after
the accused approached the SCA and when his appeal was to
be heard by
the Full Court on 3 March 2017. The document formed pages 60 to 62 of
the bundle. Mr Mashiane explained that he was
not even aware that the
document was dated differently to Exhibit “F.” the
document, however, was a replica of Exhibit
“F.” The
difference only lied in the dates. The two documents, Mr Mashiane
explained, did not come from the State.
Mr Hlazo agreed that the
contents of the two documents, indeed, were the same. Mr Hlazo asked
the Court to allow him a moment to
go through the two documents.
[217]
Mr Mashiane, upon resumption, informed the Court that
the two documents were Exhibits “M” and “F,”
except
for the different dates “M” was a replica of “F”.
Mr Mashiane gave the witness a clean copy of Exhibit “F”

for the purposes of cross-examination. This was confirmed by Mr
Hlazo.
[218]
Mr Mashiane then commended the witness for having
unearthed the document. Mr Mashiane went on with his
cross-examination. He told
the witness that it had been agreed that
Bossr had informed him that the accused‘s case had been
finalised which meant that
his earlier statement that Bossr had not
told him that the case had been finalised was incorrect. He kept
quiet and thereafter
told the Court that Bossr had told him. This was
after the question was repeated by the Court. The witness exclaimed
and said EISH!
And then, in English, added that he was confused. He
then said that the correct version had been that Bossr had told him.
[219]
Mr Mashiane told the witness that Mokwana had testified
and told the Court that he himself, Ekha Moyo, Makhosini Nkosi and
the accused
were friends, his answer was that he was seeing Makhosini
and Paul for the first time while he used to see Mokwana, Ekha and
the
accused together. He agreed that they were friends because they
had come together. Accused, Tshepo and Ekha, according to him, knew

each other very well. He was sure about this, although he had
forgotten the surname of Makhosini and Paul. He refreshed his memory

in 2013 when he made his statement from the register that he kept and
established that Makhosini’a surname was Nkosi.
[220]
Mr Mashiane informed the witness that the accused, in
2003, testified and told the court that Ekha and those he was with
approached
him with Ekha in front. He did not know those that Ekha
was with. Shown that this, in the light of his evidence was
surprising,
he agreed. This is a very serious contradiction. The
matter was postponed to 25 July 2018.
[221]
Mr Mashiane took the witness to what he had said to
Bossr about the incident. In paragraph 2 of
Exhibit
“F”
the witness states that on 24
December 2002 at 12h30 Ekha Moyo, Paul, Makhosini Nkosi and Tshepo
sipho Mokwana found him at his
post at King Ramson Building. They
came in a Peugeot motor vehicle with registration number [...] GP.
The motor vehicle was driven
by Ekha. At approximately 13H15 the
accused arrived driving a red Camry with registration number
M[...]
GP
.
[222]
They all signed before they entered the basement. Mr
Mashiane asked the witness if he was sure of the sequence as they
went into
the basement. The witness answered in the affirmative. The
accused’s evidence, in the first trial, had been that he was
the
first to drive into the basement. He agreed that the accused was
not telling the truth. Mr Mashiane, concerned with how the witness

answered the question, informed him that he was taking time before he
answered the question which required either a yes or no.
He informed
the witness that he had taken 30 minutes to get just a yes which was
required from the witness. He also noticed that
the witness struggled
when he answered the simple questions. The witness explained that he
was normally not quick when he responded.
This, according to Mr
Mashiane, was because the witness would first be evasive and then
answer the question. Asked to comment the
witness said he had no
comment.
[223]
Paragraphs 3, 4 and 5 were read into the record and the
witness confirmed the contents. The witness testified that he heard
about
6 or 7 gunshots after accused had gone into the basement. He
agreed that he made his statement 12 years after the incident. Mr
Mashiane reminded the witness that the previous day, on 24 July 2018,
he had testified that he had heard about 7 gunshots. Asked
as to what
helped him remember the number of the gunshots that he had heard, he
first answered that he had noted that down in the
occurrence book
(the “OB”), and then confirmed that his statement did not
disclose this. He apologised when he was
asked why the statement did
not disclose that. Reminded that he had no OB to remember the number
of gunshots and that he had testified
without it, he remained quiet.
The question had to be repeated and he then answered that he had not
used the Occurrence Book. He
was asked if it was easy to remember
things when one used the Occurrence Book, this time, without much
ado, he answered and said
yes. This contradicted his earlier answer
that he usually did not respond quickly.
[224]
The witness testified that he did not ask Paul,
Makhosini and Tshepo where the accused was when he met them in the
first basement.
Asked why he did not think of it, He testified that
the accused told him that Ekha had stolen his Combi. Reminded that
the accused
had told him that Ekha had stolen his combi; that he knew
on 20 December 2002 that Ekha had stolen his Combi; that 4 days
later,
on 24 December 2002 Ekha and the accused met in the basement
and that he had heard gunshots while Ekha and Dladla were still in

the basement and asked if, indeed, it was not necessary to find out
where the accused was when he met Ekha, Paul and Tshepo in
the first
basement, he answered that he thought  they had solved their
problem. This is particularly strange because problems
are not
amicably solved by gunshots.
[225]
He testified that he did not see Ekha and the others
with firearms when he first saw them. Upon being asked if he had
asked them
as to where the gunshots had come from, he answered that
he had. Asked what their answer was, he told the Court that they had
told
him that there had been nothing wrong. This contradicted his
earlier evidence. This is extremely strange and intriguing because

they were gunshots that he heard and to say that they told him there
had been nothing wrong and that he believed it is most absurd.
[226]
He testified that five minutes after he returned to the
guardroom he again heard about 4 further gunshots. He testified that
Tshepo
was aware of the gunshots. Ekha and the others never told him
that there was never any shooting. The witness was informed that
there was evidence on record that Ekha went to the basement with
Mandlhopa, and that Mandlopa’s version was not in line with

this. He testified that the evidence did not disclose that gunshots
were heard twice, first from the second basement and second
from the
first basement. Informed that Mandlhopa had testified that the
shooting only ensued when he and Ekha approached the accused
and the
others, he answered that he did not know why Mandlhopa testified like
that.
[227]
Mr Mashiane read paragraph 6 of his statement into the
record. The witness was then asked why he had wanted to know more
about Dladla,
he answered that that was because he had seen what had
happened. This is again intriguing particularly if it is remembered
that
he all along had not been asking about the accused. This time,
he testified that he was worried about the accused because the others

had run away and he knew that the accused had also gone to the
basement.
[228]
Mr Mashiane asked him why he was only concerned about
the accused after Ekha had told him that he had been shot by Tshepo.
He, as
usual, was first quiet and then said that he had never worried
himself about the accused. He had only remembered that the accused

had also gone to the basement. He was asked why he did not check on
the accused when he heard the first shots being fired. His
testimony
was that he had not thought about it. He was told that the accused,
from the word go, had been a victim and he agreed.
Taken back to
paragraph 6 of his statement he was asked how he could have concluded
that the accused was telephoning 10111. He
answered that he asked the
accused who told him that he was telephoning 10111. This was heard
for the first time and contradicted
his earlier evidence. Told that
the accused had never told the Court that he tried to telephone
10111, his answer was that he had
nothing to say. He was surprised
that the accused never testified about this.
[229]
He confirmed what paragraph 6 of his statement says that
the accused told him that Ekha and the others shot at him intending
to
kill him. Informed that the accused had never disclosed that he
answered he had no comment to offer. He, however, said that that

surprised him.
[230]
He confirmed seeing bullet holes on the window and the
door of the accused‘s Camry. The holes, according to him, were
so positioned
that anyone could see them and added that the accused
would also testify about the bullet holes. The accused heard this but
never
testified. His further evidence was that the police officers
also saw the bullet holes. Told that the accused had never told the

Court that his motor vehicle had been shot at, the witness said he
was surprised. He was further surprised that the accused had
never
told the Metro police officers that he had been the victim in the
incident and that he could even prove it by showing them
the bullet
holes.
[231]
Mr Mashiane told the witness that Mbatha, who arrived
shortly after the incident, testified that he had spoken to the
accused at
the entrance to the basement and that the accused had
never told him that he had been the victim in the whole incident, the
witness
again said that that surprised him.
[232]
He was further surprised to learn that Metro Police
officers who also were there at the entrance had seen the accused’s
motor
vehicle and that the vehicle, according to them, had no bullet
holes. He found it further surprising to learn that the police
officers,
even in 2003, were never told that the accused’s
motor vehicle was shot at and that it had bullet holes. The other
police
officers, too, according to the evidence, did not see the
bullet holes. This, too, surprised him and he had no comment.
[233]
The witness testified that he told the accused that Ekha
was shot by his friends. He was surprised that it was never put to
the
witness that Mzolo, the witness, had told the accused that Ekha’s
friends had shot him. He was most surprised to hear that
the accused
had testified that he had shot Ekha in self-defence. The witness,
again, was surprised to learn that accused had never
testified that
Ekha had apologised. He did not know why the accused was pointed out
by the police who asked Ekha if the (accused)
was not the one who had
shot him and that, using sign language Ekha had said he was not the
one.
[234]
The witness testified that he was surprised that none of
the police officers had testified about Ekha apologizing. He was
reminded
that he, at some stage, knew that the accused trial was
finalised, he testified that Thomas Hlungwani (the Captain) informed
him
in January 2003 that the trial was finalised. Reminded that he
had been so informed by Bossr, he said he had forgotten that he had

spoken about this with the Captain.
[235]
The witness was asked why the Captain would want to
involve him as a witness when the matter had been disposed of, he
answered that
he did not ask the Captain if the matter was finalised.
The Court asked the witness if this made sense, his answer was that
it
indeed, did. This is absurdity at its best. Mr Mashiane told the
witness that he did not understand him and the witness asked that
the
question be repeated. Mr Mashiane told the witness that, it, indeed,
did not make sense that the Captain would still need him
when the
matter was disposed of and the witness agreed.
[236]
He testified that he was scared and surprised by the
fact that the Captain’s evidence was that he had never met the
witness;
that he had never investigated the murder of Ekha and that
the Captain had never said that the witness existed. Mr Mashiane
informed
the witness as to when the matter was finalised and
judgement given the witness exclaimed saying shhh! and said that he
was confused.
[237]
Mr Mashiane wanted to know where the witness had made
the statement and he told the Court that he had made it at
Johannesburg Central
Police Station. It was pointed out that he made
a statement before attorney Bossr who was the Commissioner of Oaths
yet this, according
to him, happened at Johannesburg Central Police
Station, he said yes. He was told that attorney Bossr could not be
found and his
answer was that he had no answer. He was further
informed that according to the documents Bossr also took Tshepo Sipho
Mokwana’s
statement and that Mokwana testified that he had
never met Bossr. He said he could not dispute it.
[238]
Mr Mashiane told the witness that it was most surprising
that he saw the injured Ekha who needed assistance yet he ignored him
and
went to look for the accused. His comment was that his colleague
assisted Ekha. This is a very strange behaviour on the part of
the
witness. Told that he had never told the Court that his colleague
assisted Ekha, he apologised and then agreed.
[239]
The witness could not tell the Court why the Metro
Police were not told that his colleague had assisted Ekha. This
surprised him.
There was also no explanation why the Metro Police
were never told that the accused was taken to Hillbrow Police Station
by the
South African Police and not them.
[240]
The witness testified that he made statements on 26
December 2002, and in January 2003. He agreed when told that he had
never told
the Court that he had made four statements. The witness
was informed that two of the statements never reached the police and
the
Court, and he responded  telling the Court that he had no
comment. He also had no comment when it was put to him that the
accused had never told the Court about his statement. He conceded
that his evidence to the effect that the Captain had come to him
in
December 2002 was incorrect as his latest version was that this had
taken place in January 2003 when he made his statement to
the
Captain. He did not know why the accused did not testify about the
witness’s existence in the first trial.
[241]
The witness had nothing to say when it was put to him
that his evidence was contradictory. He finally had no comment when
Mr Mashiane
finally put it to him that his evidence was highly
improbable. Indeed, the evidence was improbable. Mr Hlazo closed the
defence
case. In light of Mzolo’s statement, Mr Hlazo requested
that he be given time to revisit the evidence to enable him to give

meaningful closing arguments. The matter was postponed to 27 July
2018 for the closing arguments.
[242]
On 27 July 2018 the parties addressed the Court on the
merits of the case.
[243]
Mr Mashiane submitted that the Court was charged with
the duty to hear further evidence. The accused approached the SCA
with an
application for leave to appeal and to lead further evidence.
The SCA was furnished with affidavits which, according to the
accused,
constituted the further evidence. The SCA considered the
matter and referred it back to the Full Court of this Division. The
Full
Court, too, considered evidence and referred the matter back to
this Court for purposes of hearing further evidence as directed
by
it. The evidence placed before the SCA is the evidence that was
placed before the Full Court.
[244]
It is noteworthy that the evidence that came before the
SCA and the Full Court worried the two Courts. The Full Court held
the view
that this Court was the right court to hear the evidence and
then consider the matter in the light thereof. Without this evidence,

it would not have been easy to arrive at a just decision. This,
because the witnesses would testify and be cross-examined. This

placed this Court in a better position particularly if regard is had
to the fact that this was the trial court.
[245]
The Court has to establish why the evidence could not be
tendered in the first trial. It also had to find out what it was that
caused
Mokwana to recant his evidence in the first trial. In the
final analysis, the Court would then be in a position to produce an
informed
decision. Evidence in the second trial, was led and the
witnesses who testified were thoroughly cross-examined.
[246]
I have in my judgement, closely considered and dealt
with the evidence of each witness. The analysis of the evidence of
each witness
will reveal if such witness was good, bad, honest,
reliable or unreliable.
[247]
The accused did not testify in the trial within a trial
that Mr Guarneri asked the Court to hold. He also did not testify in
the
second trial. I shall deal with such failure later in my
judgement.
[248]
I shall, where necessary, refer to the evidence of the
witnesses who testified to demonstrate why such evidence should be
seen as
acceptable or worthy of rejection.
[249]
MDUDUZI MANDLOPA
He
testified in the first trial of the accused. The Court accepted his
evidence and found that he was a reliable witness. The new
or further
evidence necessitated his being recalled in the second trial. His
evidence as Mr Mashiane submitted remained acceptable
and reliable.
The Court, again, accepts the evidence.
[250]
INNOCENT MBATHA
He
too testified in the first trial of the accused. The new evidence
caused him to be recalled. The Court, in the first trial, found
him
an honest, trustworthy and reliable witness. Mr Mashiane submitted
that his evidence, after the second trial, remained unscathed.
I
agree. I need to mention that Mandlopa and Mbatha corroborated each
other in every material respect.
[251]
SIFISO NDLOVU
He
testified for the first time in the second trial due to the
application that the accused brought in the SCA. The State called
him
to show that the person that he assisted at Mondeor Police Station
was not Tshepo Mokwana. The person that he served and assisted,

according to him, could not have been Tshepo Sipho Mokwana because
the person walked freely, uncuffed and unshackled. Tshepo Sipho

Mokwana, at the time, was serving his sentence at Johannesburg Prison
commonly known as Sun City. This was clearly demonstrated.
He was a
reliable witness who was completely dependable. The Court accepts his
evidence.
[252]
RISIMATI THOMAS HLUNGWANI
The
witness, too, testified as a result of the matter having been
referred back to this Court by the Full Court. The witness’s

evidence, briefly, is that he did not know Siphiwe Mzolo and that he
had never visited him. He denied telling Mzolo that he would
contact
him if his evidence became necessary in Court. He denied that Ekha,
in hospital, had told him that he had been shot by
Tshepo Sipho
Mokwana and not the accused. The witness conceded that he had made an
affidavit which disclosed that Tshepo Sipho
Mokwana had killed Zungu,
the deceased in Count 2. If regard is had to the evidence, in the
first trial, that Ekha was not with
them when Zungu was killed, this
hearsay evidence cannot be correct Ekha was said to have disappeared
while they were on their
way to Roodepoort. The witness was honest
trustworthy and reliable. His evidence is accepted.
[253]
NATHANIEL TUMELO SEKHULA
He
is the Metro police officer based in Johannesburg. He testified in
the accused’s first trial. He testified that he still
stood by
such evidence. His evidence, at the end of the cross-examination,
remained intact. The Court accepted his evidence in
the first trial
of the accused. The evidence remains acceptable and the Court accepts
it.
[254]
TSHEPO SIPHO MOKWANA
Before
the witness testified, Mr Mashiane informed the Court that he was
bringing an application in terms of
Section 190
of the
Criminal
Procedure Act 51 of 1977
, to have the witness declared a hostile
witness. Mr Guarneri opposed the application. Mr Mashiane then
summarised the history of
the matter taking it from the first trial,
through to the SCA and the Full Court which referred the matter back
to this Court.
[255]
Mr Mashiane specifically submitted that affidavits were
made allegedly by Tshepo Sipho Mokwana and that they formed the basis
of
the second trial. Such affidavits, according to him, had been
accepted as evidence by the SCA and the Full Court. It was on the

basis of this, Mr Mashiane continued, that the affidavits needed to
be looked at in the light of Mokwana’s evidence in the
first
trial. IF Mokwana stood by his evidence in the first trial, then the
next thing that needed to be established was whether
he had made the
affidavits which were alleged to be his. If not, the accused would
have to explain whose affidavits they were and
where he had found
them.
[256]
Mr Mashiane submitted that Mokwana could not,
simultaneously, be a State witness and a defence witness. He, as he
put it, needed
to help Mokwana who appeared to be sitting on two
chairs, to decide as to which chair he preferred. It was Mr
Mashiane‘s
words that he could not play chess against himself.
This, to the Court, made sense. There was, according to him, no basis
on which
the defence could oppose the application. I agree.
[257]
On the basis of the affidavits which became evidence and
his evidence in the first trial, Mokwana was declared a hostile
witness.
[258]
Mr Mashiane then proceeded and asked Mokwana questions.
Mokwana denied that he had made the affidavits and also denied their
contents.
Regarding
Exhibit “G1”
on pages 121 to 124 of the court record, Mokwana denied that he knew
practicing attorney Jeremy Angelo Bossr who had commissioned
the
affidavit on 11 September 2013. According to him, Bossr was never his
attorney.
[259]
Mokwana denied that the signature on
Exhibit
“G2,”
which is an affidavit dated
4 September 2013, appearing on page 125 of the court record, was his.
This is the affidavit that I
referred to when I dealt with the
evidence of Sifiso Ndlovu, a Constable at Mondeor Police Station.
Mokwana’s denial is understable
because he was in prison when
the affidavit was allegedly made.
[260]
Mokwana denied that the signature on the “confession
statement” dated 21 January 2012 was his. He distanced himself
from its contents.
[261]
The affidavit,
Exhibit “G4”,
according to Mokwana, was signed by him at Johannesburg prison on 11
January 2018 when same was brought to him by Attorney Matshidza.
He
admitted signing the
Exhibit
but
distanced himself from its contents. He testified that he signed the
document while under the impression that Matshidza had
been sent to
him with the document for him to sign. It will be remembered that
before he answered Mr Guarneri’s questions
regarding
Exhibit
“G4,”
he asked the court if it,
indeed, had sent Matshidza with the document for him to sign. The
Court fully understands why Mokwana
asked the question. He, indeed,
would not ask the question if he had created
Exhibit
“G4.”
[262]
Mr Mashiane conceded that Mokwana was not very bright
and Mr Guarneri agreed.
[263]
The Court, in its judgement, during the first trial,
pointed out that Mokwana in certain respects contradicted himself. Mr
Mashiane
also so conceded. However, the Court, again, in its
judgement, pointed out that it accepted Mokwana’s evidence
where such
evidence was supported by the evidence of other
independent witnesses. Significantly the Court finds corroboration of
Mokwana’s
evidence in the second trial.
[264]
It is noteworthy that Mokwana‘s new evidence is
supported by-
1.
Constable Sifiso Ndlovu.
2.
The evidence of Captain Hlungwani in so far as
the Captain denies that he had anything to do with Siphiwe Mzolo.
3.
Mandlopa regarding the issue of identification of
those that killed Ekha.
4.
Mbatha who spoke to the accused when the accused
told him that he had shot Ekha because Ekha had stolen his combi; and
5.
Sekhula and
6.
The accused in certain respects, in his evidence
in the ‘first trial.
[265]
Mokwana, in the first trial, testified that the accused
told them that he would kill Ekha unless he (Ekha) produced the combi
that
he had removed from the building. Ekha did not produce the combi
which was taken by Mbatha and he was killed. The accused, in so
many
words, testified that he had killed Ekha in self-defence. This
supports Mokwana’s evidence.
[266]
Mokwana testified that Lunga Zungu, deceased in count 2,
was killed in Roodepoort and left in the veld. He explained how Lunga
would
get the music system for his combi that he had wanted, in
Roodepoort. Zungu was lured to Roodepoort where he met his death. His

body was left in the veld only to be retrieved from the mortuary.
[267]
It is clear from the evidence that Zungu was killed
because the taxi that he drove was needed by the accused who acted
together
with his friends. Those that were with Mokwana when Zungu
was shot and killed are again seen together in the basement where
Ekha
was shot. If they had nothing to do with the death of Ekha and
the robbery of Mbatha’s combi which culminated in the death
of
Zungu why then would they again assemble in the basement? No evidence
was adduced to show that Ekha stole the accused’s
combi. What
comes out clearly from the evidence is that the combi belonged to
Mbatha. To try and distance himself from the robbery,
accused planned
the story that Ekha stole his combi. The accused employed a failed
strategy which, indeed, was stillborn.
[268]
Mr Guarneri introduced
Ecxhibit
“G4”
and Mokwana told the court
that he signed the affidavit but did not read its contents. He
testified that the affidavit was also
not read to him before he
signed it. Mokwana asked the court if the court had sent Matshidza to
him with the
Exhibit.
This
was immediately after he was asked if he had made a written statement
on 11 January 2018. The Court immediately became very
anxious and
curious. This, was because the question surprised everybody.
[269]
Mr Guarneri applied that a trial within a trail be held
to determine the admissibility of
Exbhit “G4”,
the statement that Matshisdza took to Mokwana. Mr Mashiane did not
object and Mokwana, in the meantime, was excused.
[270]
ATTORNEY VHONANI ROLLERT MATSHIDZA
Mr
Guarneri called him as his first witness in the trial within a trial.
I have dealt with Mr Matshidza’s evidence. He did
not impress
the Court as a witness. I only find his evidence helpful where it is
corroborated by the evidence of his candidate
attorney. I found his
evidence in certain respects improbable. He testified that he sent
his candidate attorney Ngoasheng to Johannesburg
prison with
Exhibits
“G4”
and
Exhibit “G(4)(1)”.
Exhibit “G4” was meant to be signed by Mokwana. Mokwana,
on seeing the documents, distanced himself from their contents,

telling Ngoasheng that they were not his, that he knew nothing about
them and that he would not sign Exhibit “G4”.
Ngoasheng
returned the documents to his principal, Matshidza. This is the part
of Matshidza’s evidence that can safely be
accepted.
[271]
HENDRICK JOHANNES KROUKAMP
He
was called to where Mr Matshidza had been talking to Mokwana. His
evidence is that he was asked to commission
Exhibit “G4”.
He testified that Mokwana understood English. The Court battled to
understand how Mokwana could have raised his left hand instead
of his
right hand if he indeed, understood English. The Court was not quite
satisfied with his evidence. In any event the Deputy
Director went to
Mokwana and Mr Matshidza after Mr Matshidza had already spoken to
Mokwana. The Assistant Director conceded that
Mokwana regarded him as
someone who wielded authority. Indeed, he had such authority.
[272]
NKUNYANE CEDRICK NGOASHENG
The
witness corroborated Mokwana’s evidence to the effect that the
documents were not his and that Mokwana spoke Southern
Sotho.
Mokwana, according to him, refused to sign the documents. Ngoasheng
impressed the Court which found him a good and reliable
witness. I
need to mention that Ngoasheng was called by Mr Mashiane after the
witness was made available to the State by the defence.
This approach
begs the question why the defence did not want to call him as their
witness. The answer, in my view, is simple. The
witness supports
Mokwana.
[273]
TSHEPO SIPHO MOKWANA
He
was called by the State in the trial within a trial. He distanced
himself from
Exhibit “G4”
allegedly one of his affidavits. This is the document which according
to Mr Matshidza, did not meet the requirements of an affidavit.
Mr
Matshidza testified that the document was given to him by the
accused’s mother. Mokwana told the Court that he also had

nothing to do with
Exhibit
“
G(4) (1)”
which, according to Mr Matshidza, formed the basis of
Exhibit
“G4”
[274]
Mokwana testified that Mr Matshidza told him that he had
to sign
Exhibit “G4.”
It appears from Mokwana’s evidence that he regarded that as an
order. It becomes clearer if one keeps in mind that Mokwana
asked the
Court if it had sent Mr Matshidza to him with
Exhibits
“G4”
and “
G4(1).”
Mokwana denied that he had called Mr Matshidza and asked him to take
Exhibit G4 to prison for him to sign. To explain the denial
properly
Mokwana testified that he neither knew Mr Matshidza nor his cellphone
number. This remained undenied by Mr Matshidza.
[275]
Mokwana’s evidence in the trial within a trial was
supported and the Court found it probable. After the State closed its
case
in the trial within a trial the Court accepted Mokwana’s
evidence and then ruled that
Exhibits “G4”
and “
G4(1)”
were inadmissible.
[276]
The Court admitted the first part of Ekha’s
hearsay evidence and dismissed the second part as inadmissible where
Ekha was
said to have told Lovemore’s aunt in the presence of
the uncle and the Captain that he had been shot and killed by
Mokwana..
[277]
I have dealt with Mr Guarneri’s request that the
defence be furnished with Exhibits “G” and “H.”
The
Court ruled that the request had no merit and dismissed it.
[278]
Mr Mashiane’s application that the record of
proceedings in the bail application form part of the proceedings in
the trial
was granted.
[279]
SIPHIWE SKHO MZOLO
Mr
Hlazo who took over the defence of the accused after Mr Guarneri
withdrew from the case called Mzolo as the defence witness.
Mr
Mashiane submitted that Mzolo was introduced late in the case. This
happened after the accused was convicted and
sentenced. The answer to
the question why Mzolo was not called during the first trial was not
convincing. Indeed, as Mr Mashiane
correctly submitted Mzolo’s
evidence was diametrically opposed to the accused’s evidence.
They both contradicted themselves
and each other.
[280]
The accused, in the first trial, testified that he had
shot Ekha in self-defence. He, in so many words, told the Court that
he fired
the shots at Ekha who had been shooting at him. The accused
testified that Mokwana was not there when Ekha was shot and could not

have killed Ekha. The accused testified that he was surprised when
Mokwana pleaded guilty to the murder before Satchwell J. I shall
not
repeat the several differences in the evidence of the accused and
Mzolo. I dealt with them when I dealt with the evidence of
each
witness.
[281]
Mzolo was not a good witness. He did not remember his
date of birth. He remained silent when he was asked short and simple
questions.
He was evasive and contradicted himself. He was never a
reliable witness. The Court, without much ado, rejects his evidence
as
false beyond doubt.
LOVEMORE
MOYO
[282]
He was never a good witness. He failed to impress the
Court as a witness. His evidence does not add value to the accused’s

case.
THE
ACCUSED
[283]
Coming to the accused, the Court in the first trial,
dealt with his evidence. This time the accused, notwithstanding the
damming
evidence which needed his response, decided not to testify in
the trial within a trial and the main trial.
[284]
The witnesses testified and gave evidence which required
the accused to respond. For instance, there is evidence to the effect
that
affidavits were allegedly made by Mokwana in prison in the
presence of the accused and that a Mrs Fannie made copies of Exhibit

G2 on page 125 of the court record and that a copy thereof was given
to the accused. The accused needed to respond to this by either

denying or confirming it. Sifiso Ndlovu called the accused a “good
liar” and the accused, despite having heard it,
did not refute
this. He needed to testify and tell the Court that Ndlovu denied that
he, indeed, assisted the accused because he
had been told to do so.
Mr Mashiane told Mokwana, when he testified and told the Court that
the affidavits were not his, that the
accused would tell the Court
where he got the affidavits from. This notwithstanding, the accused
chose not to testify. Exhibit
G4, according to Mr Matshidza, came
from the accused’s mother. One would have expected the accused
to help the Court solve
the puzzle. His mother, too, did not testify.
[285]
Mr Matshidza’s evidence does not seem to confirm
that Mokwana took the required oath before he signed
Exhibit
“G4”.
The documents that Mokwana
allegedly refers to in Exhibit “G4” were not with Exhibit
“G4” when it was signed.
Mokwana testified that he saw
Exhibit “G1”,
“
G2” and “G3”
for the first time in court. Regarding
Exhibit
“G2”
Mokwana denied that he wrote
“Johannesburg Medium B”appearing on the front page of
Exhibit “G2.” The age
that appears there, according to
him, was not even his.
[286]
The accused’s position, as the evidence stands, is
untenable. He tendered no evidence to gainsay the evidence of the
witnesses
in the second trial.  The evidence placed a heavy
burden on the accused who decided not to deal with the challenge.
Without
his evidence and the evidence of those who could have
supported him, where does this leave the accused? Mr Mashiane
correctly submitted
that we are only left with his evidence in the
first trial. The Court dealt with that evidence and made a finding
which resulted
in his conviction and sentence. If anything, the new
evidence bolstered the State’s case. The accused’s
failure to
testify in the second trial bolstered the State’s
case. This, because the accused’s version that was put to the
State
witnesses is not evidence. The evidence needed to be repeated
under oath. This never happened
. (See State v
Katoo 2005(1) SACR 522 (SCA) at 529 [19]; Osman and Attorney-General
Transvaal 1998(2) SACR 493 (CC); State v Tandwa
and Others
2008 (1)
SACR 613
(SCA)
[287]
The fact that the accused decided not to give evidence
in the second trial leads to one and one conclusion only, namely,
that he
knows that Mokwama never made the affidavits, the subject
matter in the second trial. He further was aware of the fact that the

worst would eventuate had he testified. His failure to testify and
call the necessary witnesses does not take away the fact that

sufficient damage to his case has been done by his conduct. Those
that were called to assist him simplified the case for the State.
Mr
Guarneri realised this and possibly duly advised the accused who
seemed not ready to take Mr Guarneri’s advice. Mr Guarneri,

before he withdrew from the case, informed the Court that he and the
accused had reached an impasse. This was after Mr Guarneri
had
informed the Court that the defence would not be calling any further
witnesses.
[288]
The new evidence, in my view, serves to demonstrate that
the accused orchestrated the creation of the affidavits which are
alleged
to belong to Mokwana. The accused, indeed, seems to have
played a major role when the affidavits were made. Only the accused
and
his mother are in a better position to tell us how the affidavits
were created and by whom. All we know from the evidence of Mr

Matshidza is that the affidavits were to facilitate the release from
prison of the accused. As Mr Mashiane correctly submitted,
it was
never anticipated that the idea would be stillborn. The endeavours
strengthen the State’s case. If there were any
doubts regarding
the guilt of the accused, such doubts should by now, have been
removed. The accused employed unlawful means in
his attempt to gain
his release from prison.
[289]
I, consequently, find that:
1.
The new and further evidence has been tendered
and verified.
2.
The accused and others mentioned in the evidence
together planned to rob Lunga Lancelot Zungu of the combi that
belonged to Mbatha
and which he used as a taxi.
3.
Zungu was killed and the combi was taken as I
explained in my judgement in the first trial.
4.
The accused discovered that the combi was removed
from where he would find it. Ekha became the prime suspect
5.
Mbatha, with the help of Mandlopa, Ekha and
others, retrieved the combi.
6.
The accused became very furious and vowed to kill
Ekha unless he produced the robbed combi.
7.
Ekha did not produce the combi and he was
murdered.
8.
Evidence evinces that the accused together with
Mokwana and others acted together in pursuit of common purpose when
the crimes were
committed.
9.
The version of the accused which is not supported
by that of his witnesses is not reasonably possibly true. It is
beyond doubt false
and is rejected. The State, successfully, proved
the guilt of the accused beyond reasonable doubt.
[290]
The accused, consequently, is again, convicted as
charged.
_________________
MW
MSIMEKI
JUDGE
OF THE HIGH COURT,GAUTENG
LOCAL
DIVISION, JOHANNESBURG