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[2018] ZAKZDHC 28
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Naidu v S (AR740/14) [2018] ZAKZDHC 28 (16 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
Case
No. AR 740/14
In
the matter between:
Priyen
Naidu Appellant
and
The
State Respondent
Judgment
[1]
On the 4
th
July 2014, the appellant, Priyen Naidu (‘Naidu’), was
convicted in the High Court sitting at Durban, of two counts
of
murder. The first count related to the murder of Zanool Fakir
(‘Zainool’), and the second to Akbar Sudhoona (‘Akbar’).
[2]
On the 6
th
August 2014, Naidu was sentenced to undergo life imprisonment for the
murder of Zainool, and twenty years’ imprisonment for
the
murder of Akbar. Leave to appeal was granted by the court a quo
against sentence only. Leave to appeal against the convictions
was
granted by the Supreme Court of Appeal on the 9
th
February 2015. For the sake of convenience, I shall refer to the
parties by their first names and/or surnames, without intending
any
disrespect by the omission of their titles.
[3]
Before dealing with the evidence led at the trial, it is useful to
summarize what the state set out to prove what had happened
to the
two deceased men.
(a) Zainool was in a
business relationship with Naidu.
(b) They traded in duty
credit certificates, bought from and sold to textile companies,
earning them commission.
(c) Naidu and his
co-accused Ruwain Meer (‘Meer’) who was a self-confessed
drug dealer, decided to kill Zainool.
(d) To this end:
(i) They hired the Four
Seasons Bed and Breakfast house (‘the b&b’) in
Umhlanga Rocks in order to hold an elaborate
party with drugs and
women.
(ii) They invited Ms
Sally Joyce Stainton-Jones (in whose home Meer had been living in
Essex Terrace in Westville), and her daughter
Samantha to the party,
in order to have access to the empty house.
(iii) They lured Zainool
to a meeting, using a pay-as-you-go cellphone, believing it would not
be traced.
(iv) Unfortunately, when
he was phoned about the meeting, Zainool decided to take his nephew
Akbar with him.
(v) Naidu and Meer left
the b&b party to meet with Zainool. Zainool and Akbar were
severely assaulted before being shot
to death.
(vi) Naidu and Meer then
had the house at Westville cleaned, and they returned to the party.
The cleaning was done by an employee
of Meer’s mother, (who
lived in the Sherwood area very close to Essex Terrace), together
with his friend.
(vii) At the b&b
Naidu and Meer had the clothing they had worn burnt, and the next
morning had the house in Essex Terrace cleaned
again. Naidu’s
car was sent to a car wash for cleaning.
(viii) They disposed of
the two cellphones belonging to Zainool and Akbar, as well as Akbar’s
driver’s licence.
[4]
The evidence presented at the trial demonstrated:
(a)
On the 13
th
May 2009, at about 6.35pm, Zainool had left his wife, Quraisha Fakir
at their home, and proceeded to drive his mother-in-law to
her house,
about five minutes’ drive away. He left with a Nokia E51
cell-phone and a Guess wristwatch. At approximately 6:45pm,
he phoned
his wife, and told her that he was going to Sherwood to meet Naidu.
He also said that he intended to fetch his nephew,
Akbar.
(b)
Later that
night, when he did not return, his wife telephoned Naidu, who said to
her that Zainool had not spoken to him, and that
he had not seen him
that night.
(c)
Ms Fakir
then phoned Nizam, the brother of Zainool and father of Akbar, for
assistance. Their searches proved fruitless. Eventually,
the bodies
of Zainool and Akbar were discovered the next morning, in Zainool’s
red VW Golf motor vehicle in the Sherwood
area. The area where the
vehicle was found is on the border between Westville and Sherwood.
They had both been severely assaulted
before being shot at close
range.
(d)
Ms Fakir
testified that Zainool had concluded a number of deals through a
close corporation named Cupra Trading 002 CC, which dealt
in the
purchase from, and sale to, textile companies of duty credit
certificates. In doing so, he had had dealings with Naidu.
Ms Fakir
only knew this from what she had been told by Zainool, and had never
met Naidu. Zainool had also been employed as a logistics
manager by a
company initially named Aristo Life Sciences, which changed to
Volcano Agro Science after a merger. The duty credit
certificates
were sold to Cupra 002 by Naidu.
(e)
Ms Fakir
could not dispute that the sole member of Cupra 002 was one Vishal
Ganpath (‘Ganpath’), a person she did not
know. She
conceded that Zainool had registered a close corporation named
Zainool Abedeen Fakir Trading on the 3
rd
February 2009. Ms Fakir also stated that Zainool had told Nizam that
Naidu owed him R20 000. She said that Zainool had told
her that
he was going to fetch that money from Naidu.
(f)
The wife of
Akbar, Nitisha Maneckchund, told the court that at 7.20 on the 13
th
May 2009, Zainool had fetched Akbar from their home in Chatsworth.
When Akbar did not return, she phoned him on his Samsung Navigator
cell telephone at about 9.00pm, but he did not reply. She then phoned
Ms Fakir.
(g)
Thandokuhle
Mkulisi (‘Thandokuhle’) told the court that in the
evening of the 13
th
May 2009, he was in the company of his friend Rodney Mbatha
(‘Rodney’) at the home of his employer, the mother of
Meer, when Meer arrived. Thandokuhle had been watching a television
programme called ‘Generations’, which started at
8.00pm,
when Rodney, and thereafter, Meer, arrived. They were talking when
Naidu arrived in a white Fortuner, accompanied by a
black male.
Naidu alighted from the Fortuner spoke to Meer, and then left. After
speaking to Naidu, Meer informed Thandokuhle
and Rodney that they
were needed to work as car guards at a party to be held in Umhlanga
Rocks that night. Prior to going
to the party, Thandokuhle and
Rodney were taken to the house in Essex Terrace to do cleaning.
Thandokuhle and Rodney were then
taken to the b&b where the party
was to be held, where they were given liquor, and they took various
drugs and smoked dagga.
He and Rodney acted as car guards, and the
next morning they were given cleaning materials by Naidu, and taken
to the Essex Terrace
house by Meer where they were instructed to do
cleaning again. Meer’s mother lived in Sherwood.
(h)
Dhanraj
Heeralall (‘Heeralall’) testified that he was the
erstwhile attorney for Naidu, having been appointed after
Naidu was
arrested. Acting on Naidu’s instructions, he had informed
members of the South African Police Services that Naidu
had been
informed of the location of the cell-phones which had been in the
possession of Zainool and Akbar when they were murdered.
This was on
the 3
rd
June 2009. Heeralall had also, on the instructions of Naidu,
discussed with the police officers, the possibility of Naidu
being
used as a s 204 witness. Heeralall also informed the police
officers that Meer had told Naidu where the phones were
to be found.
(i)
Ms
Stainton-Jones told the court that Meer had introduced her to Naidu
approximately three weeks’ before the 13
th
May 2009. They had later invited her to the party to be held at the
b&b. She was told by Naidu that the party would be at his
house.
Both Naidu and Meer were there when she arrived at approximately
5.00pm. A few hours’ later they left, returning at
approximately 11.00pm. When they left they were both wearing red
sleeveless shirts. When they returned, Meer jumped into the swimming
pool naked, and Naidu was seen by her, walking around upstairs,
dressed only in boxer shorts.
(j)
At that
stage Ganpath and two other men were making a fire on one side of the
house. She wanted to join them, thinking that they
were making
another braai, but she was told by them she could not do so because
they were performing an ‘Indian’ ritual.
The two black
males at the fire with Ganpath had returned with Meer and Naidu, and
she recognised one of them named Rodney, who
had worked for her as a
gardener on one day only, having been introduced to her by Meer.
(k)
Ms
Stainton-Jones conceded that Meer may have been staying at her home
for about a week before the party. There had been cocaine
and mandrax
available at the party, which she had indulged in. She knew that Meer
was a cocaine dealer. She also said that a duvet,
which she used for
her dogs, had been identified by her to the police. This duvet had
been found in Zainool’s red VW Golf
by Nizam Hoosen after he
had recovered the car from the police. The duvet was covered in dogs’
hairs, and had blood on it.
She said that when the police officers
came to her home enquiring about the duvet and wanting samples of the
dogs’ hair,
she had been phoned by Meer who said that he and
Naidu would pay her, Samantha and Neil (who was staying at her home)
R20 000
each if they took the dogs and left her house, because
the police officers were on their way to her house.
(l)
Ganpath
testified that after he had been retrenched from his employment and
was looking for work, Naidu had approached him to purchase
a shelf
close corporation – Cupra 002 - of which he was the only
registered member. On the instructions of Naidu, he also
opened a
bank account in the name of the CC at FNB Umhlanga Rocks. He did so
because Naidu said that he wished to trade in duty
credit
certificates, but could not do so through his own company.
Ganpath delivered paper work, made deposits and drew and
cashed
cheques on the CC, all on the instructions of Naidu. For this he was
paid a salary of between R6 000 and R8 000
per month by
Naidu. He did not operate the CC and the bank account on any
instructions from Zainool.
(m)
On the 12
th
May 2009 Ganpath was instructed by Naidu to proceed to West Street in
Durban and uplift documents for a new CC and deliver them
to Zainool.
Shortly after doing so, he was phoned by Naidu who instructed him to
uplift a cheque from Zainool in the sum of R600 000
and deposit
it into the bank account of Cupra 002. The next morning he met Naidu,
Meer, one Bob Seedat and Samantha, at the Japanese
Gardens and they
proceeded to the b&b where the party was to be held. During the
course of the day he was given R600 by Naidu
and sent to purchase a
pay-as-you-go cellular phone and airtime. He purchased the phone and
two MTN R60 airtime vouchers at the
CNA in Umhlanga Rocks, and gave
the items to Naidu.
(n)
Ganpath
started the braai in the evening and noticed that Meer and Naidu were
leaving the premises, saying that they would be back
shortly. When
they returned, over two hours’ later, neither was wearing a
shirt. They both wore jeans, and Meer took off
his jeans and jumped
into the pool naked. Naidu went upstairs where he was later
joined by Meer. They both came downstairs,
now dressed in short pants
and t-shirts. Naidu told Ganpath to go upstairs and fetch a
cardboard box – he did so and
Naidu told him to give it to
Meer. In the box were two pairs of denim jeans, two t-shirts and a
pair of cream takkies. Meer
then placed the items into a
wheelbarrow, placed firelighters on them and lit the firelighters. In
addition Naidu handed to Ganpath
a black basketball vest to put in
the fire. It had been worn by one Ezeraldo, who was by then also at
the party. Naidu and Ezeraldo
are cousins.
(o)
The next
morning, Ganpath was asked by Naidu to establish whether a nearby
carwash was open. He did so, informed Naidu that it was
open, and
Naidu then brought his white Fortuner to the carwash to be washed.
Later, Messrs Ganpath, Naidu and Ezeraldo went to
the La Lucia Mall
where Ganpath spoke to Naidu. Naidu asked him whether he knew
what had happened the previous night, and
Ganpath said he did not
want to know. Naidu then said it was something to do with
Zainool’s death, and Ganpath said
he wished to stay ‘right
out of it’.
(p)
Thereafter
they proceeded to the Springfield Value Centre where Ganpath
purchased a pair of blue denim jeans for Naidu and a pair
of black
takkies for Ezeraldo. This was done on the instructions of Naidu.
Naidu then left with Ezeraldo. Ganpath later
met Naidu at his
home in Broadway where Naidu told him not to say anything to anyone
about what had happened the previous night.
Two days’ later, on
the instructions of Naidu, Ganpath drew R45 000 in cash from the
bank account of Cupra 002 and delivered
it to Naidu. On the next
Monday, on the instructions of Naidu he drew R180 000 from the
account and gave it to Naidu in the
car-park outside the bank, where
Naidu was waiting in his vehicle with Ezeraldo.
(q)
Ganpath
later met with Meer and Naidu at the parking lot of the Riverside
Hotel, and Meer said that Ezeraldo was going in for questioning
by
the police, and he could not let Ganpath go home because the police
were looking for him. Ganpath then spent two nights
with Meer
in the Brittania Hotel. The next day they went to the home of Meer’s
friend in Newlands West. The friend was to
uplift Ganpath’s car
from the Brittania Hotel. Thereafter they went to the Star Lodge in
Pinetown where they lay low for
six days’. On the second day
Naidu arrived at the Star Lodge and told Ganpath that he needed to go
to the Durban North Police
Station. He did so, having been instructed
by Naidu to say that Zainool had instructed him to register a CC and
open a bank account
in the name of the CC. This explanation was given
by Ganpath to an attorney hired by Naidu, and a statement prepared
and given
to the detectives at Sydenham Police Station.
(r)
Ganpath was
then called in by the detectives for a second statement – made
by him in manuscript during the early hours of
the morning.
(s)
Poobalan
Moodley (‘Moodley’) told the court that he was a
self-employed mechanic who lived in Chatsworth. On the 8
th
June 2009, his flat-bed truck, which had a VW Beetle loaded on the
flat-bed was parked outside his home. Moodley had purchased
the VW
Beetle with the original intention to renovate it, and stored it on
the flat-bed because of a shortage of parking space.
Police officers
arrived at his home, and asked for permission to search the truck. He
consented, and underneath the VW Beetle they
found a blue plastic bag
containing two cellular phones, two batteries and a driver’s
licence card.
(t)
Indran
Naicker testified that he was the manager at the CNA branch in
Chartwell Drive, Umhlanga Rocks during May 2009. He confirmed
that on
the 13
th
May 2009 he had sold an MTN cell-phone and two airtime vouchers. At
that stage no RICA requirements had to be furnished by purchasers
of
pay-as-you-go phones. It was, however, company policy to record all
sales of cell-phones, by way of the unique identifying number
(IMEI
number) recorded on each cell-phone. All MTN cell-phones were sold
with a starter-pack which was activated at the time of
the sale in
the store. That cell-phone had been used to phone Zainool at
7.43pm on the 13
th
May, 2009.
(u)
Warrant-Officer
Sujit Rohith, then of the Sydenham Detective Branch testified that he
had taken over the murder investigation from
the 25
th
May 2009. He basically confirmed the sequence of statements testified
to by Ganpath. The police officers had tracked down the pay-as-you-go
cell-phone after investigating calls made to the cell-phone of
Zainool around the time of his death. He also confirmed the incident
when Heeralall advised him of the whereabouts of the deceaseds’
cell-phones found in a blue packet underneath the VW Beetle
on
Moodley’s flat-bed truck. The IMEI numbers on those cell-phones
were the same as the numbers on the original boxes shown
to
Warrant-Officer Rohith by Nizam Hoosen. The driver’s licence
had belonged to Akbar.
(v)
On the 4
th
June 2009 Warrant-Officer Rohith was handed a red and grey duvet with
dogs’ hair and blood on it, by Nizam Hoosen. Forensic
investigators could not link the duvet to the dogs belonging to Ms
Stainton-Jones because the hair-samples taken lacked follicles.
Warrant Officer Rohith also confirmed that the burnt material which
he recovered from the wheelbarrow at the b&b where the
party was
held, was in fact burnt fabric which was forensically tested (he only
visited b&b on the 1
st
June 2009).
Warrant Officer Rohith
also investigated the statements by Ganpath that he had stayed at the
Brittania Hotel and the Star Lodge
in Pinetown. The records he
examined did not contain any references to particular persons.
(w)
Warrant
Officer Nyembe, who is part of the ballistics unit in Amanzimtoti
testified that he had attended upon the scene where the
bodies of
Zainool and Akbar were recovered from Zainool’s motor vehicle.
He was able to determine that the deceaseds were
shot whilst bound
and lying in the boot and back of the vehicle respectively.
(x)
Ms Neyiwa
told the court that she was employed at the b&b. On the morning
of the 14
th
May 2009 she had arrived at work and found that the cleaning
materials were not where she had left them the day before, and were
missing. They were eventually returned to her, but half of the
chemicals had been used. She had also seen the wheelbarrow with
the
remnants of burnt cloth in it.
[5]
Both Meer and Naidu testified. The relevant portions of Meer’s
evidence may be summarised as follows.
(a)
He lived in
Westville, and decided to hold a party at the b&b. To that end,
and on the morning of the 13
th
May 2009, he met with Naidu who handed over to him R50 000 for
the purchase of drugs for use at the party. He then proceeded
to the
Japanese Gardens where he met with Naidu, Ganpath, Samantha and one
other. He also arranged with Rodney to do car-guard
duties at the
party, and said that he would fetch him that evening. He went to his
mother’s home at about 8.00pm to fetch
cocaine, Rodney and
Thandokuhle. Whilst there, Naidu arrived in his Fortuner, accompanied
by his bodyguard. Meer left the
R50 000 he had been paid
by Naidu at his mother’s house. They then proceeded to the b&b.
(b)
When they
arrived at the party, Meer thought it was boring, and jumped into the
pool naked in order to cheer things up. They had
arrived back at the
party from Sherwood at about 9.00pm. He and Naidu went upstairs to
one of the bedrooms in order to weigh the
cocaine he had brought with
him. They mixed the cocaine with Ashton & Parsons teething powder
to make it go further. He then
saw Ganpath burning something in the
wheelbarrow on the lawn.
(c)
The next
morning Meer told Naidu that he had to return to the home of Ms
Stainton-Jones, where he had been staying, in order to
clean up the
place because he was no longer going to stay there. He borrowed
Samantha’s car and went to Essex Terrace to
do so. Rodney and
Thandokuhle accompanied him to do the cleaning. He removed some latex
gloves and paper towels belonging to Ms
Stainton-Jones, in order to
clean up a ginger ale he had spilt. After they had finished cleaning,
he returned to his mother’s
home, dropped off Rodney and
Thandokuhle, and returned to the b&b to hand Samantha’s car
back to her.
(d)
In
cross-examination Meer said that he had sent Ganpath to purchase some
Mandrax at about 11.oopm on the night of the party. He
also confirmed
that he had spent time in various hotels with Ganpath after the 13
th
May 2009. He admitted that he had been in cell-phone communication
(six times) with Naidu after they had left the party early on
the
evening of the 13
th
May 2009.
[6]
Naidu’s evidence may be summarised as follows.
(a)
He was the
sole member of Gateway Fabrics CC, which traded in duty credit
certificates. He had been doing so since 2005. He was
also the sole
member of Divine Logistics CC. He knew nothing of Cupra 002
Trading CC. He had helped out his old school friend,
Ganpath, when,
in January 2009 he became unemployed, by giving to him Zainool’s
cell-phone number.
(b)
Naidu first
met Zainool when Zainool was employed as an administrator by the
clearing and forwarding agents, Spectrum Shipping.
Zainool was in
charge of the processing of duty credit certificates. He then took up
an administrative position in Spunchem, a
chemicals company, and he
and Naidu remained in telephonic communication. Zainool had requested
Naidu to lend to him the sum of
R20 000, but Naidu refused to do
so.
(c)
Naidu said
that he regularly gave instructions to Ganpath to go and fetch his
girlfriend, Lee, from her home in Overport.
(d)
Naidu had
booked the b&b for the party on the 13
th
May 2009. He requested Meer to cater for the party. He paid about
R3 500 for the hire of the b&b, and R50 000 to
Meer.
Naidu denied any knowledge of the pay-as-you-go cell-phone purchased
by Ganpath.
(e)
Earlier in
the day Naidu had communicated on six occasions with Zainool, with
regard to duty credit certificates.
(f)
Both Naidu
and Meer left the party at about 7.00pm – Meer to obtain more
drugs, and Naidu to fetch Lee, whom he was supposed
to meet
downstairs outside her residence. He communicated with Meer
telephonically during this trip, in order to ensure that Meer
did not
short-change him with the provision of cocaine. Lee did not arrive at
the appointed place, and Naidu could not phone her
because her family
were at home. A person named ‘Rasta’ looked after cars
outside Lee’s flat, and he told Naidu
that Lee had not come
downstairs. Rasta then accompanied him to Meer’s mother’s
home. Naidu went there to ensure again
that Meer would bring the
correct quantity of drugs to the party. He spoke to Meer briefly. He
saw Thandokuhle there, but not Rodney.
He then dropped Rasta off in
Alpine Road, Springfield, and proceeded back to the party.
(g)
When Naidu
arrived back at the party, he saw Meer jump naked into the swimming
pool, and he went upstairs to shower and change into
more comfortable
clothes. He then worked with Meer on mixing the cocaine. When he went
downstairs he noticed that a bonfire had
been lit. Later he received
a phone call from Zainool’s wife, who told him that Zainool had
gone off to meet him. He told
her that he had not seen Zainool. He
also later spoke to Zainool’s brother.
(h)
On the
morning after the party Naidu had his car booked into a car wash in
Umhlanga Rocks. He travelled there with Ganpath. He denied
that he
had gone to Springfield Park with Ganpath to purchase clothing.
(i)
On the 15
th
May 2009 Naidu was requested by Sydenham Police to make a statement.
He stated that he been at a party on the 13
th
May, but gave no indication of having left the party, because he did
not wish to expose his extra-marital affair with Lee. When
he was
detained at the Sydenham Police Station on the 3
rd
June 2009, Lee visited him, and then again at Westville Prison. He
had no idea of her present whereabouts.
(j)
Naidu
admitted that he knew that his attorney was having discussions with
the police officers regarding the possibility of his becoming
a
section 204 witness. He also admitted having given Heeralall
particulars to give to the investigating officer regarding the
whereabouts of the cell-phones taken from both the deceased. He would
not have given the information to Heeralall unless he thought
it
would advance his chances of getting bail.
[7]
In cross-examination, the following emerged.
(a)
Naidu had
instructed his attorney not to reveal to the police officers the
identity of the person who gave him the information concerning
the
whereabouts of the cell-phones. It transpired that that person was
Meer.
(b)
Naidu
admitted that he had gone to the home of Meer’s mother together
with Rasta, but denied that Rasta was his bodyguard.
He could not
explain why Meer referred to Rasta as Naidu’s bodyguard.
(c)
Although he
had telephonically discussed with Meer the possibility of his being
short-changed and the issue of the car guards, he
still went to
Meer’s mother’s home to discuss those issues with him.
(d)
Naidu
denied having given Ganpath instructions to fetch a cardboard box
from upstairs at the b&b. In the early hours of the
morning of
the 13
th
May he had phoned Ganpath because he wanted Ganpath to drop Lee off
at her home. The times were 2.25am, 2.26am, 4.27am and 7.41am.
His
explanation for having contacted Ganpath in the early hours of other
mornings was that he required Ganpath to pick up drugs
from Meer as
well as fetching Lee. On the 11
th
May he had called Ganpath 13 times between 6.38am and 9.20am - this
in relation to work Ganpath was doing on his nephew’s
car.
(e)
Although
Naidu denied in his evidence that he had at any time traded through a
corporate entity called Shelltrans, he later admitted
that he had
done so.
[8]
Mr
Hellens SC
, appeared for Naidu at the appeal together with
Mr
Howse.
The submissions made, together with those
contained in Naidu’s heads of argument, are:
(a)
The
evidence of Ganpath was of such a poor standard that it ought not to
have been relied upon in convicting Naidu. The trial court
erred in
failing correctly to apply the cautionary rule applicable.
(b)
The
evidence of Thandokuhle should have been ruled inadmissible because
the obtaining of it contravened s 35(3) of The Constitution.
This was in accordance with the decision in
S
v Mthembu
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA).
(c)
The trial
court committed a material misdirection by failing to recognise that
the evidence of Thandokuhle which was accepted is
inconsistent with
the inferences drawn that Messrs Meer and Naidu murdered both
deceased.
(d)
The trial
court erred in drawing adverse inferences from the cell-phone
records, where other inferences existed.
(e)
The trial
court erred in relying upon the inadmissible evidence of Ms Fakir to
support the conclusion that Zainool had a business
relationship with
Naidu, and had gone to meet Naidu on the night he was murdered.
(f)
The trial
court erred in drawing adverse inferences from perceived falsehoods
in the evidence of Naidu which had no material bearing
upon the main
issue for decision.
[9]
It was submitted that the trial judge incorrectly accepted that
Naidu’s business association with Cupra 002 was the only
link
between Naidu and Zainool, and was seen as the motive for the
murders. Naidu’s own evidence was that he had had
a prior
business relationship with Zainool, which had continued despite the
fact Zainool had changed the nature of his employment.
Their
relationship is also evidenced by the numerous phone calls Naidu
admitted having had with Zainool. In addition, the proximity
of Naidu
to the scene where the bodies of the deceased were found is
significant when viewed against his improbable explanations
for being
there.
The
evidence of Ganpath:
[10]
The acceptance of the evidence of Ganpath that he merely acted on the
instructions of Naidu in carrying out business transactions
relating
to Cupra 002 is supported by the following;
(a)
It was
common cause that the transactions effected on the bank account of
Cupra 002 related to duty credit certificates. Ganpath
had no history
or qualifications or prior employment qualifying him to operate in
this field, whilst Naidu did.
(b)
Naidu
clearly treated Ganpath as a messenger who did his every bidding,
from going to fetch and carry his girlfriend, to going to
fetch drugs
and food for them at all times of the day and night.
(c)
Naidu paid
Ganpath a salary of between R6 000 and R8 000 per month.
This would be a menial salary for someone who could
deal in duty
credit certificates involving a turnover in excess of R10million over
six months. Only two possibilities existed –
either Ganpath
worked for Zainool or he worked for Naidu. No explanation was
proffered why Ganpath would lie about working for
one and not the
other. If Ganpath worked for Zainool, Naidu would not have been able
to direct and order Ganpath around as he did.
Ganphath’s
evidence is further supported by the fact that Naidu appeared to have
large amounts of cash available to him,
unlike Zainool.
(d)
Although Ms
Fakir had never met Naidu, she had spoken to him on various occasions
over the phone. She knew from her husband that
he did business with
Naidu. She did not know, and had never met or heard of Ganpath. Ms
Fakir knew from Zainool that he wished
to open a new close
corporation for the same business. All this fits in with the evidence
of Ganpath that he was merely a pawn
in the hands of Naidu.
[11]
Although, save for the evidence of Ganpath, there was no evidence
directly linking Naidu to the pay-as-you-go cell-phone, the
evidence
of Ganpath is corroborated by the police investigations which
independently led the police officers to the CNA. The probabilities
accord with the evidence of Ganpath that he was asked by Naidu to
purchase the cell-phone.
[12]
The evidence of Ganpath that Meer and Naidu had left the party
together is corroborated by Ms Stainton-Jones, and by Messrs
Meer and
Naidu themselves. On their version they left, one after the other. It
was never suggested that they left in the same car,
but rather only
that they left at the same time. The burning of the clothing was not
based solely on the evidence of Ganpath. Ms
Stainton-Jones was
clearly misled when she was told that the fire was a form of Indian
ritual. The evidence of Warrant Officer
Rohith was that remnants of
fabric were found by him in the wheelbarrow which forensics confirmed
were fabric. The burnt
fabric was also seen by Ms Neyiwa.
[13]
The fact that Ganpath made contradictory statements to the
investigating officer is mitigated by his explanation for doing
so.
He was clearly unable to persist with the falsehoods, mainly because
of his own fears. He was forthright in giving evidence
that he had
misled the police. Given the relationship which existed between Naidu
and Ganpath, it is entirely probable that he
would initially have
followed his boss’s instructions to protect him from
incrimination. Ganpath stated that he feared
Naidu, which is a
further reason for him to follow his instructions.
[14]
A further factor in favour of the acceptance of Ganpath’s
evidence is that he voluntarily proffered the information about
the
purchase of the cell-phone, the existence of which is corroborated by
the link between that phone and the cell-phone of Zainool
on the
night of his murder. The only other explanation which may be
suggested to fit all the facts is that Ganpath himself was
responsible for the murders. Not only is this grossly improbable
because of the relationships between the various parties, but
Ganpath
was clearly at the party when the murders were committed. Warrant
Officer Rohith denied that Ganpath knew of the fact that
the police
had discovered the pay-as-you-go cell-phone before he told them of
it, and it is speculation to suggest that he did.
[15]
There can be no suggestion that Ganpath’s evidence should be
treated in the same light as an accomplice witness. He was
not an
accomplice, and whatever suspicions he may have had as to what went
on that night, he clearly did not want to be involved.
There is no
evidence that he knew, or even suspected what was actually happening
on the night of the murders. The various cases
dealing with the
treatment of the evidence of accomplices are therefore
distinguishable from the present circumstances.
The
admissibility of the evidence of Thandokuhle:
[16]
This aspect is dealt with at two levels:
(a)
The
contravention of the provision of s 35 (5) of The Constitution, to
wit the torture of Thandokuhle by the police officers of
the Cato
Manor unit, leading to the total exclusion of the evidence; and
(b)
The
analysis of that evidence, in the event that it is not excluded.
[17]
On the first leg, reliance is placed on the judgment in
S v
Mthembu
[2008] ZASCA 51
;
2008 (2) SACR 407
(SCA). In my view that case is
distinguishable on the facts. In this appeal, there is little doubt
on the evidence that the members
of the police force unlawfully
threatened Thandokuhle by pointing a firearm at him and slapping him.
They also tortured Rodney
in the presence of Thandokuhle. This
conduct was, no doubt, directed at obtaining a confession to the
murders, but that was not
forthcoming, and both Thandokuhle and
Rodney were released on the basis that they were no longer suspects.
[18]
It is correct that Thandokuhle made a statement on the 2
nd
July 2009 to the Sydenham police officers (D/Inspector Rohith) after
his return from Cato Manor. The typed version of this statement
is
confusing filed back-to front in the record. A further statement was
made by him to D/Inspector Rohith on the 10
th
December 2009.
[19]
The statements made by Thandokuhle reflect on Naidu in two aspects:
(a)
That he
arrived at the home of the mother of Meer and spoke to him in the
driveway, at a time when there was a black male in Naidu’s
vehicle. He did not alight from the vehicle, and Thandokuhle did not
recognise him; and
(b)
On the
morning after the party, and at the b&b, Naidu called him and
Rodney into the kitchen, and instructed a light-skinned,
unknown
Indian male to give them cleaning materials. He then told Rodney and
Thandokuhle that they should go and clean the house
in Westville
again, and they would then get their money.
[20]
With regard to those statements:
(a)
Mr
Howse,
appearing for Naidu at the trial, put to Thandokuhle in
cross-examination that at the b&b Meer asked for the cleaning
materials
to be given to Thandokuhe and Rodney, and Naidu said that
they had to go and clean the house in Westville, and that he would
take
responsibility for the cleaning materials to the owner of the
b&b.
(b)
When giving
his evidence-in-chief, Naidu stated that he went to the home of
Meer’s mother on the evening of the 13
th
May 2009, accompanied by one Rasta, in order to speak to Meer, which
he did. He admitted that he would have seen Thandokuhle
there.
He had knowledge of the detergents at the b&b, and, despite
having heard the maid going frantic about them being missing,
he did
not speak to her because she never asked him about them.
(c)
In
cross-examination Naidu confirmed his visit to Meer’s mother’s
home. The issue of the cleaning materials was not
further dealt with.
[21]
There is little doubt that when he made the second statement,
Thandokuhle was not intimidated in any way. The statements are
very
similar in context, and Thandokuhle stated that he was not afraid
when he made the second statement, nor yet when he testified
at the
trial. Given the findings of credibility made by the court-a-quo
regarding Thandokuhle, the fact that the evidence he testified
to
with regard to Naidu became common cause, and the nature of the
evidence itself, I do not believe that the authority in
Mthembu
is relevant. In saying this I do not wish to be misunderstood as in
any way condoning the appalling behaviour of the Cato Manor
officers.
This is an aspect which should have been followed up by the
prosecution to ensure that the officers concerned were prosecuted.
There was no excuse for their conduct.
[22]
With regard to the merits of the evidence of Thandokuhle, and given
the evidence of Naidu and what was put to the witnesses
by his
counsel, there is no reasonable doubt that the learned judge
correctly accepted the evidence. The suggestion that Naidu
arrived at
Meer’s mother’s home before 8.00pm is not supported by
the evidence because Thandokuhle stated that at about
8:15pm, he had
been watching the ‘Generations’ programme which started
at 8.00pm when Meer, and then later, Naidu,
arrived. The inferences
drawn by the learned judge a quo were consistent with the facts
testified to, and in the absence of a reasonable
and innocent
explanation by Naidu concerning his phone calls, etc, the conclusions
drawn are the only reasonable inferences, and
exclude all others.
The
cell-phone records:
[23]
The suggestion that Ganpath left his cell-phone in Umhlanga Rocks,
whilst using the pay-as-you-go phone to lay a false trail,
is mere
speculation, unsupported by any facts, and was never put to Ganpath
or any other witness. The suggestion that the cell-phone
towers may
have coincidentally picked up the CNA cell-phone and that of Naidu at
about the same time, and in the same area, is
also speculation and
inconsistent with the evidence of Ganpath that he delivered the CNA
cell-phone to Naidu. The coincidence of
such an occurrence should not
be viewed in isolation, but in the context of all the evidence.
The
hearsay evidence of Ms Fakir:
[24]
Such of the evidence of Ms Fakir as is relied upon by the court a quo
was elicited in cross-examination, and accordingly is
admissible.
Examples of this are:
(a)
That at
6.45pm on the 13
th
May 2009. Zainool told Ms Fakir that he was going to Sherwood, that
he had just received a call, and that it was important for
him to go.
(b)
That Naidu
owed Zainool R20 000, and that Zainool was going to fetch it
from him that night.
(c)
Naidu had
previously spoken to Ms Fakir when he phoned to speak to Zainool.
(d)
Naidu and
Zainool had previously communicated on the phone which was being used
by Ms Fakir when Zainool disappeared.
(e)
Zainool had
previously dealt in duty credit certificates.
(f)
Zainool
sourced the duty credit certificates from Naidu.
(g)
A deposit
of R868 667.95 was made into the account of Cupra 002 on the
13
th
May 2009.
(h)
Ganpath
fetched a cheque from Zainool on the 12
th
May 2009 and deposited it into the bank account of Cupra 002.
(i)
When he
left home on the 13
th
May 2009, Zainool gave Ms Fakir the impression that he would return
shortly.
(j)
Within ten
minutes of leaving their home Zainool phoned Ms Fakir, saying that he
had received a call that he should go to Sherwood.
(k)
That
Zainool told Ms Fakir that he was going to speak to his friend,
Naidu.
(l)
That Naidu
said to Ms Fakir that he had not seen Zainool on the night of the
13
th
May 2009, but that he would see both of them on the 23
rd
May 2009 because he was holding a thanksgiving dinner for his son,
and they were both invited
[25]
As per Kgomo JP in
S v Waldeck
2006 (2) SACR 120
(NCD) at para
13:
‘
It is a settled principle or
rule of our law of evidence that an accused person may adduce hearsay
evidence of his/her own purposes,
by giving such evidence
him-/herself or calling a witness to give such evidence, as appellant
attempted to do with the discarded
evidence of Ms Damoense (referred
to above), or an accused person may elicit hearsay evidence by way of
cross-examination, as the
defence has done in this instance (as will
be demonstrated hereinafter). Evidence adduced in this manner
is admissible, and
an adducer thereof cannot try to wriggle out of it
when the shoe pinches. See
R
v Bosch
1949 (1) SA 548
(A)
at 553-4;
S v Mthembu
1988
(1) SA 145
(A) at 150;
S
v Mokoena
1978 (1) SA 229
(O);
S v Olifant
1982
(4) SA 52
(NC);
S v Minnie
1986 (4) SA 30
(E); and, generally,
Law
of Evidence
by C W H
Schmidt and R Rademeyer (loose-leaf) at ch 13-20-13-21.’
[26]
In those circumstances it was acceptable for the court a quo to
include the above in her reasoning and the conclusions at which
she
arrived based on the evidence of Ms Fakir.
Improper
reliance on perceived discrepancies in Naidu’s evidence.
[27]
It was submitted that it was common cause that the person who arrived
at Meer’s mother’s home with Naidu was a
black male.
Thadokuhle said that the person was a black male. Naidu’s
counsel suggested to him that the person was a dark-skinned
Coloured
male. The presence or otherwise of this person is significant because
his presence is used to back-up the version of Naidu,
and to
corroborate the evidence of Naidu that he had been in the area
because he wanted to fetch his girlfriend, Lee. As that person
was
never called to give evidence, only the evidence of Naidu explains
his role.
[28]
The analysis by the court a quo as to the R50 000 is significant
because the whole idea of paying R50 000 for holding
a very
small party is grossly improbable, even considering the drugs
involved. However, in the context of a payment for a murder
it takes
on far more realistic and probable consequences. The evidence of Ms
Stainton-Jones was that Meer had told her that he
had been offered
R50 000 for ‘a hit’. That evidence standing
alone may be inadmissible as against Naidu
because the source of the
money was not revealed to Ms Stainton-Jones. However, the money
assumes more significance when Naidu
admits having paid R50 000
to Meer, but suggests it was for drugs. The somewhat desperate
suggestion in cross-examination
that ‘a hit’ referred to
the party is clearly an attempt to distance Meer from the suggestion
that he was to be paid
R50 000 for organising the murders. It is
also contrasted with the suggestion by Meer in chief that what was
referred to was
a ‘hip’ party!
[29]
In all the circumstances, and whatever legitimate criticisms may be
levied against the reasoning of the learned judge a quo
in her
lengthy and detailed judgment, there is no reasonably possibly true
explanation for the conduct of Naidu which was demonstrated
at the
trial, and which could have led to his acquittal.
The
sentence:
[30]
The factors advanced by Naidu which are argued to constitute
substantial and compelling circumstances not to impose a sentence
of
life imprisonment, are the following.
(a) Naidu was, at the
time that sentence was imposed upon him, a first offender.
(b) He is married and has
two young children.
(c) He is the primary
breadwinner for his family.
(d) He suffers from a
medical condition called Hemangioma.
[31]
In addition, it is submitted that Naidu had no motive for the
murders, and did not stand to gain from the death of Zainool
and
Akbar. The submission is also made that both Meer and Naidu were
under the influence of drugs and alcohol in the commission
of their
crimes.
[32]
Motive is, however, not a requisite which the State is required to
prove in order to establish the commission of a crime by
an accused
person. The reasons why Meer and Naidu planned and/or caused the
murders to take place is not entirely clear from the
record. It seems
highly probable that Naidu feared that Zainool would take away his
business. As pointed out by the court a quo,
Naidu is a cold,
calculating person, who used others for his own ends without any
regard for the consequences to them. This is
clearly evident from his
treatment of Ganpath. Accordingly, the lack of establishing the
precise motives for the murders, impinges
neither upon the
conviction, nor the imposition of a proper sentence.
[33]
If it was in fact true that the murders were committed as the result
of a drug and drink induced event which spiralled out
of control, the
court was not made privy to that information. Both Meer and Naidu
demonstrated throughout the trial a singular
lack of remorse, and
failed to take the court a quo into their confidence as to how
exactly the events of the murders unfolded.
In those circumstances
they can hardly complain that the learned judge did not consider
these factors.
[34]
With regard to the medical condition of Naidu, this was thoroughly
examined by the court a quo, and there can be no criticism
of the
finding that the medical condition was insufficient to ground a
substantial and compelling circumstance to warrant the imposition
of
a lesser sentence than life imprisonment for the murder of Zainool.
The other factors outlined above do not constitute substantial
and
compelling circumstances to deviate from the prescribed minimum
sentence either.
A
possible increase in sentence on count three:
[35]
The appellant was requested to make submissions as to why the
sentence for murdering Akbar should not also have been life
imprisonment. In that regard the following are relevant:
(a) Akbar appears to have
been murdered solely because he was in the company of Zainool.
(b) On the basis that he
was not the original target of Meer and Naidu, his murder served only
one purpose – to silence Akbar
as a witness to the murder of
Zainool.
(c) In terms of
s 51(1)
of the
Criminal Law Amendment Act, 1997
, read with (b)(ii) of
Part 1
of Schedule 2, life imprisonment is to be imposed where the offence
is murder when planned or premeditated, or the victim was a
person
who was likely to give material evidence of the commission of an
offence referred to in Schedule 1 to the
Criminal Procedure Act, 1977
in court. Schedule 1 includes both murder and assault where a
dangerous wound is inflicted.
[36]
It is apparent from the record that Zainool and Akbar were assaulted
and shot dead when they were together. If only Zainool
had been
assaulted and murdered, Akbar would doubtless have given evidence
against the perpetrators.at any subsequent trial. He
was clearly
murdered to silence him. In the circumstances, there is no reason why
the sentence for murdering Akbar should not have
been life
imprisonment as well. This is irrespective of who carried out
the actual shooting of Akbar, because his attackers
acted with a
common purpose. That common purpose was premeditated from the
time the attackers found out that Akbar was accompanying
Zainool.
[37]
In all the circumstances there appears to be no merit in the
suggestion that the sentence imposed on count 2 – the murder
of
Akbar – should not also have been life imprisonment.
[38]
I accordingly make the following order:
(a) The appeal against
the convictions of the appellant is dismissed.
(b) The appeal against
sentence on count 1 is dismissed.
(c) The sentence on count
2 is set aside and replaced with the following:
‘
The accused is
sentenced to undergo life imprisonment on count 2’
_________________
Lopes
J
I
agree.
__________________
Kruger
J
I
agree.
__________________
Nkosi
AJ
Counsel
for the Appellant: Mr
M
Hellens
SC, and with him
Mr
J E Howse
Instructed
by: Yugan Naidu Attorneys
Counsel
for the Respondent: Ms
N Moosa
Instructed
by: Director of Public Prosecutions
Date
of hearing: 29 January 2018
Date
of Judgment: 16 February 2018