Shingange and Another v S (A187/2013) [2016] ZAGPPHC 321 (12 May 2016)

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[2016] ZAGPPHC 321
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Shingange and Another v S (A187/2013) [2016] ZAGPPHC 321 (12 May 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG DIVISION, PRETORIA
)
CASE NO:  A187/2013
DATE:  12/5/2016
Not reportable
Not of interest to other judges
Revised
IN THE MATTER BETWEEN
JAPHET AMOS
SHINGANGE                                                                               1
ST
APPELLANT
BOGANG THOMAS
LEKGAU                                                                             2
ND
APPELLANT
AND
THE
STATE                                                                                                                 RESPONDENT
JUDGMENT
PRINSLOO, J
[1] The two appellants, as accused no 1 and accused no 2
respectively, were charged, together with six other accused, in the
Circuit
Local Division of the Northern Circuit District, held at
Polokwane, with one count of murder and three counts of assault with
intent
to do grievous bodily harm.
[2] All the accused were police officers, and, at the
relevant time, which was February 2008, they were stationed at the
Mankweng
police station.
[3] The charges flow from an incident which occurred at
or near Ga Mailula, in the district of Mankweng, on 25 February

2008.
[4] It was alleged by the State that, on this particular
date, the accused assaulted the deceased (the subject of count one)
and
the complainants in respect of counts two, three and four, before
taking them to the Mankweng police station.
[5] It is common cause that the deceased, one Samuel
Ragophala, passed away at the police station later on that particular
day,
so that a charge of murder was formulated in respect of the
deceased, and, in respect of the other three complainants, allegedly

also assaulted by the accused, charges of assault with intent to do
grievous bodily harm were laid.
[6] For the sake of detail, it is convenient to quote
the wording of counts one and two:
"
Count 1
In that on or about 25 February 2008 and at or near
Ga-Mailula, in the district of Mankweng, the accused did unlawfully
and intentionally
kill
SAMUEL RAGOPHALA
an adult male.
Count 2
In that on or about 25 February 2008 and at or near
Ga-Mailula, in the district of Mankweng, the accused did unlawfully
and intentionally
assault Samuel Mamabolo by hitting him with a
number of objects thereby inflicting certain wounds, bruises or
injuries with intent
to do grievous bodily harm"
[7] Counts three and four are crafted in terms identical
to the wording of count two but the complainants are Masilo Jimmy
Rasekgoga
(count three) and Malesela Johannes Malemela (count four).
[8] For the sake of brevity, I will refer to the
deceased as such, and to the complainants in counts two, three and
four as "Samuel",
"Jimmy" and "Johannes".
I do so, not out of disrespect, but because that was the
terminology used,
by and large, during the trial.
[9] At the trial, which commenced on 23 August 2011, all
the accused pleaded not guilty, and they were legally represented.

They did not offer plea explanations, and exercised their right
to silence.
[10] For easy reference, I will refer to the first
appellant as "number one", the second appellant as "number
two"
and the remaining six accused as "number three",
"number four", "number five",  "number

six", "number seven" and "number eight"
respectively.
[11] In terms of section 220 of the Criminal Procedure
Act, Act 51 of 1977, the defence admitted the correctness of the
findings
in the post-mortem report, and the doctor who performed the
post-mortem also gave evidence.  The correctness of the J88
medical
reports relating to Samuel, Jimmy and Johannes, following
their examination on 25 February 2008 by one Dr Hayat
Mahmud,
who did not give evidence, was also admitted.
[12] When the state closed its case on 26 August 2011,
the learned trial Judge, Mabesele J, initiated a debate with the
three
defence counsel, representing various accused.
It appears, from my reading of the record, that the learned
Judge anticipated
that there would be applications for acquittal of
some of the accused, on some, or all of the charges, in terms of
section 174
of the Criminal Procedure Act.  Because of the
debate, such applications never materialised in the true sense of the
word,
but the learned Judge gave a two line judgment, which reads as
follows:
"At the close of the state case accused three,
four, five and eight were acquitted on all counts.  Accused one,
two, six
and seven acquitted on count four."
Count four is the one relating to the alleged assault on
Johannes.  Accused one, two, six and seven all gave evidence in
their
own defence.
BRIEF SYNOPSIS OF THE VERSIONS OFFERED BY THE
COMPLAINANTS ON THE ONE SIDE AND THE ACCUSED ON THE OTHER SIDE
[13] The versions are mutually destructive.
[14] I will return to a more detailed summary of the
evidence, but, in very broad terms, the version offered by the three
complainants,
Samuel, Jimmy and Johannes, which are not without
material contradictions, amounts to the following:
On the morning of 25 February 2008, Samuel, minding his
own business, was on his way to his aunt.  He was walking.
He
was then confronted by five police officers in a sedan motor
vehicle, and arrested.  He was then taken to the home of the
deceased, who was known to him, where the deceased, who was asleep,
was also arrested and some allegedly stolen goods in his house

confiscated.  From there they stopped at a certain place called
Lula's Corner, near a certain shop, where they found a police
LDV
parked and manned by number seven and number eight.  From there
the vehicles, travelling in convoy, went to Jimmy's house
where they
found him washing himself.  He was put in the back of the
LDV and then they went to MaSialama school, looking
for Johannes.
He was not there, but they found him along the way, arrested him as
well and then proceeded with the four of
them to a bushy area at a
place called Ga Swafu, where the eight policemen produced metal
objects from the boot of the sedan,
including crow bars, leg
braces and a scissor-like steel object.  With these metal
objects the four of them were viciously
assaulted by various police
officers for about ninety minutes whereafter they were taken to the
police station and left there in
the care of the investigating
officer, which was number eight.  They were all injured,
examined at the hospital, but not hospitalised
for their alleged
injuries.  They later in the day received news of the passing of
the deceased.  They were charged with
housebreaking and theft,
but the charges were "provisionally withdrawn".
[15] The version offered by the defence, and verbalised
by numbers one, two, six and seven when they testified, is that
numbers
one, two and seven were on duty early in the morning when an
informer telephoned number two about suspects of a housebreaking and

theft incident being assaulted by members of the community.
Numbers one, two and seven went to the scene, saw the community

members backing away and arrested the deceased, Samuel and Jimmy.
The three suspects had obviously been injured because there
was blood
on their clothing.  Because of the presence of the community
members, they called for back up whereupon numbers
three, four,
five, six and eight arrived in the LDV.  Number eight was the
driver.  Because they were already three in
the sedan, they also
needed space in the LDV to accommodate the suspects.  They then,
in convoy, went in search of Johannes,
as they had information about
his involvement in the housebreaking as well.  He was not at his
school (he was still a scholar)
but they found him along the way and
he tried to escape, jumping several fences before he was apprehended
and handcuffed.
They then proceeded, in convoy, to the home of
the deceased after receiving information from the latter about the
stolen goods
being stored there.  They retrieved the goods and
went to the police station where they left the four suspects in the
care
of number eight, who was the investigating officer.
[16] There is evidence that the deceased was later
assaulted by another policeman at the police station.  This was
in the absence
of the eight accused.  Later they got news of the
passing of the deceased.
[17] They never assaulted the four suspects in the
bushes with the dangerous metal objects as suggested.
[18] I turn to a brief summary of the evidence.
BRIEF OVERVIEW OF THE EVIDENCE
EVIDENCE FOR THE STATE
(i)
Matoli William Ramogobedi
[19] Col Ramogobedi was attached to the Mankweng police
station when he testified.  In 2005, when different ranks
were
used in the police, he was a superintendent and also a detective
commander and head of the detective branch.  He knows all
eight
of the accused before the court.
[20] He was on duty on 25 February 2008.  When
he arrived at work, number 1, number two and number seven were
already
on duty.  They informed him that they were following up
information around the Mailula area.  Numbers one, two and seven

were tasked "to do task team, tracing of wanted suspect".
Number two, Warrant Officer Lekgau, was the senior
person of the
three.
[21] Importantly, at about 07:20 he received a call from
number two that he needs manpower.  Number two informed him that
there
was a problem at Mailula.  The community were
assaulting the suspects.  The case which they were busy with,
and
the suspects which were assaulted by the community, are the
suspects of the case of number eight.  The case was being
investigated
by number eight.
[22] The colonel then instructed number eight with
numbers three, four, five and six to go and assist numbers one, two
and seven.
[23] At about 15:00 in the afternoon, when he came back
from an attendance at court, he received a call from the station
commander
that someone had passed away at the station.
[24] Numbers one, two and seven were using a Toyota
Corolla, white in colour, and number eight and his group were using a
Nissan
LDV ("open bakkie"), white in colour.
[25] He did not communicate with the eight policemen
during the day because he was busy at court.  He had sent the
five to
assist the three, as already explained.
[26] In cross-examination, the colonel said that when he
arrived for duty that morning, numbers one, two and seven were
already
out on investigation.  They were busy investigating or
tracing suspects.  The charge was housebreaking and theft.
[27] He repeated that he received a call from number two
requesting manpower to assist them and that number two mentioned that
the
suspects were being attacked by the community.  Because of
the seriousness of the call he sent five members to go and assist.
(ii)
Hendrik Johannes Gerhardus de Lange
[28] He held the rank of lieutenant colonel (also
in February 2008) and had thirty four years service in the police
when he
gave evidence.  He was the Community Service Centre
commander.
[29] At about 10:10 in the morning, the relief
commander, Warrant-Officer Thaba, telephoned him and informed him
that a prisoner
who was being detained "is seriously
assaulted".
He went with Thaba to an area between the Community
Service Centre and the cell complex where he came across the prisoner
lying
on the paving.  The prisoner complained that he had been
assaulted by the police.  It appeared to him that the prisoner

was in a serious condition and he gave instructions for an ambulance
to be called.
[30] In the waiting cell in the Community Service Centre
("CSC") he also found three detainees who "were also
seriously
injured".  They reported to him that they had
been assaulted by the police.  Later he noticed that the
seriously
injured person (the deceased) had passed away.  This
was confirmed by the ambulance personnel when they arrived.
[31] He knows all the accused before the court but
cannot recall seeing them on that particular day.
[32] Importantly, in my view, the lieutenant-colonel, in
his evidence in chief, was referred to entries in the Occurrence Book
("OB").
This is exhibit "AA" in the
record.  The handwritten entry is not easy to read, but the
witness read it into
the record and I will quote extracts from
what the witness stated.  He referred to entry 3105 at 10:50 on
25 February
2008:
"Arrest: Inspector Malope (
my note
: this is
number eight, the investigating officer) arrested black males, Samuel
Mamabolo ... 28 years ... Johannes Malesela ...
17 years ...
Rasekgoga Jimmy Masilo ... 17 years ... charged with burglary and he
was injured with face and leg because community
assaulted and Samuel
Ragpapa (
sic
, this is the deceased) aged 39 years ... and he
was assaulted by the community and he was seriously injured."
[33] Entry 3112 of the OB, at 11:10, contains the
following entries (only portions are quoted):
"Inspector Malope charged suspects on CAS600/2/2008
after all the suspects were arrested at Ga Mailula Village by
the
Detective Task team and I was called to assist in bringing
all suspects to the police station to be charged ... investigated
by
Inspector Mametja L A and I charged the suspects and booked them to
the CSC to check any injuries and if any some be taken to
the
hospital.  One of them Samuel Ragophala passed away, but the
ambulance was already called and it came.  The ambulance

attended, certified him dead before an ambulance could take him."
It is signed by M J Malope which is number eight.
[34] Significantly, the lieutenant-colonel testified
repeatedly that a report was made to him that the people "were
assaulted
by a mob of people".  He testified that in no
circumstances the victims ought to be sent to hospital and be
detained
there "so that there is no expenses for the state".
He said later that whether they are assaulted by the community,
or by
the police or by the inmates such victims should be taken to
hospital.
[35] In cross-examination, the witness conceded that he
had made a mistake by testifying that he had seen the suspects at
10:10,
because in a statement that he made at the time he put the
time at 10:50.
[36] Significantly, in my view, the lieutenant-colonel
also conceded in cross-examination that, in the statement he made at
the
time, he never mentioned that the other three suspects, Samuel,
Jimmy and Johannes, were seriously injured, as he had testified

before.  He only said in the statement:  "I went to
the CSC where it came to my notice that three other suspects
were in
the waiting cell, they were also complaining that they were assaulted
by the police."
The witness conceded that he had made a mistake and that
the mistake was with regard to a very important aspect of his
evidence.
[37] In further evidence, he insisted that the injuries
were serious, but he could not remember the nature of the injuries.

He also conceded that an instruction that the suspects must be "taken
to hospital" is not the same as that they must
be
"hospitalised".  As I indicated earlier, it is common
cause that not one of the three was hospitalised.
[38] It was put to the witness that the doctor who
examined the three suspects, to whom I have referred, described
their injuries,
in all three cases, under "Conclusions" as
"soft tissue injury".
[39] The following significant exchange also took place
between counsel for numbers one, two and seven, Mr Grobler, and
the
witness during cross-examination:
"
MR GROBLER
:  Now Sir, the deceased,
you cannot tell the court who assaulted the deceased and when and
where he was assaulted? --- No,
I cannot.
You can also not tell the court that the community did
not assault any of the suspects? --- I cannot tell that as well.
So you cannot tell the court that the actions of the
police officers who brought the suspects to the CSC was incorrect?
--- I cannot
and I never did."
[40] It was also put to him that Jimmy mentioned in a
statement that the deceased was assaulted twice at the police station
by unknown
members.  The witness said he did not know about
this.
[41] When he was asked whether he, himself, made
enquiries from the police he answered that there were two versions at
that point
in time.  The one version was that the community
assaulted the people and the other version "was from the
suspects"
(I assume he referred to their version that the
police assaulted them).
[42] I consider it appropriate to add that, after the
conclusion of the evidence of Lieutenant Colonel De Lange, the
prosecutor,
Adv Davhana, suggested that he intended calling a police
photographer, Inspector O Mudau, to hand in photographs showing the
deceased,
as well as the extent of the injuries sustained by the
complainants.  He said some of the witnesses that would be
called would
be making use of the photos.
His suggestion was rather ridiculed by the learned Judge
in the following terms:
"You know what, the most serious thing here is a
murder man.  Let us talk about murder, that is where this murder
is here.
Because now you are wasting a lot of time about
assault GBH, what – I want to know who killed this man.
That is what
I am here for.  Who killed the deceased?  That
is why this matter is in the High Court.  But now you are
talking
about little things, no, whether those injuries of those
three were serious or not and I say the doctor will tell us.

Why should we be assisted by photos when these people were taken to
the doctor?  The doctor will tell us."
Needless to say, neither Inspector Mudau nor the photos
featured during the trial.
(iii)
Rachel Mosutho Ragophala
[43] She is the sister of the deceased.  I will
refer to her as "Rachel", as was done during the trial, and
without
intending any disrespect.
[44] According to her, she was at home on 25 February
2008 with her daughter and younger sibling, and the deceased was
asleep in
the house.
[45] She was busy sweeping the yard.  It was early
in the morning when children go to school.
[46] Four police officers, travelling in a sedan motor
car, arrived.
[47] Samuel was with them.  His hands were
handcuffed on his back.  She obviously knew Samuel.  So the
visitors were
five in number.
[48] In the court, she pointed out numbers one, two and
six as being three of the police officers.
[49] Samuel knocked on the door and gave his name when
the deceased enquired from inside.  The deceased opened.
She asked
the deceased what was going on and the police said
everything will be discussed later.
[50] The deceased was wearing a "jockey" when
the police handcuffed him.  She described these as "boxer
shorts".
The police also took a radio cassette, DVD and a
half full carton of Peter Stuyvesant cigarettes.  He had to be
assisted to
put his trousers on.  He requested a jersey to
put on.
[51] The party had now grown to six in number.
When they left they put Samuel in the boot.
[52] She heard number one phoning somebody and arranging
to meet at Lulati's shop.
[53] She saw no community members nearby.
[54] When the deceased was arrested, she saw no injuries
on him.
[55] When she came back later from collecting firewood,
she got a message to report to the Mankweng police station.
Later
she heard that the deceased had passed away.  One Piet
Mangena took them to the station commander.  There is no
evidence
as to whether or not she met the station commander.
The next day she reported the developments to the head man (turning
out
to be a head woman) one Maria Mailula.
[56] In cross-examination, she confirmed the arrival of
the five people, including Samuel.  Samuel greeted her and when
the
police asked him where the deceased slept, Samuel pointed the
place out to them and knocked on the door.
[57] At this point, it is with some regret that I turn
to an exchange between counsel for numbers one, two and seven and the
learned
Judge:
"
MR GROBLER
:  Right you say he knocked
at the door. --- Correct so.
Why would he knock at the door if he is seeing you
sweeping the yard? --- Samuel was knocking at Sam's door.  That
is after
the police had asked him where does the deceased sleep.
He pointed the place out to them and then they went over there, that

is where he knocked.
You are not answering the question.  You are now at
your homestead, you are busy sweeping the yard. --- The police
stopped
at the gate with Samuel.
COURT
:  I think I understand what she is
saying.  Firstly what level of education do you have? ---
Standard 5.
The way I understand the witness she is saying the
police entered the yard with Samuel.  At that time she stops and
looks at
them.  Samuel greeted her and thereafter police asked
Samuel where does the deceased?  In which room does the deceased

sleep, then Samuel said, in this room, then Samuel knocked.
That is how I understand the witness.  In other words, and

correct me if I am wrong, whoever came there did not have any
business to do with this woman.  They came there, she stops

sweeping, Samuel greeted her.  They asked Samuel in which room
is the deceased sleeping.  Samuel said in this room, then
Samuel
went to knock.  That is how I understand the evidence and she
then said after realising that these people are handcuffing
this
deceased, I then went to ask the deceased what is happening?  I
realised at that time that these people were the police.
That
is her evidence.  Am I right?
MR GROBLER
:  I do not know M'Lord.
COURT
:  But that is the evidence, according
to me here.
MR GROBLER
:  I think the purpose of
cross-examination is I can ask her to establish what she is saying.
I may even ask the same
question four times.
COURT
:  No, I will not allow four times.
If the answer is clear I will not allow it.  But the fact of the
matter is counsel,
that is what the witness said.
MR GROBLER
:  The fact of the matter is
M'Lord for cross-examination I may ask the same question three times
or four times.  I am
using a figure, but more than once to see
whether we get the same answer.
COURT
:  Ok, you can proceed, but that is how
I understood the evidence.
MR GROBLER
:  Thank you M'Lord so they saw
... [intervenes] ...
COURT
:  So if you say – correct me, if
you say now why would the police do this and that, you would not know
what is in the
minds of the police.  That is the problem.
And I always say to counsel if you say to a witness why would this
person
do this, the witness is not in the mind of that person.
Why does this person act in this way?
MR GROBLER
:  M'Lord, I am busy testing the
credibility, and the court will be ... [intervenes] ...
COURT
:  But the credibility does not –
if you test credibility yes, you are correct, but let us not allow
witnesses to speculate.
Why would the police do this?  Now
she is going to speculate.
MR GROBLER
:  But the court does not know
where I am going with the questions.
COURT
:  I know, or even if I do not know ...
[intervenes] ...
MR GROBLER
:  The court does not know what is
... [intervenes] ...
COURT
:  Mr Grobler you started very well.
In your life never, never argue with a Judge, you will not get
anything.  You
will not gain anything, but what you can gain is
to lose direction along the way if you argue with a Judge.
MR GROBLER
:  I accept that M'Lord.
COURT
:  I am talking from experience, I have
been on the Bench for some time now and I have seen counsel doing
exactly the same
and it is my song, I always say you lose
direction and at the end I say I told you.  You can ask
them.  They
appear before me and I told them I know that once
counsel starts doing this then I warn, you lose direction.  So
do not ever
argue with the Judge, you will lose direction.  It
is either you agree with me that this is how the witness said or you
do
not.  Or if there is still something, then let the witness
explain that.  No problem, but let us not argue.
MR GROBLER
:  M'Lord, her evidence at this
point is crucial to our defence and if I do not get the
opportunity to cross-examine this
particular point, obviously I will
put my point, my defence to her when I get there, but I am being
curtailed into my cross-examination
that as far as it is concerned,
and I definitely do not want to argue with the Honourable court ..."
[58] I regret having to refer to these exchanges, but
they are only an example of many such exchanges, and worse ones,
appearing
throughout the record.  Relatively few pages in the
lengthy record do not contain references to utterances made by the
learned
Judge.  On a general reading of the record, I am of
the view that the learned Judge spoke more than any of the counsel

throughout the proceedings, and asked more questions.
In
R v Roopsingh
1956 4 SA 509
(AD) a similar
state of affairs was relied upon as a ground of appeal.  At
513G, the following is said:
"The first ground of appeal which
Mr Maisels
,
who appeared for the appellant, relied upon was that the learned
Judge in the court below erred in his approach to the case in
that he
had – so to speak – descended into the arena and, as a
result, his vision had been clouded by the dust of the
conflict.
In support of this contention, he handed into court a
detailed analysis of the questions which the witnesses had been asked
during
the whole course of the case.  From this it appeared that
3,101 questions in all had been put to the witnesses and that, of

these, the Judge had asked 1,348, the prosecutor 924 and the
defending counsel 829 ..."
The whole issue is discussed, with reference to older
authorities, in this judgment from 513G 515A.
In
Hamman v Moolman
1968 4 SA 340
(AD) the
learned Judge of Appeal, in dealing with the same subject, and after
referring with approval to
Roopsingh
, pointed out that there
were limits which a Judge should observe in intervening in the
conduct over proceedings over which he presides
– at 344F H.
See also the remarks at 343E H.
I do not intend taking this issue any further, because
the approach of the learned Judge, as I have attempted to
illustrate,
was not raised as a ground of appeal.  Nevertheless,
I observe, with respect, that, in my opinion, the constant
interference,
which I attempted to illustrate, may well have
compromised the right of the accused to freely present their cases
without undue
interference from the Bench.  In this respect, the
fairness of the proceedings may have been compromised.
Nevertheless,
for the reason mentioned, I make no pronouncement on
this issue.
[59] I return to the evidence of Rachel.
[60] It was put to her in cross-examination that the
first state witness, Colonel Ramogobedi, had given specific evidence
to the
effect that it was only numbers one, two and seven who were on
duty and using the sedan motor car.  He later sent
reinforcements
in the persons of numbers three, four, five, six and
eight.  Against this background it was put to her that the only
way in
which there could be four police officers at her house, would
be if the occupants of the two police vehicles had arrived there
together.  After this proposal was put to Rachel, the learned
Judge initiated lengthy discussions between himself and counsel,

covering several pages.  The prosecutor also took an active
part in the proceedings.  As far as the prosecutor is
concerned,
I have to say that he did not follow the proper procedure of
formally objecting to whatever he considered to be
inappropriate,
leaving his opponent to answer, him to reply and the learned Judge to
make a ruling.  He simply, in a way,
took part in his opponent's
cross-examination by firing interjections at regular intervals with
the learned Judge allowing him
to do so.  This procedure I also
consider to be inappropriate and, in my view, something which
impacted on the fairness of
the trial and the right of the accused to
present their case freely and fairly and without being unnecessarily
disturbed in the
process.
Nevertheless, these constant interruptions are evident
from the record, and, for the reasons mentioned, I will attempt to
refrain
from re visiting them as far as practically possible.
[61] I return to the proposition put to Rachel.
Her answer was that only numbers one, two and six arrived in the
sedan vehicle
with Samuel.  Of course, the weight of the
evidence clearly suggests that number seven, and not number six,
travelled in the
sedan with numbers one and two.
[62] Rachel confirmed that, what the defence described
as the stolen goods, were found in the room of the deceased.
This included
some cigarettes, a DVD and a cassette radio.
[63] It was put to Rachel that the defence witnesses
would testify that by the time they arrived at Rachel's house, all
the suspects,
namely the deceased, Samuel, Jimmy and Johannes had
already been arrested so that they did not arrive there with the
deceased still
at home.  They only went there for the deceased
to point out the stolen property.  At that stage they were
already
injured.  Rachel said that they were not injured.
She re affirmed that only Samuel was brought there with
some of the officers.
[64] She was angry when she heard about her brother's
passing in police custody.
[65] Counsel for numbers three, four, five and six,
Mr Nel, when cross-examining Rachel, asked her whether she was
quite sure
that Samuel was handcuffed with his hands behind his back
and this she confirmed.
[66] Mr Nel then asked her the interesting question,
namely how Samuel managed to knock on the door if his hands were
cuffed behind
his back.  Her, even more interesting, answer was
"through his mouth orally so".  When asked how you
knock
through the mouth, she said "you call out, by calling out
to the person".
True to form, the learned Judge, siding with Rachel,
then explained to Mr Nel that Rachel's explanation of "knocking
through
the mouth" is quite plausible.  The learned Judge
put it as follows:
"You are right that the understanding of knocking
is by knocking (knocking on bench) you know, but in another culture,
like
in the Limpopo province to knock a person can say 'ko ko',
that one say 'come in', then she knocked."
Unfortunately for Rachel and the learned Judge, Samuel,
when he testified, insisted that he knocked on the door in the normal
fashion,
because, so he testified, he was "de cuffed"
by the police for that purpose.  I say no more.
[67] Mr Nel also put to Rachel that number six will deny
that he was in the car with numbers one and two as she had testified
and
he repeated the version that the two vehicles arrived at the
house together with the four suspects, as I have explained.
This she disputed.
[68] Mr Nel also put to her that nobody was put in the
boot of the sedan as she had alleged.
[69] It was put to her that numbers three, four, five
and six will also testify that the suspects already had injuries when
they
were all brought to the house as was also put by counsel
Grobler.  This she disputed by saying they did not have
injuries.
This is a strange statement, given that she never
saw, on her own version, any of the suspects barring her brother and
Samuel.
[70] Counsel for number eight, Mr Mahapa, also put to
Rachel that number eight would testify that he in fact went to the
house with
all the accused, in the LDV that he was driving and the
suspects were also with them, having been arrested earlier.
Rachel
disputed this version.
[71] Rachel's evidence can be questioned in a number of
respects: her insistence that number six also travelled in the sedan
is
not in line with the clear weight of the evidence, including that
of number six himself.  Her evidence that not one of the

suspects was injured is unconvincing given that, on her own version,
she only saw two of them.  Her evidence that Samuel knocked
on
the door "through the mouth" is clearl;y far fetched.
Moreover, through no fault of her own, she clearly
cannot be
described as an impartial witness, given her anger, which is
understandable, about the demise of her brother.
(iv)
Samuel Kolokothi Mamabolo ("Samuel")
[72] Early in the morning of 25 February 2008, he was
walking along the road to his aunt's place as Segobe.
[73] The police, travelling in a Toyota Corolla motor
vehicle, appeared and alighted from the car.  They were five in
number.
Of course, Rachel said they were four.
[74] When the police alighted, Inspector Shingange
(number one, he knew him) produced a fire arm, pointed it
upwards and fired
it twice.  I consider this inherently
improbable.  It was broad daylight, at a time when children were
going to
school on a public road.  There is no apparent reason
why number one would have done this. According to the record, he was

then 50 years old, with an unblemished police service record
stretching over twenty three years.  Absolutely no reason
was
advanced why he would have fired two shots into the air.
[75] Samuel said the other four officers in the car were
numbers two, three, four and five.  Rachel said there were only
four
officers, including numbers two and six.  The fourth one
she never identified.  Later Samuel said the other officers were

numbers two, three, four and six.
[76] The police surrounded him and cuffed his hands
behind his back.  They put him in the back seat of the car.
There
were then two people sitting in the front and four people,
including himself, on the back seat.  The police informed him
that
he was being arrested on a charge of housebreaking.  This
had allegedly been committed at Ga Makula's shop.  The

police asked him if he knew the deceased, Johannes and Jimmy.
He confirmed that he did.  They asked him to go and
show
them the homes of these three.  The first home they stopped at
was that of the deceased.  The sister was sweeping
the yard
outside.
[77] The police called the sister (obviously Rachel) and
asked her where the deceased was sleeping.  She showed them the
room
and the police asked him to knock on the door.  He knocked
and when the deceased was about to open the door, number one
opened
the door and entered.  Those who entered were number one, number
two and himself.  They were the only people who
entered.
Rachel, on the other hand, did not mention anything about the police
calling her or asking about the room of the
deceased.
She simply said that the police went straight to the door and
asked Samuel to knock.
[78] Samuel said they found the deceased sleeping on top
of the bed.  When he was about to wake up they hit him with an
open
hand and started dragging him.  He was naked.  Rachel
said she went to the room when they entered and the deceased was

wearing boxer shorts.  He was given some trousers to put on and
they went to the car, putting Samuel in the boot.  They
went to
a place at a stop sign opposite Lula's shop.  They found the
police LDV already standing there and he saw three policemen
in the
LDV.  Two of those were number seven and number eight.  Of
course, Rachel said number seven was at her house.
[79] They put him and the deceased in the LDV, and
proceeded to Jimmy's house where they found him washing himself.
He was
also put in the back of the LDV.
[80] They then proceeded to MaSialama School looking for
Johannes.  They did not find him and proceeded to Ga Mailula
when they found Johannes next to the road.  They stopped the
vehicle, he (Samuel) alighted, and they asked him to go to Johannes

"after they had stopped him".  They went to him and
also handcuffed him from behind.  Those who went to him
were
numbers three, six and eight.
Compared
to this, all the defence witnesses who testified stated that Johannes
tried to escape, jumping several fences in the process.
The
police gave chase in the vehicles, but numbers one, two and seven
went on foot.  Number one grabbed Johannes and felled
him to the
ground.  Number seven assisted him before they could handcuff
him.
[81] Samuel said that after they arrested Johannes, they
put him in the boot (of the sedan).  This is strange, because
there
was room in the LDV where he was placed, according to the
defence witnesses.  Samuel said he sat in the back seat of the
sedan.
[82] They then drove further, and went to a deserted
place, where people used to live at an earlier time, "in the
bushes".
This is known as Ga Swafu.  They made
Jimmy, the deceased and Johannes alight from the vehicle and ordered
them to lie
on the ground on their backs.  They produced a
crow bar, leg braces and a scissor-like steel object from the
car and
all eight the police officers (accused) started assaulting
the three suspects.
Numbers two and three were those who produced the
objects from the boot of the sedan.
[83] When asked who assaulted the deceased, he said
numbers one, two and six.  Later he said numbers one, two and
seven.
[84] Describing the assault on the deceased, he said
they were hitting him with the crow bar.  They hit him on
the collar bone,
opened his legs wide and kicked him in his
private parts.
[85] He continued to state that as soon as they had
finished assaulting the other three suspects, they took him out of
the sedan,
threw him down and started hitting him as well.  When
the other three were being assaulted, numbers one, two and six were
using the steel objects mentioned and the others were also assaulting
them but without using the steel objects.  The other
two were
being assaulted by being kicked and with fists.  In chief,
he repeatedly said that numbers one, two and six
assaulted the
deceased with the mentioned objects.  The police officers who
assaulted the other two suspects were numbers
three, four, seven and
eight.
[86] Number one is the accused who took him out of the
sedan.  He was then assaulted with a crow bar on his neck
as well
as on his shoulder by numbers two and six.
[87] He said specifically that by the time he was
assaulted, they had finished with the other three.  "It was
now
my turn."  Later he said it was number one who
assaulted him with the crow bar.  After the assault they
were
put in the back of the LDV and ferried to the Mankweng police
station.  There they were taken to the detective's office and
he
was given a mop to "clean the blood".  Number two
showed him the mop.  He cleaned the blood.
None of
this was put to the first two state witnesses (police officers) for
their comments.  Fingerprints were taken.
Later they heard
that the deceased had passed away.
[88] Up to the time when he was cross-examined, the
witness repeatedly insisted that it was numbers one and six who
assaulted him
and he also said, as I mentioned, that numbers two and
six assaulted him.
[89] In cross-examination, he said he first made a
statement to the police before going to the hospital for treatment.
He
was not hospitalised and went back to the police.
[90] At this stage, I regret to say, the proceedings
were constantly interrupted by the learned Judge, ably assisted by
the prosecutor,
in the manner which I earlier explained, and counsel
for numbers one, two and seven, Mr Grobler, repeatedly
complained that
he was not given the opportunity to properly conduct
his cross-examination.  These exchanges stretched over pages
140-155
of the record.
[91] When Mr Grobler finally managed to continue with
his cross-examination, he started dealing with a statement about the
alleged
assault which Samuel made to the ICD (I assume, the
Independent Complaints Directorate).  There was some debate
about
the admissibility of the statement, because the police had
neglected to have it commissioned, but, ultimately, the statement was

allowed.
[92] He said (without referring to the statement) that
when he was arrested, he was first approached by numbers one and
two.
Later numbers three, four and five alighted and
approached.  They asked him to show them the house of the
deceased.
On the way, the police told him that he was
under arrest for the housebreaking at Christo's Tavern.  In the
statement,
he did not mention that the police told him the reason for
the arrest.
[93] When they arrived at the home of the deceased, the
sister (obviously Rachel) was found "sitting" and some of
the
police officers (one and two) went over to her and asked her
where the deceased was.  This differs from his evidence in chief

and also from Rachel's evidence.  He said the sister
(obviously Rachel) pointed out the bedroom of the deceased and then

the police asked him, Samuel, to knock.  As I indicated,
this differs from the evidence of Rachel.  He said that
he
knocked on the door and they entered, it was him, and numbers one and
two.
[94] He explained how he knocked on the door (three
knocks on the desk).
[95] Inside, they found the deceased asleep.  He
was completely naked.  This differs from Rachel's evidence as
I have
pointed out.  He said Rachel did not come and knock
on the door later, as Rachel had testified.
[96] He confirmed that the police removed some items
from the room, but only mentioned cigarettes and a "Half jack".
[97] Importantly, in his statement he said "I knocked
on Samuel Ragophala's room and he opened".  This suggested

that the deceased was not asleep when they entered.  In his
evidence he insisted that the deceased was asleep.
[98] In his statement he said "after opening all
the police officials entered into Samuel's room, including myself".

This differs from his evidence, where he said it was only him and
numbers one and two.
In his statement he said "the police officials
ordered Samuel Ragophala to take everything he stole at Christo's
Tavern".
In his evidence in court he said there was no
conversation whatsoever between the police and the deceased.
In
his statement he said "and Samuel opened a trunk and he took out
a DVD player, a CD player tape and 1 x straight
of Peter
Stuyvesant".
In court, as I mentioned, he said that he did not know
about those items but only the cigarettes and half jack that he
had
mentioned.
In his statement he said that the deceased handed the
items, including the DVD player, etc to number one.  This
differs from
his evidence in court.
[99] He agreed, when confronted with the statement, that
it differs materially from his evidence in court.
[100] In his statement he also did not mention that
number one assaulted the deceased (by slapping him in the
face).
He said that he may have been "negligent" by
not mentioning this assault to the author of the statement.  In
court,
he explained that "the mentioning of the DVD and
those items is not the truth, because I did not see them".

In my view, it is extremely unlikely that the policeman who
wrote the statement would have fabricated this evidence.
[101] In his evidence he testified that they were
travelling along a certain route to get to the point where they met
up with the
LDV and the other policemen.  He could not explain
properly how he would have identified the route if he was in the boot
of
the car, as he and Rachel had testified.
[102] Rachel testified that when they were still at the
house, a phone call was made by the police.  He differed from
that
and said they were already at the veranda of Lula's shop when
the phone call was made.
[103] When they got to Jimmy's house, it was numbers one
and two who arrested him.  They did not assault Jimmy at the
time.
[104] They then went to the school looking for
Johannes.  At that stage nobody was in the boot of the Corolla.
When they
arrested Johannes, they put him in the boot of the sedan.
Those who arrested Johannes were numbers two, three and six.
I
have mentioned the version of the defence.
[105] The place where they stopped before the assault,
he now described as Ga Thema, between Ga Sehole and
Ga Mailula.
Jimmy,
Johannes and the deceased were ordered to alight and lie down on
their backs.  Number two went to the sedan and took
out the
crow-bars, leg irons and the steel object looking like scissors.
[106] He remained on the back seat of the sedan, with
the assault taking place towards the back of the car.  The boot
was closed.
Later, when he was recalled by the learned Judge,
he said that his visibility towards the assault scene was not
obstructed.
He was still on the back seat and handcuffed.
[107] Now he said numbers one, two and seven (not number
six) assaulted the deceased with these items (crow-bar, scissors,
etc).
[108] In his evidence in chief, he said only the
deceased was assaulted with the steel items and the others were
assaulted with
boots and fists.  In cross-examination he said
"after they had finished assaulting the deceased with those
items,
they were also used in assaulting Jimmy as well as Johannes,
the specific items that I mentioned".
When asked who used those items to assault the others,
he said numbers four, six and seven.
[109] When he was confronted in cross-examination with
the fact that, initially, he said that only the deceased was
assaulted with
the items but the other two complainants with feet and
fists, he conceded that but then he added new evidence "then
later
on after I have been made to alight from the motor vehicle
and I had joined the group that was lying down.  That is when

these I have just mentioned now, they were the ones now who took over
the attacks and started assaulting the others with those
items."
He said this did not include the deceased.  Of course, in
chief, he said nothing about "joining
the group that was lying
down" but said, as I have mentioned, that by the time he was
assaulted "they have finished with
the other three, it was now
my turn".
[110] He testified in cross-examination that those that
were assaulted stayed on their backs the whole time.
[111] In cross-examination, Samuel was invited to
illustrate the gravity of the assault on the deceased and the other
two complainants
in the following terms:
"
MR GROBLER
:  ... obviously they were
hitting these three complainants very hard with these shackles and
these items.  They were
assaulting them, hitting them hard.
Is that correct? --- Very much.
Repeatedly? ---  Correct so.
Sir, I just want to understand please, in other words it
was not like hitting him, talking to him, he was hitting him the
whole
time.  Is that correct? --- Repeatedly so.
All over the body? --- From head to all over the body.
Even in the face? --- On the face they were not using
those steel objects, but rather they were concentrating from neck
down.
... and all over his body you said? --- All over the
body.
... they were hitting the deceased repeatedly with these
items all over his body vigorously, terribly? --- Correct so.
And this assault took place for a long time? --- Could
be about ninety minutes.
And this is now an assault that took place on the
deceased and the other two complainants? --- Yes, I am counting for
all of them
now."
He went on to say that where the others were assaulted
for ninety minutes he was assaulted as vigorously for about twenty
minutes.
[112] Late in his evidence under cross-examination, he
introduced a new allegation that number eight also assaulted him by
hitting
him twice with a stone.
[113] After the assault they were taken to the police
station.  At the police station he was not with the deceased the
whole
time.  He conceded that he cannot tell the court what
happened to the deceased at the police station.
[114] The only injuries he sustained were on his left
leg and his shoulder.  Nothing else.
[115] In cross-examination, the version of the defence
was put to him.  I have already briefly summarised the version
and will
return thereto when dealing with the defence evidence.
He denied that they were apprehended by the community as testified
by
the defence.
[116] He denied that Johannes ran away when he saw the
police.
[117] Samuel was also cross-examined by counsel Mr Nel
for numbers three, four, five and six.
[118] It was put to him that in cross-examination by Mr
Grobler, he said that when the Toyota Corolla arrived when he was
walking,
numbers one, two, three, four and five were in the car.
In evidence in chief he said they were numbers one, two, three, four

and six.  In this part of the cross-examination the accused were
ordered by the court to stand up, and now Samuel said they
were
numbers two, seven, four and six.  This is a third version.
He conceded that he made a mistake with regard
to number five.
[119] He was cross-examined about an identification
parade that was held.  There he identified numbers one, eight
and six and
one William Mpahlele who had nothing to do with the
incident.  Numbers two, three, four, five and seven were not
pointed out
by him at the identification parade.
[120] He confirmed that he and the other complainants
knew each other before the incident.
[121] It was put to him by Mr Nel that his clients,
numbers three, four, five and six, will testify that when they joined
numbers
one, two and seven, near the bottle-store at Ga Mailula,
he (Samuel) was already in the custody of numbers one, two and seven

with Jimmy and the deceased.  This he confirmed.  He also
confirmed that immediately after that, they went to the school

looking for Johannes.  In my view, this corroborates the
version of the defence.
[122] He confirmed that the housebreaking charges
against him and the other suspects were "provisionally
withdrawn".
[123] He confirmed that when they could not find
Johannes at the school, they found him later running through the
mountains and
he ran away from the police.  He said that the
police ordered him to stop and he stopped before they arrested him.
He
denied that Johannes jumped over fences and later suggested that
Johannes co operated with the police.  This is not in
line
with the weight of the evidence, as will appear later.
[124] Importantly, when it was put to him that numbers
three, four, five and six will testify that after Johannes was
arrested the
police went to Rachel's house, with all the suspects, to
retrieve the stolen goods, he denied that and said that after they
were
all arrested they did not go to Rachel's home but to the place
where they were assaulted.  However, when it was then put to
him
that numbers three, four, five and six will further testify that
after they retrieved the goods from Rachel's house they were
all
taken to the police station, he confirmed it.  This flies in the
face of his earlier evidence that it was only him with
four police
officers that went to Rachel's house.  It also corroborates
the evidence of the defence.
[125] He also confirmed that at the police station,
after the suspects were left in the care of number eight, the
investigating
officer, numbers three, four, five and six left to go
and do their assignments as student constables.
[126] In cross-examination by Mr Mahapa, it was put to
him that number eight would deny that he assaulted him with a stone.

As I already briefly mentioned at the outset, this evidence of
the assault by number eight was in any event rejected and number

eight was acquitted after the state case was closed.  The
witness also said that number eight did not assault the deceased.
[127] In my view, it appears from the above analysis
that Samuel was a poor witness: his evidence dramatically
differed from
that of Rachel.  He changed his evidence about who
allegedly assaulted the deceased by later replacing number six with
number
seven.  He first said that after the other three
were assaulted, it was his turn and he was the only one then
assaulted.
Later, under pressure, he improvised by stating that
he was forced to "join the others on the ground" whereupon
they
were all again assaulted.
(v)
Masilo Jimmy Rasekgoga ("Jimmy")
[128] He said he was arrested at his home by all eight
the police.  This flies in the face of the weight of the
evidence, including
that of the defence, and, in a sense, that of
Colonel Ramogobedi.
[129] After his arrest they went to the school, could
not find Johannes, and he was arrested along the way.  He could
not say
much about how the arrest took place, because when they
arrived at the scene the police were already putting Johannes in the
boot
of the sedan.
[130] They were taken to a place between Gatsela and
Hamanoko.  The names differ from those mentioned by Samuel.
[131] They were cuffed "from behind" and told
to lie down.  They lay on their backs.  Certain objects
were taken
out of the boot of the sedan.  He does not remember
the one who first arrived at the boot of the sedan and took out the
steel
objects.
[132] He did say that it was himself, the deceased and
Johannes who were ordered to lie on the ground.  He said that
the police
then started assaulting them with the objects, "they were
exchanging those objects amongst themselves".  When
asked
who these attackers were, he pointed out numbers two, three, five and
seven.  This differs from the evidence of Samuel.
[133] Importantly, when asked whether they were
assaulted separately or together, he said they were all assaulted
together at the
same place.  This differs from the evidence of
Samuel who first said that they only assaulted the deceased with the
objects
and the other two with boots and fists.
[134] He said after they had been assaulted the police
never told them the reason why they were arresting them.  This
is not
in line with what Samuel said, namely that the police said
they were arresting them because of the housebreaking.
[135] He confirmed that Samuel was in the sedan while
the other three were being assaulted.  After a long while they
took Samuel
out of the sedan and were busy with him but "I could
not see what was happening to him".  He heard Samuel
screaming
but he could not say what was happening to him.
[136] Thereafter they went to the police station.
[137] He sustained injuries on his shin, on his back and
on his hand.  He was not hospitalised.  He has healed
completely.
[138] Upon arrival at the police station, they took
Samuel and Johannes for fingerprints and left the witness with the
deceased
at the detective's office.  The deceased was bleeding.
It appeared that he was bleeding on the shins because he
saw the
blood on the trousers.  He did not know anything about the
allegation that they were arrested or apprehended by other
people
than police officers.
[139] In cross-examination, after confirming that Samuel
and Johannes were taken away and he was left with the deceased, he
was
asked whether it is not correct that another police officer,
whose identity was not known, then came to them and then assaulted

the deceased.  He said that "nothing like that ever
happened".  It was put to him that the deceased then fell

on his head.  This he denied.  Later he admitted that the
deceased fell down, he saw that, but he did not see the head
of the
deceased hitting the ground.  He said that by the time that the
deceased passed on, he fell down.  This is not
in line with what
Lieutenant-Colonel De Lange said, namely that he found the deceased
lying on the paving complaining that the
police assaulted him.
[140] He confirmed that he laid a charge with the ICD
about the incident and made a statement.  He identified the
statement
with all the pages having been signed by him.
He confirmed most of the information on the statement as
having been correctly recorded by the police officer who wrote the
statement
and confirmed that it was read back to him.  Later he
back-pedalled, stating that he did not remember that it was read back

to him.
[141] These are some of the allegations which he made in
his statement:
•
"Inspector Malope took Samuel Rakgopola and
myself to where they took fingerprints."
•
"After the eight police officials assaulted
us they took us to Mankweng SAPS."
•
"Upon our arrival at the station they took
us to CID office and took us to a certain office."
•
"Upon our arrival in the office we found a
certain police officer whom they call Whitey, reading a newspaper."
•
After saying that the four of them were together,
he said "The said police officer who was short with short hair
started kicking
us on our head with booted foot."  He then
said they assaulted Johannes and they asked him to clean up the blood
and
he could not hold onto the mop.
•
Importantly, when he was asked if they assaulted
the deceased as well, he said "Inside the office they did not
assault him.
Was it outside the office? --- He was assaulted only
where we were, right there at the bush."
•
"The said officer who was short with a short
hair style had been kicking us on our head and booted foot, and
Inspector Malope
who was taking fingerprints was out and Whitey saw
the police officer who was kicking us with booted foot."
•
He confirmed that none of the accused before the
court was participating in that assault.  He confirmed that they
were not
even there at the time.
•
Very importantly, after his statement that
Inspector Malope took him and the deceased to where they took
fingerprints, he said the
following in the statement:
"While Inspector Malope was busy charging us,
Samuel Rakgopola, that is the deceased, fell on the ground by head,
and a certain
police officer kicked Samuel Rakgopola, the deceased,
with booted feet on his ribs and he again told us that Samuel is
taking chances."
Not surprisingly, because he was clearly a dishonest
witness, he said he could not remember saying this to the policeman.
He called it a misunderstanding.  Then he was asked:
"It could be.  Or it could have been written
correctly.  Not so? --- I do not remember explaining it in such
a way
that you are saying.
Ok but that is what happened. --- I did not observe
such."
This, in my view, is a feeble and unconvincing answer.
It is inherently improbable that the police officer, a member of the

ICD, would have fabricated this portion of the evidence in the
statement, after having recorded most of the rest of the statement

correctly, on the witness' own version.
[142] Then followed a tea adjournment and, when the
court resumed, counsel Mr Grobler put it to the witness that
during the
tea adjournment he had spoken to the police officer who
took the statement, Senior Superintendent Maloto, a lady, and asked
her
whether she had read back the statement after having recorded the
details and this she confirmed.
Then followed one of the many interruptions by the
learned Judge, who accused counsel that he was giving evidence.
After some
lengthy exchanges, counsel was allowed to continue with
this line of cross examination.  He then reverted to
the
witness' statement that Inspector Malope took him and the
deceased for fingerprints and the statement which I quoted, that
while
the inspector was charging them a certain police officer kicked
the deceased with booted foot on his ribs and again told them that

the deceased was taking chances.
He was asked whether this is what happened and he
confirmed it.
Then the cross-examination went as follows:
"Thank you.  And then you said:
'The said police officer kicked Samuel in the presence
of Inspector Malope, myself and a certain man who is a cleaner at the
Mankweng
SAPS.'
Correct? --- And some other people, it was many of them
I do not know.  ... And there were also some other people, many
of
them, I do not know what they were there for because I saw them,
some of them ..."
He
confirmed that at that stage numbers one, two and seven were not
there.
Then the following question followed:
"... So at the police station the deceased fell on
his head, and he was also kicked by another police officer, which we
do
not know who it is.
Correct?  That is your evidence.  Correct? ---
Indeed there was somebody who kicked him."
Later he confirmed that after the assault on the
deceased he was taken away from the deceased.  He admitted that
he did not
know whether the deceased was assaulted any further at the
police station.
[143] Against this background, an interesting thought
that occurs, although one must, if possible, avoid speculation, is
whether
the complaint by the deceased to Lieutenant Colonel De
Lange that he had been assaulted by the police (accepting, for the
moment, the hearsay evidence) was not perhaps a reference to the
assault at the police station, graphically described by Jimmy,
rather
than a disputed ninety minute assault with heavy metal objects in the
bushes.  It is perhaps noteworthy that the post mortem

report, exhibit "D", makes reference to "bruises on
the right side of the rib cage but no rib fractures".
It is true that the post mortem report also refers
to "multiple abrasions on the upper back ... these abrasions
were associated
with extensive soft tissue bleeding on the upper
back, lower back, buttocks, upper arms, parts of the thighs and
legs".
I will revert to this subject when dealing with the
doctor's evidence, but it has to be borne in mind that the
complainants alleged
that the assault in the bush was perpetrated
while the complainants were handcuffed and lying on their backs.
As opposed
to this, there was clear evidence from the defence
witnesses, particularly numbers one, two and seven, that the
complainants were
injured by the community members and, in
particular, they noticed blood on the clothing of the deceased.
[144] I now turn to another unsatisfactory aspect of
Jimmy's evidence.
[145] He was asked whether he saw Johannes running away
before he was arrested, and the police giving chase.  His answer
was
"I did not see anything at all" and -
"Are you sure? --- Correct so."
He was then referred to paragraph 5 of his statement
where he said that Johannes was not found at the school and then he
said the
following:
"On our way to Johannes' home we saw Johannes and
the police gave chase to him, and he also ran away."
His somewhat astonishing answer was that that is
not the truth.  Then followed the usual interruptions by the
learned
Judge and the prosecutor, whereupon counsel Mr Grobler
confronted him with the following further sentence appearing in the

statement:
"The police gave chase on him and he also ran
away.  The police kept on running after him and they ended up
apprehending
him."
His response was that he did not know about that.
Of course, this evidence in the statement corroborates the version of
the
defence, to which I will shortly turn.
[146] Jimmy's evidence about the alleged assault in the
bush was equally unimpressive:
•
He said in paragraph 7 of his statement that the
two police vehicles were parked in the bush and that himself, Samuel,
the deceased
and Johannes were all four ordered to alight.  This
is not in line with the evidence of Samuel and also with what he said
in chief.  Nevertheless, when he was asked whether he was happy
with this statement he answered in the affirmative.
•
He then said that the eight police officials took
the deceased and started assaulting him with crow-bars and iron and
leg cuffs
all over his body "in our presence".
Again he was asked whether that was correct and he confirmed it.
•
He then said in the statement "and they also
kicked him all over his body with booted feet".  When asked
whether
that was correct he, surprisingly, said "I could
not see them when they were assaulting the deceased".
When he was confronted then with the conclusion that the
statement that the police were kicking the deceased all over his body
was
incorrect, he confirmed that stating "as the assault was
being done on us simultaneously, there is no way that I could

have been able to see what kind of assault was being done on him".
When he was again confronted with the fact that his
evidence was not in line with the statement he said "no, I did
not see
how he was assaulted".
•
He was then asked "so are you saying that
the four of you were assaulted simultaneously and that is why you
could not see how
the other complainants had been assaulted?"
At this point, I regret to say, the learned Judge again
interrupted the cross-examiner pointing out that in chief the
witnesses
said that three of them were ordered to alight.  The
cross-examiner reminded the learned Judge that he was cross examining

on the statement where he emphatically said that all four of them
were ordered to alight.  Because of this debate, stretching
over
many pages of the record, the witness appeared to see the light and
said although they were ordered to alight, they were not
ordered to
do so at the same time.  The cross-examiner complained that he
was being curtailed in his cross-examination.
•
However, the witness kept on inisting that he
could not see what was happening to the deceased because he was being
assaulted at
the time.
•
When the witness continued with his newly found
version that the assault commenced only on the three of them, him,
Jimmy and the
deceased, he was asked whether that meant that when
they were finished with the three of them they turned to Samuel.
His
answer was that they did not finish before going to Samuel.
This is not in line with what Samuel said as I have explained.

The witness said after they had been assaulting the three of
them for a long time, they made Samuel to alight from the motor

vehicle and forced him to join them on the ground and then they
assaulted the four of them.  Again, this is not what Samuel

said.
In another passage in the statement, he said that after
the eight police officials assaulted the deceased, they started
assaulting
the four of them, himself, Samuel, the deceased and
Johannes.  This is, again, a different version.
•
Later in the cross-examination he said that he
was assaulted by numbers two, seven and eight.
[147] When asked about the identification parade the
witness, surprisingly, said before the parade the police asked them
to point
out "the people who arrested us and handled us up to
the police station, until the time that the deceased passed on".

He said so repeatedly and not that they were asked to point out the
people who allegedly assaulted them.  After some interruptions

from the court and the prosecutor, he again saw the light and said
that they were asked to point out the people who assaulted them.
[148] In cross-examination by Mr Nel, the witness was
reminded that, in chief, he said that numbers two, three, five and
seven were
exchanging the objects.  His answer was that they
were all exchanging the objects but those that he managed to see were
two,
seven and eight.
However, when Mr Mahapa, for number eight,
cross-examined him and asked for number eight to stand up so that the
witness could have
a proper look at him, the witness said that number
eight did not assault him.
[149] It is clear that this was an unsatisfactory and
dishonest witness.  In many ways, his testimony differed
materially from
what he had said in his statement.  It also
differed materially from what Samuel had said.  As he was
testifying, he
gave different versions.  He also admitted, that
during an adjournment while he was still under cross examination,
he
was sitting outside court talking to Samuel and Johannes.
He, however, denied that they were talking about the case.
(vi)
Malesela Johannes Malemela ("Johannes")
[150] When he was arrested, he could identify numbers
one and two.  He could not see who was in their company.
[151]    He said after they were arrested
"we drove to another place that is in the bushes.  They
made
us to alight the motor vehicles and they told us to lie on our
back, facing upwards."
The prosecutor then tried to get him to explain who "us"
included.  When no immediate answer was forthcoming the learned

Judge interrupted by asking Johannes: "Look, you say that
the police ordered you to lie on the ground. --- Yes.
It was you and who? --- It was the four of us."
The prosecutor was then forced to ask:
"The other three, who are they? --- Jimmy
Rasekgoga, Samuel Mamabolo and then Samuel Rakgopola."
So, like Jimmy in his statement, he said that the four
of them were ordered to alight and lie on the ground on their back
facing
upwards.
[152] He said that the police started assaulting them
with crow bars and "one leg iron".  When asked
who assaulted
him, he said he could not identify them as it was the
first time that he was seeing those policemen.
[153] At the identification parade he pointed out
numbers one and two.  Of course, the others did not say that
number one assaulted
them.
[154] Then an interesting question and answer followed:
"When you were assaulted by accused one and two,
where were these other two, including the deceased?  Where were
these
other two that you have just mentioned including the deceased,
that is Jimmy and Samuel Mamabolo? --- By then the deceased
had
already passed on, Jimmy Rasekgoga and Samuel Mamabolo were there."
[155] Then some exhanges followed, involving the learned
Judge and the prosecutor.  Thereafter the witness said that:
"What happened was that at first they made myself,
Malemela (which is of course himself) and the deceased to alight from
the
motor vehicle and we laid down.  By that time Samuel
Mamabolo was still at the back seat of the motor vehicle, and they

assaulted us.
COURT
:  Do you know what happened to those
you lie with on the ground at the time that you were being assaulted?
--- I do not know."
[156] After further lengthy exchanges, he confirmed that
they were taken to the hospital but not hospitalised.
[157] In cross-examination, he confirmed that the
prosecutor prepared him for his evidence and read his statement to
him that he
had made to the police.  Later he said that the
prosecutor did not read the statement to him.  After further
exchanges
involving the court and the cross-examiner, he confirmed
that the prosecutor read the statement which he had made to the
police
to him.  He also confirmed that when he heard the
statement he agreed that that was what he had told the police.
He
also identified his signature.
[158] He denied that he ran away when the police
arrived.  In contradiction to this, he said in his statement:
"On my way to school I saw two cars, one a white
bakkie and the other a Toyota Corolla.  They followed me and I
changed
direction and took another street and started to walk fast.
These two cars followed me and I started to run and only
stopped when I saw a white Corolla which stopped not far from me.

I saw Shingange who is a police officer, holding a firearm in his
right hand, pointing it in the air.
One of the police officers who caught me was wearing a
pink shirt and black trousers, he only handcuffed me without telling
me anything."
When, after some further exchanges between the court and
the cross-examiner, the latter put to the witness that he did run
away
his answer was "I do not recall".
He was clearly a dishonest witness.
[159] About the assault, he said they finished
assaulting him, Jimmy and the deceased and then they took Samuel from
the car and
started assaulting them again.  He later said that
they finished with the deceased and stopped assaulting him but then
assaulted
the remaining three.  This differs from various
versions offered by other witnesses.
The contradictions became worse when he later said that
at one stage all four of them were being assaulted.
[160] He said he was assaulted on all the joints that he
has in his body, starting with the hands towards the feet.  This
was
with a crow bar and foot shackles.
[161] Significantly, when asked who assaulted him he
said it was the policemen but "I did not pick up who it was
exactly,
because they were exchanging".  He confirmed that
he did not know who assaulted him.  It was then put to him that

numbers one, two and seven did not assault him.  Surprisingly,
he answered that they did assault him.  After further

cross-examination, he admitted that he did not know who assaulted
him.
[162] Mr Nel, for numbers three, four, five and six, put
to this witness that his clients would also deny having assaulted
him.
There was no clear answer.
[163] This was clearly a hopeless witness.
(vii)
Kgolane Yvonne Kgoete ("Dr Kgoete")
[164] The doctor graduated at Medunsa in 2003.
When she gave evidence she was working in the Polokwane Provincial
Hospital
in the Department of Forensic Medicine.
[165] She conducted the post-mortem on the deceased and
prepared the post mortem report, exhibit "D".
[166] She also testified about the J88 reports relating
to Samuel (exhibit "A"), Jimmy (exhibit "B")

and Johannes (exhibit "C"), although she did not prepare
those reports or perform those examinations.
[167] I have already quoted the observations made by the
doctor as they are described on the post mortem report.  I
have
made certain comments in that regard.
[168] The doctor found the cause of death to be
"haemorrhagic shock due to multiple blunt force injuries".
[169] She found that the skull was intact and had no
fractures.  The findings were limited to skull fractures, not
head injuries.
[170] In cross-examination, she confirmed that she could
not tell which of the injuries that she saw was fatal.
[171] She was informed that there was evidence of an
assault that took place at a certain site and then he was taken to
the police
station while he was still alive.  There another
assault took place.  She conceded that it is possible that the
assault
that took place at the police station could have "contributed
the final blow" to the death of the deceased.  It should

be recalled that Jimmy testified that Inspector Malope took him and
the deceased for fingerprints and while they were being charged,
the
attack by the other policeman on the deceased took place.  From
this, it seems, the inference can be drawn that the deceased
was
still reasonably mobile up to the point where he was assaulted by the
last-mentioned police officer.
[172] She consequently conceded that it is possible that
the alleged injuries sustained during the alleged earlier assault may
not
have been fatal but the injuries sustained in the assault at the
police station could have caused fatal injuries which lead to the

death of the deceased.
[173] The cross-examiner turned to the contents of the
J88 medical forms relating to the other complainants.  He
informed the
doctor that there was evidence that these complainants
were assaulted vigorously and viciously for about ninety minutes with
crow bars,
foot chains and scissors-like metal objects.
[174] The cross-examiner then referred her to the J88
relating to Johannes where the injuries were described as a small
half centimetre
lacerated wound on the right leg and a small wound on
the head.  The left elbow was painful and swollen and there were
multiple
bruises "on his back over the chest area".
There were general body pains.
It was put to the doctor that an assault of ninety
minutes vigorously applied with a crow bar and the like, will
result
in  worst  injuries such as lacerations and
the bursting open of the skin.  She said that she agreed but
that the
doctor completing the J88 "will comment on the external
injuries only, whilst at post-mortem I have the chance of
dissecting
the whole soft tissues".  She said this means
that the external injuries might be minimal but the internal bleeding
might
be more than what the doctor had seen.
The cross-examiner persisted: they were alleged to have
been viciously assaulted with these metal objects for ninety minutes,
all
over the bodies.  The doctor answered that "if they
were dressed that could have prevented more superficial, visible

injuries, but they could still have internal bleeding".
The cross-examiner persisted, after some interference by
the learned Judge, in the following terms:
"If I was to assault you doctor, with a crow bar
for a half an hour all over your body even if it is just myself, not
even three people, and you have got a pants on and a shirt, you are
saying to me it is more probable that you will only have half
a
centimetre laceration on your leg? --- It is possible.
It is possible, but it is not probable.  It is more
probable that you would have severe injuries is it not so? --- Yes.
And it is more probable that you would have a lot more
severe injuries than is reflected on this J88, if three police
officers with
these crow bars and chains hit you for an hour and
a half viciously and vigorously, is more probable that you will have
a
lot more serious injuries than is reflected on the J88. --- Yes.
You agree with me? --- I do."
[175] The cross-examiner then turned to Jimmy's J88
where the injuries were described as multiple abrasions on his right
lower limb,
right forearm and right hand; bruised left leg; painful
right ankle, knee joint and right elbow joint; general body pain.
The question posed to the doctor was:
"You would agree with me doctor again a person has
been assaulted by three or four police officers with these objects,
crow bars,
chains and scissors vigorously for an hour and a half
would have a lot more serious injuries than is reflected on this
J88.
Not so? --- Yes.
It is most probable."
[176] The doctor was taken through the same exercise
with regard to Samuel's J88 where the injuries were described as
"multiple
bruises over his right arm, right scapula area, left
elbow; left lower limb/leg sustained one very small half centimetre
lacerated
wound; general body pain".
It was again put to her that with the serious assault
alleged the injuries to be expected would be much worse.  She
conceded
this but said there may have been more serious internal
injuries.  Of course, the state offered no evidence about
internal
injuries.
The
cross-examiner then went on as follows:
"But one would expect that there would be external
also clearly visible ... serious injuries. --- Yes.
So you would agree with me that this also does not
coincide by a person being assaulted so vigorously as I have already
explained
to you with the other two people as well.  It is more
improbable that they were so seriously assaulted.  Is that

correct? --- Yes."
[177] The learned Judge and the prosecutor then asked a
number of questions which, in my view, did not yield any results
which may
have softened the effect of the cross-examination by
counsel.
[178] Thereafter, counsel was invited to conduct further
cross-examination.  In this process the doctor conceded that
there
were three possibilities namely that the alleged first assault
could have caused the death, another possibility was that the second

assault (in the police station) caused the death and the last
possibility was that the two together, combined, caused the
death.
She also conceded that she could not say which of the three
possibilities was the correct one.
[179] After the doctor had testified, the learned Judge
recalled Samuel and asked him one question namely whether from where
he
was seated in the sedan when the other three were assaulted, there
was anything that could have obstructed his view to observe the

assault.  He answered that there was nothing.  There was no
cross-examination.
[180] I have already expressed my views about Samuel as
a witness.
[181] At this point the state case was closed.
[182] I have mentioned the debate which then followed
between the learned Judge and counsel.  I mentioned that
intended
section 174 applications never saw the light but, flowing
from the debate, the learned Judge gave a short judgment and, for
convenience,
I again quote the contents thereof:
"At the close of state case accused three, four,
five and eight were acquitted on all counts.  Accused one, two,
six and
seven acquitted on count four."
Count four relates to the alleged assault on Johannes.
EVIDENCE FOR THE DEFENCE
(viii)
Japhet Amos Shingange ("number one")
[183] Surprisingly, when his counsel led him in chief,
he was not asked what his rank in the police was.  Nevertheless,
during
the sentencing proceedings, it was said by the learned Judge
that he was fifty years old, married to a professional nurse and that

the couple were blessed with five children.  He had an
unblemished service record with the police stretching over twenty
three years.  He was a member of an organisation called
Christian Centre whose task it was to promote good models among the

youth.  He had one previous conviction, of culpable homicide,
flowing from a motor vehicle accident, going back to 1999.
[184] On the day in question he was on duty and then
they received a phone call informing them that the community had
effected an
arrest upon some people at a place called Ga Mailula.
He was accompanied by numbers two and seven.
[185] When they arrived at the scene they found the
three "arrested" people.  The community members
moved away
from these three people.  They were the deceased,
Samuel and Jimmy.
[186] Number one and his colleagues then arrested the
three in connection with a housebreaking offence committed at
Ga-Mailula.
[187] Number one saw that the clothes of the three was
bloodied "on the trousers as well as on the shirts".
[188] They took them to a certain school looking for a
scholar called Malemela.
[189] When they first arrived at the scene for the
arrest, number two called the police to ask for assistance.
[190] The support arrived in the form of numbers three,
four, five, six and eight while they were still at the scene where
the arrest
took place.
[191] From there they proceeded to the school.  The
support police were travelling in a Nissan bakkie whilst number one
with
numbers two and seven were using a Toyota Corolla.
[192] The three arrestees were placed in the bakkie.
[193] They went to a school at MaSialama where the
arrestees informed them they would find Johannes Malemela who was
also in their
company (presumably when the housebreaking took place).
[194] They did not find Johannes at the school and went
to check on him at his home.  On the way Johannes was
pointed
out to them by one of the suspects.  They stopped the
Corolla next to him.  He started running away towards the hill.

He jumped over a fence into a certain homestead.  They drove to
another street.  That was him, number two and number
seven.
He jumped a second fence and a third fence.  When he jumped over
the first and third fences he fell down.
Number one did not
concentrate on him when he jumped over the second fence.  When
he fell down after jumping the third fence,
number one grabbed him
and he tried to break free.  He was then felled to the ground
and number seven came to assist him and
he was handcuffed.  His
hands were cuffed behind his back.
[195] By then the deceased had already informed them
that there were goods that were left behind at his home.  These
were goods
that they had stolen.
[196] They went to the home of the deceased and parked
both vehicles next to the gate.
[197] They went into the yard accompanied by the
deceased and got into his bedroom.  He pointed out the
goods to number
seven who then took the goods and they left.
The goods included a radio, some cigarettes and a DVD player as
far as
the witness could remember.
[198] They went back to the police station.
[199] At the police station they took the suspects to
the investigating officer's office.  This was number eight.
[200] They then left to attend to another case at the
traffic department.
[201] When they came back later they were informed that
the deceased had passed away.
[202] They did not assault the deceased.
[203] In cross-examination he said that they found the
three "detainees" with the community members inside the
village
behind the bottle-store.
[204] It was an informer that called number two to tell
him about the incident and where to find the people involved.
[205] The three were seated with their legs stretched
out.
[206] When they arrived, the community members
dispersed.  That is when the arrest was effected.  It was
clear to him
that those people who were dispersing were the
individuals who "effected an arrest" upon the three.
The informer
also told them that the community members had
apprehended three people.
[207] As the community members moved away one also said
"if these people could come back here, we will show them".
[208] Importantly, they waited for the back-up to arrive
so that there would be room in the vehicles for the three arrestees.

In my view, this was a sensible approach, and inherently more
probable than the suggestion by some of the complainants that
they
were, at times, conveyed in the boot of the Corolla.  There
appears to be no reason whatsoever for that to have been
necessary:
when Johannes was arrested, it is common cause that both the vehicles
were on the scene.  Even when, on the version
of Samuel, four
police officers took him to the home of the deceased to arrest the
latter, there was still only six of them that
left the scene and
there was evidence by one of the witnesses that four could sit at the
back and two in front.
[209] Number one confirmed that the three suspects had
blood on their clothes, the shirts and the trousers.  In one
case he
saw a laceration on the palm of one of the suspects.
When asked why they were not taken to hospital, he said that his
understanding
was that the investigating officer, after receiving
their explanation, was the one who would have the task to take them
to hospital.
[210] He denied that Samuel was first arrested before
the others.  When they were found, the three were together.
[211] The alleged assault with the crow-bars and so on
never took place.
[212] The deceased was arrested behind the bottle-store
with the others and not at his home.
[213] Nobody was assaulted.  "... I did not
assault anyone, I will not just admit that I assaulted anyone
because
they are saying so.  I did not assault anybody."
[214] He denied that the deceased had injuries
(presumably from the alleged assault) which caused his death.
[215] He denied that the deceased was arrested at his
home.
[216] This was the end of the cross-examination of
number one which, as will appear from the analysis thereof, did not
in the slightest
way discredit the witness.  This applies to the
cross-examination of all the defence witnesses.
[217] There was no re-examination.
(ix)
Bogang Thomas Lekgau ("number two")
[218] Again, strangely, he was not asked about his rank
and his service record, but, during the sentencing proceedings, the
learned
Judge said that he had a clean service record of some twenty
one years as a police officer.  Elsewhere it was stated in
evidence
that he held the rank of warrant officer and was the senior
of the three police officers, numbers one, two and seven, who had
called
for back up.  He was a single parent with two minor
children.  He had no previous convictions.
[219] Number two said that they were on duty when they
received a call from one of his informers.  It was alleged that
the
community had apprehended some people at Ga Mailula.
It was alleged that they were apprehended because they had broken

into a certain tavern at Ga Mailula.
[220] When he heard that the community was involved he
called his commander, Col Ramogobedi.  He explained to him
that
he had received a call that there was mention that the community
had apprehended some suspects and he called for back-up because
there
was mention of the community.
[221] They drove to Ga Mailula.  He was
accompanied by number one and number seven.
[222] When they arrived, the community members moved
away and they found the three suspects sitting down.  They were
the deceased,
Samuel and Jimmy.
[223] While they were on the scene, the back-up arrived.
[224] They were informed (presumably by the suspects)
that there was a fourth person who had been with them.
[225] They put the three suspects in the Nissan bakkie
and drove to the school looking for the fourth suspect called
Johannes Malemela.
They could not find him at the school and
went to look for him at this home.  On the way Johannes was
pointed out to them
and then he started to flee.  The two
vehicles drove into separate directions in order to apprehend the
suspects.  Accused
number seven had alighted and gave chase.
The witness saw the suspect jumping a first fence when he fell down,
thereafter
a second fence and a third fence when he also fell down.
Number one ran towards him and apprehended him.
[226] By then the deceased had already informed them
that there were stolen goods at his home.
[227] They went to the home, got inside and the stolen
items were pointed out to number seven.
[228] They drove back to the police station.  They
took the suspects to the office of the investigating officer, number
eight.
Then they left and went about their other duties.
[229] Ultimately they heard that the deceased had passed
away.
[230] In cross-examination he said that he could not say
for certain whether the three suspects were injured, but he noticed
that
there was blood on their clothes, the trousers as well as the
shirts.  In particular, he noticed blood on the clothes of the

deceased and did not look at the suspects carefully.  He
confirmed that he had been in the police force for twenty years.
[231] He did not pay particular attention to the
injuries because they were in the company of the investigating
officer, accused
number eight.  He confirmed that he was the
most senior of the group of three, which would have been himself and
numbers one
and seven.
[232] He was present when the four suspects were taken
to the police station and to the office of number eight.
[233] Significantly, the following exchange then took
place between him and the prosecutor:
"Knowing also that they were injured when you left
them there. --- Yes, I saw they were injured, but I am not so
certain, but
isn't it they were walking freely and they were speaking
to us."
[234] He does not know the place called Ga-Thema Sekweni
(presumably where the alleged assault took place, although the
prosecutor
did not say so).
[235] He denied that Samuel was first arrested before
the others.
[236] He denied that the suspects were taken to a place
in the bush called Sekweni.  He said he did not even know the
place.
[237] He denied the alleged assault on the suspects at
this particular place.  He denied that there was any assault
with crow bars,
iron shackles and a scissor-like object.
"... I did not assault anyone and I was not in
possession of those items."
[238] He denied that he assaulted the deceased and he
was not even aware of what caused the death of the deceased.
[239] This was the end of the cross-examination of
number two, which he passed with flying colours.  He was not in
any way
discredited.
[240] In re-examination, he was asked about a question
whether or not he knew which members of the community apprehended the
suspects.
The nature of the task of him and number one and
number seven at the time was to trace wanted suspects "... we trace

them and after apprehending them we hand them over to the
investigating officer".  They do not write statements or
investigate
the case and they are not interested in the suspect's
injuries.  That is not their particular work.  He saw the
blood
on the clothing of the suspects but left that part of the
enquiry to the investigating officer.  Importantly, he said that

when he saw the blood he realised that the community members had
assaulted the suspects.
(x)
Joseph Maredi Mothapo ("number six")
[241] He was a constable in the police when he gave
evidence.  On 25 February 2008 he was a student constable.
As
I read the record, numbers three, four and five were also student
constables at the time.  He was about 28 years of age
in
February 2008.
[242] He was instructed by Col Ramogobedi to attend the
particular scene.  The colonel told number eight that the task
team
was out and they needed a back-up at Ga Mailula.
[243] The colonel told number eight that when he went
out for the back-up he should also take the students.  It was
a
case involving the community that had assaulted people and the
students should be taken along.
[244] They drove in a white Nissan bakkie.  Number
eight was the driver.  Numbers three, four and five accompanied
them.
[245] At Ga Mailula, where the is a business area,
they found numbers one, two and seven near a tavern or a shop.
[246] The deceased, Jimmy and Samuel were with numbers
one, two and seven.  He did not take notice whether they were
handcuffed,
but the manner in which they were seated down led him to
believe that they were not handcuffed.
[247] He noted blood stains on their clothes.
[248] Number one informed him that they were supposed to
go to a school.  The discussion between number one and number
eight
was that another accused appears to be a learner still.
[249] They did not find the suspect at the school, and
while they were travelling in the two vehicles "these accused
persons"
pointed out the suspect.
[250] Number seven alighted from the Corolla car which
then went into another street and number seven went after the
suspect.
Those in the LDV took another street in order to
assist.  Eventually the police who were in the Corolla came back
with the
suspect, holding him.  He was handcuffed with his
hands at the back.
[251] Then they proceeded in the two vehicles to the
home of the deceased.  When they got there numbers one, two and
seven
went into the home of the deceased.  The witness was left
behind in the van.
[252] He saw them coming back holding certain items
which were said to have been stolen.  He remembers a radio, some
cigarettes
and a DVD player.
[253] From there they went to the police station.
When they arrived at the police station the suspects alighted and
went to
the office of number eight.
[254] At that stage the witness was still a student and
went to a place where the students were busy with their assignments.
[255] He did not assault anyone.  He was not
present when anyone was assaulted neither did he witness anybody
assaulting anyone.
[256] In cross-examination, he denied that he was
involved in the alleged assault where objects like a crow-bar, foot
shackles and
a scissor were used.  He does not know the place
referred to where the alleged assault was perpetrated.  He
denied the
versions of the complainants.
[257] He insisted that he found the three suspects,
Samuel, Jimmy and the deceased in the company of numbers one, two and
seven.
It was next to a shop.
[258] When asked whether he saw any community members he
answered in the affirmative.  They were a distance away from
where
the suspects were.
[259] He agreed that the suspects appeared to have been
arrested early in the morning when learners were going to school.
[260] When the prosecutor insisted by putting to this
witness that he, with numbers one and two, assaulted the deceased,
there was
an objection by counsel because initially Samuel said that
the assault was perpetrated by numbers one, two and six but in
cross-examination,
as I have already mentioned, he said it was number
one, two and seven.
[261] At this point, the somewhat dispirited
cross-examination fizzled out.
[262] This witness was not in the slightest way
discredited in the cross-examination.
[263] At this point, the case of number six was closed.
(xi)
Frank Chikele Segoa ("number seven")
[264] On the day in question, he was in the company of
number one and number two.  They were on duty.
[265] Number two received a message.  This
necessitated them to go to Ga Mailula.  His understanding
was that community
members were assaulting some people.
[266] On arrival, they found three "arrested"
people.  They were the deceased, Jimmy and Samuel.
[267] There were some community members.  It was
his understanding that number two was aware of a housebreaking that
had taken
place.  When they approached, the community members
started moving away.  The three suspects were arrested.  As
they were on their way to Ga Mailula number two called the
police station, asking for back up.  The back up

arrived as they were at the scene.  Number eight was driving the
vehicle.  He was in the company of "some students".
[268] They put the arrested persons in the van and drove
to a school.  It seemed that numbers one and two had some
information
that there is another suspect who was still
school going.  They did not find the suspect at the school,
but as they were
driving to his home, the person was pointed out to
them  It was one Malemela.  They sped up towards the
suspect in the
Corolla and the witness alighted to give chase because
the suspect was running away.  Eventually he was apprehended.
[269] Then they went to the home of the deceased.
There he pointed out the goods which included a carton of cigarettes,
a
radio and a DVD player.
[270] When asked whether he noticed any injuries on the
suspects at the place where they were apprehended by the community
members,
he said "Yes, they had some blood spots on their
clothes, it seemed like there was a struggle."
[271] The goods confiscated at the home of the deceased
were then taken to the police station.  At the police
station
the witness delivered the items and then they got into the
Corolla and continued with their daily duties.  He was then in
the company of number one.
[272] In cross-examination it was put to him that he
assaulted Jimmy with the metal objects, namely foot shackles, a
crow-bar and
a scissor-like object.  This the witness denied and
said that he did not assault anyone.
[273] The witness repeated that number two received a
message that the community had apprehended some people at Ga Mailula.
[274] After the arrest of Johannes, they went to the
home of the deceased, because they had information that the stolen
goods were
at the home of the deceased.  Thereafter they drove
to the police station.
[275] He does not know the place called Ga Thema
where an assault was alleged to have taken place.
[276] He did not see any of his colleagues assaulting
anyone, neither was anyone assaulted.
[277] Here ended the cross-examination, such as it was.
[278] This witness was not in any way discredited in
cross-examination.
[279] The case for numbers one, two and seven was
closed.
[280] So much for the evidence.
BRIEF REMARKS IN SUMMARY OF THE EVIDENCE
[281] I have already attempted to critically analyse the
evidence, with reference to contradictions, indications of dishonesty
and
related aspects.  Those details need not be repeated.
[282] In my view, it appears from the analysis that the
evidence of the three complainants, together with that of Rachel, was
of
a poor quality and riddled with material contradictions.  In
many instances there were material differences between the evidence

of a witness in court and what he said in his statement to the
police.  It was not disputed by the state that the
statements
were made freely and without undue influence.  In
some material instances, differences between what a witness said in
court
and what he said in the statement demonstrated a clear lack of
honesty on the part of such witness.
It should also be borne in mind that the complainants
knew each other before the incident and the weight of the evidence
suggested
that they discussed the matter, even at court when one of
them was still under cross-examination.  They were co accused

in respect of the housebreaking charge.  As far as Rachel is
concerned, she had a clear motive to implicate the police, with
whom
she was angry after the apparent death of her brother at the police
station.
[283] Apart from the quality and clear unreliability of
the evidence of these witnesses, I am of the view that their
version
is also inherently improbable.  The police contingent
consistent of two senior officers with many years service in the
police
and clean service records.  They were accompanied by four
student constables and a junior officer with two years service, in

the person of number seven.  Number eight, who did not testify,
was clearly also a senior officer and the person in charge
of the
investigation.
Absolutely no reason was advanced by the complainants
for a possible motive for these police officers to viciously assault
them
in broad dayling (albeit at an allegedly deserted spot) for an
hour and a half with dangerous weapons.  The type of equipment

used for the assault, like leg irons and scissors-like instruments,
also appear to me to be unlikely assault weapons.
Often one encounters cases where accused persons alleged
that they were assaulted in order to disclose information to the
police,
to make confessions or to allow themselves to be forced into
making false statements.  No such "reasons" were
advanced
by these complainants.  As I mentioned, the validity of
the statements was not attacked.
Moreover, the undisputed evidence of the members of the
"task team", numbers one, two and seven, or some of them,
was
that their duties only included the task to trace and detain
suspects.  Thereafter they hand over the suspects to the
investigating
officer, as happened in this case.  It is not
their task to investigate the case or to "write statements"
as number
two clearly testified.  Against this background, and
given the inherent probabilities, and the quality of the officers in
charge who, to boot, had four student constables in their company, I
consider the version of the complainanats, riddled with
contradictions
such as it was, to be so inherently improbable and
fanciful that it can justifiably be rejected.
Of course, it is not necessary for a court to reject the
state's evidence in order to acquit an accused if the version of the
latter
is reasonably possibly true.
[284] The conclusion that the version of the
complainants is inherently improbable. is strengthened, in my view,
by the medical
evidence which, for the reasons I have mentioned when
analysing that evidence, militates against the complainants' version
of these
vicious assaults.  The evidence of the complainants
cannot be married, on the probabilities, to the contents of the J88
forms.
[285] As to the death of the deceased, there was clear
evidence, from the complainants themselves, of a vicious attack on
the deceased
by another, unknown, police officer at the police
station.  It was undisputed that, when the attack took place,
not one of
the accused was present.
The medical evidence also militates against a conclusion
that an assault on the deceased by the accused, which I have found to
be
inherently improbable, caused the death of the deceased.  It
appears from the analysis of the evidence of the doctor who performed

the post mortem examination that she could not rule out the
possibility that the death was caused by the assault which took
place
at the police station.  I have also indicated reasons why, in my
view, the clinical observations by the doctor of the
injuries
sustained by the deceased cannot be linked, beyond reasonable doubt,
to an assault such as the one described by the complainants,
even if
it took place.  The complainants indicated that the deceased was
lying on his back with his hands cuffed beyhind him
at all times
during the alleged assault.  There were also injuries on the
body, such as those to the rib cage of the deceased,
which could be
married to the attack at the police station as described by Jimmy.
[286] I turn to the quality of the evidence of the four
defence witnesses, numbers one, two, six and seven.
[287] I have analysed their evidence.  They
corroborate each other in every material respect.  Not one of
them had the
slightest difficulty with the cross-examination.
They have to be classified as excellent witnesses.
[288] There is nothing which I find to be inherently
improbable about their version.  Mob justice is a common
occurrence
in this country.  When community members attack and
apprehend suspected transgressors, they invariably assault them, and,
very often, kill them.  The undisputed evidence of
Col Ramogobedi, an impressive witness, was that he received an
early
morning phone call from number two, telling him that community
members were assaulting the suspects and calling for back up.

It is undisputed that the back-up police officers, comprising
number eight and the four student constables, went to the scene.

It is common cause that the police vehicles then travelled in convoy
and that Johannes was arrested, but not before he tried to
flee.
Efforts by state witnesses to deny that Johannes tried to flee,
including his own evidence, was exposed as being untrue
when their
statements were put to them in cross-examination.  It is common
cause that the suspected stolen goods were retrieved
from the home of
the deceased and delivered to the police station.  It is not in
dispute that the goods were handed to the
investigating officer,
number eight.  It is not in dispute that the "task
team" comprising numbers one, two
and seven, only had to trace
and apprehend suspects and was not burdened with the obligation to
investigate the cases and obtain
statements.  Lieutenant-Colonel
De Lange also testified that there was evidence that the community
members assaulted the suspects,
although he also said that there were
complaints that police assaulted them.  In my attempt to analyse
the evidence, I pointed
out that the latter complaints may have
had a bearing on the assaults at the police station, the existence of
which is undisputed
and was graphically exposed in the statement of
Jimmy.
[289] I find absolutely nothing inherently improbable
about the version of the defence, much of which is undisputed.
As I
indicated, I could find absolutely no plausible reason for the
alleged vicious assault on the suspects with dangerous objects and
in
the company of young police constables in broad daylight.  An
inference that such an assault never took place is supported,
on the
probabilities, by the medical evidence.  For the reasons
mentioned, such an inference is also supported by the overwhelming

inherent probabilities.
[290] In the circumstances, it has to be concluded, as I
do, that, at the very least, the version of the accused is reasonably
possibly
true.
[291] In
S v Makobe
1991(2) SACR 456 (W) the
learned Judge, Zulman J, said the following at 460f-j:
"Van der Spuy AJ went on to say at 716B-C: (
my
note
: this is a reference to the case of
S v Munyai
1986 4
SA 712
(V) at 716B)
'The fact that the court looks at the probabilities of a
case to determine whether an accused's version is reasonably possibly
true
is something which is permissible.  If on all the
probabilities the version made by the accused is so improbable that
it cannot
be supposed to be the truth, then it is inherently false
and should be rejected.  But that offers no answer to the
approach
adopted, in my view quite properly, by Slomowitz AJ in the
case of
S v Kubeka
(
supra
).'
In
S v Kubeka
1982 1 SA 534
(W) at 537F H,
Slomowitz AJ said in regard to an accused's story:
'Whether I subjectively disbelieve him is, however, not
the test.  I need not even reject the State case in order
to acquit
him.  I am bound to acquit him if there exists a
reasonable possibility that his evidence may be true.  Such is
the nature
of the
onus
on the State.'
Referring to this passage Van der Spuy AJ said at 715G:
'In other words, even if the State case stood as a
completely acceptable and unshaken edifice, a court must investigate
the defence
case with a view to discerning whether it is demonstrably
false or inherently so improbable as to be rejected as false.'
I agree.  The test is, and remains, whether there
is a reasonable possibility that the appellant's evidence may be
true.
In applying that test one must also remember that the
court does not have to believe her story; still less has it to
believe it
in all its details.  It is sufficient if it thinks
there is a reasonable possibility that it may be substantially true
(
R v M
1946 AD 1023
at 1027)."
[292] For all the reasons mentioned, and on the legal
grounds as illustrated, I am of the view that it has to be concluded,
as I
do, that the version of the accused is reasonably possibly true,
which entitled them to an acquittal.
[293] I turn to the judgment.
THE JUDGMENT
[294] According to the record, the defence case was
closed on 29 August 2011.  The case was adjourned for argument
on the next
day, 30 August, at 10:00.  Argument was concluded at
13:10 and the matter was adjourned until 14:30 when judgment was
given
the same afternoon.
[295] The judgment runs into fourteen pages.  The
summary of the evidence, not without inaccuracies, covers the first
ten pages.
[296] At the end of this judgment, the following order
was made:
"Accused one is guilty on counts one and two (
my
note
: the murder of the deceased and the assault on Samuel).
Accused two is guilty on counts one and three (
my
note
: the murder of the deceased and the assault on Jimmy).
Accused six is guilty on count two only (
my note
:
the assault on Samuel).
Accused seven is guilty on count three only (
my note
:
the assault on Jimmy)."
[297] When considering an appeal on fact, the Court of
Appeal must pay due regard to the trite principle that it must be
slow to
interfere with the factual findings of the lower court.
It should, generally, only do so if it finds material
misdirections
on the part of the trial court.  I refer to
the well-known cases of
R v Dhlumayo and Another
1948 2 SA 677
(A) and
S v Francis
1991(1) SACR 198 (A).  There are a
number of others, which I need not mention.  I deal with this
rather concise judgment
with the aforesaid principle in mind.
[298] I accordingly turn to what I consider to be
material misdirections on the part of the learned Judge:
•
He acknowledged, in his summary of the evidence,
that each of the defence witnesses "said they noticed blood
stains on the
clothes of the suspects on their arrival".
Surprisingly, he goes on to say later on, when confirming that the
cause
of the injuries was in dispute, that "the complainants on
one hand insist that the injuries were inflicted on the deceased
and
them by the accused, whereas the accused on the other hand argued
that the victims had sustained injuries when they were arrested".

This could only be a reference to the "arrest" by the
community members.  The accused, obviously, never said that

injuries were sustained when the suspects were properly arrested by
numbers one, two and seven and it is common cause that they
were not
party to the assaults which later took place at the police station.
The only reasonable inference, even on the learned
Judge's summary, is that the evidence of the accused was that the
complainants
(with the exception of Johannes, whose evidence was in
any event rejected and whose alleged assault by the accused attracted
no
convictions) were injured by the community members.  This is
clearly apparent from the evidence of all the defence witnesses
which
I have dealt with.  For example, the following exchange took
place between the prosecutor when he cross-examined number
one:
"
MR DAVHANA
:  Yes.  Now, as you
have observed that they had some injuries, and they had blood on
their clothes, why didn't you take
them to hospital? --- My
understanding was that the investigating officer, after they had
explained to him, he is the one who will
take them to the hospital."
In the result, the remark by the learned Judge that "the
accused did not know how the complainants sustained injuries"
is
wrong, and a misdirection.  Of course, this conclusion
should be qualified by repeating that the accused did not know
about
the later attacks on, and injuries of, the complainants at the police
station, but this is not what the learned Judge was
talking about.
•
The learned Judge appeared to place reliance on
Rachel's denial that the deceased was apprehended by members of the
community.
Of course, nobody alleged, from either side, that
Rachel was present when, on the version of the accused, the deceased
was arrested
after being apprehended by members of the community.
Moreover, Rachel's evidence was apparently accepted by the learned
Judge
without any consideration of the opposing version offered by
the accused.  He did so by completely ignoring the blatant
discrepancies
between the evidence of Rachel and Samuel.  He did
so by ignoring the  eminently plausible explanation by the
accused,
that they waited for the back-up to arrive so that they
could have room to accommodate the three arrested suspects.
He said that it was clear that the investigations (into
the housebreaking case) did not start on the same day that the
accused or
suspects were arrested.  There is no basis for this
conclusion.  The reference to the accused is also clearly
incorrect.
He then concludes "quite clearly, if the
complainants were apprehended by members of the community that would
have happened
on the same day on which the offence was committed".
No basis for this conclusion is to be found in the evidence.

Even if it was, it would not appear to have any relevant bearing on
the case.  Another mysterious remark made by the learned
Judge
is the following: "save Rachel Ragophala, no member ever
confirmed that the community arrested the suspects".
In my view, these are all misdirections, with particular
emphasis on the fact that the learned Judge evidently totally ignored
the
competing version offered by the accused dealing with the arrest
of the deceased, and their version that the deceased was subsequently

taken to his home by them in order to confiscate the stolen goods.
•
In his judgment, the learned Judge dealt with the
medical evidence as follows:
"The version of the complainants that they were
severely assaulted by the accused and for a long period of time, is
corroborated
by medico legal post mortem examination
conducted on the body of the deceased.  The examination revealed
extensive
bruises at the back, buttock, upper arm and legs of the
deceased, as well as abrasions at the back, arms and lower limbs."
I have dealt with this issue, referring to the evidence
by all the complainants that they lay on their backs throughout the
alleged
assault which state of affairs makes it difficult to
understand the extensive bruises found by the doctor on the back and
buttocks.
I mentioned the graphic evidence of Jimmy about
the vicious attack on the deceased at the police station.  These
issues
appeared to have been ignored by the learned Judge when he
made this conclusion.  This is a misdirection.  I will
return
to the subject when further analysing the judgment.
•
As to the injuries sustained by the complainants,
the learned Judge said:
"The medical doctor could not determine the extent
of force applied on the complainants.  Notwithstanding this use
of
dangerous weapons such as crow bars and steel objects on the
complainants undoubtedly caused serious harm on the complainants
as
the complainants testified."
This, with respect, is a completely wrong assessment of
what the doctor had to say.  From my analysis of her evidence,
supra
, it is quite clear that she repeatedly conceded that the
somewhat superficial injuries described in the J88 medical forms
relating
to the three complainants, the contents of which are common
cause between the parties, cannot be reconciled, on the
probabilities,
with the type of assault described by the
complainants.  This is a clear and material misdirection on the
part of the learned
Judge.
•
To his credit, the learned Judge recognised, at
least in one respect, the flaws in the evidence of Samuel, who first
said that numbers
one, two and six assaulted the deceased (in chief)
and thereafter he changed it to numbers one, two and seven in
cross-examination.
For this reason, the learned Judge felt that
numbers six and seven should be acquitted on count one but he
persisted in convicting
numbers one and two on the same count,
ignoring the quality of Samuel's evidence and the many contradictions
between the evidence
of the various complainants.  It seems that
the learned Judge, in the end, relied solely on the evidence of
Samuel, as a single
witness, in convicting numbers one and two on the
murder charge.  He clearly did not take the cautionary rules
into account
when dealing with the testimony of a single witness.
It is obvious, in my view, and from the analysis of his evidence,
that
the evidence of Samuel was far from satisfactory in every
respect, as required by the trite authorities, when dealing with the
testimony of a single witness.  There was also no corroboration
of Samuel's evidence with regard to the alleged assault on
the
deceased.  Jimmy said he could not see who of the accused
assaulted the deceased and Johannes, as I pointed out, saw virtually

nothing.  The acceptance of the testimony of Samuel,
against this background, is, in my view, a misdirection.  The

misdirection becomes more pronounced if one considers that the
learned Judge decided to convict numbers one and two on the murder

charge, against this background, without weighing up the impressive
evidence of the defence witnesses, to which I have referred.
•
The closest the learned Judge came to considering
whether the defence version, on the evidence as a whole, was
reasonably possibly
true (as he should have done, in view of the
authorities which I quoted) was to consider a submission that the
version of number
two that he told his supervisor at the police
station (obviously Col Ramogobedi) that the suspects had been
apprehended by members
of the community and was being assaulted by
them.  The learned Judge actually found that this evidence of
number two was false,
and not reasonably possibly true, and he did so
in the following terms:
"When accused two testified he testified that he
did not know what caused the injuries.  This is despite the fact
that
he told his supervisor that the suspects were injured by members
of the community.
It means therefore that accused two was not telling the
supervisor the truth that members of the community were assaulting
the suspects
since he told the court that he did not know what caused
the injuries.  His evidence therefore cannot be reasonably
possibly
true that suspects were assaulted by members of the
community."
This assessment of the evidence as a whole on this
particular subject is, with respect, completely wrong and a material
misdirection.
In the first place, Col Ramogobedi testified
that when he received the call from number two at 07:20, the latter
told him
that "the community are assaulting the suspects".
Secondly, it is clear from the evidence as a whole, with particular

reference to the evidence of the defence witnesses, which I analysed,
that they were all under the clear impression that the community

members had assaulted the suspects.  They all saw the blood on
the shirts and trousers of the suspects.  Thirdly, in

cross-examination of number two, the following exchange occurred:
"Just tell me, when you saw some blood on the
deceased specifically, what did you think what happened there? ---
When I saw
blood, I then realised that the community assaulted them."
Fourthly, on the approach of the learned Judge, it would
mean that number two intentionally misled the colonel when he told
him
that the suspects had been assaulted by the community members.
I can find absolutely no motive for number two to have

fabricated such evidence.
This is a clear and material misdirection on the part of
the learned Judge.
•
The learned Judge dealt with a submission by
counsel that numbers one and two could not have been proved to have
been responsible
for the death of the deceased (I assume, not
having seen the transcript of the closing argument, that this would
have been
based on the state's own version) because of the assaults
on the deceased at the police station.  In dealing with this
submission,
the learned Judge recognised the fact that Jimmy
testified (particularly in his statement, exhibit "DD")
that they were
all assaulted at the police station "on our
heads with booted feet" and later, as I have explained in
detail, that
a certain police officer viciously assaulted the
deceased who fell on his head and was thereafter kicked in his ribs
with booted
feet.  Nevertheless, so the learned Judge held,
these injuries could not have led to the demise of the deceased.
He found
that numbers one and two severely assaulted the
deceased in the veld and they could not be exonerated from the murder
"the
reason being that the doctor testified that all injuries
depicted on the body of the deceased, caused the death of the
deceased".
As appears from the analysis of the doctor's
evidence, she conceded that there were three possibilities, namely
that the injuries
sustained at the police station could have caused
the death, or that the injuries sustained during the assault (as
alleged) could
have caused the death or that the combined effect of
the injuries could have resulted in the death.  This evidence
was
overlooked by the learned Judge.  His findings amounted to a
material misdirection.  The same applies to his explicit

findings that numbers one and two severely assaulted the deceased all
over his body for almost one and a half hours, using dangerous

weapons while the deceased lay on the ground on his back, with his
hands cuffed from behind.  He did this without in any way

considering the defence version, and whether or not the latter
version was reasonably possibly true.  He made his finding

without considering the clear contradictions in the evidence of the
three complainants.  He also made his findings without

considering the inherent probabilities, which I have dealt
with.  He made his findings without considering the clear

medical evidence that the injuries recorded on the J88 forms of
Samuel, Jimmy and Johannes, could, on the probabilities, not be

reconciled with the type of assault they alleged to have taken
place.  He also made his findings while overlooking the fact

that the alleged dangerous "murder weapons" which the
police produced from the boot of the car never featured as exhibits

in the court.  All of these amount to material misdirections.
[299] In all the circumstances, and while paying due
regard to the principle laid down in cases like
Dhlumayo, Francis
and others, I have come to the conclusion, and I find, that this
Court of Appeal is justified in interfering with the findings
of fact
of the learned Judge.
[300] For the reasons mentioned, I am of the view that
the appeal falls to be upheld and the convictions set aside.
[301] I will return to this subject when making
conclusionary remarks.
THE SENTENCES
[302] Because of the view I take of this matter, it is
not necessary to pay any particular regard to the sentences imposed.
[303] Number one was sentenced to twelve years
imprisonment on count one (the murder) and eighteen months
imprisonment on count
two (the alleged assault on Samuel).
It was ordered that the sentences would run concurrently.
[304] Number two was sentenced to twelve years
imprisonment on count one and eighteen months imprisonment on count
three (the alleged
assault on Jimmy).  These sentences were also
ordered to run concurrently.
[305] Number six was sentenced to eighteen months
imprisonment on count two (the alleged assault on Samuel) which
sentence was suspended
for a period of five years and number seven
was sentenced to eighteen months imprisonment on count three
(the alleged assault
on Jimmy).  This sentence was also
suspended conditionally for five years.
[306] I have mentioned the personal circumstances of
numbers one and two, and their lengthy unblemished police service
records.
Number six was 32 years old, a first offender, and a
student constable at the time of the occurrence.  He was single,
but supporting
his aged parents.
Number seven was a first offender with a police service
record of some two years, who was married and had one minor child.
BRIEF REMARKS ABOUT THE APPLICATION FOR LEAVE TO
APPEAL AND THE POSITION OF NUMBERS SIX AND SEVEN
[307] After the conclusion of the proceedings, evidently
on 31 August 2011, Mr Grobler applied for leave to appeal
against
the convictions and sentences of numbers one and two.
There was no application in respect of numbers six and seven.

I can only assume that this is because they only received
suspended sentences, although this can be no more than an assumption.
[308] On a careful reading of the one page judgment
dealing with this application, it seems that the learned Judge
granted leave
to appeal to numbers one and two against the murder
conviction and against the sentences on both counts.  He did not
say that
he was refusing leave to appeal to numbers one and two
against the assault convictions.  On reading the record, it
seems
that the learned Judge came to the conclusion, incorrectly so
in my view, that counsel contended that a Court of Appeal may only

convict numbers one and two on culpable homicide.  This is not
correct.  Counsel persisted with the argument that there
was a
proper prospect of success of the appeal but stated, without
abandoning the argument, that even if the state's version were
to be
accepted on appeal a court may still only convict on culpable
homicide.  Nevertheless, I gather that, while under
this
wrong impression, the learned Judge did not grant leave to appeal
against the assault convictions, although he did not expressly
say
so.
[309] In this regard, I add that paragraph 5 of the
court order of 31 August 2011 reads as follows:
"Application for leave to appeal
on both
conviction and sentence on counts one and two in respect of accused
one and two
is granted to the Full Bench of South Gauteng High
Court."  (Emphasis added.)
This order also deals with the sentences imposed in
respect of numbers one, two, six and seven and also mentions that
bail was refused.
[310] There is another court order, also dated 31 August
2011, which only deals with the result of the application for leave
to
appeal and that, as was the case with the other order, reads as
follows:
"That the application for
leave to appeal on
both conviction and sentence on counts one and two in respect of
accused one and two be granted
to the Full Bench of South Gauteng
High Court."  (Emphasis added.)
[311] In the appeal hearing before us, counsel for both
the appellants and the state, Mr Sibuyi and Mr Nethononda
respectively,
argued the matter on the basis that the appeal was
against conviction and sentence in respect of all the counts.
They adopted
the same stance in the heads of argument, as well as in
earlier heads of argument, filed in September 2014, when the appeal
was
postponed for purposes of reconstructing part of the record.
[312] In the circumstances of this particular case, I am
of the view that it will be in the interests of justice to deal with
the
matter in accordance with the two court orders and the argument
from both sides and on the basis that a proper appeal was prosecuted

in respect of both conviction and sentence on both counts.
[313] I add that the comprehensive notice of appeal,
dated 31 August 2011, filed by counsel Grobler, was crafted along the
same
lines.
[314] I turn to the position of numbers six and seven:
Because of the conclusions I have arrived at, namely
that all the accused were entitled to an acquittal, I consider that
it would
not be in the interests of justice if this court were to
fail to deal with the positions of numbers six and seven.
It would
not be appropriate, in my view, when upholding the
appeal, to set aside the order of the learned Judge and replacing it
with an
order providing for only numbers one and two.
[315] I am of the view that it would be in the interests
of justice, in this particular case, to set aside the convictions and
sentences
of numbers six and seven as well.  They ought to be
treated in the same way as the other accused.  It seems to me
that
such an order may properly be made on the strength of the
inherent jurisdiction of Superior Courts – see Herbstein and
Van
Winsen
The Civil Practice of the High Courts of South Africa
5
th
ed Vol 1 p49-57 and also the reference therein to
the provisions of section 173 of the Constitution of the Republic of
South
Africa, 1996.
[316] On 31 August 2011, the learned Judge refused an
application by numbers one and two for bail pending this appeal.
On
8 March 2012, this court granted bail of R2 000,00 each to
numbers one and two, pending the finalisation of the appeal.
THE ORDER
[317] I make the following order:
1. The appeal of the first and second appellants is
upheld.
2. The convictions and sentences of the first and second
appellants as well as the convictions and sentences of accused
numbers
six and seven in the court below, are set aside, and the
order of the court below is replaced with the following:
"Accused
numbers one, two, six and seven are found not guilty
and discharged."
W R C PRINSLOO
JUDGE OF THE GAUTENG DIVISION, PRETORIA
A187-2013
I agree
M F LEGODI
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I agree
T J RAULINGA
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD ON:  4 DECEMBER 2015
FOR THE APPELLANTS:  M SIBUYI
INSTRUCTED BY:  L L MATHEBULA
FOR THE RESPONDENT:  G D HOSTLHA
INSTRUCTED BY:  NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS