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[2014] ZAGPPHC 451
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Vele v S (A86/14) [2014] ZAGPPHC 451 (13 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE
NO: A86/14
DATE:
13/2/2014
In
the matter between
1.
NDAEDZO ISAAC
VELE
.........................................................................................
1
ST
APPELLANT
2.
NDITSHENI DANIEL
NEFOLOVHODWA
...........................................................
2
ND
APPELLANT
3.
TSHEPO LEON
MOSAI
...........................................................................................
3
RD
APPELLANT
4.
ROGER GAOREKWE
MOSEKI
..............................................................................
4
TH
APPELLANT
And
THE
STATE
JUDGMENT
THULARE
AJ
[1]
This is an appeal against a judgment where the appellants were
refused bail after a formal bail application was held in the
Pretoria
North District Court. The appellants are charged with two counts of
conspiracy to commit murder, one count of murder,
one count of
robbery with aggravating circumstances and one count of using a motor
vehicle without the consent of the owner.
[2]
The one count of conspiracy to murder, murder, robbery with
aggravating circumstances and the use of a motor vehicle without
the
consent of the owner relates to circumstances around the death of
Major General Maswanganye of the South African Police Services,
whose
vehicle and body were discovered along and in the vicinity of the
R101 road in Rooiwal outside Hammanskraal, north of Pretoria
during
the night of 17 June 2013 after he was last seen that afternoon en
route to Johannesburg, where he worked. The other count
of conspiracy
to commit murder relates to General Nkonyene, of the South African
National Defence Force.
[3]
The question is whether the appellants, having been given a
reasonable opportunity to do so, adduced evidence which satisfies
the
court that exceptional circumstances exist which in the interests of
justice permit their release.
[4]
Appellant 1 had his affidavit read into the record by his legal
representative at the time, wherein he dealt with his personal
circumstances which are, in the main, not in dispute. He alleges he
is a member of the SANDF, the State alleges he is a reservist.
In his
affidavit in support of his application he alleges he has never been
outside the borders of the Republic and also alleges
that he has one
previous conviction. Appellant 1 confirmed the contents of the
affidavit read out. After a change of legal representation,
it was
conceded that he was indeed outside the borders of the Republic and
that he did not disclose the other previous conviction
on the advice
of his erstwhile representative, who held the view that it was no
longer considered a previous conviction. He sets
out an alibi as his
defence, in that he was on duty.
Appellant
1 also submitted the affidavit of Colonel AM Ratshilumela of the
SANDF who confirms that appellant 1 does duty as a driver
for the
SANDF and that on the 17
th
June 2013 appellant 1 drove to
ORTIA to pick up a senior member of the SANDF who was returning from
KwaZulu-Natal, giving the makes
of the vehicles appellant 1 drove on
both the 12
th
and 17
th
June 2013.
Winnie
Domdi Zodo Zinobobelo is a Chief of Staff at Joint Operational
Headquarters of the SANDF. He was fetched by appellant 1 from
ORTIA
at 12H00 on 17 June 2013. At about 13H30 appellant drove her home and
he sent him to Bosman station to attend to a bus ticket.
He last
heard from appellant 1 at about 14H30 when he reported that he was
unsuccessful.
Appellant
1 alleges he was brutally assaulted and tortured by members of the
SAPS, forcing him to make a confession and some pointing
outs at a
scene of crime. He admitted what he was told by members of the SAPS
as he was tortured severely. The State does not have
direct evidence
against him.
[5]
Appellant 2 testified that he is a member of the SANDF holding the
rank of corporal. His personal circumstances are common cause.
His
defence is also an alibi, in that he was at work from 08H00 until
16H00 on the 17
th
June 2013. He was with 10 people all of
whom can testify to that effect. Thereafter he went to his barracks
in Thaba Tshwane where
he was later joined by his girlfriend as it
was father’s day. He was assaulted and tortured and cannot
recall if he made
any statement. He works at the same place with
appellant 1 but in different units. He is the one who gave appellant
1 the order
from above and the permission to use the vehicle to drive
to the airport and that is the last time he saw appellant 1 on that
day.
On
12 June 2013 appellant 1 phoned him and told him that he was angry
about the situation at his place of employment and wanted
a firearm.
Appellant 2 then spoke to appellant 4 who asked them to come
immediately to Roodepoort. Appellant 1 and 2 then drove
to Roodepoort
where they met with appellant 4 who introduced them to appellant 3.
Appellant 2 personally spoke to appellant 4 about
the intention of
appellant 1 to buy a firearm from appellant 4. Appellant 4 spoke to
appellant 3 about the firearm. Appellant 4
set the price of the
firearm at R600-00 and when the money was given appellant 4 suggested
that the money be given to appellant
3. The firearm was not received
that day as appellant 3 said the firearm was with his younger brother
who was not available at
the time. Appellant 2 alleges this was one
way in which as friends they borrowed money from each other, as the
money so received
under false pretences would be refunded at the end
of the month. The firearm sale was such a “knocking game”.
After
the report that appellant 3’s brother is not available, phone
numbers were exchanged between appellant 2 and 3. Appellant
2 sent
appellant 3 sms messages to enquire if the firearm was received, as
part of playing appellant 1, for appellant 1 to believe
that indeed
he was going to get a firearm. Appellant 2 sent another sms on
Thursday, as appellant 1 was demanding his money then.
The message to
appellant 3 on Thursday was “do you want a fight”.
Appellant 3 responded and said “do not worry,
immediately when
I get that thing I will let you know”. On Friday again he sent
appellant 3 a message, saying that “we
are at your place
waiting for you”. Appellant 2 was then in the company of
appellant 1. Ever since the 12
th
June 2013 he never saw
appellant 3 again until his arrest. He never discussed Major General
Maswanganyi or mentioned the killing
of any person. He denies ever
going to Roodepoort on the 14
th
.
Appellant
presented the affidavit of Manyako Sibongile Masufe who indicates
that she took over duties from appellant 2 on 17 June
2013 at 16H00.
[6]
Appellant 3’s personal circumstances are common cause. Besides
being self-employed he is also a police informer. He met
appellant 1
and 2 for the first time at appellant 4’s home on 12 June 2013.
He grew up with appellant 4. They both come from
Kagiso and stay near
each other in Roodepoort. He discussed with the other three appellant
about him selling a firearm, but did
not conspire to commit a murder.
It was appellant 4 who asked him to join in in knocking appellant 1
of some money, using the sale
of a firearm. He agreed to participate
and did participate. The reason given to him as to why appellant 1
sought a firearm was
because there was problematic senior person at
appellant 1’s work. Appellant 1 and 2 left without a firearm
although they
paid R600 for its rental. He was not in possession of a
firearm and created an impression that his brother, who had the key
to
where the firearm was, was not home. Of the R600-00 he received
for the lease of the firearm, he gave appellant 4 an amount R300-00.
He
received a number of sms from appellant 2 from the same afternoon to
the Friday. The next Thursday, after having regard to news
reports
about the murder of Major General Maswanganyi, he and appellant 4 met
with General Taiwa to report the incident involving
appellant 1 and
2. He made a statement to General Taiwa.
He
was once told by appellant 4 that appellant 4 was also working with
the police and that appellant 4’s contact person in
the SAPS
was a Vele.
He
further testified of how he was tortured until he relieved himself
and urinated in his pants and then told what to say to other
police
officers who would later arrive. He was asked to repeat what he was
told until they were satisfied with his repetition.
He later told
what he was told to a policeman who then asked him to sign therefor.
He indicated to this policeman that he was told
what to say, but it
was insisted that he sign, which he did. He was taken to Roodepoort,
then to some place where there were trees
and to a mall, where he was
told where to point out, and photos of him doing those pointing outs
were taken. He made three statements,
of which two were reduced to
writing. He would not have made any statement if he was not tortured.
[7]
Appellant 4 testified that he got a call from appellant 2 on 11 June
2013 who wanted to speak to him about something urgent.
They agreed
to meet the following day the 12
th
. On the 12
th
he went to fetch appellant 1 and 2 from a BP garage in the CBD in
Roodepoort and they drove to his place of residence. Appellant
2
introduced him to appellant 1 and they told him they were looking for
a firearm. He had earlier called appellant 3 who then arrived.
Appellant 3 then told them that he had contacts on getting a firearm.
Appellant 3 then took them to a block of flats which he indicated
is
where his cousin who can get a firearm resided. Appellant 3 got out
and later came back to report that his cousin is not home
and the
place is locked. They drove back to his place and on the way
appellant 3 mentioned to appellant 2 that they can leave the
money so
that he can secure the firearm from his cousin and they will get the
firearm later. Back at his place they were told appellant
1 had a
problem with a colleague at work. Appellant 1 decided that he would
leave the money and they drove to a Sasol garage where
appellant 1
withdrew R600-00 for the deposit on the firearm. The agreed price was
R1100-00 and an agreement with appellant 3 was
that a deposit of
R600-00 was payable. The money was given by appellant 1 for him to
count, after which he handed the money to
appellant 3. They drove
back to his place. He asked appellant 2 about the firearm, who told
him that he was just making money out
of appellant 1. When he asked
appellant 1 about why appellant 1 wanted a firearm, appellant 1 said
there was a person at his workplace
who was giving him trouble and
threatening appellant 1. Appellant 1 and 2 left without the firearm.
For
he was concerned that a uniformed member of the SANDF was looking for
an unlicenced firearm, he asked appellant 3 to play along
for them to
get more information, and the same afternoon he called Colonel Hein
Marais stationed in Krugersdorp and informed him.
Colonel Marais
advised him to inform Willem van der Merwe who is also from the
intelligence unit. Van der Merwe was in Durban on
work assignments
and he decided to wait for him as he does not trust anyone. He
learned from appellant 3 that appellant 2 was trying
to contact him
but appellant 3 did not answer the calls. On Sunday Van der Merwe
called him and informed him that they will be
back either Monday or
Tuesday. He met Van der Merwe on Wednesday after Van der Merwe called
him.
He
was present when the itemized calls transcripts from the cellphone of
the Major General Maswanganyi’s was considered and
the last
dialed numbers was called and a lady answered the phone and the
police made arrangements to meet with the lady. He also
learned from
Van der Merwe that two ladies were arrested arising from that. On the
advice of Van der Merwe, he met and made a statement
to General Taiwa
and also made arrangements that he and appellant 3 meet General Taiwa
at ORTIA.
At
ORTIA, General Taiwa told him that he (the General), had made certain
changes to the statement that appellant made to him in
Krugersdorp in
order to enable them to apply for warrants of arrest and it is not
going to be used further. Appellant 4 then initialed
each and every
page and signed the statement. He did not read the statement. He did
not read the statement as he trusted the General.
He sought the
intervention of Van der Merwe when he and Sibiya disagreed as Sibiya
wanted to change the whole thing from what he
was telling the SAPS.
He and appellant 3 went to the SAPS to inform them about appellant 1
and 2 sourcing a firearm, not that they
killed Major General
Maswanganyi. He then received a call from his aunt that his
grandfather had passed away and left for Mafikeng
the following day
and came back after a week. Whilst in Mafikeng he received a call
from Van der Merwe so bring back a copy of
the birth certificate and
also that he should inform Van der Merwe as soon as he is back. Upon
his arrival he did inform Van der
Merwe. He also learned that
appellant 3 was arrested but Van der Merwe was not aware of same. He
was taken in for questioning by
other policemen. He was tortured and
told that the police are aware that he was communicating with the
Major General’s wife,
which he disputed. He is a trained person
and the police did not manage to break him down. He was taken to
Pretoria where, amongst
others Colonel Mabasa told the police to work
as he should point out the scene. He was told to write a statement.
He told them
what he had said before and the captain who was to write
down did not write anything. A photographer arrived and said he must
go
and point out the scene of crime in Hammanskraal. The photographer
continued driving although he told him that he has never been
to
Hammanskraal. He noticed that the captain also did not know where he
was going. He picked up a phone, spoke to somebody asking
for
directions and made a u-turn. They drove to a point where they
stopped and he was told to alight from the vehicle and he refused.
He
did not get out of the vehicle. The captain was instructed to take
him back to Pretoria. He was visited by general Taiwa who
told him to
say something about the wife and he will get his freedom. On a later
date the same General visited and told him to
consider being a state
witness. He does not know anything about the death of the Major
General. Van der Merwe visited him and told
him that the
investigators threatened him and told him not to contact him anymore
as Van der Merwe is protecting him.
[8]
Colonel Richard Abednigo Shivuri testified for the State in
response to the application. The State case is that on or
before 12
June 2013, appellant 1 and 2 met and discussed the killing of General
Nkonyeni because the General was involved in the
investigation of a
case against 1
st
appellant relating to a motor collision.
Appellant 1 showed appellant 2 the house of the General in Naturena
and they monitored
the house and the movements of the General.
Appellant 1 and 2 drove to Roodepoort where they met appellant 4 on
12 June 2014 in
order to source a firearm. Appellant 4, who was a
friend of appellant 2 at the time, introduced them to appellant 3 as
the person
who was to provide the firearm. The purchase price was
agreed at R1200-00 but R600-00 was paid for the lease of the firearm
although
the firearm was not delivered the same day. Appellant 3 and
4 shared the R600-00 between them. On 14 June 2013 appellant 1 and 2
drove to Roodepoort again in search of appellant 3 for the delivery
of the firearm.
[9]
The State case is further that appellant 4 chaired the meeting where
the killing of Major General Maswanganyi was discussed
as he held the
Major General responsible for many policemen in the SAPS losing their
jobs. The Major General had a residence is
Hammanskraal, but worked
and stayed in Johannesburg during the week. Appellant 3 and 4 drove
to Hammanskraal on 17 June 2013 where
they joined appellant 1 and 2,
and another person unknown to appellant 3. Appellant 4 was the person
who was in telephonic communication
with the others who were at the
time following the Major General in his vehicle on that afternoon.
The Major General was captured
and killed. The Major General showed
signs of electrocution and interference with his breathing resulting
in his death. He was
killed at a place other than where his body was
discovered and the scene of the discovery of the body and the vehicle
was staged
to mislead the investigators. His three cell phones and a
Sumsang Tabloid were robbed.
[10]
Lizelle Lorraine Smith also testified that she would not know of
appellant 3 was assaulted to give the information that he
gave her to
compile an identikit. She did not ask him if he was assaulted but he
appeared comfortable to her at the time she compiled
an identikit.
[11]
Snyders JA in
S v Rudoplh
2010 SACR 262
(SCA) at page 266e
paragraph 8 and 9 wrote the following:
“
[8]
… Section 60(11)(a) of the Act prescribes that in the case of
offences falling within the ambit of Schedule 6 that –
‘…
the
court shall order that the accused be detained in custody until he or
she is dealt with in accordance with the law, unless the
accused,
having been given a reasonable opportunity to do so, adduces evidence
which satisfies the court that exceptional circumstances
exist which
in the interests of justice permit his or her release’.
[9]
The section places an onus on the applicant to produce proof, on a
balance of probabilities, that ‘exceptional circumstances
exist
which in the interests of justice permits his release. It
contemplates an exercise in which the balance between the liberty
interests of the accused and the interests of society in denying the
accused bail, will be resolved in favour of the denial of
bail,
unless ‘exceptional circumstances’ are shown by the
accused to exist. Exceptional circumstances do not mean that
‘they
must be circumstances above and beyond, and generally different from
those enumerated’ in ss 60(4)-(9). In fact,
ordinary
circumstances present to an exceptional degree, may lead to a finding
that release on bail is justified.”
Comrie
AJA said the following in
S v Van Wyk
2005(1) SACR 41 (SCA)
page 44 i at paragraph 6:
“…
Indien die geval
onder subart (11) resorteer, rus die las natuurlik op die applikant
om aan te toon dat die Staat se saak geen of
relatief min meriete
het. Die applikant, indien daartoe geadviseer en gewaarsku (vgl art
60 (11B(c)), kan oor die meriete getuig
en daaroor gekruisvra word.
Natuurlik kan hy aan die hand van die dossier aantoon dat die
getuienis teen hom weining of geen waarde
het nie. Dit is nogtans nie
vir die borghof om n’ voorlopige bevinding van skuld of onskuld
in te bring nie. Die hof se plig
is om prima facie sterkte of
swakheid te oorweeg. Dit kan natuurlik aan die einde van so n’
ondersoek blyk dat die staat
se saak teen n’ applicant swak is.
S v Mohammed 1999 (2) SASV 491 (C) was so n’ geval, asook S v
Kock (supra). Maar
om so n’ gevolgtrekking te bereik aan die
hand van geloofwaardigheidsbevinding is normaalweg ongewens en n’
miskenning
van die feit dat die borgverrigtinge nie n’
kleedrepetisie is nie.”
[12]
From Shivuri’s testimony, there is no direct evidence of
appellant 1 and 2 conspiring to kill General Nkonyeni on or
before
the 12
th
June 2013. At best, someone saw the two of them
together at the barracks and Shivuri deducts from there that the two
conspired.
As regards the conspiracy to murder Major General
Maswanganyi, the source of that information according to Shivuri is
appellant
1. According to Shivuri, the source of his information as
regards what the appellants allegedly did in Hammanskraal and/or
Rooiwal
and/or along the R101 to the Major General is appellant 1 and
3. Accroding to Shivuri, appellant 1 implicated himself to have been
in the meeting where it was conspired to kill the Major General and
also that he took part in the killing of the Major General.
Appellant
1 also indicated that appellant 4 chaired the meeting where the
conspiracy to murder the Major General was discussed,
and appellant 4
was also the one who kept contact with those following the Major
General’s vehicle in Hammanskraal. He also
implicated the other
three appellants as well as 3 other persons unknown to him. Appellant
3 also implicated himself in being involved
in the meeting and also
during the killing of the Major General. He also implicated the other
three appellants and one unknown
male whose identikit he made. Both
appellant 1 and 3 also pointed out the same scene.
[13]
The objectivity of Shivuri is very worrying. I will just mention
three aspects in their order of gravity:
(1).
Whilst he was driving 1
st
appellant to Leratong hospital
for DNA samples, his testimony is that appellant 1 told the captain
in their company that he was
assaulted. Shivuri does not ask for a
full medical examination for the appellant, but blames the appellant
for not requesting same.
His comments that nothing to him indicated
that appellant 1 was assaulted gives his attitude and approach away.
His answer to a
question by the prosecution is that his reaction
regarding the assault as regards appellant 1 would be applicable to
the rest of
the appellants.
(2)
He in his evidence in chief sought to suggest that he arranged for
the Independent Police Invesitgations Directorate for the
appellants
and that the appellants did not lay any charges. In cross-examination
he was forced to concede that he has no knowledge
that charges were
indeed laid.
(3)
He clearly says that Warrant Officer Moerane, the 3
rd
appellant’s handler, told him that they were having an informer
regarding the murder of the Major General which he was investigating.
When he gives a report on what appellant 3 specifically told him, it
clearly transpires that the information relate to the transaction
to
purchase a firearm by a soldier unhappy with his senior in the SANDF.
From his testimony of what appellant 3 told him and Modise,
there is
no reason for anyone to say that appellant 3 was an informer with
information regarding the murder of the Major General.
Just
to conclude on the question of Shivuri, he gives the reasons for the
re-interview of appellant 3 and the decision to investigate
him on
appellant 3’s expression that he feared that appellant 4 being
an informer, might implicate him. Shivuri gives the
reason for the
re-interview of and the decision to investigate appellant 4 as his
comments that they cannot find anything that
can link the accused
because the murder was done professionally and clean.
In
Shivuri’s own interview of appellant 2, according to Shivuri
appellant 2 admitted to some of the developments around the
meeting
of the 12
th
in Roodepoort, including the transaction to
secure the firearm and the problematic army General. The further
reason that Shivuri
gives for the implication of appellant 2 is that
transcripts suggest that he phoned a sangoma and informed the sangoma
that appellant
1 has been arrested and the sangoma must make the case
to go away.
[14]
Shivuri is not the only senior police officer whose approach to his
constitutional responsibilities is worrying. Appellant
4’s
testimony is that whilst awaiting trial, well aware that he enjoys
legal representation and that the National Prosecuting
Authority is
seized with the conduct of the case and appellant 4 enjoys legal
representation, Shivuri and two Generals, Taiwa and
Sibiya visited
appellant 4 in custody. At that meeting, General Taiwa told appellant
4 to implicate the wife of the Major General
in exchange for his
freedom. Appellant declined the offer and General Sibiya gave his
phone numbers in case appellant 4 changed
his mind. Generals Taiwa
and Sibiya again visited appellant and suggested that he turn State
witness. Appellant declined as he
had no knowledge of the murder of
the Major General. It is to be noted that appellant 3 also had visits
from Shivuri, Taiwa and
Colonel Modise, and that General Taiwa
suggested that he becomes a State witness and he will get a suspended
sentence. These allegations
were never rebutted by the State.
[15]
It is very worrying when senior members of the SAPS demonstrate no
respect to other officers of the court as well as institutions
that
support a regular, fair and just process of the administration of
justice and involve themselves in activities that tend to
undermine
the administration of justice in this country. The activities of the
Generals and the Colonels are to be understood in
the light of the
facts. In my view, the actions are prompted by the Generals’
realization of problems as regards the strength
of the case against
the appellants. In my view, their disrespect for the National
Prosecuting Authority, the Advocate’s profession
and the
Attorneys profession and by extension the Court seized with the
matter is to be understood in that light.
[16]
In my view, the circumstances in this matter demonstrate the need for
the National Prosecuting Authority, before any evidence
is led in
bail proceedings, to address the Court for the purpose of explaining
the charge(s) leveled against the accused person(s)
and indicating to
the court what evidence the State has in support of the charge. In my
view, this definition of the ambits of
the case against the accused
will also assist the court in ensuring that the bail application is
not turned into some mini-trial
or dress rehearsal of the actual
trial. It will assist in narrowing down the issues in facilitating
the bail applicant’s
crystallization of the true issues to
allow their proper ventilation through evidential material at the
bail application hearing.
[16]
In my view, the State has a
prima facie
case against appellant
1 and 2 on the charge of conspiracy to murder General Nkonyeni. I am
unable to make the same conclusion
as regards appellant 3 and 4.
[17]
In my view, as regards to the charges relating to Major General
Maswanganyi, the State relies on statements made by the appellants,
which statements are in dispute and may be ruled to be inadmissible (
see
S v Mthembu
[2008] 4 All SA 522
(SCA) at 523 – 526
paragraphs 22 to 32.
[18]
Appellant 3 and 4, in my view, showed the court that exceptional
circumstances exist which in the interests of justice permit
their
release on bail.
[19]
A planned attack on an army General, based on displeasure with his
enforcement of discipline within the South African National
Defence
Force, is by extension an attack on the discipline and authority of
the State. Prima facie, appellant 1 and 2 have been
shown to attack
the endeavours for peace and tranquility, if not the authority of the
Republic of South Africa.
I
make the following order:
1.
The appeal by appellant 1 and 2 against the order refusing them bail
is dismissed.
2.
The appeal by appellant 3 and 4 against an order refusing them bail
is set aside and replaced with the following order:
2.1 Bail in an
amount of R5000-00 is granted to appellant 3 and 4 on condition
appellant 3 and 4:
2.1.1Appear
and remain in attendance at each and every date to which this matter
is postponed until excused by the court.
2.1.2
Report at SAPS Roodepoort each Monday, Wednesday and Fridays between
the hours 6H00 and 18H00.
2.1.3
Surrender all passports and other travel documents to the Station
Commissioner, Roodepoort SAPS, and do not apply for any
new travel
documents without the leave of the court.
2.1.4
Do not leave Gauteng Province without giving notice 24 hours before
such departure to the Station Commissioner, Roodepoort
SAPS, and
obtaining such written permission from the Station Commissioner,
Roodepoort SAPS.
……………………………………………………
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT