S v Mthembu (CC 163/2008) [2011] ZAKZPHC 60 (20 April 2011)

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[2011] ZAKZPHC 60
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S v Mthembu (CC 163/2008) [2011] ZAKZPHC 60 (20 April 2011)

CC163/2008-AC
108
JUDGMENT
ON 20 APRIL 2011
JUDGMENT
McLAREN J
The accused was charged with kidnapping count 1,
robbery with aggravating circumstances (count 2) and murder (count
3).
Count 1 relates to the alleged kidnapping of Gcobisa Yako at
Izingolweni on 15 March 2003. Throughout the trial this lady was

referred to as Gcobisa and I will so refer to her in this judgment.
Count 2 relates to the alleged robbing of Gcobisa on the date and at
the place referred to in count 1 of a cellular telephone.
Count 3 relates to the alleged murder of Gcobisa on the said date
and at the said place.
At all material times Mr Mcanyana appeared for the State. On 20
May 2009 the accused was represented by Mr Mvunu and he pleaded
not
guilty to all counts. The accused elected not to make any statement
to elaborate on his pleas.
For reasons which are now irrelevant, the trial did not proceed on
20 May 2009, but was adjourned to 7 October 2009 at the request
of
the accused, who was on bail throughout the trial.
On 7 October 2009 Mr Mvunu did not appear for the accused, because
he was not well. Mr Ntshulana is the attorney who previously

instructed Mr Mvunu. On 7 October 2009 Mr Ntshulana withdrew as the
attorney representing the accused. At the request of the
accused
the trial was adjourned to 12 April 2010.
On 12 April 2010 and since then Mr Ntshulana appeared for the
accused during the trial.
On 12 April 2010 Mr Mcanyana said, as he had done nearly a year
earlier, i.e. on 20 May 2009, that the State’s first witness
is
Leon Postman. This witness was at court on 12 April 2010, but
“disappeared”. During the course of the trial
Mr
Mcanyana made various unsuccessful attempts to secure the presence of
Postman at court. Eventually the State closed its case
without
calling this witness.
The trial proceeded before me from 12 to 16 April 2010, when it was
adjourned for the period 27 September 2010 to 8 October 2010,
i.e.
for the entire Court recess.
On 24 August 2010 Mr Ntshulana requested me to agree that the trial
would only proceed for the first week inasmuch as he had been
invited
to attend a lawyers’ conference in Canada. Mr Mcanyana had
agreed to this request and so did I. On 27 September
2010 the trial
did not proceed, because Mr Ntshulana was not well. The trial ran
from 28 September 2010 to 1 October 2010 and
it was then adjourned to
continue during the Court recess from 17 to 21 January 2011.
On 21 January 2011 I reserved judgment after I had heard argument
and adjourned the trial to 20 April 2011 (once again during
court
recess) for judgment. It should be abundantly clear that I have
done my utmost to finalise this matter as expeditiously
as possible.
This complex matter was further complicated by the fact that the
trial ran in fits and starts over an extended period of time.
I
will hereinafter briefly explain (and only to the extent that it is
relevant) how it came about that the accused only stood
trial during
April 2009 (when he first appeared before me) for offences which had
allegedly been committed 6 years earlier.
Mr C N Yako testified and his testimony on all material issues was
unchallenged. He is the father of Gcobisa, who was employed
at an
educational college in Port Shepstone. Gcobisa had two children
aged about 9 and 11 and was in charge of and lived at Yako’s

house in Umtentweni. The witness himself lived at Lusikisiki.
Yako described Gcobisa as respectful, responsible and disciplined.
Yako last saw Gcobisa during the weekend which preceded Monday, 17
March 2003. Yako first became aware of Gcobisa’s
disappearance
on 17 March 2003. On that day he and other persons
went to the house of the accused, looking for Gcobisa. There
information
was obtained which lead the group of people to the place
of employment of the accused, whom they met on the road. Yako
introduced
himself to the accused. I asked Yako to tell me about
the discussion which he had with the accused. It is clearly
implicit
from his evidence that Yako must have enquired about the
present whereabouts of Gcobisa. This is his testimony:
“His response was ‘I do not know where that person is’.
His further response was that ‘I last saw her
last year, which
is 2002’”.
Just before cross-examination of Yako started he reiterated that the
accused had said to him that he (the accused) had last seen
Gcobisa
the previous year. This evidence was not challenged in any manner
whatsoever.
In
S v BOESAK
[2000] ZASCA 112
;
2000 (1) SACR 633
(A) para 50 it was
stated:
“It is clear law that a cross-examiner should put his defence
on each and every aspect which he wishes to place in issue,

explicitly and unambiguously to the witness implicating his client”.
It is the duty of defence counsel to put the version of the accused
to the State witnesses –
S v VAN AS
1991 (2) SACR
74
(W) 108 C. See further the case referred to in
S v BOESAK
,
supra, para 51.
Yako also testified about his visit to Sthombe Ngcobo in Westville
Prison, where he was taken by the police at his request.
Yako gave
unchallenged evidence that this person (who was usually referred to
as “Sthombe” during the trial) appeared
to be happy to
see Yako and Sthombe said to Yako that he (Sthombe) was “excited”
and that it had been “a long
time that I wanted to see you”.
Of course Sthombe’s statements do not prove his alleged frame
of mind.
Under cross-examination it was suggested to Yako (with which he
agreed) that: “You went to Sthombe because you heard by
(sic)
the police that he’s been using your daughter’s
cellphone”. My impression of Yako is that he is an honest
and
reliable witness, whose evidence was hardly challenged. Indeed, as
I have indicated, very important aspects of his testimony
were
completely unchallenged.
During the course of the trial it became common cause that Exhibit 2
is the cellular telephone which Gcobisa used at about the
time of her
disappearance. In my view the State in any event proved this fact,
about which there was never any dispute. I do
not intent examining
in the finest detail all the elements which proves this fact, because
I think it will amount to a waste of
time and energy.
By way of an example to demonstrate the fact that the use by Gcobisa
of Exhibit 2 at the time of her disappearance was never in
dispute,
I refer to the proposition which Mr Ntshulana put to Yako regarding
the use of Gcobisa’s cellular telephone. In
the context of all
the evidence it is clear beyond any doubt that Mr Ntshulana was
referring to Exhibit 2 when he said “your
daughter’s
cellphone”. Nothing can possibly be plainer than this.
Goodman Ngcobo testified. He is Sthombe and I will so refer to
him. Sthombe said that he had known the accused for a long
time and
that the accused used to repair vehicles at the home of Sthombe’s
brother. This brother is Sipho Ngcobo, who is
most often refer to
as Sipho during the trial. I will also refer to him as Sipho.
Sthombe gave direct and unchallenged evidence that he did not have
any problem with the accused. The only possible relevance
of that
evidence can be to convey that the evidence of Sthombe, which
implicates the accused, is not falsely fabricated as a result
of the
animosity between them. Sthombe said that he was arrested by the
police in connection with another matter. According
to him this
happened on 6 October 2003. At that time the accused was also
incarcerated. The police spoke to Sthombe and to
the accused.
When this happened Sthombe and the accused were spoken to separately.
The next day the police spoke to him “in
relation to Gcobisa
Yako’s matter”.
Under cross-examination it was put to Sthombe that Captain Goldstone
“told you that the cellphone you were using belongs
to the
deceased”. The witness agreed. I accept that Mr Ntshulana
incorrectly referred to Gcobisa as “the deceased”.

Sthombe said that Goldstone wanted to know how that cellular
telephone had come into Sthombe’s possession. He told
Goldstone
that he had obtained the cellular telephone from Sipho.
He said that he had borrowed the cellular telephone from Sipho,
because
on that day he was to take his own cellular telephone for
repairs at Port Shepstone. Sthombe said that after this discussion
with Goldstone he was taken back to the cells and there he informed
the accused “that there was something like this”.
He
explained further and said that he told the accused what he (Sthombe)
and Goldstone had discussed. There is nothing improbable
about this
evidence.
It was common cause that the accused worked for Sipho and it is
understandable that Sthombe (who had just been questioned by
Goldstone about a matter for which he had not been arrested) would
talk to the accused about it. Sthombe said that the response
of the
accused was that he had told Sipho to destroy the cellular telephone.
According to Sthombe the accused then said that
he had taken the
cellular telephone from Gcobisa’s “bottom” or
“private parts” after he had shot
and killed her. The
accused continued and said that it had not been his intention to
shoot Gcobisa, he had the firearm in a table
drawer, Gcobisa opened
the drawer and took out the firearm, they grappled over the firearm
and “after shooting her”
the accused put Gcobisa’s
body into a plastic bag, which was then put into a vehicle. Sthombe
said that in the discussion
with the accused “information did
not come out as to who was with him at the time”.
Under cross-examination Sthombe confirmed that he is in prison
serving a life imprisonment and that he has other convictions as

well. He was aware that the accused “was having this case at
a regional court in Port Shepstone in 2003/2004”.
He was
asked to explain why he did not volunteer the relevant information to
the police at that time. Sthombe said that he did
not do so,
because of what the police had done to him. There was a lot of
mistrust and there was some kind of conspiracy against
him by the
police.
He then related the circumstances under which he had been arrested.
He said that the police did not give him bail and that he
“no
longer had any trust in them”. He later said, referring to
2003, that “there was no co-operation or agreement
between
myself and the police at the time”. Sthombe denied that the
police had made any offer of any kind to him.
Sthombe testified that he had informed Sipho that his (Sthombe)
cellular telephone had a problem, after which Sipho gave him the

cellular phone (it was common cause that this is Exhibit 2) and said
it must be returned the next day, because it did not belong
to Sipho.
Sthombe was also cross-examined about why in 2007 he made the
disclosure to Yako about his 2003 discussion with the accused.
He
said this:
“1. That if Yako did not come to see him, he (Sthombe) ‘would
not have been associated with the Court like it is today’.
In
brief he would not have testified if Yako had not come to see him.
He later said so expressly.
2. He carried on, referring to Yako, ‘when he came to me I got
touched, because I’m also a parent myself’.
3. When Sthombe was questioned about the possibility that Yako may
have offered him something to testify, he said: ‘I was
seeing
him for the first time, in actual fact he never even promised me a
thing. He just cried in front of me, after which I
did the same
thing and I told him the truth’”.
All I say at this stage is that after more than 20 years on the
bench, I know when a piece of evidence has that distinct and
unmistakable
ring of truth about it. This piece of evidence is not
only highly probable, it has the re-assuring ring of truth about it.
Sthombe was questioned whether the accused had said other things to
him during their discussion. Sthombe said that the accused
told him
that the father of the accused or a senior family member had come to
the accused and had said that the accused “must
state exactly
what his problem is”. And that the accused had told Sthombe
that he (the accused) “eventually failed
to divulge the
information until his father went home”. The accused also
said that he went to see a traditional healer
by the name of Dlamini
at Harding and that he had “dumped the body near Umzumbe next
to the railway line”.
It seems to me that Sthombe furnished a considerable amount of
detail in his evidence about what the accused had allegedly said
to
him. The statement by Sthombe to the police dated 5 October 2007
was then handed in as Exhibit C.
In order to properly follow the tenor of the cross-examination and
to properly evaluate the cogency and consistency, or otherwise,
of
Sthombe’s evidence, I quote the so-called “body” of
the statement, i.e. paragraphs 1 to 23 thereof as follows:
“1.
I, being of the above given particulars, submit this statement
voluntarily to the effect that I know about the death of the
girlfriend
of Bafana Mthembu, whose name was Gcobisa Yako.
2.
It was on 2003-10-06 when I was arrested for this case of murder, for
which I am now serving the life sentence.
3.
It was on the above said date when I met with Bafana Mthembu, who was
also arrested on a charge of murder regarding his girlfriend
by the
name of Gcobisa Yako, who went missing. I thereafter happened to be
in the same cell with Bafana Mthembu at Port Shepstone.
4.
Whilst I was in the same cell with Bafana Mthembu at Port Shepstone
the police officials of which I can remember their names as
Mr Crouse
and Mr Goldstone from Murder and Robbery, came to the same cells in
which both Bafana Mthembu and I were. It was on
that day in
question when I was taken out by the two said police officials.
They took me to their offices which were situated
at Shelly Beach in
Port Shepstone.
5.
On arrival at Shelly Beach I was then informed that my SIM card of my
cellphone had been used in the phone or cellphone of the
girlfriend
of Bafana Mthembu and that the same girlfriend of Bafana Mthembu was
missing and suspected to have been killed.
6.
It was at that stage when I clearly explained as to how I happened to
possess that cellphone. I told the police that my cellphone
was not
in working order, I took it for repairs at Port Shepstone. I
further informed the police that I told the brother of mine
by the
name of Sipho Ngcobo that I did not have the cellphone and then he
gave me the one that was suspected to be of the missing
person. I
was not aware at all about the missing person. Sipho Ngcobo only
told me to bring the cellphone back on the following
day and I
thought that it was his.
7.
On the same day the same police officials brought me back to Port
Shepstone in the cell in which Bafana Mthembu was. It was at
that
stage when I directly approached Bafana Mthembu asking him about what
happened to his girlfriend. I further told Bafana
Mthembu that I
was told by the police that his girlfriend is missing and suspected
to have been murdered.
8.
Bafana Mthembu then informed me that the same cellphone that I was
questioned about by the police was actually belonging to his

girlfriend, who was accidentally shot at inside the house of which
his intention was to kill her somewhere else not in the house.
9.
Bafana Mthembu further told me that he gave the cellphone to my
brother by the name of Sipho Ngcobo and told him to destroy it.
It
was therefore clear to me that the cellphone was to be destroyed,
because it was an exhibit.
10.
According to Bafana Mthembu the firearm, a 9 mm. pistol, was in the
drawer of the cupboard in the bedroom. The same firearm was

belonging to Sipho Ngcobo. He did not tell me as to when he got it
from Sipho Ngcobo and the reason for keeping it in his room.
11.
He, Bafana Mthembu, further told me that his girlfriend (the
deceased) pulled the drawer, saw the firearm and it was at that stage

when the struggle started as he was trying to take the firearm from
the deceased and the gunshot went off and the bullet struck
the
victim on the head.
12.
The deceased fell down and it was at that stage when he (Bafana) took
the cellphone from under the panty of the girlfriend and
took it to
Sipho Ngcobo. It was the same cellphone that was given to me by
Sipho Ngcobo after having informed him that my cellphone
was not in a
working order and that it was at the repairs. The same cellphone
did not have the Sim-card, therefore I used my
Sim-card.
16.
As I was told by Sipho Ngcobo, I returned with the same cellphone
back to his house on the following morning. Unfortunately that

morning both Sipho Ngcobo and his wife were not present. I
therefore continued using the cellphone for a few days.
17.
If I can remember well it was on the 20
th
day of March
2003 when I collected my own cellphone from the repairs in Port
Shepstone. I again went to Sipho Ngcobo’s
house returning his
cellphone, the make of which was a Nokia and which I kept with me as
from the 16
th
day of March 2003 to the said 20
th
day of March 2003. What I cannot remember exactly is the exact
person as to who I handed the phone over on the day in question.

Thereafter I continued using my own phone.
18.
According to his explanation Bafana Mthembu told me the deceased fell
down inside the room. He further said that there was pool
of blood
on the carpet which he cleaned.
19.
Thereafter according to Bafana Mthembu he looked for a black plastic
bag, which he found and put the deceased body therein. He
further
said that he pick up the body and loaded it in his minibus (taxi).
Thereafter he conveyed the body from his house at
Izingolweni to
somewhere in South Port area where he dumped the body near the
railway station.
20.
He, Bafana Mthembu, further said that he first drove to the opposite
side of the railway station in South Port where he was disturbed
by a
certain person. He then turned to the direction of the railway
station where he dumped the body in the bushes.
21.
Bafana Mthembu did not tell me as to who assisted him when the body
was loaded in his taxi as well as when he was dropping the
body in
South Port area.
22.
I am saying it without a doubt that Bafana Mthembu killed his
girlfriend whose name was Gcobisa Yako. Bafana confessed to me
and
I believed that he trusted me because he is the best friend to my
brother by the name of Sipho Ngcobo. I strongly believe
that (my
brother) Sipho Ngcobo, has the knowledge about the death of Gcobisa
Yako, the reason being that Sipho Ngcobo kept the
cellphone of the
deceased, which he was told to destroy, according to the explanation
to me.
23.
Bafana Mthembu further said that he even went to Mr Dlamini, a
traditional healer in the Harding area, to get the muthi to clean

himself after this incidence. That is all I can say in this
statement”.
Sthombe was cross-examined about the alleged difference in the names
of the place where the accused said he allegedly dumped Gcobisa’s

body, i.e. Umzumbe (in his testimony) and Southport (in Exhibit C).
In my judgment Sthombe adequately and convincingly explained
this
difference, which according to him does not in fact even exist.
Sthombe was asked if it is correct that he asked the accused to come
and visit him in gaol. He denied this and denied that the
accused
ever visited him while he was in custody. It is a convenient point
to note that it was not put to Sthombe that (as the
accused later
speculated) he falsely testified against the accused, because he
(Sthombe) was upset when the accused ceased visiting
Sthombe in
prison.
Sthombe was cross-examined about the reason why the accused related
the information to him. This is what he said:
“The reason for him to tell me this it’s because we were
in one place sharing – at the police station sharing
the place,
eating together. Eating together and sharing the cells at the
police station doing everything together”.
Sthombe was asked who were present when the accused divulged the
information to him. He said only the two of them were present.
It
was then put to him by Mr Ntshulana:
“I believe in the cells there’s more than two people”.
This question is clearly aimed at demonstrating the improbability
that the accused would convey the information to Sthombe in the

presence and hearing of other strangers. Sthombe said:
“Well, we were talking to each other other people were far
away”.
What was not put to Sthombe is the version of the accused namely
that the alleged discussion could not have taken place because
they
were never detained together. This version should have been put to
Sthombe.
See, in addition to the cases referred to above,
SMALL v SMITH
1954 (3) SA 434
(SWA) 438 E to H. If this version had been put,
Sthombe could at least have responded thereto. More importantly the
State would
have known what the real answer of the accused was to the
alleged conversation, namely that it was physically impossible for it

to have taken place. The State could then have investigated the
matter and cell records, occurrence books, vehicle registers
and so
on could have been examined to determine whether the State produced
evidence to gainsay the alleged physical impossibility.
This did
not happen.
When it was put to Sthombe that he was lying about the alleged
discussion with the accused, he gave a telling and probable reply:
“It’s the truth and naked truth, because if I did not ask
about the cellphone in relation to what Goldstone was doing
with me,
he would not have come out clear and divulge all the information to
me, because I knew nothing about the whole of this
story”.
To the extent that the cross-examination of Sthombe elicited hearsay
evidence and was argumentative, I do not intend dealing therewith.
Sthombe’s evidence is in all material respects in
accordance with the contents of his statement, Exhibit C. There is

in my judgment no single contradiction of any substance whatsoever in
Sthombe’s evidence, nor is there any such contradiction
between
his evidence and his statement. He gave a very detailed account of
what the accused had allegedly told him.
By way of testing the probabilities one might ask where did he get
all the information from? Did he make it all up? Any suggestion

that the statement was made to protect Sipho is unfounded. The very
tenor of the statement militates against such a submission.
Sthombe
was very clearly not a suspect in the disappearance of Gcobisa at the
time when he made his statement.
It cannot therefore be suggested that it is a self-serving document,
the purpose of which was to shift the blame. This is so,
because,
as far as Sthombe was concerned, there was no blame to shift,
certainly not during October 2007. The reason advanced
by Sthombe
for making the statement, i.e. compassion with Yako, is probable.
Sthombe was subjected to a lengthy and wide-ranging
cross-examination. He in fact grew in confidence as the
cross-examination
proceeded. His demeanour in the witness-box was
impressive. Most importantly I detected no bias or animosity
against the accused
on his part. He was a firm, confident and
convincing witness. There are, after all, only two possibilities
namely the truth
or falsity. Either the accused gave him the
information as set out in Exhibit C and testified to by him in court.
Or Sthombe
falsely made up the contents of Exhibit C and falsely
testified in court. If he falsely testified he obviously knew that
he was
deliberately lying by saying that the accused had admitted to
being present when Gcobisa was shot and killed and that he had
admitted
to taking the cellular telephone from her.
The purpose of cross-examination is to expose such false evidence. I
watched Sthombe closely to detect in his demeanour any indication
or
tell-tell sign that he was lying. I found none. As I said, he
became more confident as his testimony carried on. The easy
and
unanswerable death blow to his testimony is the alleged physical
impossibility of the accused having made the alleged statement
to
him. One wonders why that conclusive answer was not put to Sthombe.
This failure is all the more telling, because the very
issues of
the occupation of cells and the number of occupants were raised in
cross-examination.
Having considered all the evidence, including that of the accused, I
state my conclusion now, but before doing so and lest it
be thought
that I reached that conclusion by or through a process of piecemeal
reasoning and a fragmented evaluation of the evidence,
let me say
this. I considered all the evidence in the light of the
probabilities before I reached my conclusion regarding the
failure to
put to Sthombe that the conversation between him and the accused
could not have taken place. I cannot write the whole
judgment at
once, i.e. in the blink of an eye. I have to start at the beginning
and end at the end. I have to work my way
through the evidence and
the probabilities and then at the end answer the question whether the
State proved is case beyond a reasonable
doubt. But long before I
get to the end I can and do state my conclusion regarding the failure
to put to Sthombe the real defence
regarding the origin of Exhibit C.
It is this – the accused only thought out, i.e. fabricated,
that answer later on.
Put differently, the real defence was
deliberately not put to Sthombe and through him, to the State. Why
was the real defence
not put to them? The answer is simple –
it was not done because it was a false afterthought.
One further matter should be considered in relation to the alleged
discussion between Sthombe and the accused. It is clear from

Exhibit C and from Sthombe’s evidence that the accused did not
admit to Sthombe that he had murdered Gcobisa in order to
rob her of
her cellphone. I will hereinafter examine the evidence more
carefully, but point out that there is an exculpatory
tone to the
information which Sthombe says the accused gave to him. This makes
it probable that the accused would confide in
Sthombe.
Put differently, the evidence of Sthombe that the accused admitted
to him that Gcobisa died under the circumstances set out in
his
evidence is more probable than an admission by the accused that he
had deliberately killed Gcobisa in order to rob her of her
cellular
telephone. This difference is readily apparent to lawyers. It is
unlikely that Sthombe knows the difference. If
he wanted to falsely
implicate the accused, it would have simpler for him to say that the
accused had admitted to him that the
accused had deliberately shot
Gcobisa and had then robbed her of her cellular telephone.
Mr Sibonelo Ngcongo testified that a relationship started between
him and Gcobisa during November 2002. He also testified about
an
incident during which he visited Gcobisa at Umtentweni on 3 December
2002. While he was sitting in his parked motor vehicle
with his
cousin and Gcobisa, the accused emerged from a kombi taxi which was
parked in front of the gate at Gcobisa’s house.
The accused
approached Ngcongo’s vehicle, opened the door, pulled Gcobisa
out of the vehicle and assaulted Gcobisa by slapping
her. Ngcongo
intervened and got involved in a fight with the accused. During
this fight the accused pulled out a knife and
Ngcongo then drew his
firearm. Gcobisa told Ngcongo not to shoot the accused, who then
ran away.
The witness said that he had last seen Gcobisa on 15 March 2003,
i.e. on the day when, according to Ngcongo, she disappeared.
He
still had a relationship with Gcobisa at that time and spent the
evening of 14 March 2003 at her house. On the morning of
15 March
2003 Ngcongo left Gcobisa’s home for work, but they had
arranged to meet later on that day. Late on that Saturday,
15 March
2003, Ngcongo tried to telephone Gcobisa, but could not do so as her
telephone was switched off. The next morning, i.e.
on the Sunday he
again unsuccessfully tried to phone Gcobisa.
The witness was at work. At around 10:00 when he had a tea break
he went to Gcobisa’s house, but she was not there.
That
afternoon he went back to Gcobisa’s house, but she was not
there. Having obtained information from the lady at the
house, he
telephoned Gcobisa’s sisters, but they did not know where she
was.
He then asked a friend, who knew where the accused stayed in the
Izingolweni area, to accompany him to the police station at
Izingolweni. They went there and Ngcongo reported the matter to the
police. It was not expressly stated on which day this happened,
but
in the context of his evidence, I think it can safely be assumed that
Ngcongo reported Gcobisa’s disappearance to the
police at
Izingolweni on Sunday, 16 March 2003.
Ngcongo’s evidence was unchallenged. In
PEZZUTTO v
DREYER & OTHERS
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 391 E - F
Smalberger JA said:
“It is true that it does not follow from the fact that if a
witness’ evidence is uncontradicted it must be accepted.
It
may be so lacking in probability as to justify its rejection. But
where a witness’ evidence is uncontradicted, plausible
and
unchallenged in any major respect, there is no justification for
submitting it to an unduly critical analysis”.
Ngcongo’s evidence proves that the accused
behaved in an extremely aggressive manner and attacked and assaulted
Gcobisa in
the presence of Ngcongo and his cousin. I could have
summarised Ngcongo’s evidence regarding the events on 15 and 16
March
2003 by simply saying that he reported Gcobisa’s
disappearance to the police. I chose not to do so, because I wanted
to
draw attention to the steps which Ngcongo took when he could not
get hold of Gcobisa late on 15 March 2003. As will become apparent

hereinafter Ngcongo’s actions stand in stark contrast to the
accused’s lack of interest and concern when he was informed
of
Gcobisa’s disappearance by Yako on 17 March 2003.
Ms Msindwana is a cousin of Gcobisa. On or about 24 January 2003
Gcobisa arrived at the house of the witness by prior arrangement.

She was accompanied by the accused. Msindwana’s husband and
the accused entered the house. Msindwana was pulled back
a bit by
Gcobisa, who was trembling and who wanted to cry. She made a report
to Msindwana regarding the purpose of their visit.
Msindwana and
Gcobisa entered the house and Msindwana in the presence of the
accused raised the matter which Gcobisa had reported
to her on the
verandah, namely that the accused had threatened to shoot Gcobisa.
Msindwana’s husband asked the accused
if this was true. The
accused admitted this. Her husband then posed this question to the
accused: “What you have done,
do you like it?”
Msindwana was asked how the accused responded to
this question. She said he apologised and stated that he had done
this in anger.
The witness said that her husband, who works at the
prison, advised Gcobisa “to open an OB”, which her
husband explained
should be done at the police station. Msindwana
was asked how Gcobisa responded to this suggestion. She said
Gcobisa appeared
scared and said: “Let us not go to the
police. You are placing him under arrest now”. She said the
accused did
not respond to this suggestion.
According to the witness Gcobisa said that she
was no longer in love with the accused and she “asked us to
allow” the
accused to leave. Before the accused left the
house on his own, he indicated that he did not accept Gcobisa’s
decision
not to continue with their relationship inasmuch as he said
“he was still going to negotiate and resolve this matter with

Gcobisa” and “that they were going to resolve the matter
of their relationship”.
Msindwana also testified about the events when
she, Yako and others (who travelled in two motor vehicles) met the
accused on 17
March 2003. She said that in response to Yako’s
question regarding the whereabouts of Gcobisa, the accused said:
“It’s
a long time I saw her, I do’nt know where she
is”.
Under cross-examination the witness was referred
to certain evidence, which she had given in the regional court. It
was put to
her that she had said that a few days after the meeting at
her house she met Gcobisa in town and that she suggested to Gcobisa
to have an occurrence book entry made at the police station. She
said she could not remember that. Even if that is what she
said in
the regional court, it does not materially detract from her
testimony. If she said that it may be that she tried to persuade

Gcobisa to have such an entry made despite her previous decision not
to have it done. Without the record of the regional court
case one
cannot even determine whether there is in fact a contradiction in her
evidence.
That this is so, is amply demonstrated when Msindwana was
cross-examined about another alleged contradiction. In her evidence

before me she said that Gcobisa refused to leave her house with the
accused. It was put to her that in the regional court she
said it
had been agreed that the accused and Gcobisa would not leave
together. I said it depends on how the question was framed
and
asked the witness whether, at the end of the meeting everybody
accepted that the accused and Gcobisa must not leave the meeting

together. The witness said: “I confirm what the Court is
saying and Bafana agreed, because Gcobisa was afraid of leaving
with
him and then my husband suggested that we take her home”.
They in fact took Gcobisa home.
It was put to the witness that at the meeting which took place at
her house there was no discussion about the allegation that
the
accused had pointed a firearm at Gcobisa. It was further put to her
that: “They only came for you to resolve their
relationship”.
The witness denied these suggestions. Implicit in these
suggestions is the following:
1.
The witness fabricated her evidence that Gcobisa was trembling and
wanted to cry.
2.
This evidence was fabricated in order to lend credence to or to
support the fabricated evidence referred to in paragraph 3 below.
3.
The witness fabricated the evidence about the report which Gcobisa
had made to her on the verandah.
4.
The witness fabricated the evidence referred to in paragraph 3,
above, in order to lay a foundation for the false evidence referred

to in paragraph 5, below.
5.
The witness fabricated the evidence that she raised the issue of the
allegation that the accused had pointed a firearm at Gcobisa.
6.
The witness fabricated her evidence about the admission by the
accused that he had pointed a firearm at Gcobisa.
7.
The witness fabricated her evidence about the question which her
husband put to the accused after his admission. This question,

namely whether the accused was proud of what he had done, is an
appropriate one. The evidence of the witness on this point is very

convincing. On the hypothesis of the falsity of her evidence, the
witness was quite cunning in fabricating this convincing piece
of
evidence.
8.
The witness fabricated her evidence about the apology by the accused
and his statement that he acted in anger.
9.
The witness cunningly fabricated her convincing evidence regarding
the suggestion that the matter should be reported to the police.
10.
Then, having fabricated the evidence referred to in paragraph 9,
above, the witness had to fabricate further evidence, in effect
to
knock down the skittle which she had put up. In other words, she
had to fabricate evidence to explain why no report was in
fact made
to the police. The witness then fabricated her evidence about
Gcobisa’s alleged response to the alleged suggestion.
On this footing, this cunning witness is stupid enough to introduce
false evidence about the suggested occurrence book entry,
but then
she is cunning enough to get around the problem which could be
created by the non-existence of such an entry by fabricating

Gcobisa’s response to the suggestion. Of course, the witness
and her husband had to conspire to tell the same story, i.e.
to give
the same false evidence.
It is one thing to simply submit that Msindwana lied about the
discussion at the meeting. As I demonstrated for that submission
to
stand, it must overcome the 10 points I referred to and it is
implicit in the submission that Msindwana and her husband conspired

to give false evidence against the accused. All this is extremely
unlikely.
It is not incumbent upon an accused person to explain why or to
advance reasons why a State witness would give false evidence
against
that accused. I know that very well. But I also know that,
generally speaking, people do not lie for no reason at all.

Generally speaking therefore a witness will not, for no reason at
all, falsely implicate an accused. It therefore helps me as
the
trial Judge and trier of the facts to assess the evidence of a State
witness who, according to the accused, is lying, if that
accused can
suggest a possible reason why the witness could or would lie.
No reason was suggested to Msindwana why she would give false
evidence against the accused. I obviously bear in mind the fact

that she is related to Gcobisa.
The evidence of Msindwana regarding the events on 17 March 2003,
particularly the statement made by the accused regarding the

whereabouts of Gcobisa, was not challenged at all.
In my assessment, Msindwana was a good witness and no serious
criticism can be levelled against her as a witness, nor against
the
content of her testimony.
Mr Sandla is employed by the Department of Correctional Services and
he is Msindwana’s husband. In my view a fair and
accurate
summary of his evidence is that he corroborates the evidence of his
wife in every material respect. Of course, that
is what one would
expect from co-conspirators to falsely implicate the accused. At
least as far as the evidence-in-chief is concerned.
This is so
because the purpose of cross-examination is to expose such a
conspiracy.
During cross-examination it will then become apparent that the
witnesses agreed to tell the same false story. And because their

evidence is false, cracks will start to appear in their false story.
That is how it works, we all know that. In Sandla’s
evidence
no crack at all appeared. He was an impressive and patently
truthful witness.
I only draw attention to a few aspects of his evidence which, as I
have said, corroborates the evidence of Msindwana in all material

respects. He said that the complaint by Gcobisa was that the accused
had pointed a firearm at her head, that Gcobisa was not happy
about
the treatment which she received at the homestead of the accused at
Izingolweni, that the accused was not keen to accept
the fact that
Gcobisa was interested in terminating their relationship and that the
accused promised never again to point a firearm
at Gcobisa.
Regarding the events when the group of people went to Izingolweni to
look for Gcobisa at the house of the accused, he also gave

unchallenged evidence that the accused said: “It’s the
long time that I last saw her, I don’t know where she
is”.
Under cross-examination the witness agreed that even after the
meeting at his house the relationship between Gcobisa and the accused

continued. Sandla further stated that when he saw the accused in
March 2003, the accused did not ask from him or from Yako any

information about Gcobisa’s disappearance. This evidence was
not challenged and, as will be seen hereinafter, such became
common
cause, also on the strength of the evidence of the accused. Sandla
was asked if the accused offered any assistance to
search for Gcobisa
and he said: “I can only say he accompanied us when we went to
the police station to report”.
The next witness was Luyolo Yako, the brother of Gcobisa. Not to
confuse this witness with his father, I will refer to him as
Luyolo.
This witness testified principally about two matters. The first is
an incident which occurred at the house where he
was living with
Gcobisa. The second is an incident which happened at his place of
employment, which was the same place where
Gcobisa was employed.
According to the witness the first incident occurred during February
2003 and the second incident happened
a week later. Luyolo
determined the date as being February 2003 because he left for
Pretoria to take up a position on 3 March
2003. Furthermore, he
determined the date as being February 2003 because that was the last
time he saw Gcobisa alive.
The first incident appeared to me to be similar to the incident
about which Ngcongo testified, i.e. the one at Gcobisa’s
house
on 3 December 2002. Luyolo was absolutely adamant that the
incidents which he testified about occurred during February
2003.
Luyolo, however, only made his statement to the police on 18 July
2004.
In order to clarify the matter I recalled Ngcongo, who again
testified on 15 April 2010. Ngcongo said that there was no time

during February 2003 when his motor vehicle and a kombi were both
parked at Gcobisa’s home at the same time. He suggested
that
Luyolo was confused with the dates.
During the course of argument Mr Mcanyana submitted that two
incidents had occurred. Mr Ntshulana submitted that the fact of
the
incident involving Ngcongo is not in dispute, that there was only one
such incident, that Luyolo and Ngcongo testified about
the same
incident and that Ngcongo’s evidence about the date, i.e. 3
December 2002, should be accepted.
I considered the evidence very carefully in the light of the
probabilities and I also had regard to the demeanour of the two
witnesses. I am in agreement with Mr Ntshulana’s submissions.
This does not involve an adverse credibility finding against

Luyolo. Far from it. In my view he was simply mistaken about the
date of the first incident.
It is improbable that two very similar incidents occurred and, most
importantly, the evidence of Ngcongo, when he was recalled,
strongly
militates against the second incident in February 2003. The
evidence of Ngcongo regarding the incident of 3 December
2002 was
unchallenged. The evidence of Luyolo regarding the first incident
corroborates the evidence of Ngcongo that the accused
assaulted
Gcobisa on that day. I therefore do not intend investigating
Luyolo’s evidence about that incident.
Luyolo said that he saw the accused about a week after the accused
had assaulted Gcobisa. On that day the accused wanted to
speak to
Gcobisa, but she refused to speak to him and went into the offices of
her employer. Luyolo said that the accused apologised
for “his
assault on Gcobisa as it happened the other day”. This
evidence is probable. Luyolo said that the accused
stated that:
“He had a problem with Gcobisa and her boyfriend”, i.e.
Ngcongo. This evidence is probable. Luyolo
also testified that
the accused said that he is: “Finding it difficult to accept
that his relationship with Gcobisa had terminated”.
It is not necessary for me to now investigate if the relationship
between Gcobisa and the accused was ever terminated. And,
if so,
when that happened and whether it was a final end of the
relationship. Luyolo gave unchallenged evidence that, at the
time
of her disappearance, Gcobisa “had just started a relationship
with” Ngcongo. Ngcongo himself gave unchallenged
evidence
that he got to know Gcobisa during 2002 and that by 3 December 2002
he already had a relationship with Gcobisa.
Msindwana gave unchallenged evidence that the meeting at her house
occurred on 24 January 2003. Under all these circumstances,
it is
not improbable that the accused would have said to Luyolo,
particularly after Gcobisa had refused to speak to the accused,
that
he found it difficult to accept that his relationship with Gcobisa
had ended. Luyolo’s evidence that the accused had
said this,
was not challenged.
The question is not whether the relationship between the accused and
Gcobisa had been finally terminated. The question is also
not
whether that relationship continued after 24 January 2003 – as
Sandla said. The question is whether the accused made
to Luyolo the
statements about the relationship which Luyolo said he made.
As I have indicated all those statements are probable. Luyolo
testified about them in a clear and logical manner. Luyolo then

said: “As we were talking, he also indicated, he said at some
stage he decided that he shoots Gcobisa and shoots himself”.
The cross-examination of Luyolo on these statements was done by way
of reference to his police statement (Exhibit D) of which
the
relevant part was read to him:
“Approximately a week later Gcobisa and myself were at Ceed
College about to go into the premises when Bafana met us. Gcobisa

refused to speak to him and went up the stairs. He spoke to me and
first apologised for hitting Gcobisa. He also said he was
not happy
with Gcobisa having another boyfriend. He also mentioned an
incident where he had threatened to shoot her. This was
news to me.
He said he could not accept that it was over between them and that
he had wanted to kill her and then himself”.
It was pointed out, quite correctly, to Luyolo that he had not
testified about the incident in which the accused had threatened
to
shoot Gcobisa. If the evidence of Msindwana and Sandla is accepted,
such an incident is not improbable.
It was then put to Luyolo, clearly with reference to the
above-quoted part of his statement:
“The accused will deny that he ever mentioned what I have read
to you”.
Luyolo confirmed his testimony and said: “I stand by my
statement”. Mr Ntshulana then cross-examined Luyolo about

that part of his statement in which he said that the accused had
threatened to shoot Gcobisa and then to commit suicide. It was
put
to Luyolo that he was lying and that: “The accused never told
you those words”. Luyolo insisted that he was
telling the
truth.
When Luyolo was cross-examined about his failure to report the
threat to “anybody”, he said that he went to Gcobisa
to
confirm whether the alleged incident (i.e. the occasion when the
accused allegedly said that he had threatened to shoot Gcobisa)
had
taken place. Perhaps wisely, Luyolo was not asked what Gcobisa told
him. Luyolo also said he discussed the matter with
his other two
sisters.
In his argument Mr Ntshulana submitted that Luyolo lied when he said
that the accused told him that the accused threatened to
kill Gcobisa
and then to commit suicide. Mr Ntshulana’s main submission in
this regard was that Luyolo’s admitted
failure to report the
threat to the police and to his parents, is proof of the falsity of
his evidence. It is, however, not quite
so simple. It was put to
Luyolo that everything which he said about the discussion between
himself and the accused was false.
This means that, according to
the accused, Luyolo made up or fabricated the whole discussion.
I have demonstrated that some of the statements allegedly made to
Luyolo by the accused, are probable. I am aware of the fact
that
Luyolo is the brother of Gcobisa and that he described their
relationship as being very close. I also bear in mind that
Luyolo
made his statement more than a year after Gcobisa’s
disappearance. I do not lose sight of the fact that Luyolo did
not
report the threat to his parents or to the police.
If the evidence of Msindwana is to be accepted, we know that Gcobisa
did not want to report to the police (not even by way of
an
occurrence book entry) the admitted pointing of a firearm by the
accused. If Luyolo made up his evidence about the discussion
which
he had with the accused, he certainly fabricated that evidence in a
good logical sequence. He also added the convincing
touch to it of
the jilted lover’s threat of suicide. It has a ring of truth,
which will then lend credence to the other fabricated
parts thereof.
Luyolo is a young man, who testified in a confident, sincere and
relaxed manner.
The evidence of the next witness, Ms Nana Cele, was not challenged.
She knew Gcobisa and the accused. On Saturday, 15 March
2003 she
met Gcobisa in Port Shepstone at around 13h00 and they boarded a taxi
to Izingolweni, where the witness as well as the
accused stayed at
the time. Cele alighted at her stop and Gcobisa proceeded with the
taxi, as she “was supposed to do”.
On Monday, 17 March 2003, Cele received information that Gcobisa had
disappeared. It is not clear on exactly which date Cele
telephoned
the accused. From the information the accused gave her (i.e. that
the Yako family, accompanied by the police, had
been to see him) it
does appear that it was after the discussion on 17 March 2003 between
Yako and the accused, about which Yako,
Msindwana and Sandla
testified. Cele asked the accused where Gcobisa was. He said: “I
do not know where Gcobisa was”.
He then gave the information to
which I referred above. Cele continued: “He also added that
he did not see her on that
day”.
In the context of her evidence it seems to me to be quite clear that
the reference by the witness to “that day” cannot
be a
reference to any day other than the day on which Gcobisa disappeared,
i.e. 15 March 2003.
Ms Silangwe was the next State witness. She is the neighbour of
the accused and she knew Gcobisa. On a certain day the accused
came
to her house and asked her to prepare lunch for him. She observed
Gcobisa alight from a taxi and she then took a route which
led to the
Ngcobo home, where Gcobisa stopped as if she was communicating with
somebody. From that point Gcobisa was coming in
the direction of
Silangwe’s house. Silangwe said to the accused: “Here
is Gcobisa”. The accused responded
by saying: “I do
not want her to see me”. Gcobisa did not come to the Silangwe
house, but went to and arrived at
the house of the accused.
Silangwe did not see Gcobisa later that day and indeed that was the
last time that Silangwe saw Gcobisa.
Silangwe said that the accused then stood up “and went back to
the Ngcobos where he was repairing vehicles”. Thereafter
she
saw the accused go to his house. The witness was asked if she could
say “what the year, month and date was” and
she said she
could only remember it was 2003. She said she could remember that
she prepared food for the accused on a Saturday.
The witness was subjected to a lengthy cross-examination by Mr
Ntshulana. In my view she was at all times relaxed and sure of

herself. I did not detect any bias on her part. Once it was
suggested to her that she had been told by the police and/or by

somebody else what to say, I watched her very carefully to observe
any sign or indication of animosity or that she had been “schooled”

to give certain evidence. The witness was firm and convincing when
she testified about her observations.
Leaving aside for the moment the day and date about which she
testified, I am satisfied that there are only two possibilities.

These are that she in fact observed and heard the events and
statements about which she testified or that she fabricated her

evidence. In other words, she could not be mistaken in her
observations. She, for instance, quite firmly rejected the
suggestion
that she may have confused Gcobisa with somebody else.
She said she had a good view of what was happening in the immediate
vicinity
of her house and she was quite firm when it was put to her
that a person, Thandazile Faith Zindela, who did not testify, had
made
a statement to the police that, after Gcobisa had alighted from
the taxi in Izingolweni, that person observed Gcobisa entering a

private vehicle in which there was a person Philile Mavundla. The
witness said: “Gcobisa was never taken by anybody.
That is
not correct”.
The main thrust of the attack on Silangwe’s testimony was then
that she had fabricated her evidence. It was put to her
that: “The
accused will also tell this Court that most of the things you have
stated in this court you were told by the
police”. The
witness denied this suggestion. The witness only made her statement
to the police (Exhibit E) on 17 September
2007. In her statement
the witness said that the events about which she testified happened
on a Friday or a Saturday. In her
evidence she said the events
occurred on a Saturday. And she said that she was now sure about
the day. She gave two reasons
why she was now sure of the day.
Firstly, her boyfriend at the time attended Varsity College on a
Saturday. Secondly, she herself
attended school on weekdays and on
this day she did not attend school. These two reasons seem to me to
be quite cogent.
She was asked why she did not remember the day at the time when she
made the statement. Her reply does not make sense. She
said:
“It’s because it’s quite some time that this
incident took place”. Precisely. A far more likely

explanation is that, at the time when she made her statement, the
witness knew that the said events took place on a Friday or Saturday.

At that time she was probably not required to be any more precise
about the day of the week. Her statement refers to the “early

months of the year 2003” and specifically records that she does
not remember the month. In her evidence she also said that
she
could not remember the month.
But by reference to the unchallenged evidence of the other
witnesses, we know that Gcobisa disappeared on Saturday, 15 March
2003. With reference to the unchallenged evidence of Silangwe one can
also determine the date and the month to which she refers.
This
conclusion follows from the following unchallenged evidence of the
witness:
Silangwe said she heard about Gcobisa’s disappearance on the
Monday or the Tuesday following the Saturday on which she had

prepared food for the accused. In that same week she and her sister
confronted the accused and she asked him if he knew Gcobisa’s

whereabouts. She said the accused did not know where Gcobisa was.
This unchallenged evidence affords some corroboration for
her
evidence regarding the events on the day when she prepared food for
the accused.
She said about five minutes after the accused had gone to the
Ngcobo’s property she saw him going to his own house.
Silangwe
had seen Gcobisa going to this house after the accused had
told Silangwe that he does not want Gcobisa to see him. A few days

later it is reported that Gcobisa disappeared. This explains why
she went to ask the accused about Gcobisa’s disappearance.
It was put to Silangwe that the accused would deny that he was at
her home on the Saturday she spoke about. So, the accused
knows
very well about which Saturday the witness testified and his version
is that he was not at her house. It was suggested
to Silangwe that
she may be confusing it with another day. The witness confidently
denied this untenable suggestion, which is
irreconcilable with the
other propositions which were put to the witness, namely that the
police and/or somebody else had told
her what to say. But why would
the police and/or somebody else tell her to say that, when she
alerted the accused to Gcobisa’s
approach or presence, he said
that he does not want her to see him? It is such an unusual
statement. Perhaps the person who
told Silangwe what to say,
cunningly introduced this piece of evidence to give her evidence a
ring of truth. This is unlikely.
I evaluated her evidence in the light of all the evidence and in the
light of the probabilities. She was a good witness. She
was very
clear on the facts that Gcobisa went to the house of the accused,
that the accused did not want Gcobisa to see him and
shortly
thereafter the accused also came to his house. This happened on the
Saturday before she heard of Gcobisa’s disappearance
on the
Monday or the Tuesday. Her evidence is clear and convincing.
Before I refer to the evidence of the three State witnesses who
testified regarding the various cellular telephone records, I
should
point out that it was common cause that the place where the accused
lived and worked during March 2003, is called Ezingolweni
or
Ezingoleni. I think most of the lay witnesses referred to the place
at Ezingolweni, but on Exhibit B.1 there is a name Ezinqoleni
- it is
the same place. Sometimes it is also spelt Ezinqoleni - for
instance in Exhibit B.2. It may facilitate an understanding
of the
evidence of the said three witnesses if I attach to this judgment a
copy of Exhibit B.1.
Attention is drawn to the positions of the areas marked Ezingoleni
and Harding. I do not consider it necessary to examine all
the
technical evidence of these three witnesses in minute detail. I say
so because much of this evidence was not in dispute and
because the
import of the evidence is such, that the position from which a
particular cellular telephone call was made, cannot
be accurately
pinpointed. Similarly, the position at which a particular telephone
call was received, cannot be accurately pinpointed.
This will all
be become clearer in my analysis of the relevant evidence.
During the course of the trial it became apparent that the accused
relied on an alibi, in the sense that he claimed to have been
in the
Harding area on 15 March 2003, being the day on which Gcobisa
disappeared. The State relied on the evidence of the said
three
witnesses in an attempt to disprove this alibi. The main thrust of
the cross-examination was aimed at establishing that
the said
positions cannot be accurately pinpointed. After I carefully
considered all the relevant evidence, I came to the conclusion
that
the said positions cannot be precisely determined. As will become
apparent hereinafter, that conclusion does not even remotely
suggest
that the evidence of these three witnesses can be ignored.
Ms Heynecke is employed by Vodacom South Africa as a forensic
liaison manager. She was requested by the Director of Public
Prosecutions for information relating to certain cellular telephone
numbers, including those of Sipho Ngcobo (0824379861) and the
accused
(0725769196). The information was requested for the period 12 March
2003 to 6 June 2003. As a result of this request
she compiled
Exhibit B. I should point out the following, lest there is any
confusion. I marked the relevant Exhibit B1, B2
and B3. Exhibit
B1 is the so-called Google document, i.e. the plan to which Heynecke
referred, and which is attached hereto.
Exhibit B3 is the document
which Heynecke prepared - it contains various sections marked A, B,
C, D and E.
Exhibit B2 was prepared by Warrant Officer Reid, who is a data
analyst in the South African Police Service. Captain Goldstone

requested Reid to extract certain information from a “hard copy
of a cellphone record, which is this Exhibit B3”.
The request
was “to put it in an easier readable format for the Court”.
The request furthermore related only to
the periods 12 to 17 March
2003 and 25 to 31 March 2003. Reid then set out the information in
section A, B and C of Exhibit B3
in chronological and time sequence
in a composite document, i.e. Exhibit B2. Exhibit B2 is certainly
in a much “easier
readable format” than sections A, B and
C of Exhibit B3. This is particularly so if one wants to see,
literally at a glance,
in effect “who telephoned who” at
any particular time. Of course, the cellular telephone records only
show that a
certain telephone call was made to or from a particular
cellular telephone number and does not reflect the identity of the
person
who received or made the telephone call.
The accused did not say that on 15 March 2003 he did not have his
cellular telephone with him or that he did not use it on that
day or
that he lent it to somebody or that it was stolen. On the contrary,
he said that he used it early in the morning and the
tenor of his
evidence is that he was in possession of his cellular telephone on
that day. But, as will be seen hereinafter, his
version is that he
spent most of the day in the Harding area working with Sipho.
I revert to the evidence of Heynecke. She referred to the four
areas, which are marked in yellow on Exhibit B1, namely Umzimkulu,

Harding, Port Shepstone and Ezinqoleni. She said that the white
circles or dots on Exhibit B1 represent the base transceiver

stations, masts or towers along the N2 highway. Most often the
witness referred to these “stations” as “base

stations”. Each base station has a reference or identifying
number. A telephone call to or from a cellular telephone
is
“serviced” or made possible by a specific base station.
That base station will be the one which has the strongest
signal at
the time of the telephone call.
In her document (Exhibit B3) the base station which had the
strongest signal and therefore serviced the particular telephone
call, is identified with reference to the telephone number in the
first column. And this is so, irrespective of whether the call
was
made to or received by a handset with that cellular telephone number.
In other words, whether a call is made from or to a
particular
cellular telephone (the number of which is reflected in he said first
column) the base station which serviced that call
is the one with the
strongest signal at that time.
According to Heynecke the maximum effective range of a base station
is 34 kilometres. The ranges of base stations differ.
By way of
an example, Heynecke explained (with reference to the first line of
section A of Exhibit B3) that it can be said that
the person who made
the telephone call (which was serviced by the Wilson’s Cutting
Base Station) was closer to that base
station than, for instance, to
the Straalhoek Base Station, which is in the Umzimkulu area, shown
near the top left of Exhibit
B1. The area which is serviced by a
particular base station, is called the “recipient area”.
And it is called the
recipient area regardless of whether the
telephone call is made or received in that area.
Heynecke was cross-examined about the said Wilson’s
Cutting/Straalhoek example. This is what was put to her and how
she replied:
“So if I understand it, it does not necessarily say closer,
it’s the station that serviced the call? --- Correct.
One
must be in the recipient’s area of this Wilson’s Cutting
Base Station for the base station to service the call”.
She later reiterated this evidence.
The statement in the last sentence of Heynecke’s reply is in
line with the general tenor of her evidence and was in my view
not
shown to be incorrect. It is also in keeping with her evidence
that, all things being equal, the signal is stronger closer
to a base
station as opposed to further away from it. This unchallenged
evidence also seems to explain why the signal from a
base station has
a maximum range. Such a maximum range can be a few hundred metres
or it can be up to 34 kilometres.
Heynecke said that a base station can become congested, i.e. “it
is too full to take your call”. According to her
a
“neighbouring base station will not take your call, you will
get a call, saying ‘network busy’”. She
also said
that base stations that are next to one another or close to one
another can “overlap”.
The witness pointed out that two base stations were omitted from
Exhibit B1 and she indicated their positions. They are Newlands

Farm and Norwood. I drew them in on Exhibit B1.
Referring to the cellular telephone of the accused the witness said
that on 15 March 2003:
“So it is only Maguntia Store, Wilson’s Cutting and
Newlands Farm, only the three base stations that is that –
that
covers the whole day”.
In my view this evidence is correct. It is easy to see from the
following lines or numbers in Exhibit B2 that this evidence is

correct: 189, 198, 200, 201, 202, 210, 211, 214, 225, 231, 232, 237
and 246. The first call (line or number 200) was an incoming
call,
i.e. to the cellular telephone of the accused at 06h28 and the last
one (line or number 246) was also an incoming call at
18h58.
Altogether 13 calls were made and received by the accused on 15 March
2003. I indicate which base stations serviced
them:
Wilson’s Cutting : 4, namely 189, 198, 200 and 237
Newlands Farm : 1, namely 201
Maguntia Store : 8, namely 202, 210, 211, 214, 225, 231, 232 and 246.
I should point out that for some reason all the relevant information
in respect of item or number 210 is not reflected in Exhibit
B2.
The call time is reflected as 11:06:48. The particulars of the call
can however be found in Exhibit B3, page 16 of 90,
in section A and
it was serviced by the Maguntia Store base station.
It is clear from Exhibit B1 that the three base stations (Wilson’s
Cutting, Newlands Farm and Maguntia Store) are close
to each other
and that they are in the Ezingolweni area. Exhibit B 1 is
visibility a photograph of a part of our country - I
do not need an
expert from Google to tell me that and this was clearly the tenor of
Heynecke’s unchallenged evidence on this
issue. My common
sense tells me that the three base stations are close to each other
and that they are in the Ezingolweni area.
I can see that these
three base stations are not in the Harding area.
I have already referred to Reid’s evidence and I do not
consider it necessary to elaborate on it.
Mr Prinsloo is the technical manager in the law enforcement agency of
Vodacom. As I understand his evidence, it is contradicts
that of
Heynecke on the issue of a congested base station. I do not think
much, if anything, turns on it. Prinsloo said that
if, for
instance, the Wilson’s Cutting base station is congested, one
of its direct neighbours will service that area.
He said that the
base stations have an operational range with a radius of about 30
kilometres, but that it depends on the configuration
at the time.
Under cross-examination Prinsloo said in response to a suggestion
that he “cannot say for sure” where the person,
making a
particular call, is:
“Yes, we cannot say where the person is at that point, because
it covers an area, so we can’t pinpoint to say that
he was 10
or 20 kilometres from the tower. The call records usually show that
area”.
I then put the following question to him and he responded as follows:
“Can you say that if a telephone call is traced as having been
serviced by, for instance, the Wilson’s Cutting tower,
can you
say for instance, that the person who made the call must have been in
the vicinity of Wilson’s Cutting or can that
not be said? ---
That can be said, M’Lord”.
He confirmed that all he could say “is that the person must
have been in the vicinity” of the Wilson’s Cutting
base
station.
If I look at Exhibit B1 and if I bear in mind Heynecke’s
evidence and Prinsloo’s evidence, I say that not one of the

three base stations (Wilson’s Cutting, Newlands Farm and
Maguntia Store) is in the vicinity of Harding - they are all in
the
vicinity of Izingolweni.
The witness Ms G Mavimbela was not cross-examined. Exhibit 2 was
given to her by Sipho Ngcobo during March 2003 and it was recovered

from her by Captain Goldstone. Exhibit 2 is the cellular telephone
(with number 083940890) which Gcobisa was using at the time
of her
disappearance. From Exhibit B2 (line or number 126) it will be seen
that at 09:06:06 on 14 March 2003 a telephone call
was made to
Gcobisa’s number from the cellular telephone of the accused.
This call lasted six seconds. I record that
Captain Goldstone gave
unchallenged evidence and it was common cause that, at some stage,
all the relevant cellular telephone records,
i.e. the “whole
cellular telephone evidence file” was lost. The MTN records
relating to Exhibit 2 could not be reconstructed,
because “only
Vodacom was able to retrieve the archive material”.
Captain Nala testified about events which occurred during 2003 when
she was a sergeant. On 19 March 2003 the witness went to
the home
of the accused as a result of information which he got from one Nana.
This can only be the witness Cele. The accused
accompanied Nala
to the police station where she interviewed him. I pointed out to
Mr Mcanyana that he had not laid any basis
for the admissibility of
any statement by the accused. I was then under the mistaken
impression that the accused was a suspect.
The witness then made it
very plain that at the house of the accused she said that she was
“one of those investigating the
issue of the disappearance of
Gcobisa”. She also said that the accused was not arrested.
It is clear from the rest of her evidence that no crime was being
investigated at that time and that the accused was not a suspect.

She said that the accused told her that he had not seen Gcobisa on 15
March 2003 and that he was in at Umzimkulu on that day.
She gave
probable evidence that she took a so-called “witness statement”
from the accused.
After she obtained information regarding the bank account of
Gcobisa, she went to the bank to see if any recent withdrawal had

been made from the account. It was last used on 28 February 2003.
On 25 March 2003 Nala got in touch with the Missing Persons Bureau
in Durban to request that Gcobisa’s disappearance should
be
broadcast. The prescribed form SAP 55 was completed with
particulars relating to Gcobisa as well as a photograph of her.
The
witness personally saw it broadcast on television during April 2003.
On 17 April 2003 the witness made enquiries at the Harding Mortuary
to find out if there was perhaps the body of an unidentified
female.
The response was negative. On 29 May 2003 the docket was
transferred to Captain Goldstone. The witness said that the
accused
did not offer any assistance in connection with her investigation.
Under cross-examination she conceded that the accused gave the IMEI
number of Gcobisa’s cellular telephone to the police
and that
this number “assisted in tracing the calls that were made to
this phone”. It was put to her that “this
phone”
is Exhibit G2. The record clearly incorrect - this phone is Exhibit
2. It was common cause that Gcobisa was using
this cellular
telephone at the time of her disappearance.
After the cross-examination of the witness had been completed, Mr
Ntshulana referred to “other evidence” which Nala
had
obtained from the accused and which, so Mr Ntshulana said, I
“correctly noted that it (was) inadmissible at this stage”.

I replied thus:
“No, that was at a time when I was under the impression that he
may have been treated as a suspect. She gave evidence,
she said she
obtained the witness statement from him”.
As it happened the written statement was not handed in as an exhibit.
That was the end of the matter - for the time being, at
least.
Goldstone then testified. He said that he took over the
investigation on 2 June 2003 and that on 19 March 2003 (i.e. when
Nala
interviewed the accused) it was being dealt with as a “missing
person case”. Goldstone was given an instruction to
continue
with the investigation of the matter. He and Nala then proceeded to
interview all the witnesses who Nala had already
interviewed. After
Goldstone had obtained certain information, he decided to again
interview the accused. He and Nala did so
at Ezingolweni Police
Station. At that stage there was a suspicion that the accused may
have been involved in the disappearance
of Gcobisa.
Goldstone said that he consequently advised the accused of his
constitutional rights as a suspect. Thereafter at the request
of
the accused Nala read back to the accused the written statement which
he had made to her on 19 March 2003. This was done line
by line and
the accused confirmed the statement. Goldstone then enquired from
the accused if he would be prepared to answer questions
put to him by
Goldstone. The accused agreed and a statement was obtained from
him, which he signed.
Goldstone continued with his investigation. He made extensive
enquiries with all the Government mortuaries and in the area where

Gcobisa had allegedly disappeared. A reward of R100 000,00 was
offered in the newspapers and on posters both in English and in
Zulu,
which were distributed in the Ezingolweni area. The reward was for
any information relating to the disappearance of Gcobisa.
There was
no response.
Goldstone said that as the investigation proceeded, it appeared to
him that Gcobisa had probably been murdered. He opened a
docket
relating to this case “and the missing person’s file
became part of this investigation”.
Goldstone said he followed up the alibi of the accused, namely that
on 15 March 2003, he was not in the Ezingolweni area, but
in the
Harding area. Sipho Ngcobo (to whom I will again refer to as
“Sipho”) gave the same version to Goldstone.
According
to Goldstone the cellular telephone records of the accused and Sipho
reflected that on 15 March 2003 they were not
in the Harding area,
but in the Ezingolweni area. He also noted that on 15 March 2003
Sipho and the accused were in telephonic
contact with each other.
Goldstone said that “people that are together with one another
don’t normally phone one
another”. Indeed.
I draw attention to the fact that Exhibit B2 reveals that a number
of calls which were made between the cellular telephones of
the
accused and Sipho on 15 March 2003. The first one (line or number
207) was made at 11:06:48 and the last one (line or number
238) was
made at 15:05:32. All the calls were serviced (in the sense
explained by Heynecke) by the Wilson’s Cutting base
station or
the Maguntia Store base station.
When Goldstone again spoke to Sipho he had already recovered Exhibit
2 from Mavimbela. Goldstone said that Sipho’s alibi
changed
completely in the sense that he now said he had been in Ezingolweni
where he had bought Exhibit 2 from one Makhanya on
15 March 2003.
Goldstone gave unchallenged evidence (which is borne out by section
E in Exhibit B3) that the number of Exhibit 2, i.e. the cellular

telephone which Gcobisa used with number 0836940890, changed on 16
March 2003, i.e. on the day after her disappearance. This
evidence
and schedule E is consistent with the Sthombe’s evidence
regarding the dates when he borrowed the cellular telephone
from
Sipho and when he returned it to Sipho.
Under cross-examination a statement was made by Mr Ntshulana to the
effect that the Newlands Farm base station is “right
next to
Harding”. That statement is incorrect. I have Exhibit B1 in
my possession. Mr Mcanyana said the Newlands Farm
base station is
between Wilson’s Cutting base station and the Maguntia Store
base station. That statement is correct and
I agreed with it. Mr
Ntshulana may have confused the position of the Newlands Farm base
station and the Norwood base station,
which is next to Harding.
Goldstone said that the distance between Harding and Ezingolweni is
between 50 and 60 kilometres. I, therefore, reiterate that,

referring to Exhibit B1, the base stations at Wilson’s Cutting,
Newlands Farm and Maguntia Store are not in the vicinity
of Harding,
but in the vicinity of Ezingoleni. Goldstone said that he accepted
that Sipho was in the Harding area on the morning
of 15 March 2003,
but that he returned to Ezingolweni. Goldstone said, with reference
to Sipho, “one can actually see it
with his movement of his
cellphone”.
Goldstone confirmed that the alibi of the accused and the one
initially relied on by the accused and Sipho, was the same one,

namely that they were both in Harding the whole day and that they
only returned “later in the afternoon”.
Goldstone explained in a convincing manner that it was purely
coincidental that he saw Sthombe’s cellular telephone records,

which had been obtained by Captain Crouse, the investigating officer
in another murder case for which Sthombe was detained in custody.

He said “on seeing those records the number rang a bell”.
After I had recalled him, Goldstone said that when he
saw Sthombe’s
cellular telephone records, he “immediately realised that
that’s also the number of one of the
users in my profile”,
i.e. section E of Exhibit B3. He then confronted Sthombe, who gave
him information which led to Sipho.
I also questioned Goldstone about the interview which he had with
the accused. He confirmed that he informed the accused of
his
constitutional rights and that the accused gave him certain
information. Goldstone consulted his notes and read out certain

questions and answers. It is now clear that Goldstone read from
Exhibit H, the admissibility of which was later the subject of
a
trial-within-a-trial. I made a ruling that the statement was
admissible and will hereinafter furnish my reasons for that ruling.
I will then quote the relevant part of Exhibit H. At the moment I
only refer to Goldstone’s evidence that the accused
conveyed to
him that, at some stage, the accused was in possession of Exhibit 2.
Goldstone said this information was consistent
with section E of
Exhibit B3.
During the course of Goldstone’s cross-examination Mr
Ntshulana put to him that the accused would say that, during the
course of the investigation he “was harassed severely” by
the police when they came to interview him and when they visited
his
house. Goldstone denied that he harassed the accused. I said that
this was a collateral issue and that Goldstone’s
answer was
final.
Then he was questioned about a lie detector test which the accused
took. I then stated:
“I can tell everybody now that evidence has been given about
other cases, other charges. We are dealing with this case only.
We
are not investigating the admissibility of statements. We are not
dealing with a trial-within-a-trial. We are not dealing
with police
assaults or harassments. We’re dealing with this case only”.
I referred Goldstone to the questions put to and answers given by
the accused and then said that in order that I could have “the

complete picture before me”, the statement should be handed in
as Exhibit H. This was done without any objection being
raised to
its admissibility.
I then put further questions to Goldstone about Exhibit H, starting
off with the question whether there was any indication in
it of the
time when the accused said he had gone to Harding. Goldstone said
that there was no such indication and again said
that:
“We first went over his statement he had made to Captain Nala
and there the date and time is reflected”.
I said that:
“I did not understand at any stage that there was a challenge
of the admissibility of that statement, but it will become
very clear
if there is and if necessary Captain Nala may have to be recalled
about it”.
Goldstone said the accused confirmed that statement.
I unfortunately made errors in referring to the exhibits by their
incorrect numbers - I think I probably forgot that Goldstone’s

statement is Exhibit I. The statement which the accused made to
Sergeant Nala on 19 March 2003 is Exhibit K - whatever the record

says. The statement which the accused made to Goldstone (and Nala)
on 4 June 2003 is Exhibit H - whatever the record says.
Goldstone said that the departure time of the accused as reflected
in Exhibit K is 09h00 on 15 March 2003 and the time of his
return is
given as 15h30.
Shortly thereafter Mr Ntshulana indicated that the admissibility of
Exhibit K was in fact challenged. He also said that the
issue had
been raised in cross-examination and continued “it’s the
manner in which he was interviewed several times”.
I then said that Exhibit K should go back to and remain in the
docket and indicated that there should be a trial-within-a-trial

concerning its admissibility.
Goldstone was then further cross-examined by Mr Ntshulana. The
tenor of the cross-examination was to raise doubt about whether
Sipho
and the accused were in fact using their cellular telephones on 15
March 2003. The object of this cross-examination was
clearly to
avoid the sting of the evidence which placed the users of those
cellular telephones in the vicinity of the three relevant
base
stations, i.e. Wilson’s Cutting, Newlands Farm and Maguntia
Store. Goldstone said that if any one of Sipho or the
accused had
said that he did not use his cellular telephone on 15 March 2003, he
(Goldstone) would have investigated such a claim.
This evidence is
convincing, probable and was not challenged. Goldstone had cellular
telephone records which indicated to him
and which today indicate to
me that on 15 March 2003, they (i.e. Sipho and the accused) were at
Ezingolweni.
I digress briefly to explain a matter which may cause confusion.
The alibi is that the accused was at Harding with Sipho.
This
appears from the Exhibit K. Goldstone established that the machine
on which they allegedly worked belonged to Mr Mbuthuma
who lives in
Harding. Goldstone established that the machine, which had to be
repaired, was in the Umzimkulu area. It is clear
from Goldstone’s
evidence that he obtained information from Mr Mbuthuma. Goldstone
also said that Sipho’s alibi was
that he had been in Umzimkulu.
I accept unequivocally that the alibi of the accused was, at all
times, that he spent most of 15 March 2003 with Sipho in Harding

where they worked on a machine. Because Sipho said he was in
Umzimkulu and because Goldstone had information that the machine
was
in Umzimkulu, Goldstone’s evidence may, at times, erroneously
convey that the alibi of the accused was that he had been
in
Umzimkulu. This was not his alibi. On the other hand I accept
that Goldstone simply made an error when he referred to Umzimkulu
in
relation to the alibi of the accused.
I leave aside for the moment the cellular telephone records, which
suggest, as Goldstone pointed out, that Sipho was in Harding
in the
morning.
I asked Mr Ntshulana, as I think I am entitled to do, whether it was
the case of the accused that he in fact did not use his cellular

telephone on 15 March 2003. I was told that the accused did not
remember whether he used it or not.
Thereafter Mr Ntshulana proceeded to cross-examine Goldstone on the
contents of his record of the interview with the accused,
i.e.
Exhibit H.
After Mr Ntshulana had completed his questioning of Goldstone, I
suggested that we should start with the trial-within-a-trial

immediately. I referred to the “document which was previously
Exhibit I”. There was no misunderstanding, because
Mr
Ntshulana said his understanding was that the trial-within-a-trial
would relate to the statement which the accused made to Nala.
But
Goldstone also testified that the said statement was confirmed by the
accused on 4 June 2003 after he had been informed of
his
constitutional rights.
The evidence of Goldstone was furthermore, that some questions were
not put to the accused on 4 June 2003, because, so Goldstone
said, he
had confirmed his previous statement which, therefore, was in fact
incorporated into the statement, Exhibit H. In my
view, therefore,
the admissibility of Exhibit K had to be considered on two bases,
i.e. as a statement to Nala on 19 March 2003
and as part of a
statement to Goldstone on 4 June 2003.
Before the commencement of the trial-within-a-trial regarding the
admissibility of Exhibit K, Mr Mcanyana (without any objection
being
raised by Mr Ntshulana) placed on record that the basis of the attack
on its admissibility was that the accused had not been
informed of
his constitutional rights before the statement was taken. It was
common cause that the accused was not so informed.
The question is
whether he should so have been informed.
Goldstone was the first witness in the trial-within-a-trial.
Before referring to his evidence, it is probably appropriate for me
to record my impression of him as a witness in the main trial.
I
considered his evidence in the light of all the other evidence and
the probabilities. His demeanour was excellent. He had
a very
good recollection of all the relevant events and facts. He was
completely unbiased and in short, there is no doubt whatsoever
that
he was a truthful and reliable witness.
Goldstone confirmed his evidence in the main trial. At the time
when Exhibit H was completed, the accused was a suspect and
was
informed of his constitutional rights. On 4 June 2003, Captain Nala
acted as interpreter for the accused. Exhibit H records
a request
by the accused that his previous statement, i.e. Exhibit K, should be
read out to the accused to refresh his memory.
This was done and
the accused confirmed Exhibit K. Goldstone speaks Zulu and he said
that Nala interpreted correctly. Goldstone
said that on 19 March
2003 the “matter was still a so-called missing person’s
docket”. This evidence is probable.
The evidence of Nala in
the main trial bears that out. Later she confirmed this evidence.
Goldstone said that in March 2003
the matter was a “missing
person enquiry”. Goldstone confirmed that by 4 June 2003 the
accused was a potential suspect.
Under cross-examination this was put to Goldstone:
“The accused submits that at stages during the investigation of
this matter, police will come to his house and he will be
harassed
and, later on on the following day he will meet you for interviews
and at a certain stage you’ll force him to sign
the interviews,
the statement of the interview at the end”.
In view of the serious nature of these averments, I requested
Goldstone to make available to Mr Ntshulana all his notes of all
his
interviews with the accused, so that the statement or statements
which Goldstone forced the accused to sign could be identified.
Mr Ntshulana wanted to withdraw the question, because “the
accused does not remember the exact dates the police had been

coming”.
What was put to Goldstone is plainly false. Mr Ntshulana carried
out the instructions of the accused and put to Goldstone and
to the
Court the false version of the accused that Goldstone had forced him
to sign documents. This conclusion is unassailable
and the record
will demonstrate it. The accused made two other statements to
Goldstone in which he exercised his right to remain
silent.
Goldstone’s evidence in the trial-within-a-trial was of the
same quality as his evidence in the main trial. The suggestion
that
he forced the accused to sign Exhibit H or any other document is a
scurrilous falsehood. That much will be amply demonstrated
later in
this judgment. After Goldstone’s testimony the matter was
adjourned to 17 January 2011.
On 17 January 2011 Mr Mcanyana recalled Prinsloo, but his further
testimony does not take the matter any further.
The trial-within-a-trial was then resumed and Captain Nala was
recalled. She testified with regard to the statement which she
took
from the accused on 19 March 2003. She said that on 4 June 2003
when Goldstone interviewed the accused, she acted as interpreter
for
him. On that occasion the constitutional rights of the accused were
explained to him.
Under cross-examination she firmly denied that the accused was “at
all material times a suspect”. This evidence
is materially
corroborated by Goldstone’s evidence on this point in the main
trial. That evidence was probable. It was
not challenged and he
specifically confirmed in the trial-within-a-trial the evidence which
he had given in the main trial.
Under re-examination Nala advanced cogent, probable and unchallenged
reasons why on 19 March 2003, the accused was not a suspect.
It is
implicit in her evidence that on 19 March 2003 the police did not
suspect that a crime had been committed.
After the State had closed its case in the trial-within-a-trial, I
recorded the errors which I had made regarding the numbering
of some
of the exhibits.
The accused testified in the trial-within-a-trial. Regarding
Exhibit K he said Nala asked him if he knew Gcobisa and when he
last
saw her. Then Sergeant Nala went out of her office, she returned to
her office with a male, Captain Nala. Sergeant Nala
then locked the
accused into a small room adjacent to her office. The male police
officer entered and poured water over his body.
Then this male hit
him with an open hand on his back. This male further assaulted him
by pushing him or hitting him against
the wall. This male told the
accused why he was assaulting the accused, namely that he wanted the
accused to tell the truth about
the disappearance of Gcobisa. Then
the male told him to leave the little office and to go back to
Sergeant Nala’s office.
The accused confirmed that it is his
case that the male Captain Nala was fetched by Sergeant Nala to
assault the accused after
he had made the statement, Exhibit K, to
her.
The accused said he also remembered being asked where Gcobisa was
and where he (the accused) was “yesterday”. He
could
not remember any other question which Sergeant Nala put to him. The
accused said that Sergeant Nala said he could go home
and that she
would fetch him when they were going to Westville. After a few days
Sergeant Nala and Captain Nala fetched him and
took him to Westville
for a polygraph test. At the place where the test was performed the
accused said he was assaulted in the
presence of the male Captain
Nala.
The tenor of the questions which the accused said were put to him
are perfectly reconcilable with Nala’s probable evidence

(corroborated by Goldstone) that on 19 March 2003 the accused was not
a suspect and that a witness statement was obtained from
him. It is
extremely improbable that on 19 March 2003 Sergeant Nala would have
stated to the accused that she would fetch him
to go to Westville.
Nothing about this alleged statement was put to her when she
testified either in the main trial or in the
trial-within-a-trial.
Nothing about the alleged assault on the accused was put to her when
she testified either in the main trial
or in the
trial-within-a-trial. The evidence of the accused about the alleged
assault on him by the male Captain Nala, seems
improbable.
The accused then testified about the interview with Goldstone on 4
June 2003. Mr Ntshulana said that he regarded the admissibility
of
Exhibit H as being part of the trial-within-a-trial. The accused
said that although Goldstone informed him of his rights,
those rights
were “not followed’. The accused said that he was
forced to answer some of the questions which Goldstone
put to him and
that he was also threatened by Goldstone. The accused said that
Goldstone did the following:
1.
Goldstone asked him (the accused) if he had ever involuntarily soiled
himself with faeces. The accused said that this had never
happened
to him. The threat by Goldstone to him lay therein that Goldstone
said that “if you do not do what I say, you
will pass faeces”.
2.
Goldstone said he must answer all the questions and that there is no
question which he will not answer.
3.
Goldstone said that he will get other police officers to come and
assault the accused.
4.
Goldstone said that if the accused “speak something which is
not there, even if he comes from court, Goldstone will have
a quarrel
with him”.
Not one of these four so-called threats was put to Goldstone. When
it was put to Goldstone that he forced the accused “to
sign
certain notes”, I insisted that Mr Ntshulana should be
specific. He then wanted to withdraw the question. I said
that he
could not do so, because “this is an important and very serious
matter”. I then, in effect, formulated a
very wide definition
of conduct, which would amount to harassment. Mr Ntshulana was
invited to add any other reprehensible conduct
to that definition.
He did not suggest that anything should be added.
I asked Goldstone if he ever behaved in such a manner to the
accused. He said he had not. Mr Ntshulana did not challenge that

reply, yet each of the four threats which the accused said Goldstone
made, falls squarely within my formulated description of harassment.

The accused either deliberately failed to properly instruct Mr
Ntshulana or he fabricated his evidence about the alleged threats.

Given his mendacity, as demonstrated in the trial-within-a-trial, the
latter is the more probable inference.
After the accused had closed his case in the trial-within-a-trial,
Goldstone was recalled at the request of Mr Mcanyana, without
any
objection by Mr Ntshulana. Goldstone confirmed his evidence
regarding the events which led to Exhibit H. He explained that
the
very first time he met the accused was at Ezingolweni Police Station.
Goldstone had asked female Captain Nala (then Sergeant
Nala) to
arrange for the witnesses to be present so that he could interview
them. He reiterated that this was the first occasion
that he met
the accused. This evidence is probable in the light of the
unchallenged evidence of Nala regarding the date when
Goldstone took
over the investigation (end of May 2003) and Goldstone’s own
evidence on that issue (beginning of June 2003).
The accused persisted in his version that Goldstone threatened him
before Exhibit H was completed, i.e. before June 2003. Goldstone

said it was impossible to threaten a person who he had not even met.
It was put to Goldstone that the version of the accused is that he
(the accused) met Goldstone on several occasions before 4 June
2003.
Goldstone said this was impossible. It is to be noted that the
accused did not testify that he met Goldstone on several
occasions
before 4 June 2003. However, I accept that he gave those false
instructions to Mr Ntshulana.
Goldstone again pointed out that after the accused was arrested for
this case, Goldstone took two so-called warning statements
from the
accused, who then exercised his right to silence.
I heard submissions from Mr Mcanyana about the admissibility of
Exhibit K, i.e. the statement dated 19 March 2003. In the main
Mr
Mcanyana’s submissions were that the evidence established that
the accused was not a suspect at the time and, therefore,
there was
no need to inform him of the constitutional rights of an arrested or
detained person or a suspect. In the alternative
he submitted that
the evidence established the admissibility of Exhibit H, i.e. the
statement dated 4 June 2003, and, inasmuch
as Exhibit K was confirmed
in Exhibit H, it is admissible. Mr Ntshulana submitted that the
admissibility of Exhibit K and Exhibit
H was in issue in the
trial-within-a-trial. Regarding Exhibit K he submitted that the
question “where were you on 15 March
2003” must have been
put to the accused and that by itself, indicates that he was a
suspect.
Mr Ntshulana relied on
S v MTHETWA
2004 (1) SACR 449
E
in support of his submission that the accused was entitled to and
should have been informed of his constitutional rights before
he made
Exhibit K. Concerning Exhibit H Mr Ntshulana submitted that the
version of the accused could reasonably possibly be true
and that the
State thus failed to prove that the statement was made freely and
voluntarily.
After I had heard argument I directed that female Captain Nala
should be recalled. She confirmed her evidence in the main trial
and
in the trial-within-a-trial. During the course of her evidence it
transpired that she (Captain Nala) is married to Lieutenant
Colonel
Nala (who, during March 2003 was Captain Nala). For convenience, I
will refer to Lieutenant Colonel Nala as “her
husband”.
She said she did not think that anybody else was present in her
office when she interviewed the accused. She did not remember
her
husband coming into the office. Her husband and the accused did not
go into a small room adjoining her office. She explained
that the
parents of Gcobisa requested that the accused should undergo a
polygraph test. This was requested after she had taken
the
statement, Exhibit K.
It seems to me that this evidence is probable. In any event it was
not challenged. If this evidence is accepted (and I see
no reason
whatsoever to reject it) the evidence of the accused that Nala said
to him on 19 March 2003 that she will come and fetch
him at home to
go to Westville cannot be correct. Nala said that she was asked by
Gcobisa’s parents to find out from the
accused if he was
willing to undergo a polygraph test. There was no suggestion to her
or by the accused that the polygraph test
was discussed at all on 19
March 2003. It is unlikely in the extreme that Nala would take the
accused to Westville (as she later
did) for a polygraph test without
having obtained his prior consent. Nobody suggested that such
consent was obtained on 19 March
2003. This also demonstrates the
probability that Nala spoke to Gcobisa’s parents after she had
obtained Exhibit K.
The question now arises whether the accused was simply mistaken when
he said that Nala told him on 19 March 2003 that she would
fetch him
to take him to Westville or was he being deliberately untruthful.
Given the gross nature of his lies regarding Exhibit
H, I think the
probabilities favour the latter conclusion.
After Nala had testified, Mr Ntshulana indicated that he had no
further witness to call in the trial-within-a-trial. Mr Mcanyana

had no further submissions to make. Mr Ntshulana submitted that I
must weigh up the versions of Nala and the accused against
each other
and that I should not simply accept her evidence on the issue of the
alleged assault on the accused by her husband.
I never simply accept evidence. I consider all the evidence in the
light of the probabilities inherent or otherwise. I have
regard to
the demeanour of witnesses. Nala was a good witness. The accused
was an atrocious witness. Nala’s evidence
is probable. The
version of the accused is improbable, particularly that part which
relates to the alleged assault on him in
the small room.
After I had heard Mr Ntshulana’s closing submissions I made an
order that Exhibit H and Exhibit K are admissible in evidence.
I
said I would furnish my reasons in due course. I do so now.
EXHIBIT H
For the reasons set out in my analysis of the evidence for the
witnesses in the trial–within-a-trial, I conclude that the

State proved beyond reasonable doubt that Exhibit H was made freely
and voluntarily.
EXHIBIT K
For the reasons set out in my analysis of the evidence of the
witnesses in the trial-within-a-trial, I conclude that the State

proved beyond a reasonable doubt that, at the time when Exhibit K was
obtained, no crime was being investigated. It therefore
follows
that the State proved beyond reasonable doubt that on 19 March 2003
the accused was not a suspect in any one of the three
offences in
this case. It therefore follows that it was unnecessary for him to
have been informed of the constitutional rights
of arrested persons
or detained persons or suspects - see the authorities referred to in
S v MTHETWA
, supra, particularly those on pages 453 and
454. In the alternative, I am of the view that the State, in any
event, proved the
admissibility of Exhibit K, which was incorporated
into the admissible Exhibit H.
After I had made my said ruling, it was agreed and recorded that the
proceedings in the trial-within-a-trial were incorporated
into the
main trial. Mr Mcanyana closed the State’s case in the trial.
At the conclusion of the case and in the light of all the evidence,
I reconsidered my ruling regarding the admissibility of Exhibit
H and
Exhibit K. I confirm that ruling. The reasons for confirming my
said ruling appear from my analysis of the evidence in
the
trial-within-a-trial and from my analysis of the evidence of the
accused in the main trial.
In paragraph 1 of Exhibit K the accused describes himself as a
mechanic, who is employed by Sipho Ngcobo’s Panel Beaters
at
Ezingolweni. That was also the general tenor of what he told
Goldstone. Paragraphs 2 - 6 of Exhibit K read as follows:
“2.
I would like to state that I was in love with Gcobisa Yako since
1997. Last year in November 2002 myself and Gcobisa had a fight
and
we discuss our differences and solve them. Gcobisa usually comes
and visit me after that fight up until January where she
stops
visiting me and I can’t recall the exact date but we used to
phone each other.
3.
On 2003/03/02 I phoned Gcobisa and asked her to give back my
cellphone, which she was using, and I was going to give her my other

cellphone, which is Siemen. The reason I asked for that Nokia
cellphone was that the Siemens battery was giving me problems and
I
don’t have electricity to charge it every now and then. So
Nokia was still new and it wasn’t going to push me to
charge it
everyday. By that time I was phoning her I was going to Durban
thinking that I was going to come back earlier and go
to see her for
that cellphone and I only came back very late from Durban and I
couldn’t see her.
4.
After some days I send Gcobisa a message to say that if she gets time
she must bring the cellphone to me and she never responded.
5.
On 2003/03/15 at approximately 09:00 I went with my employer Sipho
Ngcobo to Harding to fix a tractor of Mr Mbuthuma and we came
back at
about 15:30. I then went home and I found Ye Zulu, who used to
assist me at home by cleaning if I’m busy. By
the time I came
home, I found her on the way out and I stand and speak to her. But
it was a short time and I went to the house
to watch soccer. After
I finished watching soccer I went back at work since the was a
vehicle which was need to be fix. After
finishing that work I went
back home and it was plus/minus 18:30.
6.
On Saturday 2003/03/15 Gcobisa never phoned me and I didn’t
phoned her either. On Sunday 2003/03/16 I was at home with
my
brother Philani Mthembu from Pietermaritzburg who came to visit me
with my kid also from Pietermaritzburg when policeman came
at home
round about 22:00 and they were asking for Gcobisa and told me that
Gcobisa has gone on Saturday saying that she was visiting
me. That
is the only time I heard that Gcobisa was missing and I explained to
them that I didn’t see her. That is all
I can state”.
Page 3 of Exhibit H (in which the accused confirmed Exhibit K)
appears to be the only relevant page and it reads thus:
“Q. When were you last in contact with Gcobisa?
A. Two weeks before this.
Q. What was the conversation?
A. About a fridge she had borrowed.
Q. Not about the cellphone?
A. Yes, but she started about the fridge. I asked her for my
cellphone. I told her if she cannot bring it, I will fetch it
from
her in Port Shepstone.
Q. Were you still in love with her?
A. Yes.
Q. Any arrangement made to meet?
A. She said she would arrive anytime.
Q. Did you know about her other boyfriend?
A. No, I never knew.
Q. When last were you together?
A. Between January and February.
Q. Were you lovers?
A. Yes.
Q. Do you have other girlfriends?
A. Yes, the mother of my child, Zama, and Mazi and Lungi and
Pienkie, the mother of my other child.
Q. Who were you intimate with?
A. All of them excluding Mazi.
Q. When last did you phone her or she phoned you?
A. That was on the 2
nd
March. I was in Durban if I
remember. This was when we discussed the fridge and cellphone”.
The accused testified in his defence. For reasons which will
clearly appear from my analysis of the evidence of the accused,
I
recalled Goldstone after the accused had testified. Thereafter the
accused closed his case without calling any witness.
The accused said that on the morning of 15 March 2003, Sipho
telephoned him to summon him to go with Sipho to repair a tractor.

They left and returned late in the afternoon. The next day, i.e.
the Sunday, a policeman arrived at his house at night and
said that
the accused was hiding somebody’s wife. This policeman
searched the house, but did not say whose wife the accused
was
allegedly hiding.
On Monday, 17 March 2003, the accused said he “woke up and
went to police station at Ezingolweni”. The police said
to
him there is nothing they could do to help him.
Under cross-examination the accused was questioned about when he
first heard of Gcobisa’s disappearance. He then referred
to
the incident involving the policeman on the Sunday evening. This
conveyed the impression that he first learnt about Gcobisa’s

disappearance at that time. The accused was asked why he mentioned
the events on the Sunday evening, which did not appear to
have
anything to do with Gcobisa. He said the policeman mentioned
Umtentweni and because he knew Gcobisa lived at Umtentweni,
he
assumed that the policeman must be referring to Gcobisa.
He was then asked how he knew the policeman was talking about the
disappearance of Gcobisa. He said he did not know that the

policeman spoke about Gcobisa’s disappearance. But on his own
version he inferred that the policeman was looking for Gcobisa.
The version of the accused regarding the events on Sunday night was
not put to any State witness. That does not mean that the
incident
did not happen. The tenor of Sibonelo Ngcongo’s evidence is
that he and a friend went to report Gcobisa’s
disappearance at
the Ezingolweni Police Station on the Sunday. It is unlikely that
the accused fabricated this incident. If
the incident in fact
occurred, it means that the accused already knew on the evening of
Sunday, 16 March 2003, that people were
looking for Gcobisa. It
also means that when Yako, Sandla and others met the accused on
Monday, 17 March 2003, the accused did
not inform them of the
incident which happened on the Sunday night.
The accused testified about the visit to him by Yako and the others
on that Monday afternoon. He said that Yako was aggresive
and that
Sandla had to restrain him. He was informed that they were looking
for Gcobisa. The accused said that his response
was “I do not
know where she is. I have not seen her”. The accused said
that shortly thereafter Yako and the others
returned accompanied by
the police. From there they all went to the Ezingolweni Police
Station, where Gcobisa’s disappearance
was discussed in the
presence of a policeman, one Mavundla. The accused said that in
response to questions put to him by this
policeman, he said that he
and Gcobisa are in love, that he did not know where she was and that
he never saw her on the day when
she was alleged to have come to him,
i.e. 15 March 2003.
This alleged visit to the police station was not put to anyone of
the State witnesses who testified about the events on 17 March
2003
when Yako spoke to the accused. But it seems unlikely that the
accused would have fabricated this incident involving, as
it does,
the name of a specific policeman. Sandla also said the accused
accompanied them to the police station and probably referred
to this
incident. On his own version, however, the accused stated that he
and Gcobisa were in love at that time. The improbability
of this
statement will be exposed during the course of my analysis of the
evidence of the accused.
The accused responded to the evidence of Sthombe and, as I have
already indicated, relied on the physical impossibility that he
and
Sthombe could have spoken to each other. It will be seen from his
evidence-in-chief that the accused “introduced”
this
physical impossibility twice, i.e. in reply to two different
questions. His replies are not appropriate replies to the two

questions and to that extent they can be said to be evasive. It is
clear that the accused was anxious to make the point and under

cross-examination he in fact said that he had mentioned the fact that
they were detained in different cells because “that
means I did
not communicate with him”.
The accused then set out a number of reasons why Sthombe may be
lying. I deal with them
seriatim
.
1.
The first reason hints at a conspiracy between the police, Yako and
Sthombe. This was raised in the cross-examination of Sthombe.
2.
Allied to the first reason is the surprise which the accused
expressed about the delay between the alleged discussion between him

and Sthombe and the statement which Sthombe made. This issue was
also raised with Sthombe under cross-examination. Goldstone
gave
further evidence in this regard, when I recalled him at the end of
the case.
3.
It was suggested that Sipho and the accused had a quarrel and that
Sthombe is having his revenge on the accused. This is improbable,

also in the light of the evidence of the accused that he never had a
problem with Sthombe. This alleged reason was not put to
Sthombe
under cross-examination.
4.
The accused suspects that Yako may have paid Sthombe to give false
evidence against the accused. This issue was raised with Sthombe

under cross-examination, but not with Yako. In my view, the entire
tenor of Sthombe’s evidence militates against this so-called

reason. In this regard I also refer to Goldstone’s further
evidence.
5.
The accused also suspects that Sthombe is lying in order to protect
Sipho. There is no substance in this suggestion. Sthombe
may have
lied to protect himself (and I am alive to that possibility) but the
tenor of his evidence certainly does not protect
Sipho.
6.
Sthombe is having his revenge, because, despite Sthombe’s
requests, the accused stopped visiting Sthombe in prison. The

accused said he visited Sthombe in prison once. The issue was
raised ever so obliquely in Sthombe’s cross-examination.
He
was asked if the accused ever visited him in prison. He denied that
this happened. The matter was left there.
The accused was questioned about his knowledge of the contents of
Sthombe’s statement, i.e. Exhibit C, and about when these

various so-called reasons occurred to him and whether he drew the
attention of Mr Ntshulana to those reasons. It is not my intention

to examine in minute detail the evidence of the accused on these
issues.
In summary, his evidence was evasive, contradictory and thoroughly
unconvincing. The fact remains that some of the so-called
reasons
were not put to Sthombe at all or were not properly put to him.
There was no application for Sthombe’s recall to
remedy the
matter. The main point, i.e. the impossibility that their alleged
discussion could ever have taken place, was not
put to Sthombe.
Under cross-examination the accused confirmed the obvious, namely
that the case of the accused is that the entire Exhibit C and
his
evidence were fabricated by Sthombe. One wonders where Sthombe got
the cunning idea from to say that Gcobisa’s cellular
telephone
was taken not from her handbag, not from her person, but from her
“bottom”. Who was crafty enough to fabricate
that piece
of evidence, with its ring of truth?
The accused was reminded of the evidence of Silangwe. He was then
asked whether from her house one can see the bus stop to which
he
referred. The answer is very clear: “Yes, the stop is
visible. Not clearly”. Whatever subsequent dilution
or
watering down of that reply there was, this evidence of the accused
cannot raise any doubt about the ability of Silangwe to
have observed
what she claimed to have seen.
Under cross-examination the accused said that he knows Silangwe very
well. He said that he analysed her evidence and tried to
find a
reason why she would lie. He could think of no such reason. So,
one is left with what Mr Ntshulana put to Silangwe,
namely that “the
police or anybody” told her what to say. Or, of course, she
is an unbiased neighbour who observed
certain things and who heard an
unusual remark made by the accused, shortly before Gcobisa
disappeared.
Under cross-examination the accused confirmed that the person going
from the bus stop to the house of the accused will be getting
closer
to Silangwe’s house and will then pass Silangwe’s house
before reaching the house of the accused. That is
also how I
understood Silangwe’s evidence.
The accused testified that he last saw Gcobisa about a week or two
before 15 March 2003 and he added: “Because I moved
from one
place to the next”. He explained that he did not mean that he
changed his place of residence, but that he worked
at different
places.
He was then asked about his assistance in the search for Gcobisa.
He said he gave to the police the IMEI number of Exhibit 2.
Nala
conceded this in her evidence. I point out, however, that, when
Goldstone was recalled, he was very firm and said that
the IMEI
number of Exhibit 2 did not come from the accused. One cannot
resolve this conflict by saying that Nala corroborates
the version of
the accused and, therefore, it must be accepted.
As far as reliability is concerned, I would have no hesitation in
accepting Goldstone’s evidence - he clearly knows his
docket
inside out. Goldstone’s evidence how he tracked down Exhibit
2 is unchallenged. He physically recovered it from
Mavimbela after
he, by chance, had stumbled across and recognised a cellular
telephone number in a discussion with Captain Crouse.
Goldstone did
not use the IMEI number of Exhibit 2 to find or recover it. He
explained that one of his colleagues telephoned
Mavimbela under some
pretext and that Goldstone recovered Exhibit 2 from her on
12 September 2003.
Goldstone said that the police look at the so-called “end
user” of a cellular telephone. In this case, Mavimbela
was
the end user of Exhibit 2. When Exhibit 2 was recovered, Goldstone
(when he testified on 30 September 2010) agreed when
I suggested
that:
”On the strength of what had been put to Captain Nala, the
police would, by that time, have had the IMEI number of the handset”,
i.e. Exhibit 2. This evidence appears to be in conflict with what
he later said, namely that the IMEI number was not furnished
by the
accused. On 30 September 2010 Goldstone was, however, asked by me
whether the IMEI number “would put you on track
of the
handset”. He did not expressly disagree, but said:
“What Captain Nala actually did is basically confirmed what the
accused said and that this was in fact the IMEI number that
we were
looking for”.
So, Exhibit 2 was traced to the end user by its cellular telephone
number (which had been changed) and it was then confirmed by

reference to its IMEI number that this was the cellular telephone of
Gcobisa.
Heynecke said that each handset, i.e. each cellular telephone, has
its own unique serial number. This is the International Mobile

Equipment Identity number. The acronym is the IMEI number. When
one lifts out the battery from a cellular telephone, she said
there
is “a sticker displayed with this IMEI number”. In any
event, on the footing that the accused furnished to
the police the
IMEI number of Exhibit 2 and if one accepts Sthombe’s evidence,
it must be borne in mind that Sthombe also
said that the accused told
him that the accused had said to Sipho to destroy the cellular
telephone, i.e. Exhibit 2. If, and
I repeat, if this instruction
had been given to Sipho, the furnishing of the IMEI number to the
police would have been of no assistance
- provided Sipho carried out
the instruction. And we know Exhibit 2 exists - with is IMEI
number intact.
Of course, the thrust of the evidence of the accused that he
furnished the IMEI number to the police is to demonstrate his
innocence.
And that was precisely the point which the accused
wanted to make and did make in the very next sentence of his
evidence-in-chief.
He said that he even gave a photograph of
Gcobisa to the police. He was asked to whom he had given the
photograph. His reply
was clear and unequivocal, namely to
Goldstone. He reiterated this and later said that Goldstone took
the photograph when he
“fetched” the accused at home.
I was somewhat surprised by this evidence, which one would have
expected to have heard about earlier during the trial. Goldstone

emphatically denied having received any photograph from the accused.
He said that the photograph of Gcobisa and other relevant

information were obtained from the Yako family. This was done for
the purpose of the television broadcast about which Nala testified.

It had all been completed before Goldstone received the docket early
in June 2003.
The accused said that he could not remember if he had his cellular
telephone with him on 15 March 2003. I accept that statement.
He
also said that he does not usually leave his cellular telephone
behind. That statement is probable and I accept it. The
accused
also said he does not remember making any call to Sipho on that day.
If that really means that he does not remember,
I accept that the
statement is true. If it means that he did not make any call to
Sipho, the evidence is contradicted by the
cellular telephone records
and is probably untrue.
Towards the end of the evidence-in-chief of the accused, Mr
Ntshulana on two occasions asked the accused if he wished to add
anything to his testimony. The accused availed himself of each of
those opportunities.
Firstly he asked me to take a closer look at how Exhibit 2 reached
Mr Ngcobo – I assume this is a reference to Sthombe.
Secondly he said he would like to know what actually happened.
I will do my best to comply with these requests, which, lest the
wrong impression is gained, were made with apparent sincerity.
But
looks can deceive, particularly when one assesses the demeanour of a
witness who testifies through an interpreter –
as the accused
did.
The accused explained that he gave Exhibit 2 to Gcobisa immediately
after he had bought it. This was not a gift and Gcobisa
would have
to return it to the accused if he asked for it.
Mr Mcanyana commenced his cross-examination of the accused on 19
January 2011 and concluded it on 20 January 2011.
SHORT ADJOURNMENT
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ON RESUMPTION : APPEARANCES AS BEFORE
JUDGMENT
(continued)
McLAREN J
The accused said that on 15 March 2003 he and
Gcobisa were still lovers and that their relationship was good. I
will demonstrate
with reference to his own statements and the
probabilities that this evidence is false. It is a deliberate lie,
the purpose of
which can only be to establish the improbability of
the accused killing Gcobisa.
The accused was asked if Yako asked him when last he (the accused)
had seen Gcobisa. The accused said he did not remember if
Yako
asked that, but he recall telling Yako that he did not see Gcobisa on
the Saturday, i.e. on 15 March 2003. If Silangwe’s
evidence
is accepted, the accused furnished false information to Yako.
It was pointed out to him that Yako testified that the accused had
stated that he last saw Gcobisa “last year”, i.e.
during
2002. The accused said that Yako was making a mistake. But this
evidence was unchallenged.
The evidence of Msindwana and Sandla on the same issue was
unchallenged. Msindwana said that the accused was asked regarding

the whereabouts of Gcobisa and Msindwana said the accused replied
thus:
“It’s a long time that I last saw her”.
Sandla’s unchallenged evidence is that the identical reply was
given in response to Yako’s question when last the accused
saw
Gcobisa. So, the probabilities and Sandla’s direct evidence
are that the accused was asked when he last saw Gcobisa.
The same question was put to the accused in his evidence-in-chief.
Then he said it was a week or two before 15 March 2003.
That is not
what he said to Yako, Msindwana and Sandla. This is a simple
matter, about which the accused cannot be mistaken.
His beloved
disappears - surely he must remember when he last saw her. And in
his testimony he says it was a week or two before
her disappearance.
And he gives a reason why it was so long ago before Gcobisa’s
disappearance, namely because he moved
from place to place. This
evidence is completely irreconcilable with the unchallenged evidence
of Yako, Msindwana and Sandla.
Before Mr Mcanyana continued with this cross-examination on
20 January 2011, I wanted to establish when Goldstone allegedly

took the photograph from the home of the accused. I tried to
establish a time frame with reference to Exhibit H. During the

course of his testimony now the accused clearly and unequivocally
said that Goldstone had not forced him to make Exhibit H. Under

re-examination Mr Ntshulana raised the matter again. He reminded
the accused that he said that Goldstone had warned him of his
rights,
but during the interview Goldstone did not follow them. The accused
now said he did not remember very well what had happened
at
Ezingolweni and at Port Shepstone.
I think I asked him if he spoke the truth during the
trial-within-a-trial. He said some of his evidence was the truth.
“Some
of it I just said for the sake. I was forced”.
He then said he was forced by Goldstone in the manner testified to
during
the trial-within-a-trial.
The accused really did not seem to have an idea what the truth was
as far as Exhibit H is concerned.
The accused said that having been informed by Yako of Gcobisa’s
disappearance, he did not enquire from Yako what was wrong
or what
had happened. Later on in his evidence he said that he did not ask
Yako when Gcobisa disappeared nor did he enquire under
what
circumstances she had disappeared. This evidence appears to be
totally irreconcilable with the other evidence of the accused
that
the relationship between him and Gcobisa was a normal and happy one
until her disappearance. The absolute lack of alarm
or even
interest on the part of the accused concerning Gcobisa’s
disappearance, is very telling.
During the course of his cross-examination the accused was
questioned about Exhibit K. It came about in this way. Mr
Mcanyana
asked the accused whether, as a result of the frequent
visits by the police to his house it occurred to him that he was
becoming
a suspect. He said it did occur to him that he was a
suspect and he said he asked Nala whether, seeing that Gcobisa is
nowhere
to be found, they were suspecting that he took her away. He
was quite clear that this was before he made the statement, Exhibit

K. It is improbable that any such question could have been put to
Nala after the police were “frequenting” the house
of the
accused, but nevertheless, before 19 March 2003 when Exhibit K was
completed.
The issue regarding the admissibility of Exhibit K was whether on
19 March 2003 the accused was a suspect in a crime. This

alleged discussion was never put to Nala. This highly improbable
evidence of the accused does not affect my previous ruling regarding

the admissibility of Exhibit K. If anything, it is further support
therefor.
The accused was asked a very simply question by Mr Mcanyana, namely
when was the last time he saw Gcobisa. The accused gave
an evasive
reply by enquiring whether the question related to speaking to her or
seeing her. The question was repeated and the
reply was February
2003.
In response to a question what the accused thought had happened to
Gcobisa, he said:
“I do not know, because we no longer phoned each other because
of the nature of my work, as I am not staying at home”.
It is not clear to me how the nature of the work of the accused
(which he did not say had changed) caused the cessation of telephone

calls between the accused and Gcobisa. A more probable explanation
is that the calls ceased, because the relationship between
Gcobisa
and the accused had come to an end.
The accused said:
“I think she is no more in this earth”.
Later when his attention was drawn to the fact that Gcobisa has been
missing for 8 years, he said he thought “she is no more”.

He also said that during the 5 years of his relationship with
Gcobisa she never just disappeared. He confirmed Yako’s

evidence that Gcobisa was a responsible young woman.
The accused was asked whether Gcobisa stopped visiting him and he
said it was not that she stopped, but “it was the issue
of my
work”. It was in 2002 that the nature of the work of the
accused resulted therein that Gcobisa stopped visiting him.
He did,
however, see Gcobisa in February 2003 when he went to Port Shepstone
to repair a motor vehicle.
When Mr Mcanyana put to the accused that his relationship with
Gcobisa came to an end in 2002, the accused said it never ended.
It
was then suggested to him that only the visiting ended, but the
accused said that this also had not stopped. He agreed with
Mr
Mcanyana’s suggestion that at the time of Gcobisa’s
disappearance nothing had changed in his relationship with Gcobisa.

The accused was referred to paragraph 2 of Exhibit K and he clearly
and unambiguously said that that the fight referred to therein
was
“about Sibonelo”. Before the question was put the whole
paragraph had been interpreted to the accused and he
said he
understood it. I got the impression that the accused immediately
wanted to change his answer. The question was now
put what the
fight was about. The accused said it was about the fridge and the
cellular telephone.
In response to a question whether the accused wanted Exhibit 2 back,
he said, as I understood it, by way of an explanation that
Gcobisa
did not answer the telephone, but children did. In any event the
accused wanted Exhibit 2 back as well as the fridge,
which he said he
needed. Neither the cellular telephone nor the fridge was returned.
The accused agreed that the impression
is correct, namely that
there was a civil discussion between two lovers, there was no dispute
and Gcobisa agreed to return the
items.
The accused was then asked why this discussion was referred to as a
fight in Exhibit K. He said:
“We did not fight. I only pushed her”.
He explained that he did this, because Gcobisa did not want him to
leave. He said the fight was about Gcobisa not wanting him
to
leave. The accused then said that there was only a
misunderstanding, not a fight between him and Gcobisa.
According to the accused that misunderstanding was not about
Sibonelo Ngcongo, nor about the return of Exhibit 2, nor about the

return of the fridge, nor is it linked or connected to Gcobisa
stopping to visit the accused.
The accused was then asked if Gcobisa stopped visiting him in
January 2003. He said she never stopped visiting him, but that
he
was saying that “she was no longer coming most of the time and
she could not find me at home”.
It is clear how the accused was shifting his ground. A fight with
Gcobisa (referred to in Exhibit K) over Sibonelo Ngcongo
was changed
to a fight over Exhibit 2 and the fridge and was then watered down to
a misunderstanding about the accused wanting
to leave, which
misunderstanding had nothing to do with Sibonelo Ngcongo or Exhibit 2
or the fridge or Gcobisa stopping to visit
him, but not really
stopping, only no longer coming most of the time. This is the very
minor misunderstanding, which caused the
accused to push Gcobisa.
In my judgment the accused could see the way in which things were
going for him and he constantly shifted his ground. I know
Exhibit
K is not a comprehensive statement and that it was not drafted by a
lawyer. But the truth remains the truth - whether
elegantly
presented in lawyers’ parlance or whether drafted by a police
officer in the Community Service Centre. I know
those things. But
I also know that the accused changed his story as he went along and
the last thing he wanted to admit (which
he unambiguously did) is
that he had a fight with Gcobisa over Sibonelo Ngcongo. He also did
not want to admit (which he unambiguously
did) that he had a fight
with Gcobisa over Exhibit 2 and the fridge. And that explains why
the accused deliberately and falsely
shifted his ground.
The cross-examination of the accused continued. We were now at the
point (as it was correctly put to the accused) that there
was no
fight and that Gcobisa agreed to return Exhibit 2. The question was
why did he not take it back. He said he realised
that there was no
way in which he could locate Gcobisa if he needed her. But this is
so obvious that he must have been aware
of it all along. It could
not suddenly have dawned upon him.
The accused was questioned about his statement to Goldstone in
Exhibit H, namely that he last made or received a telephone call
from
Gcobisa on 2 March 2003. The accused could not dispute line or
number 16 in Exhibit B2, which shows that he telephoned Gcobisa
at
14:23:06 on 12 March 2003. He also could not dispute line or
number 126 in Exhibit B2, which was his last outgoing call
to Gcobisa
on Exhibit 2 at 09:06:06 on 14 March 2003. He was asked whether
this was his last call to her, but he said he
could not remember.
That I can fully understand, but on 4 June 2003, when he made Exhibit
H, he could remember his last call
to or from Gcobisa as having been
made on 2 March 2003. Why did he not then remember the telephone
calls to her which are reflected
in Exhibit B2, even if she did not
answer herself?
The accused was questioned whether he attempted to telephone Gcobisa
after her disappearance. Of course, once the SIM-card and

consequently the telephone number of Exhibit 2 changed on 16 March
2003 (as explained by Heynecke, Goldstone and Sthombe and borne
out
by section E of Exhibit B3) the accused could not reach Gcobisa on
her cellular telephone number. The accused was asked whether
he
used his cellulater telephone when he so attempted to get hold of
Gcobisa. No, he did not. For this purpose he borrowed
a cellular
telephone from the people he worked with. And nearly 8 years after
the event he remembered that he did this. But
he used his cellular
telephone to telephone Gcobisa on 12 and 14 March 2003.
The accused was questioned about this relationship with Sandla and
he says it was good. He confirmed that he and Gcobisa went
to
Sandla as an elder. That is in accordance with the impression I
got. The accused was reminded of Sandla’s evidence
that
Gcobisa has indicated that she is no longer interested in their
relationship. This is what Sandla said. That probable
evidence
was unchallenged, yet the accused said Sandla lied on this point.
Exactly the same applies to Msindwana - her probable
evidence on
these points was not challenged.
The accused suggested that they may have lied in order to get him
into trouble. So, the proposition is that two respectable
people
who were approached by the accused and Gcobisa about a problem or
problems in their relationship conspired to falsely testify
against
the accused. And they do so in order to get him into trouble.
This is just so much nonsense.
The accused was asked why he and Gcobisa went to Sandla in the first
place. He said they had their own problems. Mr Mcanyana
insisted
on particularity. The accused said:
“We had a disagreement regarding the fridge and the cellphone
and the issue of money was also on the agenda”.
Msindwana gave unchallenged evidence that the meeting at her home
took place on 24 January 2003. At that time the disagreement
was
serious enough to enlist the intervention of elders to resolve it.
Indeed, the accused himself said that this was not the
first occasion
on which he and Gcobisa had quarrelled over or had a disagreement
regarding Exhibit 2 and the fridge.
It is clear from the evidence of the accused himself that there was
an ongoing dispute between him and Gcobisa concerning at least

Exhibit 2 and the fridge. Those items were his; he claimed them
back; they were never returned to him. These facts only
have to
be stated (and they are not in dispute at all) to demonstrate
conclusively that the problem concerning those items had
not been
resolved by 15 March 2003. Nothing can be plainer.
Mr Mcanyana then put to the accused “that leads to the
incident at Gcobisa’s on 23 February 2003”. The accused

agreed. In fairness to the accused I record that I do not construe
his evidence in any way so as to amount to a concession that
the
incident involving Luyolo Yako occurred on 23 February 2003, nor to a
concession that there were two incidents involving Luyolo
and
Sibonelo Ngcongo.
I am satisfied that, as Mr Ntshulana submitted, there was only one
incident (and that it occurred on 3 December 2002).
For the
reasons I have already set out, it simply means Luyolo got his dates
wrong. We are talking about the same incident viewed
by different
persons at different times. But what is undisputed about this
incident is that the accused assaulted Gcobisa.
It is, therefore, understandable that the accused remembered
telling Luyolo that he (the accused) was “sorry about
what
happened the other day”.
The accused was asked whether he said to Luyolo that he found it
difficult to accept that Gcobisa had another boyfriend. The
accused
gave an argumentative reply and said that he did not say that to
Luyolo, because he (the accused) did not know that Gcobisa
had
another boyfriend. Luyolo cannot possibly be mistaken about what
the accused had said to him. There is simply no room for
error.
Either the accused said this or Luyolo is fabricating his evidence.
Of course, Luyolo could fabricate the evidence in order to avenge
the disappearance of Gcobisa or to falsely implicate the accused,

because the Yako family may believe that the accused killed Gcobisa.
But Luyolo gave his evidence in a calm and convincing manner.
The
discussion between him and the accused took place – that is
common cause. The accused assaulted Gcobisa at her home
while
Sibonelo Ngcongo, his cousin and Luyolo were at the premises - that
is common cause. Ngcongo and the accused had a fight
at Gcobisa’s
house, during the course of which Ngcongo pointed a firearm at the
accused - that is common cause. The accused
apologised to Luyolo
for assaulting Gcobisa - that is common cause. Now, Luyolo, on the
version of the accused, introduces the
false parts of his evidence by
saying:
Firstly, and to lay the ground for the second part, that the accused
said to him that the accused finds it difficult to accept
that
Gcobisa has another boyfriend.
Secondly, that the accused said he thought of shooting Gcobisa and
then himself.
Thirdly, by saying that the accused said that he had pointed a
firearm at Gcobisa.
The probabilities in this case are that the accused in fact knew
that Gcobisa had another boyfriend. Furthermore the evidence

clearly demonstrates the violent nature of the accused. Consider
the apparently unprovoked, vicious and humiliating attack (and
it was
nothing less than that) on Gcobisa at her home when she was dragged
out of Ngcongo’s vehicle and slapped. Consider
the admitted
“pushing” of Gcobisa by the accused during the course of
an allegedly civil discussion. Consider the
admitted pointing of a
firearm at Gcobisa by the accused -this was the evidence of Sandla
and Msindwana.
It does not matter when the accused pointed this firearm at Gcobisa
- the time of the incident is not the point under consideration.
I
am pointing out the overwhelming evidence which proves the violent
disposition of the accused.
There is nothing improbable in Luyolo’s evidence concerning
any one of the three statements which he attributes to the accused.

Indeed, the probabilities are strongly in favour of the said
statements having been made to him. This is all the more so because

there is no dispute about the fact that the accused admitted to
Sandla and Msindwana that he had pointed a firearm at Gcobisa.
The accused claimed that his first thought after Gcobisa had
disappeared was that people who had pointed firearms at him were
the
people who were up to mischief. In other words, the accused
suspected that Ngcongo and his cousin were involved in Gcobisa’s

disappearance. This was so, despite the fact that Gcobisa
afterwards told him that these persons were her friends. Yet, the

accused did not tell Yako about this suspicion, nor did he tell Nala,
nor Goldstone. It is patently false evidence.
The accused was an evasive and most unimpressive witness. He
simply has no regard for the truth. His mendacity was apparent

during the trial-within-a-trial and in the main trial. I will
hereinafter refer to further aspects of his statements, Exhibit
K and
Exhibit H, which further expose his untruthfulness.
I have no hesitation in rejecting every single piece of his evidence
which has not been admitted by a State witness or which is
in
conflict with the evidence of any State witness. The accused is an
unmitigated liar.
I wanted to obtain from Goldstone certain information regarding the
alleged photograph; the outcome of the prosecution of Sipho
Ngcobo;
the delay in the prosecution of the accused and the circumstances
under which Yako met Sthombe. I, therefore, recalled
him. His
further evidence was unchallenged and I summarise it as follows:
1.
As I understood Goldstone, the Director of Public Prosecutions was
“not keen to prosecute as a result of the absence of case
law
in similar cases”.
2.
The charges in this case were withdrawn against Sipho Ngcobo on 7
September 2004. He faced no other charges in relation to this

matter.
3.
The charges in this case were, likewise, withdrawn against the
accused on 7 September 2004, but he faced certain other charges.
I
can only assume that those charges featured in the Regional Court
case to which Mr Ntshulana referred during the trial. At
least now
I know what happened.
4.
The statement, Exhibit C, was obtained from Sthombe on 5 October
2007. Goldstone then personally took the docket to the Director
of
Public Prosecutions.
5.
On 7 November 2007 the Director of Public Prosecutions instructed
that the accused should be charged in this case.
6.
Goldstone said he was summoned to Umzinto Prison by Sthombe, who made
a report to him. Goldstone asked Sthombe if he would be
willing to
make a written statement, but he was not. This was a few months
before Yako visited Sthombe in prison. At that time
Sthombe was
awaiting trial in another matter and he did not want to give a
statement until his own case was finalised. Goldstone
did nothing
further about the matter, but reported the development to Yako, who
was conducting his own enquiry and assisting the
police. Then,
after Sthombe had been sentence in his matter, Yako enquired whether
it would be possible for him to visit Sthombe.
Goldstone said to
Yako that he (Goldstone) could not stop Yako from visiting Sthombe.
Because Yako did not know Westville Prison,
he requested a policeman
to accompany him. Goldstone arranged this and Inspector Mgwazi
accompanied Yako to Westville Prison.
Yako reported to Goldstone
after he had seen Sthombe. Then Goldstone instructed Mgwazi to
obtain a written statement from Sthombe.
This was done on 5 October
2007. So, there is nothing whatsoever sinister or suspicious about
how Exhibit C was obtained.
I had the benefit of comprehensive argument being addressed to me by
Mr Mcanyana and Mr Ntshulana. During the course of my judgment
I
have already referred to some of those submissions. Hereinafter I
will do so again. In my view there is no point whatsoever
in
setting out and dealing with every submission which was made. As a
result of my fairly extensive review of the evidence, this
judgment
is already a lengthy one. In considering the legal and factual
issues in this case I will bear in mind the various submissions
which
were made by the legal representatives.
At the outset I should indicate that Mr Mcanyana did not ask for a
conviction on count 1 and at the end of this judgment the accused

will be found not guilty and he will be discharged on count 1.
It is not my intention to again set out or summarise all the
relevant evidence in this part of my judgment. I will motivate
my
conclusions as succinctly as possible.
THE DEATH OF GCOBISA
The question which arises for decision is whether the State proved
the death of Gcobisa beyond a reasonable doubt. I think this
issue
must be decided first, because if it is not decided in the State’s
favour there cannot be a conviction on count 3 and
I may
unnecessarily waste a lot of time and effort in dealing with other
issues, which have to be determined in relation to count
3 and, for
that matter, count 2.
Mr Ntshulana submitted that Gcobisa may, for instance, have been
abducted by criminals who operate a prostitution syndicate.
Of
course it is possible. The fact that it is notionally possible does
not mean that the State, therefore, cannot prove beyond
a reasonable
doubt that she is dead. Mr Ntshulana also submitted that the
statement by the accused that Gcobisa is no longer on
this earth is
not to be construed as an admission that she is dead. I do not
construe the evidence of the accused as an admission.
The accused told Sthombe that Gcobisa died as a result of being shot
on 15 March 2003. That statement accords with all the other

indications that Gcobisa is dead. Those indications, which all
point to the fact that Gcobisa is probably dead, appear from my

analysis of the evidence of Yako, Nala, Goldstone and the accused.
As I said the statement by the accused to Sthombe that Gcobisa
is
dead is supported by the other evidence, which points the same way.
The fact that I do not have a medico-legal
post-mortem
examination report, which tells me that Gcobisa is dead and which
sets out the cause of death, is on the facts of this case, totally

irrelevant.
I find that the State proved that Gcobisa died on 15 March 2003 as a
result of a gunshot wound. Of course, this finding does
not
remotely mean that the accused is guilty of murder, it only means
that he may be found guilty of murder.
THE MENDACITY OF THE ACCUSED
I deal with this issue at the outset to make it clear that it does
not necessarily follow that because the accused is an untruthful

witness, he must or should be found guilty. He is not to be
punished for his mendacity.
In assessing the evidence of the accused, whom I found to be an
untruthful witness and I am guided by the principles which have
been
authoritatively laid down in the following cases:
S v STEYNBERG
1983 (3) SA 140
(A) 146 A - H
S v MTSWENI
1985 (1) SA 590
(A) 593 I - 594 E
S v SHABALALA
1986 (4) SA 734
(A) 751B – D
S v KOOPMAN
(2005) All SA 539
(SCA) par. 35
S v M
2006 (1) SACR 135
(SCA) par. 64
S v BURGER & OTHERS
2010 (2) SACR 1
(SCA) par. 30
THE VIOLENT NATURE OF THE ACCUSED
The evidence demonstrates quite clearly that the accused has a
violent disposition. We know of the following incidents which
prove
his violent nature. The assault on Gcobisa on 3 December 2003; the
fight with Ngcongo on 3 December 2003 (during the course
of which the
accused drew a knife); the assault on Gcobisa when he pushed her and
the pointing of a firearm at Gcobisa, which
he admitted to Msindwana,
Sandla and Luyolo.
THE THREAT BY THE ACCUSED TO KILL GCOBISA
In the light of all the evidence, the evidence of Luyolo about this
threat is highly probable. This conclusion is so plain that
there
is no need whatsoever to elaborate on my reasons therefore.
THE NATURE OF THE RELATIONSHIP BETWEEN THE ACCUSED AND GCOBISA
I know that, according to the accused, he had a relationship with
Gcobisa for about 5 years. I do not intend dealing with that
whole
period, but restrict myself to the time from December 2002 to January
2003 (“the relevant time”). The evidence
establishes that
during the relevant time the relationship between Gcobisa and the
accused was not a good, happy or normal relationship.
The contrary
evidence of the accused is false and he deliberately lied about it.
The reason why the accused lied, is that he
wanted to be able to rely
on the improbability that, if their relationship was good, happy and
normal on 15 March 2003, he would
kill Gcobisa.
If one considers the violent nature of the accused and the facts
that he pointed a firearm at Gcobisa and that he threatened to
kill
her and that their relationship was not good, the probabilities
favour the conclusion that the accused would kill Gcobisa.
WHEN LAST DID THE ACCUSED SPEAK TO GCOBISA TELEPHONICALLY AND WHEN
LAST DID HE SEE HER BEFORE 15 MARCH 2003?
The first part of the heading to this part of the judgment should
really be along the lines of a question which Goldstone put
to the
accused at the time when Exhibit H was completed, i.e. on 14 June
2003. The question is when last did the accused telephone
Gcobisa
or when last did Gcobisa telephone him? In other words, when did
they last communicate telephonically? The answer was
2 March. The
answer was not “about 2 March” or “I think it was 2
March”. In the context of the statement
the reference is
obviously to the year 2003.
This evidence must be considered in the light of the following lines
or numbers of Exhibit B2, which reflect that from 12 - 14
March 2003
there were eight occasions on which there was “telephonic
contact” between the cellular telephones of the
accused and
Gcobisa: 16, 18, 19, 25, 27, 28, 80 and 126. I say “telephonic
contact” because some of the lines or
numbers reflect “SMS
out” – as to which, see the definition in Exhibit F.
The calls were all of an extremely
short duration, either .00 second
or .01 second or .06 second. It may be that children answered
Gcobisa’s telephone or
that, for some other reason or reasons,
the calls were of a very short duration.
The evidence of the accused should also be considered in the light
of his reply to this question which Goldstone put to him, namely:
“When were you last in contact with Gcobisa?”
The answer was:
“Two weeks before this”.
The word ‘”this” appears to refer to the
disappearance of Gcobisa on 15 March 2003.
It is not clear whether this “contact” refers to the
telephone conversation on 2 March 2003. In any event, the contents

of Exhibit H seem to be consistent with the evidence of the accused,
namely that he last saw Gcobisa in February 2003. This was
when he
was on his way to Port Shepstone to repair a motor vehicle. The
accused had no difficulty in recalling that visit.
But why did the accused then say to Yako on 17 March 2003 that he
last saw Gcobisa in 2002? And why did Msindwana and Sandla
both
understand the accused to say on 17 March 2003 that he had last seen
Gcobisa a long time ago? In this regard I point out
that Msindwana
and Sandla both testified about their meeting with the accused and
Gcobisa during January 2003. Msindwana said
it happened towards the
end of January 2003. Under these circumstances and bearing in mind
that they were present when Yako spoke
to the accused on 17 March
2003, it seems unlikely that the accused would have said that he last
saw Gcobisa “last year”,
i.e. 2002.
But what the accused clearly conveyed to all of them is that he had
not seen Gcobisa for a long time. He did not convey to them
that he
had last seen Gcobisa a week or two ago, as he said in his
evidence-in-chief. I pointed out that under cross-examination
the
accused first gave an evasive reply to the question and then said
that he last saw Gcobisa in February 2003.
The point of all this is that the accused was untruthful about the
time when he last saw Gcobisa and the last day on which the
accused
saw Gcobisa is a very important issue in this case.
THE CELLULAR TELEPHONE (EXHIBIT 2) AND THE FRIDGE
From the evidence of the accused it is clear that he wanted Exhibit
2 and the fridge back. Before he changed his evidence further,
he
said that the fight referred to in paragraph 2 of Exhibit K was over
the cellular telephone and the fridge. That was the
misunderstanding during which the accused pushed Gcobisa.
In passing, I should point out that during the course of the trial,
Mr Ntshulana indicated that there was no dispute about the
contents
of Exhibit K, but that its admissibility was challenged only on
the basis that the accused had not been informed
of his
constitutional rights before he made the statement. It will also be
recalled that the accused initially said that the
fight was over
Sibonelo Ngcongo. All the indications are that the fight was in
fact just that, i.e. a fight – as it is
described in Exhibit K.
The evidence also clearly establishes that, for at least some time,
the accused wanted back Exhibit 2 and the fridge. His evidence
is
that he did not get back these items. Gcobisa’s refusal or
failure (it does not matter which) to return these items
which
belonged to the accused could only have exacerbated the problems
which they experienced in their relationship. This is so
as a matter
of strong probability. Support for this conclusion also comes from
Exhibit K, particularly paragraphs 3 and 4 thereof.
DID THE ACCUSED SEE GCOBISA ON 15 MARCH 2003?
The accused told Yako, Msindwana, Sandla and Cele that he did not
see Gcobisa on 15 March 2003. From the evidence of the accused
it
also follows that he said the same to the policeman Mavundla on 17
March 2003.
It was also put to Silangwe that the accused did not visit her house
on that day and that she fabricated the evidence that he
was there;
that she made him aware that Gcobisa was approaching and that the
accused said that he did not want Gcobisa to see
him. By the
accused saying that he was not there at Silangwe’s house, he is
in effect relying on the same alibi as the
one he raised with Nala in
Exhibit K and with Goldstone in Exhibit H, i.e. when he confirmed the
contents of Exhibit K.
Although the cellular telephone records (Exhibit B) and the evidence
of Heynecke and Prinsloo cannot pinpoint the exact place
where the
cellular telephone of the accused was when telephone calls were made
to and from it on 15 March 2003, the probabilities
are that those
telephone calls (which were all serviced by the three base stations
at Wilson’s Cutting, Newlands Farm and
Maguntia Store) were
made and received while the accused was in the vicinity of
Ezingolweni, rather than in the vicinity of Harding.
Those records and that evidence do not stand alone. There is the
direct evidence of Silangwe that the accused was at her home
on the
day of Gcobisa’s disappearance. And there is her unchallenged
evidence that before the end of the next week she
spoke to the
accused concerning Gcobisa’s whereabouts. The tenor of her
evidence is clearly that she did this as a result
of what she had
seen and heard on the day when she last saw Gcobisa. That was the
day when she prepared food for the accused.
There is, thus, very strong evidence to the effect that the accused
in fact saw Gcobisa on 15 March 2003. For the moment I am
not even
considering Sthombe’s evidence about what the accused told him.
In my judgment the accused in fact saw Gcobisa on 15 March 2003 and
he lied to Yako, Msindwana, Sandla, Cele and Mavundla when
he said
that he had not seen her on that day.
The question is why did he lie about this? After all, on his
version nothing had changed in his relationship with Gcobisa and
on
15 March 2003 that relationship was good. Why then lie to her
family, friends and to the policeman and falsely claim not to
have
seen Gcobisa on 15 March 2003? But maybe this lie should be
considered in the light of the complete indifference and lack
of
interest which the accused displayed when he first learnt of
Gcobisa’s disappearance. He said this happened on Monday,

17 March 2003. Yet, his evidence regarding the search by the
policeman for Gcobisa at the house of the accused cannot be
ignored.
He said this happened on Sunday night, 16 March 2003. If this
happened the accused’s lack of interest in Gcobisa’s

disappearance is even more bizarre. He does not even say something
like this to Yako – “But you know, last night
a policeman
came looking for Gcobisa at my home. That policeman said I am
hiding somebody’s wife. Although he did not
mention Gcobisa’s
name, he said it was a woman from Umtentweni. And so I assumed it
must have been Gcobisa he referred
to. Maybe the person who sent
this policeman to my house knows something about Gcobisa’s
disappearance”.
On his version the accused had information concerning Gcobisa’s
disappearance on 16 March 2003. Not only does the accused
fail to
disclose that information to Yako and the other three witnesses who
testified about the discussion on 17 March 2003, but
he deliberately
lies to them and tells them that he had not seen Gcobisa on 15 March
2003.
Further support for the confusion that the incident on the Sunday
evening in fact occurred, is found in paragraph 6 of Exhibit
K. So,
when Nala saw the accused on 19 March 2003, he lied to her about not
having seen Gcobisa on 15 March 2003, but he realised
the relevance
of the incident on Sunday night, 16 March 2003. At that time it
would have been easy to establish whether a policeman
or police
officers had gone to look for Gcobisa at the house of the accused on
Sunday, 16 March 2003.
DID THE ACCUSED POSSESS OR HAVE ACCESS TO A FIREARM?
On the strength of the evidence of Msindwana, Sandla and Luyolo, the
question must be and is answered in the affirmative.
STHOMBE’S EVIDENCE
My analysis of the evidence and the various conclusions which I
reached in that part of my judgment which has specific rubrics
(i.e.
starting with “The death of Gcobisa”) up to the paragraph
immediately preceding this one, will demonstrate that
there are a
number of safeguards which support the conclusion that Sthombe’s
evidence was not fabricated but consists of
an accurate account of
what the accused himself told Sthombe.
WHERE DO ALL THE AFORESAID CONCLUSIONS LEAD TO?
To answer this question one must look at what the State has to prove
in order to secure the conviction of the accused on counts
2 and 3
and how that has to be proved. I briefly set out the relevant
principles:
1.
The alibi of the accused must not be viewed in isolation, but in the
light of all the evidence and, as always, the probabilities.

Compare
R v HLONGWANE
1959 (3) SA 337
(AD) 340 (H).
2.
In my view the State proved the falsity of the alibi of the accused
beyond a reasonable doubt.
3.
Caution must be exercised in attaching too much weight to the
mendacity of the accused, but, in view of the fact that I reject
the
alibi of the accused as false, he is in the same position as if he
had given no evidence on the merits –
S v SHABALALA
1986 (4) SA 734
(A) 751 B - D.
4.
I am aware of the possibility that the accused may have lied, on 17
March 2003, for a number of reasons, more particularly those
of the
nature envisaged by Smalberger AJA in paragraphs (c) and (d) in his
judgment in
S v MTSWENI
1985 (1) SA 590
(A) 594 C –
D.
5.
The State must prove the guilt of the accused beyond a reasonable
doubt – not beyond any doubt whatsoever -
S v NTSELE
1998 (2) SACR 178
(A) 182 b and
S v BOESAK
[2000] ZASCA 112
;
2000 (1)
SACR 633
(A) para 13.
6.
The evidence must be considered in its totality. The guilt of the
accused is to be inferred from the cumulative effect of all
the facts
and it is not necessary that each individual piece of evidence must
be proved beyond a reasonable doubt –
R v HLONGWANE
supra 340 A and
S v NTSELE
supra 182 e.
7.
In
S v MTSWENI
supra 594 E – F Smalberger AJA
said this:
“Voordat ‘n skuldigbevinding aan moord kan geskied moet
daar bewese feite wees wat by wyse van afleiding die appellant
aan
die dood van die oorledene koppel. By ontstentenis daarvan bestaan
daar nie ‘n
prima facie
saak teen die appellant
nie, en kan sy leuenagtige getuienis, net soos in die geval waar hy
nie getuig nie, nie die leemtes in
die Staat se saak aanvul en ‘n
gevolgtrekking van skuld regverdig nie”.
In my view there are sufficient proven facts, including the statement
which the accused made to Sthombe which links or connects
the accused
with the death of Gcobisa. This finding, however, still only means
that the accused may be found guilty of murder.
8.
“It is trite law that a Court is entitled to find that the
State has proved a fact beyond reasonable doubt if a
prima
facie
case has been established and the accused fails to
gainsay it ….. But one of the main and acknowledged
instances where
it can be said that a
prima facie
case
becomes conclusive in the absence of rebuttal, is where it lies
exclusively within the power of the other party to show what
the true
facts were and he or she fails to give an acceptable explanation …….
The State is not required to plug
every loophole, counter every
speculative argument and parry every defence which can be conceded by
imaginative counsel without
a scrap of evidence to substantiate it”
-
S v BOESAK
supra paras 46 – 48. Compare
S
v THERON
1968 (4) SA 61
(T) 63 H – 64 C, bearing in
mind
S v SHABALALA
supra.
9.
In
R v MLAMBO
1957 (4) 727 (A) 738 A – D it was
said by Malan JA that:
“There is no obligation on the Crown to close every avenue of
escape which may be open to an accused”. I may convict
the
accused if I am “morally certain of his guilt”.
The learned Judge on appeal continued:
“Moreover, if an accused deliberately takes the risk of giving
false evidence in the hope of being convicted of a less serious
crime
or even, perchance, escaping conviction altogether and his evidence
is declared to be false and irreconcilable with the proved
facts, a
Court will, in suitable cases, be fully justified in rejecting an
argument that, notwithstanding that the accused did
not avail himself
of the opportunity to mitigate the gravity of the offence, he should
nevertheless receive the same benefits as
if he had done so”.
See also
S v STEYNBERG
1983 (3) SA 140
(A) 146 F –
H.
10.
Finally, it is not for the Court to speculate about possible
explanations not advanced by the accused himself -
S v MKHIZE
1999 (2) SACR 632
(W) 639 d – e.
THE ULTIMATE QUESTION
Is this a case in which it is safe to conclude that the lies of the
accused (including the falsity of his alibi) together with
other
acceptable evidence proves the guilt of the accused beyond a
reasonable doubt (as explained above) on count 2 and/or count
3 –
S v BURGER & OTHERS
(2010) 3 All SA 394
(SCA) par
30?
For reasons which will soon become apparent I am satisfied that the
answer is in the affirmative.
THE EVIDENCE
1.
It was proved beyond a reasonable doubt that Gcobisa died as a result
of a gunshot wound which she sustained on 15 March 2003 at
the house
of the accused.
2.
The accused told Sthombe that Gcobisa took out the firearm from the
drawer and that he and Gcobisa grappled or fought over it.
3.
The accused did not say to Sthombe that a shot accidentally went off
during the course of the struggle.
4.
The accused told Sthombe that he “actually shot’”
Gcobisa, but that he did not intend to shoot her.
5.
The accused said to Sthombe that he then took Exhibit 2 “from
her bottom”, (indicating or referring to Gcobisa’s

private parts) after he had killed her, i.e. after he had shot her.
6.
The accused said to Sthombe that he then placed Gcobisa’s body
in a plastic bag, which he loaded into a vehicle and thereafter

dumped it near a railway line.
7.
The accused also said to Sthombe that he had told Sipho to destroy
Exhibit 2.
I have already found as a fact that the accused told Sthombe how
Gcobisa died. It is clear to a lawyer that there may have been

available to the accused the defence that he acted in private
defence. If the State failed to disprove that defence, the accused

would have been found not guilty of the murder of Gcobisa and
possibly guilty of theft of Exhibit 2. At worst for the accused
he
would have been found guilty of culpable homicide on count 3.
It is not necessary to consider matters such a putative
private
defence, etc.
Put simply, if the accused claimed that he shot Gcobisa in
self-defence of that the shot accidentally went off during their
struggle
for possession of the firearm, the case would have proceeded
on a completely different basis. The accused chose the defence of

an alibi. It was proved to be false.
After the accused was charged again during or about October/November
2007, he persisted with his alibi defence. I may not think
up a
defence for him. The accused may continue to protest his innocence
- that is his right. But I cannot foist a defence on
him by in
effect saying that I find that he shot and killed Gcobisa, but he did
so in private defence or that he did so negligently.
The defence of the accused is that he was at Harding. That defence
is false. He shot and killed Gcobisa in his house at Ezingolweni
on
15 March 2003.
In any event, there are at least four factors which conclusively
point to the deliberate shooting of Gcobisa.
1.
The background history, including the assaults on Gcobisa by the
accused; the admitted pointing of a firearm at Gcobisa by the

accused; the threat by the accused to kill Gcobisa and the problems
which arose from Gcobisa’s failure to return Exhibit
2 and the
fridge to the accused.
2.
The failure by the accused to give any exculpatory statement to
Sthombe about the shooting incident, other than to say, in general

terms, that it was not the intention of the accused to shoot Gcobisa.
If the accused shot Gcobisa accidentally or in private
defence, he
would have said that to Sthombe. Obviously, this would not have
been done in legal parlance, but in layman’s
language.
3.
The accused concealed Gcobisa’s body.
4.
The most damning pieces of evidence, however, are that the accused
took Exhibit 2 from Gcobisa’s private parts and that he
told
Sipho to destroy Exhibit 2. These actions are utterly
irreconcilable with an accidental shooting of Gcobisa or of her being

shot in private defence. These actions are only compatible with the
murder and robbery of Gcobisa.
I think I have fairly comprehensively and fully explained to the
accused and to his family and to the family of Gcobisa what really

happened and how Sthombe got Exhibit 2.
To sum up: The accused murdered Gcobisa and robbed her of her
cellular telephone (Exhibit 2) which he gave to Sipho with the

instruction that Sipho should destroy it, which Sipho failed to do
and he lent it to Sthombe and then gave it to Mavimbela and
this led
to the eventual recovery thereof by Goldstone.
For these reasons:
1.
YOU ARE FOUND NOT GUILTY AND DISCHARGED ON COUNT 1
.
2.
YOU ARE FOUND GUILTY AS CHARGED ON COUNTS 2 AND 3
.
CERTIFICATE/…
TRANSCRIBER'S CERTIFICATE
I, the undersigned, hereby certify that so far as it is audible, the
aforegoing
is a true and correct transcript of the proceedings recorded by means
of a
mechanical/digital recorder in the matter of:
STATE v B K MTHEMBU
CASE NO : CC 163/2008
COURT OF ORIGIN : HIGH COURT
RAMSGATE
TRANSCRIBER : ADRI CROSS
DATE COMPLETED : 05.06.2011
PROOF READER :
DATE COMPLETED :
No of Tapes/CD : 1 CD
Number of Pages : 111
CONTRACTOR
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3941190
NOTE BY TRANSCRIBER
THE MICROPHONE OF THE HONOURABLE MR JUSTICE McLAREN J was never
switched on throughout the judgment. The only person that could
be
heard loudly and clearly was the interpreter. If the transcriber
did not have the notes by McLaren J it would have been impossible
to
transcribe the judgment.
ADRI CROSS (transcriber)
APPEARANCES
:
FOR THE STATE
MR S MCANYANA
ON BEHALF OF ACCUSED
MR NTSHULANA
(INSTRUCTED BY LEGAL AID BOARD)
INTERPRETER
MR ??
DRAFT
REPORTABLE/ NOT REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: CC 163/2008
PIETERMARITZBURG
DATE TYPED: 05.05.2011
In the matter between:
STATE
versus
BENEGNUS KHUPHELAKWAKHE MTHEMBU
BEFORE
THE HONOURABLE MR JUSTICE McLAREN
HEARD AT RAMSGATE:
JUDGMENT DELIVERED ON 20 APRIL 2011
TRANSCRIBER
A H CROSS
(Mrs)
CONTRACTOR
Sneller Recordings (Pty) Ltd • P O Box 1193 •
Pietermaritzburg • 3200
Tel 033 3425256 • Fax 033 3941190