Petersen and Others v S (02/08) [2008] ZAWCHC 64 (1 December 2008)

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[2008] ZAWCHC 64
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Petersen and Others v S (02/08) [2008] ZAWCHC 64 (1 December 2008)

Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(Cape of Good Hope Provincial
Division)
Criminal Case No:
02/08
In the matter between
NAJWA PETERSEN
Accused
1
ABDOER RAASIET
EMJEDI
Accused 2
WALLEED HASSEN
Accused 3
JEFFERSON TION
SNYDERS
Accused
4
and
THE
STATE
Respondent
JUDGMENT DELIVERED on 1
December 2008
DESAI
J:
1. This case relates to the untimely
and brutal death of music icon Abdul Mutaliep Petersen, better known
as Taliep Petersen. The
first accused was his wife. The other three
accused are men she allegedly solicited to assist in causing her
husband's death.
2. The court's assessors are Mr D Du
T Marais, a retired magistrate, and Ms J J Thaysen, a practising
advocate at the local bar.
3. The accused appeared before us on
five different charges. The first charge is one of murder, it being
alleged that on 16 December
2006 and at Athlone here in the Cape the
accused unlawfully and intentionally either killed the deceased by
shooting him with a
firearm or facilitated the plan to do so. There
is an alternative to this charge, namely a conspiracy to commit the
aforementioned
offence. The second and third charges arise from the
firearm used in the incident. The accused are charged with being in
unlawful
possession of the firearm and ammunition. Counts four and
five are charges of robbery with aggravating circumstances. It is
alleged
that threats of violence, and the firearm, were used to rob
Achmat Gamieldien and his wife Insaaf. The various items stolen are

specified in the indictment. I may mention at this stage that Achmat
Gamieldien is Accused No. 1's son from an earlier marriage.
4.
Accused No. 1, the 46 year old Ms Najwa Petersen, or Ms Najwa Dirk as
she elects to be called, was represented by different counsel
at
various stages of the trial. She was initially represented by Mr C
Webster SC in the Magistrate's Court and then by Mr H Raubenheimer

SC. When the trial commenced before us, Mr Raubenheimer withdrew as
her counsel. He was succeeded by Mr K P C O von Lieres und
Wilkau SC
who in turn was replaced by Mr J Engelbrecht SC. On at least two
occasions these changes of counsel resulted in the matter
being
delayed for several weeks.
5. Accused No. 2, the 42 year old
Abdoer Raasiet Emjedi, Accused No. 3, the 35 year old Walleed Hassen
and Accused No. 4, the 31
year old Jefferson Tion Snyders were
represented throughout the trial by advocates L Abrahams, P Scott and
R Konstabel respectively.
6. The accused pleaded not guilty to
all the charges. They elected to exercise their right to silence and
accordingly did not furnish
any plea explanation. Certain formal
admissions were, however, made shortly thereafter. For instance, Dr S
Potelwa's
post-mortem
report was handed
up in evidence and the parties were in agreement that the cause of
death as determined during the
post-mortem
examination and
recorded in the report is correct. Photographs of the deceased's
body, photographs and a plan of the place where
the crime was
committed, the record of a bail application by Accused No. 1 before
Mr Robert Henney in the Wynberg Regional Court
and certain cell phone
records were also made available to the Court with the consent of the
accused.
7. It was not really in dispute that
the deceased was murdered during the night of 16 December 2006 by a
person or persons who shot
him in the neck with an unidentified
firearm and that the incident took place in the house where the
deceased resided, that is
101 Grasmere Street, Athlone. Nor is it in
dispute that the deceased and Accused No. 1 were married according to
both Muslim rites
and the civil law since 1997. The marriage to
Accused No. 1 was the deceased's second. He was previously married to
Madeegha Anders
with whom he had 4 children. Their eldest daughter,
Jawaahier Petersen, was a witness for the State in this trial.
Accused No.
1 has two children from two previous marriages, the one
being Achmat Gamieldien, the alleged victim of the robbery. The items
stolen
from him and his wife that night are not in issue. The
deceased and Accused No. 1 have a daughter, the nine year old Zaynab,
who
was the beneficiary of an insurance policy on the life of the
deceased, valued at R5,3 million. Accused No. 1 suffers from a
bipolar
mood disorder or some such illness for which she is on
prescribed medication. During the month of December 2006 there was
telephonic
contact on numerous occasions between Accused No. 1 and
the witness Fahiem Hendricks. Accused No. 1 and Hendricks give
different
explanations for the calls between them. The resolution of
this factual dispute is of some importance in the ultimate outcome of

this matter.
8. Before dealing with the State's
case against the accused, two other aspects warrant noting. While Ms
S Riley, who appeared with
Ms S Galloway on behalf of the State, was
leading evidence against the accused, Accused No. 3 consented to the
admission in evidence
of an inculpatory statement made by him to the
police. Moreover, certain admissions were made by him in terms of
section 220 of
Act 51 of 1977 ("the Act"), placing him on
the scene and implicating him in the commission of the offences.
Similarly,
Accused No. 4's statement, made to a Superintendent M A
Barkhuizen, was also admitted in evidence against him with his
permission.
In the said statement he placed
himself on the scene for the purposes of a robbery but alleges that
he left the house immediately
prior to the deceased being shot. I
shall revert to these statements at the appropriate stage in this
judgment.
9. The evidence of the State's first
witness, Mr Mogamat Riefaat Soeker ("Soeker") is probably
of some significance, more
especially in that he was the last person
to speak to the deceased before his death. Soeker is Accused No. 1's
cousin and resided
for a number of years in a flatlet on their
property. Soeker described the layout of the house as reflected in
exhibit "A"
and the extensive security system employed by
the Petersens. His evidence in this regard was confirmed at the
inspection in loco.
It is apparent from
his evidence that from the time of the so-called stabbing incident -
I shall deal with this incident in detail
later - in April 2006 until
his death 9 months' later the deceased and Accused No. 1 had not
shared a common bedroom. Soeker's
attempt to describe their
relationship as a loving one was not entirely satisfactory. In any
event on the night the offences were
allegedly committed, Soeker was
with the deceased in his kitchen conversing from about 21h00 until
shortly after 23h00. During
the course of their conversation the
deceased mentioned that he wanted to get another house as the
children of his previous marriage
no longer wanted to come to 101
Grasmere Street. Shortly after returning to his flatlet Soeker heard
a noise. It sounded like a
firecracker or a firearm going off. While
he was in the shower, about 10 or 15 minutes later, his cell and
landline phones rang.
He then heard a commotion and saw Accused No.
1's family and the police outside. He checked his cell phone and saw
that Accused
No. 1 had called him at 23h54.
10. During his cross-examination of
this witness, Mr von Lieres pointed out discrepancies with regard to
the time of this call.
It was pointed out, and Soeker agreed, that
various people had remote controls giving access to the house. It
also emerged from
the cross-examination of this witness that from the
upstairs area where the deceased was shot the front door to the house
is visible.
11. I note one other aspect of
Soeker's evidence. The witness Fahiem Hendricks ("Hendricks")
was not seen visiting Accused
No. 1 before 16 December 2006. Soeker
saw him twice thereafter: Once at 101 Grasmere Street and then at a
house in Gordon's Bay
belonging to Accused No. 1's family. It was
suggested that he was in the company of Accused No. 1 during the
period of
iddah,
the
period of "waiting" or "mourning" in which Muslim
widows are expected not to be in the company of strange
men.
12. The evidence of Inspector Brian
Trevor Hermanus ("Hermanus") does not take the matter much
further. He was the investigating
officer for a very short time. He
arrived on the scene after other police officers were already there.
The deceased had already
been certified as dead by Metro personnel
but the body was still lying on the front floor about two meters away
from the stairs.
The deceased's head was covered with a towel which
Hermanus lifted and saw the deceased's bloodied head. He found
Accused No. 1
in an upstairs bedroom. Her daughter, Zaynab, was with
her. Hermanus endeavoured to obtain from her information with regard
to
what had happened that night in the house. Accused No. 1 was quite
clearly distraught. She was crying. More significantly, she was

confused. It emerged later that she had already been seen by a doctor
who had given her an injection. In the circumstances, not
much
weight, if any, can be placed upon what she told Hermanus at that
stage. There are also the unsatisfactory features of the
statement
made by Hermanus which Mr von Lieres highlighted. Hermanus also
interviewed Achmat Gamieldien with regard to the robbery
and noted
the broken door frames of two bedrooms.
13. The door frames, on both the
doors, were kicked in by Mr Igshaan Petersen ("Igshaan")
the next State witness, and
his son Zahir. At about 11h56 on 16
December 2006 Igshaan received a call from his sister Ma'atoema to
the effect that there had
been a robbery at his brother's house and
that his brother had been shot. Ma'atoema confirmed this aspect when
she testified. It
appears from the evidence that Igshaan resided in
Glenhaven and Ma'atoema in Surrey Estate. Igshaan was thus much
nearer to 101
Grasmere Street. When Igshaan and his son approached
the deceased's house they saw another car already there. This car
spun around
and went to another entrance to the house. Koekie - one
of the Petersen's domestic assistants - let Igshaan into the house.
He
went upstairs and found his brother lying in a pool of blood. A
piece of cloth was stuffed in his mouth, his hands were tied behind

his back with cable ties and his feet were bound with some sort of
electric cable. Accused No. 1 and Achmat Gamieldien's family
were
locked in separate bedrooms. The doors of these rooms were kicked
open by Igshaan and his son. Accused No. 1 and her daughter
were on
the bed crying. Accused No 1's father and brother also appeared on
the scene and the father shouted
"Taliep,
skrik wakker"
and
then asked Accused No. 1
"How
much money did they take, what happened, how much money did they
take?"
Accused
No. 1 apparently answered but Igshaan did not hear what was said.
Igshaan found the circumstances suspicious and told his
son that
they, the Dirks, had killed his brother.
14. It is apparent from Igshaan's
evidence, as well as that of other witnesses, that the deceased's
children from his earlier marriage
spent alternate weeks with their
mother and the deceased. However, after the stabbing incident in
April 2006, they continued to
visit their father but no longer slept
at 101 Grasmere Street. Igshaan expressed views on the deterioration
of his brother's relationship
with Accused No. 1. These are highly
subjective views and I am reluctant to place any weight upon them
because of his intense hostility
towards Accused No. 1.
15. Igshaan also testified with
regard to his brother's financial affairs. Although he was the
executor of his brother's estate,
his evidence in this regard is
somewhat garbled. The deceased apparently had about R18 000 in an
account also operated by his wife.
Save for that, there was little
else. No immovable property was registered in his name and 101
Grasmere Street was in the name
of Accused No. 1's family. It seems
that they lived from the money they got from Dirk Fruit, a Namibian
company or business which
belonged to Accused No. 1's family. Money
earned by the deceased from his musical endeavours was, it appears,
invested with Dirk
Fruit.
16. I shall not place any reliance
upon hearsay testimony by this witness unless it is corroborated by
other admissible evidence.
17. Some details of what happened
that night at 101 Grasmere Street emerge from the testimony of Insaaf
Gamieldien, Accused No.
1's daughter-in-law. She also testified about
the activities of the occupants of the house on the preceding days.
18.
Insaaf was temporarily resident at 101 Grasmere Street as she had
just given birth to her first child and needed help with the
baby.
She confirms that Accused No. 1 and the deceased were sleeping in
separate bedrooms at the time. The deceased left for London
on 2
December 2006 and returned on 14 December 2006. He was fetched at the
airport by Accused No. 1. The next day, that is the
15
th
,
he and his son Azhar took part in a concert at the Luxurama Theatre.
Accused No. 1 only attended the second half of the show as
she had
been ill that day and only wanted to see the deceased and his son
sing.
19. On 16 December 2006 the deceased
went to the 21
st
birthday party of Accused No. 1's sister's twins. Accused No. 1
herself did not attend the party. When Insaaf got back from the

party, the deceased was already home. He was in one of the children's
bedrooms with Accused No. 1. As she was not well he was with
her
praying in a rhythmic chant known as a
"thikr".
Insaaf retired to
her room and, with her husband, watched a movie and fell asleep.
20.
Later that night they were woken up by Accused No. 1 and an unknown
man whose face was covered with a woollen balaclava and
he had on
white woollen gloves. Accused No. 1 switched on the bedroom light and
shouted to Achmat that the man was there to rob
them and wanted money
and jewellery. The unknown man had a firearm in his left hand. He
held it casually and it was not pointed
at anybody. At one stage he
told Insaaf and her husband that they must not try anything or get
out of the bed. He took their cell
phones, wristwatches, cameras and
the other items listed in the indictment. He did not take her credit
cards and, surprisingly,
he did not go through her jewellery box.
Accused No. 1 merely stood at the side of the bed crying. The robber
wanted them to leave
the bedroom but when the baby started moaning he
left them behind and locked the door from the outside. Accused No. 1
was, however,
taken out. He held her by her arm and she walked out.
About 2 or 3 minutes later she heard a gunshot and then footsteps
running
down the stairs. She also heard the front gate banging and a
car pulling away.
21. Accused No. 1 then shouted asking
whether they were locked in and where the deceased was. Achmat told
her to call Soeker and
also gave her Walleed Dirk's number. They also
shouted for Koekie. When Koekie came up the stairs she said there was
something
wrong with the deceased. Shortly thereafter Igshaan and the
others were on the scene.
22.
Insaaf was not subjected to lengthy cross-examination. While Mr von
Lieres was examining this witness it emerged that Walleed
Dirk's car
was the first to pull up at the house. This is not particularly
significant as the events occurred at a rapid pace at
that stage. In
any event we know from Igshaan's evidence that he was the first to
enter the house. What is surprising is that Mr
Konstabel, who
appeared on behalf of Accused No. 4, asked this witness no questions.
Of cardinal importance to his client's case
is the suggestion that he
left the house before the shooting. The evidence of this witness is
that she heard more than one person
leaving after the shooting. This
aspect of her evidence was not challenged or clarified by
cross-examination.
23. No one was arrested for these
offences until 6 months later when Hendricks eventually confessed to
the police of his involvement
therein and agreed to testify on behalf
of the State. That decision resulted in the present accused being
arrested and charged.
Hendricks was in protective custody and before
testifying in this matter he was warned in terms of section 204 of
the Act. Bluntly
stated he gave evidence to obtain immunity for
himself and quite clearly has a possible motive to tell lies. In the
circumstances
this court is acutely aware of the need to approach his
evidence with caution and to look for corroborative evidence
implicating
the accused and other safeguards which reduce the risk of
a wrong conviction.
24. Hendricks is not an impressive
individual. He appeared dishevelled in court and sat in an awkward
position, largely because
of the bullet-proof vest he was wearing,
consistently looking ahead of him and away from counsel, the accused
and the public gallery.
His evidence, however, was fairly coherent
and logical and he did not convey the impression that he was being
less than frank.
25. Because of the importance of his
evidence to the outcome of this case, I shall deal with it in some
detail.
26. Hendricks was 42 years old and
ran a small business selling take away food. He was known by the
rather crude but not uncommon
nickname "Piele". His
school-going child attended the Sunnyside Primary School. Accused No.
1's young daughter was also
at the same school. He knew Accused No. 1
as a friend. His brother had worked for Dirk Fruit as a driver when
he was involved in
an accident which rendered him a paraplegic. This
was about 24 years ago. He knew Accused No. 1 since about that time.
Hendricks
was friends with Accused No. 1's former husband, Mazaffar
Effendi and they used to visit each other in their homes. Although
they
continued to make small talk whenever they met, he did not visit
her at 101 Grasmere Street and did not know the deceased.
27.
Accused
No. 2 was a good friend of Hendricks for a number of years. Towards
the end of 2006 Accused No. 2 came to stay at their
house as he had
no other place to stay. He met Accused No. 3 on one occasion when he
came to their home to fetch spares for a car.
He also occasionally
saw Accused No. 3 at the mosque in Mandalay. He did not know Accused
No. 4 at all.
28.
Before
the end of the last school term in 2006 Hendricks met Accused No. 1
at their children's school and asked for a loan of R10
000. He needed
the money for his business. The money was given to him by Accused No.
1 at her home prior to the events giving rise
to this trial
occurring. The loan was given without any security and he was to pay
it back in amounts which his business could
afford. He repaid the
whole amount after the incident which led up to this trial. He says
there were other people present when
he went to her home to repay his
debt but is unable to say whether they saw him paying the money.
29. In any event, shortly after
schools closed on 1 December 2006 Accused No. 1 sent her best friend
Mymoena Bedford ("Bedford")
to his house to obtain his cell
phone number. He was not home but his brother gave Bedford the
number. Accused No. 1 then phoned
him and asked that he come and see
her. He called at her home a few days later. She inquired from him
whether he knew someone who
could "do a hit" for her. He
understood this to mean killing someone on her behalf. Although he
dismissed her request
at first, Hendricks relented when she pestered
him with phone calls.
30. He approached Accused No. 2, who
had recently been released from jail and was then staying at his
house, for help in this regard.
Accused No. 1 kept on phoning him to
enquire if someone had been found to do the "job".
Hendricks was unable to report
any progress until Accused No. 2 told
him that he had found someone. He did not ask who it was but told
Accused No. 1 that a friend
had found someone to implement her plan.
She then asked him to come to her house.
31. At her home Accused No. 1
informed Hendricks that it was her husband who had to be killed. She
asked that the deceased be shot
and mentioned that she would open the
gate for whoever was doing the job. Accused No. 1 complained to
Hendricks that the deceased
had done a deal in which he had lost a
lot of money. She also indicated that they were going to get divorced
and that the deceased
would get half of all their money. She asked
that the job be done after the deceased returned from London and told
Hendricks that
she would telephonically advise him precisely when it
could be done. The payment to be made to the assassins was also
discussed.
She suggested that they be paid R100 000, of which R30 000
was to be available in the safe in the house and the balance was to
be paid later. She promised to compensate Hendricks after everything
was done and the insurance policies had been paid out.
32. The first lot of people selected
by Accused No. 2 for this job were three young men residing in
Hanover Park. A few days prior
to 14 December 2006 Hendricks took
Accused No. 2 to Hanover Park to see these men. They then took the
men to Athlone and showed
them where the deceased resided. Their role
as potential assassins was, however, handicapped by the fact that
they lacked transport.
33. On 14 December 2006 Accused No. 1
phoned Hendricks from the airport and informed him that the deceased
was about to return from
London and that she was there to fetch him.
Furthermore, she wanted the deceased killed on their way home and it
had to look like
a hi-jacking. Hendricks phoned Accused No. 2 who
told him that he was unable to get hold of the men who were to do the
job. Accused
No. 1 again phoned Hendricks when the deceased's plane
was delayed but, it appears, Accused No. 2 still could not get the
Hanover
Park people together as they did not have any transport.
34. There was a similar problem the
next night. On 15 December 2006 Accused No. 1 again called Hendricks.
She told him that the
deceased would be at the Luxurama Theatre that
night and wanted him killed when he left the theatre. Hendricks
called Accused No.
2 and once again he could not get hold of the men.
35. Later the same night Accused No.
2 arrived with Accused No. 3 at Hendricks' home and told him that he
had now made arrangements
with different people to do the job.
Accused No. 2 was in his sister's car and Accused No. 3 in a bakkie.
Besides greeting Accused
No. 3, he did not speak to him. He left it
to Accused No. 2 to show them where the deceased lived.
36. Earlier the same night, that is
after the Luxurama concert, Accused No. 1 telephonically informed him
that the deceased would
be going to a 21
st
birthday party on 16 December 2006 and would be home early.
Thereafter he would either be in his studio or watching television.

She wanted the job done then and told him that everybody would be
home by ten that evening. Hendricks gave this information to
Accused
No. 2.
37.
During this time Accused No. 1 phoned him continuously. He was unable
to say how many calls were made between them but there
were many.
38. During the course of the evening
on 16 December 2006 Accused No. 1 called Hendricks on several
occasions. He tried to call Accused
No. 2 but could not get hold of
him. He eventually called "redial" on his second phone.
This phone was sometimes used
by Accused No. 2 when he did not have
airtime and the last number dialled was that of one of the other
persons involved in the
hit. Hendricks spoke to him and found out
that they were on their way to 101 Grasmere Street.
39.
When Hendricks told Accused No. 1 that the people who would carry out
the hit were on the way, she told him that it is only
the deceased
who must be shot and no-one else must be injured. He was also told
that the deceased would be either in his studio
on the ground floor
or watching television on the upper floor. Hendricks gave this
information to Accused
No. 2.
40.
The
deceased's
janazah,
that is Muslim
burial, took place on 17
December 2006. Hendricks heard from
Accused No. 1 later that night. She indicated to him that she needed
a chance to get the money.
Two days later he was telephonically
advised that he could get the money. This he did on 19 December 2006.
When he got to 101 Grasmere
Street, Bedford was there. She asked why
he was visiting during Accused No. 1's period of
iddah.
Accused No. 1 then
came down the stairs and told her it was okay and that she wanted to
chat with him. Accused No. 1 then took Hendricks
into the dining room
where she gave him R70 000,00 in cash.
41. Hendricks took the money and
during the evening he handed the full amount over to Accused No. 2
who took some of the money and
gave the rest back to him. Accused No.
2 was to come back for more money whenever he needed it. With the
money he took, Accused
No. 2 bought himself a motor car and he bought
Hendricks a light delivery van for which he paid R15 000,00.
42.
He had more contact with Accused No. 1 in the subsequent weeks. This
was when the police were questioning the suspects. Accused
No. 1
would call him after one of them had been questioned by the police
and they would discuss what to tell the police. When he
was first
questioned about the telephonic contact between them, he and Accused
No. 1 decided to tell the police that they had a
relationship. As a
result, when they were questioned at the same time by the police,
they gave this explanation. He later told
the police that he was
trying to sell a diamond ring for her. He testified that on an
earlier occasion she had asked him to sell
a diamond ring. Accused
No. 1 wanted R80 000 for the ring and he could pocket whatever amount
he got in excess of that. He could
not sell the ring and it was
returned to her.
43. Hendricks testified further that
his first statement to the police was made when he was arrested for
the unlawful possession
of a firearm which he inherited from his
father but failed to register in his name. He obtained the services
of an attorney, a
Mr Arnold, and was released on bail. Attorney
Arnold also went to see Superintendent Wagter ("Wagter")
about this case.
He then advised Hendricks that the police had enough
evidence against him and that he should either come clean or raise
about R20
000 to R30 000 in case he was locked up. He went to see
Accused No. 1 about this and she agreed to arrange the money. The
next
day he was contacted by
Accused No. 1's father and told to
collect R20 000 from the father's house. After he was placed in the
witness protection programme,
attorney Arnold deposited the money in
his son's account. Hendricks then gave a full statement to Wagter and
from that date he
was kept in protective custody.
44. After this he co-operated fully
with the police. At one stage he attempted to lead Accused No. 2, who
was then staying somewhere
in Strandfontein, into a trap at the
shopping centre in Mitchells Plain. He arranged to meet him at Cash
Crusaders in the centre
while he waited in the shop with a number of
police.
45. Accused No. 1's telephone number
was saved on his cell phone under her nickname, Nade, and that of
Accused No. 2 under his nickname,
Rah.
46.
Hendricks also says that he met Accused No. 1 on one occasion at her
brother's home in Gordon's Bay. This was after the incident
and while
the police were investigating this case. He was told to go to her
brother's home to tell her what the police had asked
him and to
decide upon a response. This was the stage when they decided to
advance the story of a diamond deal.
47. The R20 000 was given to him to
pay as bail if he should be arrested on this case. When he was
arrested on the firearm case,
Accused No. 1 urged him to go with her
family members to see an attorney, Mr Norman Snitcher. Attorney
Snitcher, however, told
him to remain outside and he did not take
part in their discussions.
48. Ms Riley also led this witness on
certain cell phone calls received by him. These are the calls
reflected on exhibit "F".
Hendricks confirms that this
exhibit correctly records the calls made between Accused No. 1's cell
phone and his. On 13 December
2006 nine calls were made. On 14
December 2006 a further 26 calls were made of which 4 were from the
Cape Town International Airport.
14 December was the day the deceased
returned from London and these calls were made when Accused No. 1
wanted to know whether he
had found people to do the "job".
On 15 December 2006 four calls were made and then on 16 December
2006, the day the
deceased was killed, 10 calls were made of which
nine were in the evening. The first call to him thereafter was made
at 26 minutes
to midnight on 17 December 2006, that is, on the day of
the
janazah.
49. The witness also confirmed the
correctness of exhibits "M" and "N". These are
his cell phone records for
the numbers 0729229617 and 0743402038. It
appears that Accused No. 2's cell number was 0720109819. On 13
December 2006 Hendricks
received a call from Accused No. 1 and after
this he made two calls to Accused No. 2's number. The next day, 14
December 2006,
he again phoned Accused No. 2's number after
communicating with Accused No. 1. On the same day, Hendricks phoned
Accused No. 1
on three occasions and then Accused No. 2's number. At
31 minutes past seven in the evening, he again phoned Accused No. 2.
50. On the day of the murder, that is
16 December 2006, Hendricks received a call from Accused No. 1 at
10h16. He phoned Accused
No. 2's number at 16h58. After this he
communicated with Accused No. 1 at 20h11 and then phoned Accused No.
2's number at 20h15
and again at 20h20. Hendricks again phoned
Accused No. 1 at 21h20, 21h25 and 21h29. After this Accused No. 1 and
he communicated
at 22h23. Hendricks then phoned Accused No 2.s number
at 22h26 and then again he phoned Accused No. 1 at 22h30 and 23h03
and Accused
No. 1 phoned him at 23h26. Just after midnight, at 21
minutes after midnight, a call between him and Accused No. 2
followed.
51. Hendricks was subjected to a long
and gruelling cross-examination by Mr von Lieres. Although apparent
discrepancies emerged,
as inevitably happens in such cases, the
essential features of his version of events remained intact and
plausible.
52. He conceded under
cross-examination that he had also borrowed money from Accused No. 1
on a previous occasion a long time ago.
On that occasion he had
borrowed R20 000 and she had kept his bakkie as security. When he
repaid the debt he got his vehicle back.
He was allowed to repay the
R20 000 as he could and she did not call to hear about the payments.
Similarly, with regard to the
recent loan of R10 000 there were no
specific arrangements with regard to repayment. Though he had no
knowledge about Accused No.
1 being serious about money, he concedes
telling the police this when he was trying to give an innocent
explanation for the calls
she made to him.
53. Mr von Lieres spent some time on
Hendricks' inability to explain why Accused No. 1 had to phone him to
come and discuss the
hit when she could just have waited for him to
come when he made a payment. We know from later evidence that Bedford
in fact went
to Hendricks' house to get his cell phone number.
Furthermore, Hendricks did not repay his debt over fixed periods. On
the other
hand it is apparent from all the evidence, that is if
Accused No. 1's version is to be rejected, that she was in a hurry to
have
the "job" done.
54. Hendricks has more problems with
exhibit "O", the statement he made to the police on 21
December 2006 when he knew
that they were investigating the death of
the deceased. It consists almost entirely of lies. He explains that
he did it to protect
himself and Accused No. 1. That may be an
acceptable explanation but it certainly impacts upon his credibility.
Another aspect
of this statement which causes some concern is the
averment that he borrowed R20 000 on two previous occasions and on a
third occasion
he borrowed R10 000. He then comments that she phoned
him on one occasion when he fell behind with his payments.
55. Exhibit "P" is a
further statement made by him to the police in which he told lies
also to cover up for himself and
Accused No. 1. This statement deals
with the diamond story. Hendricks denied that there was any deal
where Accused No. 1 had given
him four diamonds to sell with the
understanding that if he sold the diamonds at R250 000 he could get
R10 000. This was the story
that was discussed with attorney Norman
Snitcher. He was sent out of the office when the attorney enquired
who everyone was. He
did not contradict Accused No. 1 when she
mentioned the diamond deal because this was one of the stories they
had made up to tell
the police.
56. Hendricks seemed to suggest at
one stage that he only contacted Accused No. 2 after he saw Accused
No. 1 a second time about
the hit. When Mr von Lieres put to him his
earlier evidence in this regard, he conceded asking Accused No. 2
about finding someone
to do the job as a result of Accused No. 1's
persistent calls, that is, after the first visit in this regard.
57. Mr von Lieres then took this
witness through everything that was said at the second meeting.
Namely that she wanted the hit
done on her husband and that she would
pay R100 000, that the cameras on the perimeter of the house were not
working, that she
would see to it that the gate would be open, that
no-one else must be injured and that she would look after him when
everything
was done. Mr von Lieres then pointed out to him certain
differences between what he was saying in court and what was said in
the
statement, exhibit "Q", that is the statement made by
him when he decided to speak the truth. Hendricks explained that
he
did not differentiate between the first and second occasion when he
made the statement. It appears from the statement itself
that he did
differentiate between the two occasions. There seems to be some
confusion in this regard.
58. Hendricks did not ask what he
would get out of the job that Accused No. 1 wanted him to do. This is
not as improbable as Mr
von Lieres suggested it was, if one takes
into account that he had on previous occasions borrowed R20 000 and
R10 000 from her
and, of course, she could land in trouble if she
failed to pay him.
59. Mr von Lieres also put to this
witness that as Accused No. 1 and the deceased were married in
community of property, whether
the deceased and Accused No. 1
divorced or if the deceased died, the accused would not be better
off. I do not think the witness
was in a position to answer these
questions. I also do not agree with Mr von Lieres' allegations in
this regard for reasons which
are not pertinent at this stage.
60. Hendricks admitted knowing that
he was busy with dangerous matters, that is, getting people to commit
a murder, yet he persisted
in what he was doing because Accused No. 1
had done him favours in the past such as lending him fairly large
sums of money. He
was also of the opinion that he would not really be
involved in the murder because he would only be getting the people to
do the
act.
61. Mr von Lieres also put to this
witness that there would have been insufficient time to set up the
hi-jacking if the witness,
i.e. Hendricks, was phoned at 09h31 and
the deceased's plane was supposed to land at 10h30. There is no
evidence which supports
this proposition and, if the court is at
liberty to take judicial notice in this regard, Hanover Park is an
area not far from the
airport or, I assume, the deceased could have
been intercepted anywhere along the road to Athlone. Hendricks could
not say what
would happen to the advance payment of R30 000 if there
was to be a hi-jacking. Perhaps this is an improbability, but is it
significant?
I suppose other means could have been employed to get
the payment after the commission of the act.
62. A similar proposition with regard
to the timing was put to Hendricks in respect of the proposed hit at
the Luxurama. He was
phoned at 20h30. The fact is we do not know when
the show was to end. In any event, the hit could not be timeously
arranged and
furthermore Hendricks cannot be criticised if Accused
No. 1 made unreasonable demands.
63. Hendricks admitted knowing
Accused No. 1 for about 30 years. He denied borrowing R20 000 on two
occasions and denied that Accused
No. 1 was serious about her money
and phoned people to pay. He denied he was given diamonds by her to
sell or that she asked him
to sell American dollars on her behalf. He
also rejected Accused No. 1's version that she had given him diamonds
to sell or that
she phoned him with increasing frequency because she
was worried about the diamonds. He reiterated his evidence that the
two of
them had made up stories to tell the police.
64. Hendricks admitted that he was at
no stage arrested in this case and that he only made his statement,
exhibit "Q"
after about 6 months. Mr von Lieres also put to
him that he knew of the American dollars in the house, that it was
his idea to
rob the place and that something went wrong during the
robbery and the deceased was killed.
65. I have highlighted some of the
more important issues which arose during the cross-examination of
Hendricks by Mr von Lieres.
Not all the issues, or possible
discrepancies raised by Mr von Lieres have been referred to herein,
simply because it would not
be practical to do so.
66.
In her cross-examination of this witness, Ms Abrahams pointed out to
Hendricks that in exhibit "Q" he had not mentioned
the
first group of people obtained by Accused No. 2 to commit the murder.
His explanation was fairly simple. He had not mentioned
them in his
earlier statement because they were not involved in the actual deed.
A great deal of cross-examination on this aspect
followed. It did not
take the matter any further.
67. Hendricks conceded that he may
have made a mistake by mentioning only one occasion on which he
pressed "redial" to
contact Accused No. 2 on 16 December
2006. He also confirmed phoning Accused No. 2 to meet him at the
shopping centre in Mitchells
Plain. This incident was set up so that
he could point out Accused No. 2 to the police. Accused No. 2 arrived
late and they collided
when he was leaving the shop. Hendricks could
not recall phoning Accused No. 2 and telling him that he was taking a
long time to
appear.
68. It appears that a number of calls
were made from his Cell C phone, that is, with the number 0781698347,
during the period 17
to 20 December 2006. Hendricks concedes this but
says that it does not mean that he made all the calls.
69.
With regard to the R70 000, it was apparent that Ms Abrahams
misunderstood the evidence of Hendricks who did his best to explain

that he kept the rest of the money in safe custody for Accused No. 2.
Ms Abrahams, if I understood her correctly, suggested that
this
arrangement did not make much sense. On the contrary, it seemed quite
plausible.
70. It was finally put to Hendricks
that he was falsely implicating Accused No. 2 for two reasons, namely
the belief that Accused
No. 2 was having an affair with his wife and
the fact that Accused No. 2 cheated him in connection with money
Accused No. 3 had
brought for certain motor car spares. Hendricks
denied these allegations.
71. At this stage, Mr von Lieres
sought the permission of the court to put certain further questions
to the witness. This was allowed.
In response to the additional
allegations put to him, Hendricks denied that he had told Nanny - the
Petersen's other domestic assistant
- to tell Accused No. 1 that he
had returned the diamonds to her if the police enquired about them.
He added that Accused No. 1
had told Nanny to say that.
72. Cross-examination of this witness
by Mr Scott and Mr Konstabel did not take this matter any further.
73. Tagmeeda Johnson, the deceased's
sister, was also called to testify on behalf of the State. Ms Riley
indicated to the court
that portions of the evidence of this witness
would be hearsay and sought permission to have it admitted in
evidence. Mr von Lieres
objected to this evidence being presented.
The court decided to hear the evidence and indicated that it would
decide upon the cogency
of the evidence, and the weight, if any, to
be attached to it at a later stage in these proceedings.
74. This court was called upon to
exercise its discretion as envisaged in
section 3(1)
(c) of The
Law
of Evidence Amendment Act 45 of 1988
. This section affords the court
a wider discretion when it comes to admitting hearsay evidence. It
permits the admission of hearsay
evidence if it is in the interests
of justice to do so after having regard to several factors listed in
the said section. The hearsay
evidence, in this instance, was to be
led to show a possible motive on the part of Accused No. 1 to have
her husband killed. There
was other evidence to the effect that the
deceased was a private person whose tribulations were not publicly
known. This witness
was in a position to corroborate the evidence of
Hendricks, the
section 204
witness, with regard to the deceased's
contemplated divorce and its financial consequences.
75. Ultimately, the evidence of this
witness was not of any real significance in this matter. She spoke of
her good relationship
with her brother which we do not have any
reason to doubt. She also confirmed what another witness had already
said, namely that
the deceased was a very private person. However,
her view of the deceased's marriage to Accused No. 1, like that of
her brother
Igshaan, was clouded by an obvious dislike for Accused
No. 1 and it is accordingly difficult to entertain her view in this
regard
as objective evidence.
76. A large part of her evidence
related to the incident on 13 April 2006, that is, 8 months before
his death, when Accused No.
1 stabbed the deceased with a knife. Her
evidence of this occurrence is hearsay and of such little relevance
that it can be safely
disregarded. In any event, there is more direct
evidence of the stabbing from one of the other witnesses. It is,
however, not in
dispute that the deceased spent the night in hospital
after he was stabbed and Accused No. 1 received treatment at a
private clinic
for three weeks thereafter. There is also other
evidence that from that date Accused No. 1 and the deceased also
slept in separate
bedrooms.
77. Mr von Lieres put to this witness
that Accused No. 1 had been receiving treatment for depression before
the stabbing incident
and that the incident took place on the same
night she was discharged from the Gatesville Medical Centre where she
had been treated
for depression. It was also put to this witness that
Accused No. 1 does not deny stabbing the deceased but does not know
how it
happened. When testifying herself Accused No. 1 did not quite
admit that she stabbed the deceased. She maintained that she did not

know what happened.
78. There was nothing else of
significance in the evidence of this witness and she was not
cross-examined by counsel for the other
accused.
79. Before dealing in some detail
with the cell phone records and the expert testimony in this regard,
I refer briefly to some of
the other witnesses who testified on
behalf of the State.
80. Mrs Ma'atoema Groenemeyer
("Ma'atoema") also one of the deceased's sisters, testified
that at about 23h30 on 16 December
2006 she received a call from
Accused No. 1 who told her "we have been robbed and Taliep has
been shot". The telephone
records show that this call was made
at 23h51. She was unable to contact the police on 10111 and chose to
drive with her husband
to the Athlone Police Station. On the way to
the police station she called Igshaan who lives nearer to 101
Grasmere Street. At
the police station she met with a Munaaz Lawrence
who contacted the flying squad via radio. Attempts were also made to
contact
Accused No. 1 on her cell phone and landline. They then heard
police sirens moving in the direction of 101 Grasmere Street and left

the police station. This witness also testified about a conversation
she had with Accused No. 1 two or three weeks after the incident
when
Accused No. 1 allegedly told her what had happened. As the witness
never mentioned this conversation to the police or at the
bail
hearing, the court is reluctant to place any reliance thereon and
elects not to do so.
81. Munaaz Lawrence, from the Athlone
Police Station, also testified. She essentially confirmed what was
said by Ma'atoema. She
was cross­examined on her statement in
which she had recorded that Ma'atoema mentioned hearing a shot go off
during the call
she received from Accused No. 1. She conceded a
possible error in this regard in that the statement was made two
weeks after the
incident had taken place.
82. Reference has already been made
to Mymoena Bedford. She described her relationship with Accused No. 1
as sisterly. On 18 November
2006 she received a call from Accused No.
1 who asked her to obtain a contact number for Hendricks who lived
about two streets
away from her. She collected the number from his
brother and gave it to Accused No. 1. She was asked under
cross-examination how
she remembered the date of Accused No. 1's
call. Her reply was to the effect that it was her sister's birthday
and she recalls
they had eaten out. She confronted Accused No. 1
about her supposed relationship with Hendricks which she had been
told at an interview
with the police. She did not know who Hendricks
was. At 101 Grasmere Street Koekie reminded her of the incident 2 or
3 days after
the
janazah
when she ordered a
man to leave the house because of Accused No. 1 then being under
iddah.
Bedford
did not believe that Accused No. 1 would have an affair with "someone
like that" who was "classless"
- the latter being a
comment not entirely without merit. In any event, Accused No. 1 told
her that Hendricks owed her money and
also sold diamonds for her.
Furthermore, that he came to the house to repay the money. On one
occasion she witnessed Hendricks
handing over money to Accused No. 1.
She testified that on an earlier occasion Accused No. 1 had asked her
to have a diamond ring
valued and to find a buyer for it. She had the
ring valued - for R100 000 - but did not find a buyer. Except for
that instance,
she knew of no other diamond deals.
83. The evidence of Fatima Achmat
("Achmat") relates to the large sum of money allegedly
given by Accused No. 1 to Hendricks
on 19 December 2006. Achmat is
the managing director of a property business and a business associate
and friend of Accused No.
1. Accused No. 1 was employed by the same
business. Her salary was structured in such a way that she would
receive a monthly salary
of R50 000 - whatever her commission - and
the balance would be entered in a loan account. On 19 December 2006
Achmat was telephonically
contacted by Accused No. 1 who wanted
assistance to withdraw cash from her bank account. Achmat was unable
to assist that day and
asked her brother to attend to the matter.
About a week later she spoke to
Accused No. 1 who told her if there were any enquiries about the
money Achmat must say that she
had borrowed the money. Accused No.
1's explanation for this request was that she did not want people to
know she had money as
they pestered her for loans. Mr von Lieres
informed the Court that Accused No. 1 did not dispute that R100 000
was cashed by a
Shafiek Kamish at FNB Athlone on 19 December 2006. As
a result of this concession by Mr von Lieres, it was unnecessary to
call
any further witnesses with regard to the cashing of the R100 000
by Accused No. 1.
84. The evidence of Jawaahier
Petersen ("Jawaahier") is possibly of some importance as
she is in a position to give direct
evidence about the stabbing
incident and, I suppose, the family living arrangements.
85. Jawaahier, who is the second
eldest child born of the marriage between the deceased and his first
wife, was working as a cosmetic
consultant at that stage. She and her
siblings lived with one parent for two weeks and then with the other
for two weeks. This
arrangement became more flexible as they grew
older. When she reached the age of 18 she went to live permanently at
101 Grasmere
Street - she was 22 years old when she testified. This
arrangement came to an end when Accused No. 1 was discharged from the
Crescent
Clinic pursuant to the events of 13 April
2006.
86. On the aforementioned date
Jawaahier came home from work just after eleven that evening. Accused
No. 1 was in bed and the deceased
was taking ablutions in preparation
for his evening prayer. She and Accused No. 1 discussed the
deceased's upcoming birthday on
15 April. Accused No. 1 appeared
normal, that is her speech was not slurred and her eyes droopy as
would be the case when she was
medicated.
87. Almost 30 minutes later her
sister Fatima told her that she had heard their father making a
noise. As she did not wish to intrude
upon the deceased and his wife
she stood outside the door and heard him saying "No, Najwa".
He did not sound right. She
entered the room which was dark except
for the blue light from a small television set which was on. There
were no blankets on the
bed and she could not see the deceased or
Accused No. 1. She called out "Dad, where are you?" He told
her to switch on
the light but not to freak.
88. When the lights went on she saw
Accused No. 1 in a praying or kneeling position with the deceased
behind her, holding her hands
away from him. Accused No. 1 had a
knife in her left hand pointed towards the deceased. Everything was
covered in blood and Accused
No. 1 appeared "demonic"
making strange noises.
89. The witness asked who was
bleeding but received no reply. The deceased told her to call Accused
No. 1's late father. Jawaahier
first called the Gatesville Medical
Centre before calling Accused No. 1's father. Both the deceased and
Accused No. 1 were taken
to the medical centre. The deceased was
discharged the next day and Accused No. 1 was admitted to the
Crescent Clinic for about
3 weeks. After her discharge from Crescent
Clinic, Accused No. 1 slept in one of the other bedrooms while the
deceased slept in
the main bedroom. The witness no longer felt
comfortable with Accused No. 1 and moved out. The other children
continued to stay
over but less frequently and eventually only
visited their father but did not stay over. She agreed with defence
counsel that on
the night of the incident
Accused No. 1 was "zombie like"
but added that she can also make her eyes
like that.
90. The policeman responsible for
investigating the financial affairs of the deceased, Captain Wayne
van Tonder, was a poor witness
and seemed to come apart under
cross-examination. It appears that he spent the last 5 years of his
professional career at the Provincial
Organised Crime Unit -Bellville
South. He established that no immovable property or vehicles were
registered in the name of the
deceased. Quite surprisingly, he could
not ascertain in whose name 101 Grasmere Street was registered. The
deceased only had an
Absa account in which the following deposits
were made for the period 2004 to 2007:
2004 R 95 607,00
2005 R425
895,65
2006 R427
756,67
2007 R
5 822,00
Payments
from the account were made largely for policies and to SAMRO, the
agency for performing arts, and to David Kramer. It appears
that from
2001 large sums of money earned by the deceased were paid over either
to
Accused No. 1 or to Dirk Fruit.
Though Accused No. 1 had a number of accounts, Capt van Tonder
limited his investigation to the
FNB account in Athlone and an
account held by her in Oshakati, Namibia. The latter account showed a
balance of R259 963,00 on 6
September 2006. He was aware of the
policy valued at R5,3 million of which Zaynab was the beneficiary.
This had not been paid out
to the knowledge of the witness but
Accused No. 1 had made a request for the money to be paid into a
Namibian account. Under cross-examination
it appeared that the
financial investigation was only completed a week before his
testimony, the witness had not spoken to the
attorney or the
financial broker involved and was unaware that a trust was created
for Zaynab, the beneficiary of the policy. He
knew of the policies
taken out against the life of the deceased where Accused No. 1 was
the beneficiary. He became aware at a later
stage in the
investigation of the power of attorney held by Accused No. 1 and had
not interviewed either Accused No. 1 or her legal
representatives.
91. The deceased's partner, David
Julian Kramer ("Kramer"), the person with whom he created
musicals and songs for over
two decades was also a witness for the
state. He was called largely to explain certain aspects of the
deceased's financial affairs.
The deceased and Kramer often produced
shows together which they financed themselves. The deceased's
contribution in more recent
years was paid with cheques signed by
Accused No. 1. At the deceased's request, his share of the profits
was paid either to "N
Petersen" or to "Dirk Fruit".
This was the position from about 2001.
92. The events leading to the
examination of Accused No. 1's cell phone records and the link to
Hendricks, appear from the evidence
of Superintendent Piet Viljoen
("Viljoen"). He is a highly experienced police officer and
on 17 December 2006 he received
a request for assistance in this
matter. At about 10h00 he went to 101 Grasmere Street. He met Accused
No. 1 in a bedroom where
she was being supported by other people. He
introduced himself to her and asked what had happened. She told him
they had been robbed.
He noticed that she had two cell phones in her
possession. She described the robbery to him and took him to a safe
and told him
that the robbers had taken money from it. He noted some
jewellery, watches, handheld computers and old paper money still in
the
safe. He found this strange as these were items currently popular
with housebreakers. When requested to, Accused No. 1 gave him
her two
cell phones and asked what he was going to do with them. He replied
that it was for further investigation. She then asked
that he return
the Nokia as she used the phone for her business. When he refused she
asked whether she could get a number from
the phone. He gave her the
phone. Captain Kenneth Speed ("Speed") then arrived and
Viljoen asked him to photograph the
contents of the safe and take
possession of the cell phones.
93. Later at his office Viljoen
withdrew information from the two cell phones obtained from Accused
No. 1 and, by means of a special
computer programme for this purpose,
he found that the last three numbers dialled on 16 December 2006 from
the Nokia phone were
0839297647 (Aeesha) at 00h22, 0828610054
(Fayruz) at 21h31 and 0761775529 (Madeegha) at 22h23. From the
detailed particulars of
calls made from this phone it appeared that
one number that had been phoned was not reflected on the phone calls
saved in the phone.
This number was stored in the phonebook of the
phone as that belonging to one "Fahiem Piele". The number
actually saved
by Accused No. 1 under the name "Fahiem Piele"
was 0729229617. It belonged to a cell phone of Fahiem Hendricks. When
Viljoen analysed it, he found that this number had been phoned from
the Nokia cell phone about 10 times on 16 December 2006. It
seems
that these calls must have been removed from Accused No. 1's phone at
some stage before she handed it over to Speed.
94.
During
cross-examination by Mr von Lieres, it appeared that this witness
only made a statement on 1 April 2008. In this statement
he stated
that the 10 calls from Accused No. 1's phone were made to Hendricks
on 17 December 2006. This is an obvious error. It
was on 17 December
2006 that he noticed the calls made the previous day, that is, on 16
December 2006.
95. Viljoen also explained that
Accused No. 1's Nokia is able to log 20 incoming calls, 20 outgoing
calls and 20 missed calls. Information
of the last call she made on
16 December 2006 should therefore still have been reflected on her
phone when he analysed it.
96. Viljoen agreed that while he told
the court that his evidence has always been accepted by the courts,
on one occasion in the
Cape Town regional court it was not accepted
because the telephone number he referred to did not compare with the
number contained
in the Telkom list of calls.
97. Mr von Lieres put to this witness
that the items left in the safe during the robbery were of no value
to house robbers. Viljoen
advanced several reasons why some or all of
these items would not have been left behind by house robbers.
98.
It was Speed's function to trace stolen property and investigate
stolen cell phones. On 17 December 2006 he was given the further
duty
of investigating the security features at 101 Grasmere Street. He
took photographs of the security measures at the house and
compiled a
bundle which was handed up as an exhibit. As he was told that the
entrance control at the front gate did not work, he
tested the gate
and found it to be in good working order. The closed circuit
television cameras on the property, as well as the
electric fencing,
were switched off.
99. Speed was called back by Viljoen
to collect the two cell phones and to photograph the contents of the
safe. After taking the
photographs he found that the Nokia phone was
not where he had left it. He asked Viljoen about this and was told
that Accused No.
1 had asked for it. He retrieved the phone from her
and both phones were taken to the offices of the police.
100. The detailed records of calls
made on Accused No. 1's phones were obtained by Speed from the
relevant cell phone companies.
He also dealt in his evidence with the
duration and frequency of the calls between Accused No. 1 and
Hendricks for the period 13
to 17 December 2006.
101.
Under cross-examination by Mr von Lieres, Speed indicated that he had
asked both Hendricks and Accused No. 1 about the frequent
number of
calls between them. They first said it was all about a diamond
transaction and later because they were having an affair.
According
to Speed no one living in the house was tested for firearm residue
because at that stage none of them were suspects.
He testified that
for such a test to be really reliable it must be taken within two
hours after a firearm has been discharged.
102.
Mr von Lieres also endeavoured to point out in his cross-examination
of this witness that Accused No. 1 did not only phone
Hendricks
during the period 13 to 17 December 2006, the implication being that
there was nothing unusual about the frequency of
their calls over
this period. The actual details, as they appear from exhibit "M",
paint a different picture. The calls
between them for the period 4 to
20 December 2006 were as follows:
4
December 2006 -
no
calls
5
December 2006 -
no
calls
6
December 2006 -
no
calls
7
December 2006 -
no
calls
8
December 2006 -
2
calls
9
December 2006 -
1
call
10
December 2006 -
2
calls
11
December 2006 -
no
calls
12
December 2006 -
no
calls
13
December 2006 -
6
calls
14
December 2006 -
26
calls
15
December 2006 -
4
calls
16
December 2006 -
10
call
17 December 2006
-
1
call
18 December 2006
-
4
calls
19 December 2006
-
2
calls
20 December 2006
-
1
call
103. The detailed cell phone records
of some of the accused and Hendricks were made available to the court
by witnesses whose evidence
was formal in nature and not disputed. Of
greater importance to this case was the evidence of Peter Schmitz
("Schmitz"),
a scientist currently employed in the
Logistics and Decision Support Department of the Council for
Scientific and Industrial Research
("the CSIR"). He does,
as he puts it, spatial analysis from satellite data to GPS collected
and cell phone data. In this
case he was asked to plot the spatial
and temporal paths of the accused at the time of this incident. Once
he was in possession
of the cell phone call data records he was able
to determine the location of the cell towers. The calls made and
received were
linked to the towers that were used and a line was then
drawn between the two towers. The usage of the towers gave an
indication
of how the people moved through space and the time of
these calls gave an indication of what time of the day the call was
made.
104. In this instance Schmitz drew
maps showing the calls made and received by the relevant parties,
collated calls which may be
of importance in this case, prepared
graphs of calls made and reflected the calls he studied in a line
graph to show the frequency
of the calls. These items were handed up
in evidence as exhibits "YY1-6". His aerial photograph of
the area in which
101 Grasmere Street is located also shows the
direction of the nearest towers to the house and the towers used on 8
January 2007
when Capt Dryden made cell phone calls from different
rooms in the house. For instance, if a call was made from the main
bedroom,
that is the deceased's room, the Kewtown 3 tower was
activated. Whereas if the call was made from the room Accused No. 1
was said
to have slept in that night, the Crawford 1 tower was
activated.
105. Each call made by the
dramatis
personae
herein is
given on the line graph or time line (exhibit "YY1") a
sequence ID number in chronological order as the calls
appear on the
time line. Consequently the information reflected on the time line
with the tables of calls provides a great deal
of information
relevant to the State's case against the accused. This is best
illustrated by the sequence of calls during the 24
hours from 00h00
on 16 December 2006 and 00h00 on 17 December 2006, that is, the
period when the deceased was murdered. A single
call from Accused No.
1 to Hendricks at 10h16 resulted in a spate of calls necessitating an
expanded time line:
16h56
-
Accused No. 2 phoned Accused No.
3
16h58
-
Accused No. 2 contacted Hendricks
17h51
-
Accused No. 2 phoned Accused No.
3
20h11
-
Accused No. 1 phoned Hendricks
20h15
-
Hendricks contacted Accused No. 2
20h19
-
Accused No.
2
phoned Accused No.
3
20h20
-
Accused No.
2
contacted Hendricks
21h20
-
Accused No.
1
contacted Hendricks
21h23
-
Accused No.
1
contacted Hendricks
again
21h24
-
Accused No.
2
phoned Accused No.
3
21h25
-
Accused No.
2
phoned Hendricks
21h29
-
Accused No.
1
phoned Hendricks
22h06
-
Accused No.
1
phoned Hendricks
22h20
-
Accused No.
1
phoned Hendricks
22h23
-
Hendricks phoned Accused No. 2
22h25 - Accused No. 2 phoned Accused
No. 3
22h26 - Accused No. 2 contacted
Hendricks
22h27 - Hendricks phoned Accused No.
3
22h36 - Accused No. 1 contacted
Hendricks
22h40 - Hendricks phoned Accused No.
3
22h54 - Hendricks contacted Accused
No. 2
23h00 - Accused No. 3 phoned
Hendricks
23h03 - Accused No.1 phoned
Hendricks
23h12 - Hendricks phoned Accused No.
2
23h13 - Accused No. 2 phoned
Hendricks
23h21 - Hendricks phoned Accused No.
3
23h24 - Accused No. 3 phoned
Hendricks
23h26 - Accused No. 1 contacted
Hendricks
23h27 - Hendricks contacted Accused
No. 3
23h27 - Hendricks contacted Accused
No. 3
23h31 - Hendricks phoned Accused No.
2
106.
In
summary, Schmitz's data reflects that on 13 December 2006
Accused
No. 1 phoned Hendricks on 7 occasions, he phoned Accused No. 2
once
and Accused No. 2 phoned him once.
107. On 14 December 2006 Accused No.
1 phoned Hendricks 26 times and he phoned Accused No. 2 twice.
108. On 15 December 2006 Accused No.
1 phoned Hendricks on four occasions, he phoned Accused No. 2 on
three occasions, Accused No.
3 contacted him twice, Accused No. 2
phoned Accused No. 3 on 7 occasions and Accused No. 3 phoned Accused
No. 2 once.
109. On 16 December 2006 Accused No.1
phoned Hendricks 10 times, he phoned Accused No. 2 on five occasions,
he phoned Accused No.3
four times, Accused No. 2 contacted Hendricks
five times, Accused No. 2 phoned Accused No. 3 on 5 occasions and
Accused No. 3 phoned
Hendricks on two occasions.
110. On 17 December 2006 Hendricks,
Accused No. 2 and Accused No. 3 were in contact with each other on
four occasions between midnight
and 00h31. Accused No. 2 had
contacted Accused No. 3 twice at 14h32. The only other call was
between Accused No. 1 and Hendricks
at 23h34.
111. The remainder of the State's
case dealt largely with the various statements made by the accused.
112. Captain Joash Dryden ("Dryden")
is presently the investigating officer in this case. He was not the
investigating
officer on 18 December 2006 when he visited the crime
scene on the instruction of Capt Morris. He was given the task of
obtaining
a witness statement from Accused No. 1.
113. He met Accused No. 1 in the main
bedroom. After introducing himself he told her that he had come to
take her statement. She
agreed to make a statement and immediately
started explaining that she had a medical condition and had been
hospitalized on previous
occasions. She also volunteered information
about the incident in April 2006 when she had stabbed the deceased in
the neck. She
was calm throughout the interview and Capt Dryden found
it strange that she immediately started talking about her medical
condition
and the stabbing incident without any prompting by him.
114. In any event, this statement was
admitted in evidence as exhibit "RR". It is an exculpatory
statement. Besides dealing
with her medical problems and her
relationship with the deceased, Accused No. 1 sets out in the
statement her view of what happened
that night in some detail. In
effect, that she and her family were the victims of a robbery and
that her husband was murdered by
the robbers.
115. It appears that a second
statement was made by Accused No. 1 on 12 January 2007. The making of
this statement followed questioning
of Accused No. 1 on 7 January
2007 with regard to her cell phone calls and loan to Hendricks.
Accused No. 1 was taken from her
home in the early hours of the
morning, questioned by a team of police officers and, it seems,
confronted with the explanations
given by other witnesses, in
particular Hendricks. The statement, however, was taken down 5 days
later. There is no reason to question
its voluntariness. It is an
exculpatory statement dealing with Accused No. 1's good relationship
with the deceased's first wife
and the loan to Hendricks of R10
000,00. Though denying an intimate relationship with Hendricks, she
mentions in her statement
how Hendricks held and kissed her sometime
in December 2006.
116. Dryden's evidence also dealt
with the different towers registering the calls made from the various
rooms in the house, the
recovery of Insaaf's stolen cell phone and
the purchase of motor vehicle by Accused No. 2 on 30 December 2006
for R10 000,00. He
was also asked to assist Accused No. 1 to complete
a form relating to a policy with Liberty Life which Accused No. 1
wanted to
be paid into a Namibian bank account.
117. I refer briefly to the
statements made by Accused No. 3 and Accused No. 4. These are
inculpatory statements, if not confessions.
Their admission in
evidence was initially resisted. Somewhat dramatically, and in the
course of a trial within a trial, Accused
No. 3 conceded his guilt
and the voluntariness of his statements and a pointing out. The
opposition by Accused No. 4 to the admission
of his statement also
fell away.
118. Accused No. 3 first made a
statement, exhibit "Y", on 20 June 2007. It was made to
Superintendent Deon Spangenberg.
In the statement he says that he was
contacted by Accused No. 2 who told him about a woman who wanted her
husband
"van
die kant gemaak".
He
understood this to mean that the man should be killed. He was told
that the woman wanted the job done quickly and asked if he
had a
firearm. He was promised payment of R50 000,00. The money would be in
the house. Subsequent thereto he was repeatedly called
by Hendricks
and Accused No. 2. When Hendricks called him again on 16 December
2006, he thought he could enter the house, take
the money and leave.
He and Accused No. 4 then drove to a Sadick Kriel to borrow a firearm
and from his place they proceeded to
101 Grasmere Street where they
entered the house and found the deceased in an upstairs lounge
watching television. They grabbed
the deceased and tied him up. Their
intention was to rob the occupants of the house and leave.
119. Accused No. 1 then appeared on
the scene, showed him where the safe was and gave him a bag of money.
He then asked for jewellery,
watches and cell phones. She indicated
the room where her son slept. The people in that room had certain
items taken from them
and he locked their door from the outside.
120. He went back to the deceased who
was lying on the floor and
Accused No. 4 was with him. Accused
No. 1 complained that they must now finish and shoot the deceased. He
went to the other rooms
looking for jewellery. Accused No. 1
persisted with her request that the deceased must be shot. He found a
large pillow, folded
it double and put the pistol inside it. He told
Accused No. 4 to leave and told Accused No. 1 to shoot the deceased
herself. She
grabbed the gun and he covered it with the pillow.
Accused No. 4 was by then out of the house. A shot went off. He
locked Accused
No. 1 in her room and left the house. While driving
away, he threw away his balaclava and gloves. The money from the safe
was R27
000,00 and he got about R2 000,00 from the other occupants in
the house. Two days after the robbery he gave Accused No. 2 R4 000,00

and Accused No. 4 R6 000,00. The rest of the money he spent himself.
121. On 2 June 2007 he also pointed
out 101 Grasmere Street to Superintendent Aspeling as well as
different parts in the house,
where the different events, referred to
in his confession, took place. The record of his pointing out is
exhibit "Z".
122.
During the period 27 to 30 June 2007 he wrote a comprehensive
statement repeating his earlier confession in much greater detail.

The statement as well as several pages commence with "786"
- the numerical representation of the
basmalla,
the prayer said by
Muslims on the commencement of tasks. The statement itself is
interspersed with verses from the Holy Quran.
123. In his statement Accused No. 3
recalls that when he was informed by Hendricks and Accused No. 2 of
the details of what was
to be done, Accused No. 4 was not present. He
also told Accused No. 4 that they had a job to rob the house and that
the woman of
the house would be opening the gate and door for them as
they wanted to claim money from their insurance. Accused No. 4 was
not
told that someone had to be killed. On the night of the incident,
when he left Achmat's room, the woman hung on to his arm saying
julle
moet hom skiet, julle moet hom skiet".
Thereafter
he told Accused No. 4 to go and "be on the look out". He
put the gun in the centre of the pillow, felt Accused
No. 1's hand
between his and a shot went off.
124.
Furthermore, in his statement Accused No. 3 begs for forgiveness from
God, various members of his own family and, of course,
the deceased's
family. He prays for the deceased as well.
125. After the admission of these
statements, Accused No. 3 also made a number of admissions which
amount to a summary of his statements.
126. In his statement, exhibit "Y",
Accused No. 4 admitted going to the scene of the deceased's death
with Accused No.
3. He was at all times under the impression that
they were going to rob a house. When he restrained the deceased he
told him nothing
was going to happen to him. It appeared from the
seriousness of his face that the deceased knew he was going to die.
This was also
apparent from the way he was praying. A woman appeared
on the scene. He slapped the woman but was told by Accused No. 3 that
she
was assisting them. Accused No. 3 and the woman went to another
part of the home. When they returned the woman begged that the
deceased be shot. He went downstairs and was out of the house when he
heard a shot. He also did not know who fired the shot.
127.
The statements which appear to be confessions made by the two accused
are only admissible against them. What is contained in
them does not
constitute evidence against any co-accused. (See section 219 of the
Act).
128. When the State closed its case,
only counsel for Accused No. 4 asked for the discharge of his client
and only on the alternative
charge of conspiracy. The application was
dismissed. It is unnecessary to furnish any reasons for this
decision.
129. Mr Engelbrecht called Accused
No. 1 to testify.
130. Accused No. 1 gave evidence
which merits close scrutiny. She obtained a Junior Certificate at
school, completed a year at a
teachers' training college and then
started working as a receptionist at Galaxy TV. She was later
employed at Old Mutual until
she joined the family business, Dirk
Fruit. They buy fruit, vegetables and groceries in South Africa and
sell it in Namibia.
131.
Accused No. 1 suffers from depression for which she has been
receiving treatment for approximately 5 years. She was hospitalized

on several occasions at various institutions such as the Gatesville
Medical Centre, the Kenilworth Medical Centre and the Crescent

Clinic. Her last psychiatrist was Dr George. She was also treated by
doctors Chetty and Fortuin. She remembers taking an anti-depressant

called Fluoxytine which caused her to be off balance. About 3 or 4
years ago she attempted suicide by taking an overdose of tablets.

Since then the deceased kept her medicine and administered it as
prescribed by her doctor. If he was away, this task would be given
to
someone else.
132. In April 2006 she stabbed the
deceased but is unable to remember what happened.
133. In the past she also had
seizures. These stopped about two years ago when she was given
electroconvulsive therapy. During November
and December 2006 she was
still being treated for depression. She was also taking sleeping
tablets because of insomnia.
134.
At the time of her arrest she earned a salary from a property firm
called SAFIN and her monthly income was R100 000,00. At
that stage
two houses and a flat were registered in her name. The one house
belonged to her brother, the other to her mother and
the flat to
SAFIN. The house where she and the deceased resided - 101 Grasmere
Street, Athlone -belonged to her eldest brother,
Moegamat Yusuf Dirk.
135. She did not receive any
financial help from the deceased and operated her own bank accounts,
two in Cape Town and one in Namibia.
In or about 2000 she and the
deceased reached an agreement that she would control their financial
affairs. The deceased gave her
a power of attorney to this effect.
136. She agreed with Kramer that he,
Kramer, on instructions of the deceased, paid certain amounts into
her or the company's bank
account in Namibia. The money would be
changed into US Dollars. On different occasions she advanced money
for shows staged by the
deceased and Kramer as the deceased had no
money of his own. She received the deceased's profits from the shows
and transferred
the money to the his bank account. The deceased paid
for one insurance policy from this account.
137. He had no fixed income. The only
income he had was from the shows he did with Kramer. She did not
provide any further information
with regard to the deceased's
financial position, for example, whether the deceased did any shows
on his own or whether he sold
any CD's.
138. Accused No. 1 married the
deceased on three occasions. The first occasion was during June 1997
in Fish Hoek where none of their
family members were present. She is
unable to provide the name of the Imam that married them. On the
second occasion, the marriage
took place on 14
th
of September 1997
at her father's home in Athlone. Only the deceased's father attended
the ceremony. Her family did not attend because
of instructions from
the deceased. No reasons were provided for this second marriage.
During 2000 or 2002 they married again. On
this occasion it was a
civil marriage before a magistrate in Wynberg "because by then
we trusted each other and you know...".
Besides normal
differences, according to Accused No. 1, their marriage was a good
one. The deceased's children from his previous
marriage stayed with
them for a week and then with their mother for a week until the
stabbing incident. The deceased's eldest daughter,
Jawaahier, did not
sleep at their house after that incident. Accused No. 1's own
children stayed with them until the deceased died.
Their daughter,
Zaynab, also stayed with them.
139.
After the stabbing incident they slept in separate bedrooms. The
deceased remained in the main bedroom (F on the plan in exhibit
"A").
She slept in the bedroom marked C on the plan in exhibit "A".
This arrangement was for sleeping purposes
only. For all other
purposes they shared the main bedroom and its
en
suite
bathroom. The
deceased and Zaynab slept in the main bedroom with the door locked.
Accused No. 1 and the deceased came to this arrangement
because the
deceased's eldest daughter, Jawaahier, was apparently afraid that
Accused No. 1 would injure the deceased again and
wanted them to
sleep in separate bedrooms. According to Accused No. 1 the stabbing
incident had no effect on their marital relationship.
140. When the deceased returned from
London on 14 December 2006 he raised the subject of them going to
London and Paris because
he had a production running in London.
141. Accused No. 1 confirmed earlier
evidence of the different security measures installed at their home.
They had an arrangement
that the last person to get home would lock
the door - apparently the back door to the kitchen - as pointed out
during the inspection
in
loco.
On 16
December 2006 Accused No. 1, the deceased, Soeker, Zaynab, Achmat
Gamieldien and his wife Insaaf, were at home. Suleiman,
her other
son, had not yet come home. This was the first time Suleiman was
mentioned. The deceased would usually check all the
doors and windows
to see that they were closed and locked. The deceased would not have
been able to switch the alarm on because
Suleiman was still out. The
surveillance cameras were switched off. She did not know how the
electric fence works.
142. She testified that she knew
Fahiem Hendricks for 25 to 30 years at that stage. He and her second
husband worked together and
were good friends. On a previous occasion
Hendricks obtained a loan of R20 000,00 from her. She did not know
for what he needed
the money. On the first occasion he left his
bakkie with her as security. The loans were repaid. She did not
require him to pay
any interest on the amounts he borrowed but she
had to phone him regularly to make payments and said that "you
have to pester
him to make payments". She did so because it was
her money and money is important to her. When a person borrowed money
from
her she would just write down the amount that was repaid and
deduct it from what was owed. When questioned by the court on this

aspect she became very vague on whether it was she or the business
that lends the money. All that is clear is that Hendricks was
not the
only one to obtain a loan.
143. A couple of years after
Hendricks borrowed a second R20 000,00 he asked her for a loan for
R10 000,00. He said he had bought
a cafe and needed the money to buy
stock. He said that he would repay it on a daily basis depending on
his takings during the day.
He came to her home the next day to
collect the money and then told her that he was struggling because a
guy she knew very well
took all his mechanics tools. Hendricks,
however, did not start to pay his debt. She then asked Bedford to get
his cell phone number
which she did. She then phoned him and he made
some payments. She recorded these payments in a book, exhibit "Z",
which
was later confiscated by the police. After the book was
confiscated Hendricks still came to her house to make payments. He
was
still in dire financial straits because "this person"
she knew very well had taken his tools. It now appeared that "this

person" was her previous husband. Because of this she offered
him 4 polished diamonds to sell on her behalf. If he was able
to sell
them for R250 000,00 he could keep R10 000,00 as his commission. She
was prepared to give these valuable diamonds to him
because they give
even larger amounts to people they know. The deceased was at home at
this stage and wasn't very happy with this
transaction.
144. The deceased never really got
involved in any of the business deals. If he did, he gave
instructions and she would deal with
it. The deceased, however, would
give the broker instructions on what was to be done and she would "do
everything else".
On a question by Mr Engelbgrecht if that was
why she had "mandate, power of attorney" she answered "Yes.
And he
also had power of attorney over my stuff". This aspect
was not investigated any further. The money in the deceased's bank
account in Namibia was used to buy dollars from Dirk Fruit who get
paid in dollars in Angola or buy dollars on the Namibian/Angolan

border. The US Dollars were then brought back to South Africa where
they were sold on the black market. These transactions would
all be
in cash. You could make a profit, she said, of 20 cents to a rand on
each dollar.
145. It was at this stage when
Accused No. 1's memory started fading. She could not remember the
date when she handed the diamonds
to Hendricks save to say that it
was before the deceased left for London. She was not sure how long
before the deceased left she
gave the diamonds to Hendricks.
146. When she gave Hendricks the
diamonds she told him that she could also give him some dollars to
sell when he brought the money
for the diamonds. She had the dollars
in her safe and they belonged to her father. She kept it there
because of two robberies at
her father's house. After giving the
diamonds to Hendricks she phoned him to hear about her money and the
diamonds. On 13 December
2006 Hendricks informed her that he had
found a buyer and had handed the diamonds to the buyer. This was when
she started to panic.
She did not know where Hendricks would keep the
diamonds or if he had a safe at his home. It seems logical that
Hendricks would
have had to inform people that he in fact had
diamonds to sell. This would put him in danger of being robbed. This
apparently did
not worry her. It was only when he handed over the
diamonds to a buyer that she started worrying.
147. The deceased returned from
London on 14 December 2006. Accused No. 1 went to the airport to pick
him up. The flight was delayed
and the plane was in the parking bay
only at 11h20 and the deceased came through the checkpoint at 12h12
where she met him. While
waiting at the airport she phoned Hendricks
to find out about her money. The number of calls to him was
occasioned by the fact
that would phone him and he would say she must
phone him back in 15 or 20 minutes. This caused her to panic because
he had told
her the previous day that the man was going to bring the
money and he had already handed the man the diamonds. On their way
home
from the airport she again phoned Hendricks in the presence of
the deceased. He became upset about Hendricks causing her to worry

and become ill. She called Hendricks repeatedly on 14 December 2006.
148. Accused No. 1 could not recall
leaving her bedroom on 15 December 2006. She thinks she had the flu.
That evening the deceased
and his son were performing in a show at
the Luxurama. She was taken there by her son Suleiman to see the part
of the show when
the deceased performed. She returned home with the
deceased. On their way back she phoned Hendricks to find out if he
had received
the money.
149. Accused No. 1 did not feel well
on the morning of 16 December 2006. She had migraine and stayed in
bed. This was the day of
the 21
st
birthday party which she did not attend. She phoned Hendricks again
but could not remember what time. Hendricks would either say
that she
must phone him back or that he would phone her back or that the buyer
is bringing the money or that he is just busy on
the other phone. The
last time she phoned him he said he had the money and would bring it
at 11h00 the next day. She took her medicine
before going to bed. The
deceased administered it. They made
thikr
together before he
gave Accused No. 1 her medicine. Together with Soeker they had cake
from the party and tea in the kitchen before
she went off to bed.
150. The deceased had a good
relationship with Accused No. 1's family, with his own family and
everybody else. She also had a good
relationship with his family but
after the death of the deceased until her arrest she only had a
relationship with his father and
his sister Ma'atoema.
151. They were married in community
of property. She did not have any knowledge of the deceased wanting
to divorce her. She realized
that if they got divorced he would get
50% of what she owned. She would also be entitled to 50% of his
property but he had nothing
on his name because he had lost most of
the money he made through shows with Kramer on bad deals. She would
give him money and
he would lose it on bad dollar deals, diamond
deals and other money making schemes. On two occasions she gave him
R2 million. Two
imams phoned her afterwards and advised her not to
give the deceased any more money. The one was Sheikh Malie. The other
was just
an ordinary person - not really an imam.
152. The tablets she took on the
night of the incident made her sleepy. When she retired to bed Zaynab
was already sleeping in the
main bedroom. It takes about 2 to 3 hours
for the medicine to take effect and she would then fall asleep.
153.
She had kept on phoning Hendricks that day because he repeatedly said
that the guy is on his way with the money. Eventually
Hendricks told
her that he had the money and she went to lie down and fell asleep.
154. She was woken up by a guy (the
first intruder) wearing a balaclava, holding a gun to her head and
asking her for money. There
was sufficient light in the room from the
bathroom to see him. At that stage she wasn't fast asleep as she had
not been sleeping
for a long time. She was fully conscious when she
woke up and was aware of what was happening. The medicine she had
taken could
have had an effect but she "was aware of what was
happening" and started panicking. He asked her for money and she
got
up and went out of the room towards the TV room. She can't
remember if she answered him when he asked for money. The intruder
followed
behind her but she could not remember if the gun was held
against her body.
155. In the TV room she saw the
deceased sitting on his knees on the floor with something in his
mouth. She noticed a little blood
from his mouth or nose on his upper
lip. There was a male person (the second intruder) with the deceased.
The other person was
also wearing a balaclava. She was unable to
recall the clothes they had on. She could not remember if one
intruder was taller or
shorter than the other. The second intruder
was standing behind the deceased but she could not remember if he was
armed and added
"not that I saw". She bent down, put her
arms around the deceased, hugged him, asked them not to hurt the
deceased and
said that she would give them all the money. She then
went to the main bedroom followed by the person who woke her up, went
to
the safe and handed him the money. The money was in a carrier bag
in the safe. It was R40 000,00 in R100,00 notes and US $300 000,00

packaged in six parcels. The dollars belonged to her father. The
first intruder then took her watch from her arm and asked her
if
there were more people in the house.
156. She took him to the room where
her son, Achmat, his wife Insaaf, and their baby slept. On their way
she saw the deceased lying
flat on his stomach on the floor in the TV
room. She entered her son's room with the first intruder following
her with the weapon.
The bed light in the room was on. The first
intruder took their cell phones. She could not remember where he took
them from. She
thought he also took some jewelry and as well as money
from the pocket of her son's trousers which were lying on the floor.
The
intruder wanted to take them all out of the room but the baby
started crying. He took only her, Accused No. 1, out of the room.
He
then locked the others in their room. She did not know what the
intruder did with the key to her son's room. He took her to
the main
bedroom and locked her in. He did not tie her up but just locked her
in her room.
157. She panicked and was crying when
the intruder locked her in the room. Her daughter, Zaynab, was with
her in the room and woke
up. She remembered phoning her
sister-in-law, Ma'atoema, by landline. She told Ma'atoema that they
were being robbed. However,
while she was speaking to Ma'atoema she
heard a shot go off. She went to the door and started screaming to
the deceased, Achmat
and Insaaf. The deceased did not answer. Her son
shouted at her to phone Soeker. She also phoned her brother who in
turn phoned
her father. She did not phone the police because
Ma'atoema said she would do so.
158. Later the doors to both the main
bedroom and her son Achmat's room were kicked down. She does not know
by whom. She remembered
hearing her father calling her from outside
the room enquiring if she was okay but cannot remember if she
responded or spoke to
him.
159. She wanted to leave the room to
see the deceased, Achmat, Insaaf and the baby but they kept pushing
her back into the room.
When she was eventually taken out of the room
to Soeker's flat she could not see the deceased because he was
covered. She could
not remember what her emotional state was when she
went to Soeker's flat. She could not recall seeing inspector Hermanus
or doctor
Moosa in Soeker's flat that night. She was unaware of
getting an injection that night. She could only recall being in the
back
of Soeker's flat and everybody coming to her. She remembered
phoning her sister-in-law, Soeker and her brother and sister. She
could not remember what she did that night. She could not remember
giving Hermanus an explanation of what happened that night. She
only
remembers what happened the next day.
160. She could not recall the first
person she spoke to on 17 December 2006. The deceased's
janazah
was during that
afternoon. As far as she could recall she was in Soeker's flat the
whole day.
161. She remembered Captain Dryden of
the police coming to see her on Monday 19 December 2006. It was in
the morning but she was
unable to say what time. She made a statement
to him explaining what happened. Dryden did not explain her rights to
her and took
the statement away when she had signed it. She described
her mental health to Dryden but did not know if she volunteered it or
whether he asked her.
162. She next saw Hendricks on the
Wednesday when he brought the money. According to Muslim custom she
was not supposed to have
any contact with males but this was
business. They did their business in the entrance hall and the dining
room. She agreed that
her sister-in-law, Ma'atoema, came to her and
asked her to swear by her father that she had nothing to do with the
deceased's death.
She, however, denied that she told Ma'atoema that
the deceased was brought by gunpoint to "their" room.
163. On the Friday after Hendricks
brought her the R240 000-00, her brother came to fetch her to go to
his holiday house in Gordon's
Bay with several members of the family.
When her brother came to fetch her she was waiting for Hendricks to
come and make a payment
on the R10 000,00 loan. After Hendricks
arrived, her brother, Shamiel, and Hendricks discussed the selling of
Shamiel's shop in
the Strand. Hendricks went to Gordon's Bay on the
Saturday to see the shop. During the day she had a general discussion
with Hendricks
about duvet sets and a diamond ring she could give him
to sell. Late at night, past midnight, when she was already asleep,
the
police phoned her and asked her to come to the police station for
questioning. Because she did not know how to get there they came
to
fetch her. At the Bellville South police station about 10 to 15
policemen questioned her until the early morning about her telephone

calls to Hendricks and if she had a relationship with him. Her rights
were not explained to her. She told them she phoned Hendricks
because
of the money he owed her. She did not tell them about the diamond
deal because she thought it was illegal to sell diamonds
without a
license. Hendricks was brought in later and told the police in her
presence that they had a relationship. She agreed
because she did not
want to mention the diamonds.
164.
At a later stage her father took them all to see an attorney,
Snitcher, who told them that it was not illegal to deal in cut

diamonds. When Capt Dryden and Supt Wagter came to question her again
she told them about the diamond deal. Hendricks was with
them on the
day when they were taken to Snitcher by her father.
165. After that Hendricks still came
to her house regularly "to pay the money" and to enquire if
she had any deals for
him. After she told the police about the
diamonds Dryden and Wagter came to her house to question her about
the diamonds but she
phoned her father who arranged that they would
meet at the police station. They met with Snitcher at the police
station. He did
not want her to answer any questions.
166. The diamond ring she gave to
Hendricks to sell she got from a friend of hers for R50 000,00 and
told Hendricks that he could
get a commission if he sold it for R120
000,00. Hendricks did not succeed in selling it and the ring was
returned to her.
167.
She denied that she killed the deceased or played any part in his
death whatsoever.
168. After the incident her father,
who still assisted at Dirk Fruit and dealt in motor vehicles as a
sideline at that stage, wanted
R100 000,00. She wrote out a cheque
and it was cashed on 19 December 2006. She gave the cash to her
father. The practice of giving
money to family members was common
amongst them.
169. She denied removing any numbers
from her cell phone. She had only one cell phone. She did not tell
Hendricks what to say when
he was questioned by the police in
connection with this case. She did not commit any act to assist in
the commission of the offences
for which she was indicted. She did
not protect Hendricks from being arrested on those charges nor did
she give Hendricks any reason
to believe she wanted the deceased
killed.
170. Under cross-examination by Mr
Scott Accused No. 1 conceded that she did not see Accused No. 3's
face on the night of the incident.
She agreed that if one did not
have a remote control and a key to the back door it would be
"extremely difficult" for
a person to just walk into the
house.
She was unable to dispute it if
Accused No. 3 testified that he just walked into the house through
the front door. The conclusion
that someone from the inside must have
opened the front gate and door for the robbers becomes almost
inescapable. I shall revert
to this aspect in due course.
171. If Accused No. 3 testified that
he was in regular contact with Hendricks, Accused No. 1 could not
dispute this.
172. She denied that she came out of
the main bedroom while accused 3 and 4 were busy with the deceased in
the TV room and that
she approached them. She denied being present
when the deceased was injured.
173. She also denied that the
deceased tried to head butt her when she hugged him or that Accused
No. 4 smacked her. According to
Accused No. 1 the other accused asked
her for the money and she pleaded with them not to hurt the deceased.
She did not suggest
to them that she would give them the money. She
was forced to go to the safe by the intruder who was holding a gun.
174. Accused No. 1 conceded that both
she and the deceased knew where the key to the safe was and did not
know if the intruders
asked the deceased for the key to the safe.
According to her there was R40 000,00 to R50 000,00 in South African
currency in the
safe as well as US $300 000. The money was in a
carrier bag in the safe. The intruder kept the carrier bag in his
hands at all
times.
175. From the main bedroom they went
to Accused No. 1's son's bedroom. The intruder still had the gun in
his one hand. She opened
the door to her son's bedroom for the
intruder. She took him there because the intruder wanted to know if
there was anyone else
in the house. There was a dim light on in that
room. The intruder walked behind her as they went into the son's
room. She was unable
to say how it happened that her son, Achmat, and
Insaaf woke up. She just told them to give everything they have. It
is possible
that she could have gone to Insaaf to calm her. She does
not remember if she saw the fire arm and the bag. She was unable to
recall
how the intruder took money from Achmat's trousers pocket.
When asked if the intruder had looked into the bag she gave him, she

said that she did not think so. She did not know if the intruder left
the bag anywhere while they were in her son's room.
176. She denied that she was taken to
where the deceased was after Achmat and Insaaf were robbed. Her cell
phone was not taken.
The intruder took her to the main bedroom after
robbing her children. She did not go to where the second intruder was
with the
deceased and denied asking them to do it downstairs and not
upstairs.
177. A white object which may be a
thin cushion or a duvet cover was pointed out to her on photo 15 and
in photo 17 (exhibit "A").
She did not know what happened
to it because she was taken "downstairs" - I think she
meant to Soeker's flat. The next
morning when she came up everything
had been cleared up.
178. She did not see the intruder
look into the carrier bag. All that was visible when you looked into
the bag was South African
money. She did not say to the intruder
"moenie worry
nie, ons gaan dit more uitsorteer".
179.
While cross-examining Accused No. 1 Mr Konstabel questioned her on
whether she was present when the deceased was shot. She
denied it.
She also denied actually pulling the trigger.
180. From the cross-examination by Mr
Konstabel it appeared that Accused No. 1 never phoned Accused No. 4,
never had any dealings
with him, never met him and accordingly there
was no "quarrel" between them. As far as she knew the
deceased also never
had any dealings with Accused No. 4. On 16
December 2006 Accused No. 1 was suffering from depression and had
migraine for two days.
She actually slept for most of the day. The
medicine she had taken caused her to be
"not
really focused but she still knew who she was where she is and who is
around her".
There
were only two intruders on that night. She did not speak to the
intruder standing with the deceased and did not hear him speaking
to
the deceased.
181. The second intruder, I think we
may accept that it was Accused No. 4, did not assist Accused No. 3 in
taking anything, wasn't
armed and threatened no-one. The last time
she saw Accused No. 4 was when she came out of her son's room. (She
received a phone
call at about 23h26 and fell asleep about 5 minutes
later). She did not mention it to the police that there were US $300
000-00
in the safe because they were not supposed to have so much
dollars.
182. Once again she denied that she
tried to hug the deceased and that he head butted her and that
Accused No. 4 slapped her. She
did not assist the intruders to tie
the deceased up by holding him down. She denied that she asked
"Wanneer maak
julle hom klaar? Hy moet vannaand geskiet word"
after
she and Accused No. 3 had returned from her son, Achmat's bedroom.
She also denied that Accused No. 4 indicated that he wanted
nothing
further to do with the incident and left before the deceased was
shot. In view of the fact that there were no problems
between Accused
No. 4 and Accused No. 1, she was unable to say why Accused No. 4
would make up the allegations against her.
183. Ms Riley then subjected Accused
No. 1 to a rigorous cross-examination.
184. Accused No. 1 admitted that
during her first bail application Dr Fortuin incorrectly testified
that she had attempted suicide
on several occasions. It seems that
there was only one attempt. Accused No. 1 testified that she allowed
that evidence to be given
because she thought it would be to her
advantage at her bail application.
185. With regard to the stabbing
incident she confirmed that she remembered nothing but admitted
telling her psychiatrist that she
heard voices. That was her reason
for stabbing the deceased. However, now she remembers nothing about
the incident itself. She
does not know if it is her medication that
causes her not to remember things.
186. She confirmed that she phoned
Hendricks on two occasions while the deceased was in the vehicle with
her - on their way home
from the airport on 14 December 2006 and from
the Luxurama on 15 December 2006. The deceased must have heard what
she said on both
occasions. She estimated that it took more than 15
minutes from the airport to her home. The call on 14 December 2006
was picked
up by the Langa base station and must therefore have been
made on their way home from the airport at 12h14. Later on the same
day
at 12h36 she again made a call which was picked up by the
Crawford base station. She says she spoke to Hendricks in the
presence
of the deceased on both occasions but she could not remember
if the second call was on their way home or from her home. When it

was put to her that, in her evidence in chief, she said that she made
the call to Hendricks in the car on the way home she remembered
it.
187. On 15 December 2006 at 21h24
Accused No. 1 made a call from Wynberg where the Luxurama is
situated. Thereafter she called Hendricks
at 23h18 - still from
Wynberg and at 00h22 she phoned Ayisha Petersen, also from Wynberg.
After this call they traveled home. On
being asked why, if she called
Hendrikcs on their way home from the Luxurama at 23h18, they were
still in Wynberg more than an
hour later at 00h22, she explained that
they stopped at a cafe to buy food and could not say how long it took
to be served. She
phoned him at 23h18 on 15 December 2006 to ask
about the money and again on 16 December 2006 at 10h17 to ask him
again about the
money. When she phoned him on 15 December 2006 he
said he did not have the money but told her he was going to get the
money on
16 December 2006. That is why she phoned him again the next
morning. She slept the whole day and phoned him again at 20h11 when

he told her he would bring the money the following day (17 December
2006).
An hour later she phoned him again
and then three minutes later, six minutes after that, then about an
hour later at 22h06. She
did not ask Hendricks who the person was to
whom he sold the diamonds, where he lived or what he did because she
trusted Hendricks
(with R250 000,00s worth of diamonds) and Hendricks
trusted the guy. If not, she would not have handed over the diamonds.
As in
all the other transactions where they dealt with people they
just dealt with the person that owed them money even if the amounts

involved are millions.
188. She agreed that there had been
no contact with Hendricks for almost ten years but she lent him R10
000,00 without any security.
She had to phone him two or three times
when he failed to make payments. She also phoned him on previous
occasions when she lent
money to him and she had to put pressure on
him to pay. She agreed that on this occasion he was struggling
financially because
he had set up a new business. Notwithstanding
this, she trusted him with the diamonds because he knew somebody that
would buy them.
She took this big risk because they take big risks
every day.
189. She gave him the loan of R10
000,00 interest free. She did not have any trouble to get her money
back as she only phoned him
once to ask when he was coming to pay.
Shortly thereafter she gave him diamonds to the value of R250 000,00.
She thought it a risk
worth taking as a business person. She got
these diamonds from a person called Boeta Albertyn who died in 2003.
She kept the diamonds
until the end of 2006 when she gave them to
Hendricks. She asked him if he was interested in diamonds because
that was what she
had at that stage but she could also get him other
deals. She did not offer him something smaller because the diamonds
were all
she had to sell at that stage.
190. In further cross-examination it
emerged that there had been a problem between Hendricks and her
previous husband, Effendi,
who took all the tools Hendricks used as a
mechanic. She said that she did not say that this was the reason why
she decided to
help him but Hendricks asked her for money to buy
stock for his shop and during the discussion it came up that her
ex-husband took
his tools of trade. Despite testifying about this
incident in her evidence in chief as well, she was unable to give any
particulars
about the incident when cross-examined. She decided first
to help him with the loan of R10 000,00 and afterwards with R250
000,00
worth of diamonds because with them, if somebody they knew
came to them for help, they did so. She had granted SAFIN (SA
Property
Finance) -a firm where she was employed - a loan of R400
000,00. Her family members and others in the business also borrowed
money
from her. Her father asked her for R100 000,00 of his money
that she had and she drew it from SAFIN and gave it to him on 19
December
2006. Hendricks brought her the R240 000,00 he owed her for
the diamonds on 20 December 2006.
191. After she was locked in her
room, but before any shots were fired, she first phoned Ma'atoema to
report what was happening.
She did so because she was very close to
her. She then phoned someone else - the name she mentioned was
indistinct. She did not
phone the police even though the Athlone
Police are fairly close to her house because Ma'atoema said she would
phone them. Her
last call to Hendricks was at 23h11. After she was
locked up she called Dr Moosa's surgery, probably by mistake, at
23h50. She
then phoned Ma'atoema at 23h51. She, however, cannot
remember what she said to Ma'atoema. While talking to Ma'atoema she
heard
a shot go off. She told Ma'atoema that there was a robbery in
progress but cannot remember if she told her that the deceased had

been tied up. She phoned Ma'atoema for help but could not remember
what she told her. Ma'atoema heard the shot go off because she
told
her so later. Thereafter she called Soeker. She could not explain why
she phoned him. She was unable to explain why she was
unable to
remember what occurred after the doors were kicked down and she was
led downstairs. She was especially unaware of the
fact that she spoke
to captain Hermanus during the evening.
192. Accused No. 1 admitted that
Captain Dryden came to see her on 18 December 2006, asked her
questions and wrote down her answers.
She confirmed that she gave him
certain formal information about herself like her name, address,
employment etc. She confirmed
that she and Dryden met each other the
first time on that day and that he would have had no knowledge about
her medical history
yet he recorded it accurately in her statement.
She could, however, not remember if she gave her medical history to
him - she must
have given it to him. She did not know and could not
remember why she told him about her medical history and that she once
attempted
to commit suicide. She also could not remember if she told
him
"die feit
dat ek vir Taliep raakgesteek het in sy nek het nie enige kwaade
gevoelens tussen ons veroorsaak nie".
She
also did not know why she told him about it.
193. With regard to the sentence
"Taliep was bang dat iets netnou saam met hom gebeur terwyl hy
slaap" she said that she
would not have said that to Dryden as
it was Jawaahier that was afraid. She then had considerable
difficulty trying to explain
why she and the deceased were sleeping
in different bedrooms and offered the unconvincing explanation that
the deceased's daughter,
Jawaahier, was afraid and wanted them to
sleep apart and that the deceased had to lock his bedroom door. This
is more unconvincing
in view of the fact that Jawaaheer did not stay
with them after the stabbing incident.
194. After telling Dryden in her
statement what happened in the kitchen after the 21
st
party which they discussed, the statement reads that she said
"Daar
was geen konflik tussen ons tydens ons gesprekke nie".
She
could think of no reason why this should be in the statement or why
Dryden would have asked her about it. She agreed that she
did not
describe all the telephone calls she made during that night.
195. In her evidence-in-chief she
testified that she was just about to sleep when she was woken up by
the intruder. In her statement
to Dryden she stated "ek
was
in n diep slaap toe ek wakker geword het."
However,
she made a note on her copy of the statement that "ek
was
nie in n diep slaap nie"
and
could not say why her advocate did not put this to Dryden. She got
out of the bed because the intruder asked her where the money
was.
The gun was held against her head. After she got up he walked behind
her with the gun. She did not tell Dryden that she went
to give the
deceased a hug because she was confused when she made the statement.
Although she was scared of the man with the gun
who wanted money she
still went to the deceased to try and give him a hug because he was
right there by her. She stopped by the
deceased, gave him a hug and
asked them not to hurt him and that she would give them all the
money. She did not consider the possibility
that she might be shot if
she hugged the deceased. She once again denied that he tried to head
butt her.
196. She was unable to say why the
robbers did not ask the deceased for the money and run away. If she
had said in her statement
to Dryden
"ek
het gesien dat n onbekende man by Taliep is wie op die vloer le. Ek
weet nie hoe Taliep gele het nie",
this
would be wrong. She was unable to say if this is what she actually
told Dryden or if he wrote it down wrongly. She pointed
it out to her
legal team. She was confused when she made the statement because she
was on medication. She was unable to say why
she became confused from
her medication on this day and not on other days.
197. Her evidence about the start of
the robbery seems to indicate that she co-operated with the robbers.
They did not ask the deceased
for money but just tied him up. When
she was woken she was not threatened in any way but immediately
co-operated when asked for
money. She went to the deceased to hug him
as she walked past him even with a firearm in her back. Did she know
what was expected
of her and how did the intruders know that she
would co-operate but not the deceased?
198. When she was asked why she had
said she was confused when she made the statement to Dryden she said
she was confused because
she was on medication. She confirmed that it
was the same medication she took before the incident. When asked why
the medication
made her confused on the day she made the statement
but not on other days she changed her evidence to say that she got
more medication
on that day. She was, however, unable to remember
what more medication she got as her son, Achmat, gave her the
medicine. It is
important to note that according to her Achmat got
the medicine from a locked cupboard. Achmat later testified that when
the deceased
was not available, he was given the task of seeing to
her medicine. When he went to work he would put the three doses she
had to
take during the day in three different Tupperware containers
and give it all to her. It follows logically that she would then
administer
the medication herself and would know if she was taking
her normal medication. On the day of the incident she was given more
medicine
than had been prescribed by Dr George but on 18 December she
took her normal medication and may have taken an additional pill. Her

normal medicine makes her confused.
199. When she takes her daily
medicine she can sometimes remember things and other times not.
During the first few days she was
not in the right state of mind
because of what had happened and because of her medicine.
200. The money she gave the intruder
was in a carrier bag, not a bank bag as recorded by Dryden. She
raised it with her defence
counsel but they did not raise it in
cross-examination. From the room - where she gave the bag with money
to the intruder - she
went to Achmat's room. The intruder was behind
her with the gun, which was not pressed in her back. She could not
remember the
gun held against her head at any stage when they entered
the room. In her statement she said
"Die
gun was nog steeds teen my kop vasgehou terwyl ek my seun se
kamerdeur oopgemaak het."
She
agreed and says that was the position before they opened the door. In
Achmat's room the intruder went to Achmat's side of the
bed. She was
unable to remember if he pointed the gun at anyone in the room. In
her statement to Dryden she said
"Myseun,
Achmat Gamieldien, en sy vrou was ookgedreig deur die verdagte".
By using the word
"gedreig" she did not mean they were threatened but that he
asked or requested them for their money,
jewelry and cell phones. She
did not know if that was the typical behaviour of a robber. She could
not remember if he had pointed
the firearm at anyone in the room.
201. Ms Riley, in cross-examination
pointed out to Accused No. 1 that
Dryden had recorded in her statement
"Nadat die
verdagte gevat het wat hy kon het my seun se kamerdeur gesluit van
buite en vir my by die hoofslaapkamer van Taliep
ingestoot en die
deur ook van buite gesluit"
which
she agreed was correct. According to her statement she told Dryden
that
"(k)ort
daarna het ek n skoot hoor afgaan en daar was n doodse stilte. Ek het
toe onmiddelik vir Taliep se suster, naamlik
Ma'atoema Groenmeyer, op
haar huis telefoon gebel, naamlik 021 6375300. Ek het vir haar gese
dat hulle is besig om ons te rob en
dat ek n skoot gehoor het".
She also told her
defence team that this was incorrect but they failed to cross-examine
Dryden on that point. She agreed that what
she had said in her
statement to Dryden corroborated the evidence Ma'atoema gave on
behalf of the state, namely that Accused No.
1 phoned her on the
night of the murder and said that they were being robbed and that a
shot had been fired and that she (Accused
No. 1) thought that the
deceased had been shot. She informed her legal representatives that
this evidence was incorrect and realized
that this was a piece of
very important evidence but could not explain why she had not urged
her advocate to put the truth to Dryden.
202.
She could not remember what she told Dryden as to how the robbers had
gained entry to the house. She could not even remember
him asking her
about it. According to her statement she said that she suspected that
the deceased must have known the people because
he would not have
opened the door to anyone that late at night. At the time she thought
the deceased must have opened the door
because no-one else did.
203. She was unable to say why she
told Dryden
"Daar
was geen kwade gevoelens tussen my en Taliep nie. Sy familie kan dit
ook bevestig. Ek ken almal van hulle se nommers.
Ek het niks om weg
te steek nie",
and
could not remember what questions Dryden could have asked her that
would have caused her to give him such an answer.
204. She told Dryden that R40 000,00
to R50 000,00 had been stolen from the safe but did not mention the
dollars because on the
day after the incident her father had said she
shouldn't do so because they were not allowed to be in possession of
such a lot
of dollars . Even after she was arrested on 18 June 2007
and had become suspicious of Hendricks' role in the robbery, she
still
did not tell the police about the dollars although it could
support her theory of Hendricks' involvement. She, however, told her

advocate "right from the beginning". She agreed that the
dollars were only mentioned at her second bail application.
205. She agreed in cross-examination
that she allowed her legal representatives to place misleading
evidence before the court at
her bail application in order to obtain
bail. When asked
"the
question now in the light of what you also said that he (the
deceased) dealt in diamonds and dollars on a small scale
but you
don't know whether he did it in 2006, why did you allow this type of
evidence that tarnished the reputation of the deceased
to be placed
on record? For what purpose?"
She
replied that she had no answer. She could not confirm that the
evidence was led during her bail application to create the impression

that it was the deceased who was involved in diamond and dollar
deals, that he had interacted with Hendricks and that a dodgy deal

was the reason for his murder. She agreed that her evidence in the
trial differed from that in her bail application but "that
she
told (her) attorneys from the beginning the story". She did not
know what the relevance of the deceased's dealings was
in this case.
206. When her father took her, her
sisters and Hendricks to the attorney
Mr Snitcher, she informed him of her
diamond dealings with Hendricks and the attorney told her that it
wasn't illegal to sell polished
diamonds. She did not tell the police
the truth about the telephone calls when the police were questioning
them. Instead she told
them a lie i.e. that she and Hendricks had a
relationship. She was unable to explain why she waited until the
police came to question
her again before she disclosed the truth.
207. The R240 000,00 she got from
Hendricks for the diamonds that he sold on her behalf was kept by her
father. If she needed money
she would just send Suleiman to fetch
some. She used to keep her father's dollars in the safe in her home
because of the risk of
her father's house being robbed again. She
took the money from the sale of the diamonds to her father's place
because the police
were in and out taking photographs and
fingerprints. She gave the money to her father to keep in his safe.
She didn't put the money
in the bank because they normally keep large
amounts of cash at home. By the time she found out that the money was
legal she had
spent it already.
208.
Hendricks's evidence that he did not bring her the R240 000,00 a few
days after the incident but was there to collect the rest
of the
promised R70 000,00 was wrong. She says she pointed this out to her
counsel but Hendricks was not confronted with it in

cross-examination.
209. The insurance money of R5.3
million for Zaynab was paid into her Namibian bank account because
she hardly used that account
. Although she had two accounts in SA
she did not want Zaynab's money paid into her accounts but wanted an
account to be opened
for Zaynab. According to her broker the bank
said that Zaynab was too young to open a bank account. She eventually
decided that
the money should be deposited in her Namibian account.
210.
Accused No. 1 owns two houses as well as a unit (flat) belonging to
SAFIN which was registered in her name. She was a "lead

provider" (what ever that may be) at SAFIN and was paid a salary
by them. Dirk Fruit operated from one of her houses in Cape
Town and
her father and mother stayed in the other one. Should she and the
deceased divorce, he possessed nothing and would get
50% of all her
property. The deceased would, however, not have taken the house Dirk
Fruit operated from or the house where her
parents were living. He
would also not have taken her flat because he knew it belonged to
SAFIN. Although he would have been legally
entitled to take half of
what she owned he would not have done so. She first said that she
never discussed her property and position
in the case of a divorce
with Hendricks but almost immediately after that conceded that she
may have told him. She may have told
him that when "they"
started treating her like a suspect.
211. When questioned about the two
R2million deals where the deceased allegedly lost money she knew or
could remember that she borrowed
the money from her family at the
deceased's request but was unable to give any further particulars.
All other questions were answered
with "I don't know" or "I
can't remember". When asked why the family would have given the
deceased R2million
after he had already lost R2million she merely
said that "They didn't refuse it". She did not ask him how
he lost the
first R2million before going to her family again to
borrow a further R2million.
212. Deceased did a TV program for
Herman Binge of Kyknet. He was paid to do so. However, her memory
once again, seemed to fail
her. She could not remember how much he
was paid or if she received that money. He was paid hundreds of rand
but she could not
remember how many or give an estimate. She could
also not remember when this had happened or in which account the
money had been
deposited. She did not know what had happened to the
money. It is possible that the deceased could have received more than
one
payment for the show but she did not know. Most of the money the
deceased earned was paid into the Dirk Fruit account. All his spare

money would go into his account. She accepted what Kramer told the
court when he testified that an amount of R370 000,00 was paid
into
the deceased's account but could not remember what happened to it.
213. When Accused No. 1 was
cross-examined about the taking of money from the safe in the main
bedroom she explained that she was
allowed to go into the safe by the
robber who did not search it himself. Although there were other
valuables still in it the robber
was satisfied when she handed him
the bag of money. He did not ask if there was anything more for him
to take or search for anything
else. He only asked if there were any
other persons in the house. This conduct appears inconsistent with
that of a real robber.
It created the impression that the robber knew
that he just had to go with her to get some money.
214. In Achmat's room the robber
followed her into the room with the gun pointing downwards. He went
to Achmat's side of the bed.
She then lost all interest in the robber
and went to Insaaf because she was in a state. This evidence is
contradictory to that
given by Insaaf and she was not cross-examined
by the defense counsel on this aspect. Insaaf only saw a gun in the
robber's possession
and no carrier bag. This matter was also not
contested in the cross-examination of Insaaf. She did not see what
the robber did
with the gun but was sure that Insaaf made a mistake
if she said that the robber had only a gun and no carrier bag.
Insaaf's evidence
appeared more probable as taking cell phones,
jewelry, cameras, money from a pair of jeans that had to be picked up
from the floor
and scratching through a handbag to look for money in
it seemed rather impossible with a gun in one hand and a carrier bag
in the
other. It was not suggested that one of the two objects was
even put down. Accused No. 1's evidence as to what occurred in the
room is also more consistent with an arranged attack than a real
robbery. One would have expected her to at least give some attention

to what the robber was doing than merely calming her daughter­in-law.
She was not aware of the robber's presence when he came
towards
Insaaf's side of the bed and did not see what he was doing there. She
also did not look around to see what was happening
to her son,
Achmat.
215. She agreed that after the
intruders had taken the money from the safe and a few other items
from Achmat's room, she was locked
up in the main bedroom, Achmat and
Insaaf were locked up in their room, the deceased was tied up, lying
flat on the ground and
did not present any danger to them when they
shot the deceased. There seems to be no reason for this. She could
only speculate
that the deceased may have seen one of their faces.
Her evidence in chief was, however, that she was woken up by an
intruder wearing
a balaclava and that the other intruder who was with
the deceased was also wearing a balaclava. If that was so it was
hardly likely
that the deceased could have identified any one of
them. It also appeared from the rest of the evidence that both
intruders were
unknown to the deceased. There seems to be no reason
whatsoever for killing the deceased.
216.
Finding herself in some difficulty to explain the incident Accused
No. 1 mentioned a further possibility raised at her bail
applications
but not at the trial - namely that Hendricks was offered R250 000,00
by the Scorpions to implicate her in the murder.
She obtained this
information from Hendricks who told her about it and she believed
him. Nonetheless, nothing was said about it
earlier on in the trial
and it appears most unlikely that such an offer was in fact made.
217. Some time was spent
cross-examining her on the R20 000,00 that her father gave Hendricks
to pay his legal representative. This
aspect does not take the matter
any further. I may mention at this stage that Accused No. 1's father
has since died.
218. Questioning about the security
systems at the house elicited the following responses. The burglar
alarm could only be switched
on if all the windows and doors were
closed. Accused No. 1 did not phone the alarm people because she was
unaware if the number
of the business was available in the room. The
electric fence on the perimeter wall would also prevent a person from
climbing over.
She accepted that an intruder could only have gained
entry to the property if someone had opened the small gate in front
of the
house and the front door from the inside. She agreed that
Achmat, Insaaf, the baby and Zaynab can be excluded as possibilities.

That would leave Koekie, Accused No. 1 and the deceased. She stated
that the deceased would have ensured that the doors were closed
and
locked before he went upstairs.
219. The robber locked her up in the
main bedroom. Her cell phone was somewhere in the room where she had
been sleeping. In the
main bedroom was a Telkom landline phone as
well as the deceased's cell phone. He, therefore, left her in a room
with two phones
by which she could contact the police speedily - not
something an intelligent robber would do except, of course, if he
knew that
the victim was co-operating.
220. Accused No. 1 agreed that she
withdrew R100 000,00 from her FNB account on the Tuesday after the
incident. She asked the state
witness Fatima Achmat of SAFIN to
assist her in drawing the money. The money was for her father. She
did not just write out a cheque
and send her father or one of her
sons to fetch the money because when she wanted to draw large amounts
of money she usually got
Fatima's brother or a "guy from the
company" (SAFIN) to cash the cheque . This money came from her
own personal money.
221. Accused No. 1 agreed that
starting on 4 December 2006, she made only 5 calls to Hendricks, 2 on
8 December 2006 at 21h03 and
at 21h43, 1 on 9 December 2006 at 16h45
and 2 on 10 December 2006 at 16h04 and 16h34 respectively. No further
calls were made until
12 December 2006. These calls were all made
after she handed the diamonds over to him. She only made these
relatively few calls
compared to later because by 12 December 2006 he
had not yet handed the diamonds over to a buyer.
222. When questioned by the court she
indicated that she would have done nothing if Hendricks had taken the
diamonds and run away
with them, thereby causing her a loss of a
quarter million rand. She did not show Hendricks the diamonds and
request him to find
a buyer and bring him to her house to see the
diamonds because that is not the way diamond deals are done.
223.
Further cross-examination by Ms Riley established that Accused No. 1
had phoned Hendricks on 13 December 2006 at 10h27 and
he then told
her that he had found a buyer and was waiting for the money. He said
the money was to be brought on that day. On 13
December 2006 at 18h29
and 18h55 she again phoned Hendricks but the guy had not yet brought
the money. Then at 19h43 she phoned
Hendricks again to find out that
he had not got it as yet. She also phoned Hendricks on that day at
20h44, 20h45, 20h47 and 20h48
for the same purpose and received the
same answers. Notwithstanding the fact that Hendricks told her that
the buyer was a very
good friend of his she, at no stage during any
of these 6 calls, attempted to get any particulars about the buyer
from Hendricks
and was unable to provide any explanation for this
omission.
224. Ms Riley pointed out the pattern
relating to the phone calls of Accused No. 1 when examining the
detailed billing of Hendricks,
exhibit "M". Accused No. 1
was unable to explain why Hendricks phoned Accused No. 2 and 3 on
several occasions after
she had phoned Hendricks. At no stage did
Hendricks tell her that these people were involved in the diamond
deal.
225. On 17 December 2006, the day of
the
janazah,
Accused
No. 1 rang
Hendricks at 23h34:48 and spoke to
him for 99 seconds. By then he had already informed her that he had
the money for the diamonds.
She says she phoned him because she had
not heard anything from him that day. This was her concern on the day
her husband was buried.
226. Hendricks brought the R240
000,00 (for the diamonds) to her on Wednesday 20 December 2006. On
the previous day she received
the R100 000-00 that she had withdrawn
from her own account. It was put to her that on 20 December 2006
signals from Hendricks's
cell phone were not picked up by any of the
cell phone base stations close to her home. She submitted that
Hendricks, however,
brought the money to her at about 10h00 or 11h00
on the Wednesday 20 December 2006. It is not possible that she is
making a mistake
because if she received the R240 000,00 on Tuesday
19 December 2006 she would not have withdrawn R100 000-00 for her
father but
would have given him the money from the R240 000,00.
227. On the night of 16 December
Accused No. 1 did not move around in the house before she was woken
up by the intruder. She went
to the
en
suite
bathroom in
the main bedroom, had a bath and then went to the room where she
slept. She first made a few calls on her cell phone,
went to sleep
and was woken up by the intruder. It is possible that she moved from
her room to the main bedroom before she went
to sleep. She was unable
to remember if she had. The cell phone calls she made at 20h11 and
21h20 that were picked up by the Kewtown
3 base station could only
have been made from the main bedroom. A call made at 21h23 was picked
up by the Crawford 1 base station
and must have been made from the
room where she slept. Then she made a call at 22h06 that was picked
up by the Kewtown base station
- thus from the main bedroom, at 22h36
from the main bedroom (Kewtown), at 23h03 still from the main bedroom
(Kewtown) and then
at 23h26 from the room where she slept. She
accordingly must have moved around "anywhere upstairs"
during that period.
228. The buzzers that open the front
gate are situated downstairs and in the main bedroom. At 23h03
Accused No. 1 was in the main
bedroom where the one buzzer is
situated and was back in the room where she slept at 23h26 when she
made her last call of the day
to Hendricks. In view of Soeker's
evidence that she left the kitchen to have a bath about ten to
fifteen minutes after nine and
her evidence that she did not come
downstairs again after that, she must have been upstairs in the main
bedroom when she made her
first call of the evening to Hendricks at
21h20. She took her bath immediately after she went upstairs. She
could not remember
what she was doing in the main bedroom again at
23h03 when she phoned Hendricks from there.
229. When re-examined by her counsel,
Accused No. 1 said she felt shocked, traumatized and confused the
night of the incident. She
did not know how robbers behave when
entering a dwelling or a house. She did not know if the electric
fence was switched on or
off on that night. She estimated that the
robbers could have been in the house for 15, 20 to 30 minutes. The
landline phone in
the main bedroom was visible as you enter the room
on the pedestal next to the bed.
230. The Court established that
Accused No. 1 was on the staff of SAFIN. In the beginning, when she
was paid R50 000-00 she was
registered as a tax payer. During those
months when she received R100 000,00 per month it was not reflected
on her tax return.
She did not disclose to the receiver of revenue
that she received ±R1,6 million during the year and a half
instead of R50
000,00 per month. She received big amounts of money
ranging from R100 000,00 to R400 000,00 but books of account for the
disposal
of this money were not kept. She agreed that she had dealt
in millions of rand without ever keeping any books of account because

she knew the people who owed them money. On the business side they
kept records but on the personal side, whoever borrowed money
from
her or her brother - they did not keep a record of that. She agreed
that she dealt with money on a large scale purely on the
basis of
trust.
231. She agreed that Hendricks was
not a very sophisticated person and that he was her former husband's
friend. She gave Hendricks
R250 000,00 worth of diamonds without any
guarantee because it was a private deal.
232. In the room where she was
sleeping the intruder did not tell her not to make any calls and did
not ask her for her cell phone.
He did, however, take her son and
daughter's cell phones. He took all types of small items from Achmat
and Insaaf but did not look
into her safe when he was right there on
the spot.
233. The court tried to clear the
matter of the cushion but was unable to determine conclusively
whether there was a pillow on the
scene or not.
234. There is no reason to assume
that the electric fence would not have been on that night - it was
usually on at all times. In
view of this somebody must have let the
intruders in on that night. Without inside help no-one would have
been capable of entering
the premises. There were only three in the
house that could possibly have let the robbers in. Accused No. 1
assumed that it was
the deceased that opened the door to the
attackers. This was unlikely unless he knew the attackers.
235. Mr. Engelbrecht was given a
further opportunity to question this witness.
236. His questions were directed
purely to the object lying in photo 17 of exhibit "A" but
did not take the matter any
further as to whether it was a cushion, a
pillow, a duvet or anything else.
237.
Dr. Leon Wagner ("Wagner") was called by Mr Engelbrecht on
behalf of Accused No. 1. He is a forensic pathologist,
a collector of
fire-arms, a hunter and had training in military arms. He retired as
a Chief State Pathologist in 1999.
238. Wagner had available to him the
photo album exhibit "A", a copy of the post mortem report
exhibit "D",
a report by a ballistic expert, Sgt Roberts,
exhibit "JJJ", a CD made at the scene whilst the deceased
was still on the
scene and a CD made whilst Accused No. 3 was
pointing out the scene to the police, exhibit "1" as well
as the transcript
of Accused No. 3's explanation during his pointing
out. He also had regard to both statements by Accused No. 3, exhibits
"W"
and "Y". He accepted the correctness of the
post mortem and ballistic reports.
239.
The entry and exit wounds are typical of a small calibre fire-arm.
The entrance wound had been altered before it was photographed
as the
hair had apparently been shaved off. In doing this any soot that may
have been present would have been removed. If soot
was present the
shot must have been fired from 20 t0 25 centimeters. Because the
pathologist reported burns around the entrance
wound the shot must
have been fired a maximum of 10 centimeters away to cause burn marks
and a deposit of soot.
240. If one takes into account the
way deceased was lying, he would not have been able to move the
moment the shot went through
his neck. The shot must have been fired
from his left hand side upwards. It could not have been fired from
the direction of the
stairs as indicated by accused 3 during his
pointing out. In that case the shot would have been fired from the
top of deceased's
head.
241. During his confession Accused
No. 3 pointed out how the gun was fired from inside a cushion.
According to Wagner, if this actually
happened there could not have
been burn marks or soot present at the entrance wound.
242. Using a cushion when firing the
shot would have dampened the sound. The witness was of the view that
in such a case Soeker
would not have heard a sharp crack and Insaaf a
bang. The sounds heard by the witnesses indicate that a cushion could
not have
been used. The object visible to the left of the pool of
blood in photograph 15 of exhibit "A" can be a duvet but
not
a continental pillow, which is thicker.
243. Cross-examined by Ms Galloway,
the witness conceded that it is difficult to say from what angle the
shot was fired. He judged
from the ballistic evidence the distance
the shot was fired from. A shot fired from an angle of 15° would
cause the bullet
to ricochet. A person who was in the house would
hear the shot clearer than one outside. Burning of the wound is not
clearly visible
on photos 44 and 45 but a slight discoloration is
visible outside the red ring around the wound. Shooting through the
hair of the
deceased would have filtered away soot to a large extent.
244. Mr Engelbrecht also called Peter
John Burgers as a defence witness.
245. He is a pharmacist with a good
knowledge of the side effects of drugs administered in South Africa.
He is also an admitted
advocate of this court. He was asked to
analyse the drugs prescribed to Accused No. 1. He was provided with a
prescription, exhibit
"ZZ". From this extract he drew up a
chart, exhibit "AAA", of what Accused No. 1 was taking
during the period
the deceased was killed.
246. On 16 December 2006 Accused No.
1 was taking the following prescribed medicine: Prohexal 20 mg two in
the morning; Alzam 0.5
mg three times daily; Seroquel 500mg at night
and Z-dorm, two tablets at night. Prohexal is an antidepressant and
the dosage is
within normal limits but can induce sleeplessness.
Seroquel is an antipsychotic often used for the treatment of
schizophrenia but
also for the treatment of bipolar disorder. Use of
these tablets would make the patient to become calmer. Alzam is a
drug used
to treat anxiety and stress associated with depression. The
patient would become less worried about life, would become distanced

from reality, show vagueness and memory lapses. Seroquel could
increase the effects of Alzam. Z-dorm is a sleeping tablet. The

manufacturer recommends one tablet at night but the witness was
surprised to learn that two tablets at night were prescribed which

could cause the patient to drift off into deep sleep.
247. If the medication was taken as
prescribed its effect would probably be that the patient, woken up in
the middle of the night,
would be confused, disorientated and not
lucid. Furthermore, a common side effect of electro-convulsive
therapy is frequent memory
lapses that only resolve months after the
treatment. In his conclusion he states that:
"(g)iven the cocktail of
medications given to the patient on the night in question, combined
with possible memory lapses occasioned
by the earlier ECT in April of
2006, it is entirely possible and probable that the client
experienced confusion, disorientation
and memory lapses/losses at the
time of the alleged murder".
248. This may be so but we must take
into account that Accused No. 1 suffered her worst memory lapses,
according to her own evidence
when being cross-examined, not during
the night of 16 December 2006, but later the next day.
249. Cross-examined by Ms Riley, the
witness admitted to drawing up two reports for defence counsel. The
first report was a draft
report. Thereafter he did more research and
drew up the report now before court. A third report may differ from
the one he handed
up as exhibit "AAA". He admitted that in
his first report he said that it was the ECT that caused the memory
lapses and
not the medication. In his second report he said that both
could cause memory lapses. He reached this conclusion pursuant to
further
research on the internet. Alzam takes about 5 to 30 minutes
to take effect while Z-dorm takes about an hour before the patient is

in a deep sleep.
250.
The witness conceded that he could not dispute experts who say that
ECT does not cause memory lapses.
251. It was put to this witness that
Accused No. 1's own psychiatrist, Dr Chris George, in a report to her
previous legal representative,
Snitcher, stated that she responded
well to the EC-treatment, exhibit "E" of the bail
application. On being referred
to Valkenburg Hospital for observation
in terms of section 79(2) of Act 51 of 1977, the panel appointed by
the state to observe
Accused No. 1 reported:
"(s)he was able to give good
account of her self at all times. Her thoughts were clear, rational
and logical. Although she
declined to give an account [of the events
surrounding the deceased's death], she insisted that she had a vivid
memory of the events
during the alleged offence."
Dr. George, the psychiatrist
appointed by her at her observation, makes no mention of her memory
lapses in his report. The witness
indicated that he could not comment
on what happened during her observation. He was also unable to
comment on an observation made
by Dr Bredenkamp who conducted
interviews with Accused No. 1 at the Breederivier Female Prison on 23
October 2007 and whose report
was handed in as exhibit "BBB2"
in which he said
"(a)andag
en konsentrasie asook kort- en langtermyn geheue was binne normale
perke."
252. Mr Engelbrecht then called
Achmat Gamieldien to testify.
253. He is the son of Accused No. 1
and married to Insaaf, the earlier State witness. Except for the
following his evidence does
not really deviate from that given by his
wife and where it actually differs it does not have any adverse
effect on her credibility.
254. He did not mention that Accused
No. 1 shouted at them that they are here to rob them and wanted money
and jewellery. Insaaf
did not mention that Accused No. 1 was crying
all the time she was in their room.
255. Furthermore Achmat mentioned the
intruder having a carrier bag in his possession. In this respect his
evidence is similar to
that of Accused No. 1. He further stated that
the intruder actually put the carrier down on the floor.
256. Mr Konstabel, in this instance,
put to the witness his client's version that the intruders left the
house at different times.
More significantly, that Accused No. 4 left
the house before the shot was fired.
257. The court will approach the
evidence of this witness with some circumspection as he was called to
testify in support of his
mother. Furthermore, he sat in court while
some of the other witnesses were testifying.
258. Ms Abrahams called Accused No. 2
to testify.
259. At the time of the incident
Accused No. 2 was self employed as a plumber. He also drove a pickup
truck on behalf of Hendricks'
brother, Ebrahim. At the time of his
arrest he was staying with his sister in Wynberg because of marital
problems. During December
2006 he stayed in Crawford with the
Hendricks family.
260. Hendricks then had a take away
shop and also drove a tow truck on a part time basis. During the
daytime and in the absence
of Hendricks, Accused No. 2 used to
discuss his marital problems with Hendricks' wife who did not work.
At first Hendricks did
not mind but later told him not to speak to
his wife in his absence. Thereafter Accused No. 2 used to speak to
her at night in
Hendricks' presence.
261. He agreed with the evidence that
he and Hendricks called each other on their cell phones. Although he
was unable to give particulars
these calls could have been in
connection with tow-in contracts or money that he owed Hendricks. He
was paid 50% of the fees they
got for a tow-in. Hendricks' brother
paid him regularly but Hendricks himself often failed to do so.
262. He did not know Accused No. 4
personally but knew Accused No. 3 for 3-5 years. He saw Accused No. 3
twice before this incident.
On the first occasion he saw Accused No.
3 at a panel shop. On the second occasion, on 15 December 2006,
Hendricks told him that
a person would be coming to collect a
computer box and wires and had to pay R4 300,00 for it. He remembered
the date because two
weeks later he bought another vehicle. It turned
out that this person was Accused No. 3 who collected the parts and
gave him the
R4 300,00. Accused No. 2, however, decided to keep the
money. He told Hendricks that Accused No. 3 did not give him the
money.
He knew that Accused No. 3 had a 1400 bakkie that needed spare
parts and he had a similar bakkie that had been damaged in an
accident.
He told Accused No. 3 that he was not going to give
Hendricks the money and that they could do a deal in connection with
the parts
of his bakkie. When Hendricks confronted him, he denied
that Accused No. 3 had given him the money and thereafter never slept
"there".
I must assume by "there" he means the
Hendricks home. He did not deny that there were a lot of telephone
calls between
him and Hendricks on 16 December 2006. When asked the
reasons for these calls he said
"(i)t
can be there was pick-ups and it can be in connection with the money.
But I can't tell you exactly which call is which".
He
never used Hendricks' phone.
263.
The first time he was questioned in connection with this case was in
January 2007. He received a call from Hendricks informing
him that
there was a pick-up and that he should come to a mall in Mitchells
Plain. When he got to the mall Hendricks just walked
past him after
which he was detained and
"locked
up"by
the
police. He was not told the reason for his arrest. They took him to
Bellville South Police Station and said that they were going
to
question him in connection with a murder case. He had a cell phone in
his possession and they said it was an illegal phone.
He was taken to
the Mitchells Plain court but released the following afternoon.
264. Accused No. 2 denied Hendricks'
evidence that he was involved with the murder giving rise to this
trial. He thought Hendricks
involved him in this trial because he was
locked up previously for 15, 16 months awaiting trial after which the
case against him
was withdrawn. (Apparently the charge on which he
was held awaiting trial had nothing to do with this case). Accused
No. 2 added
that
"(i)t
can be that he thought he can cover all his tracks up, and I will be
the easiest one in it because I was an awaiting
trial prisoner."
He also thought
that Hendricks was incriminating him because of his friendship with
his wife. Hendricks confronted him on one occasion
saying that he did
not like the fact that Accused No. 2 and his wife were so close.
265. Mr Scott, on behalf of Accused
No. 3, cross-examined Accused No. 2. Accused No. 2 had been in
custody for 15 months and was
released in November 2006 - thus before
the incident. He discussed the deal about the bakkie with Accused No.
3 on the day he came
to fetch the parts belonging to Hendricks. He
later agreed that he sold the bakkie to Nazeem Jacobs but added that
he still had
the gearbox and motor in his possession. On the day when
Accused No. 3 came to fetch the parts at Hendricks' place, Accused
No.
2 told him he had problems with his bakkie and enquired if he
still had the spare parts. He was unable to give the exact date when

this happened although he was quite sure in his evidence in chief
that this was on 15 December 2006.
266.
He agreed that he had Accused No. 3's cell phone number. He got it
from Hendricks. He agreed that he called Accused No. 3 on
Friday 15
December 2006 to come and get the parts because it was getting late
and he wanted to go to Mosque.
267. He denied that he drove to "a
certain spot" with Hendricks and Accused No. 3 on 15 December
2006 and that his girlfriend
was with them. He did not have a
girlfriend at that stage but had lots of friends. When the court
pointed out to him that he was
not answering the question he conceded
that he did have a girlfriend. He did not dispute that Accused No. 3
sat in the vehicle
on 15 December 2006 - it was when he came to fetch
the parts. Accused No. 2 was in the vehicle on the verge of pulling
out to go
to the Mosque when Accused No. 3 arrived and got into the
car asking for the parts. He told Accused No. 3 that they were in the

boot, got out, took them out and both got back into the car. He then
counted the money. He denied that he and Accused No. 3 and
Hendricks
were simultaneously present at Hendricks' house on that day.
268. He called Accused No. 3 on his
cell phone two or three times on 15 December 2006 to tell him he was
going to keep the money
and not give it to Hendricks. He called three
times because the first time he ran out of airtime. The second time
he continued
the conversation about not paying the money to
Hendricks. He was unable to say exactly what they discussed the third
time but it
had to do with the parts. He wanted Accused No. 3 to tell
Hendricks that he was still going to pay the money but that he had
not
done so at that stage.
269. He denied that he, Hendricks and
Accused No. 3, at any stage discussed a hit. Hendricks at no stage
said that he did not want
the witness to do the hit because the two
of them were too close and could be connected to each other. He had
money after 16 December
2006. He obtained the money which was meant
for Hendricks from Accused No. 3, he did some plumbing work and he
took an advance
on a plumbing job that he had to do. He did not
receive any money from Hendricks. He received calls from Hendricks
because Hendricks
needed his money.
270. Accused No. 2 denied having
indicated that he would shoot the victim himself but he did not have
a firearm. Nor did he instruct
Accused No. 3 to get one.
271. Mr Konstabel, on behalf of
Accused No. 4, cross-examined Accused No. 2. He did not know Accused
No. 4 and had never seen him
before. It was possible that Accused No.
4 saw him at Accused No. 3's place when both of them were there at
the same time but he
had not noticed Accused No. 4. It is, however,
impossible that Accused No. 4 had seen him at Hendricks' place where
he, that is,
Accused No. 2, Hendricks and Accused No. 3 discussed
something and Accused No. 4 was told to wait for a while they were
away for
a few minutes.
272. During cross-examination by Ms
Galloway for the State, Accused No. 2 stated that he had seen Accused
No. 3 quite often in the
past when he went to a panel shop of a
friend where Accused No. 3 used to help out. Immediately before the
murder he had only seen
Accused No. 3 twice -once when he was in
discussion with Hendricks and on the second occasion when he came to
get the parts. He
had not seen Accused No. 3 anywhere else.
273. At first Hendricks had no
problems with him speaking to his wife in his absence but later
Hendricks did not want him to do
so if he was not present. After that
he only spoke to her in Hendricks' presence.
274. He remembered the date Accused
No. 3 collected the spare parts, to wit 15 December 2006, because he
bought a vehicle two weeks
after this incident. It was a Honda that
he bought from Nazeem Jacobs, the same person he sold the bakkie to.
He paid R10 000,00
for it. He used the R4 300,00 he had stolen from
Hendricks, he had some money, he did some plumbing work and he took
an advance
on work he was about to do. No one else gave him money to
buy the vehicle.
275. After the theft of the money he
did not sleep at Hendricks' house again. He slept at his sister's
house in Wynberg. He actually
paid to stay at Hendricks' house even
though Hendricks did not pay him. He did not work for Hendricks, but
for his brother, Ebrahim.
Hendricks would only pay him when he got a
tow-in job and then gave it to him, Accused No. 2, because the
clients would pay Hendricks
in such a case. When asked by Ms Galloway
"If it is his
brother's client, then you work for his brother, if it is Fahiem's
client, you work for Fahiem, isn't that correct?"
he
answered
"But
the vehicles don't belong to Fahiem."
He
added that Hendricks worked there, it was his brother's business, and
the tow trucks belonged to his brother. He insisted that
he didn't
work for Hendricks but for his brother but if the clients were
Hendricks' clients Hendricks had to pay him which he frequently

failed to do.
276. Accused No. 2 called Accused No.
3 two or three times on 15 December 2006. On the first occasion he
ran out of airtime. He
was then asked
"So,
do I understand your evidence correctly sir, you then called him
again?"
He
answered
"It
can be".
When
pressed to explain what he meant by this answer he merely admitted
that he phoned Accused No. 3 a second time. He told Accused
No. 3
that he was not going to pay Hendricks for the parts that Accused No.
3 had collected. The third call, according to Accused
No. 2, could
have been in connection with the parts that he needed. He was unable
to recall this conversation and could not say
what exactly it was
about. He did not tell Accused No. 3 about the parts during the first
or second call because he ran out of
airtime. He did not run out of
airtime during the second call. He cannot exactly remember what they
talked about during the first
call but he knew the money was the most
important thing and the parts but was unable to say in which
conversation the parts were
discussed.
277.
He spoke to Hendricks about the money Hendricks owed him. It was on
two, maybe three occasions. This was for ± seven
to eight pick
ups. Hendricks sometimes told him that he was waiting for clients to
pay him. That was the only reason Hendricks
gave him for not paying.
He never thought that Hendricks would not pay him. He was satisfied
to wait for his payment but it was
starting to take too long. Every
time he asked Hendricks about payment he was satisfied with the
reasons given to him.
278. He said the fact that he had
stolen Hendricks' money was the only real issue between them.
Immediately thereafter he said that
was not the only issue. The fact
that he spoke to Hendricks' wife was the major issue because
Hendricks confronted him about it.
Although he complied with
Hendricks' request he could see that the issue was not resolved
because he could see Hendricks did not
trust him. These were the only
reasons he could furnish why Hendricks was implicating him in this
murder case. The fact that Hendricks
assisted the police to arrest
him could also be a reason why Hendricks sought to implicate him.
279. It became obvious that Accused
No. 2 was being deliberately vague.
He preferred to answer simple
question with "it could be" or "it is possible"
and by changing his evidence as
he saw fit, for instance the reasons
why Hendricks implicated him in these crimes. The court still does
not know what Accused No.
2's case is in this regard - was it because
he spoke to Hendricks' wife, because of the money he owed Hendricks
or because of anything
else. Moreover the reasons given by him for
phoning Accused No. 3 three times on 15 December 2006 are not
entirely clear because
he gave different reasons depending on the
questions put to him.
280. However, Ms Galloway then
delivered her most telling blow. It was a list compiled by her of the
cell phone calls between Accused
No. 1, Accused No. 2 and Accused No.
3. The list consisted of calls extracted from the cell phone records
of the parties. It was
admitted in evidence as exhibit "CCC".
Accused No. 2 was referred to the many calls made by Accused No. 1 to
Hendricks,
after which Hendricks then phoned him (Accused No. 2), and
he either returned Hendricks' calls before or after he called Accused

No. 3. He was unable to explain why these calls were made but added
that the sequence of the calls between them may have been purely

coincidental. The calls between him and Hendricks were, he repeated,
mostly about car tow-ins, the money he owed Hendricks or "a
lot
of things"
281. The calls made between
Hendricks, Accused No. 2, Accused No. 3 and Accused No. 1 amounted to
three on 13 December 2006, 4 on
14 December 2006, 16 on 15 December
2006, 30 on 16 December 2006 (the day the deceased was killed) and 4
on 17 December 2006. Accused
No. 2 was unable to furnish a cogent, if
any, explanation for the large number of calls.
282. Accused No. 3 was also called to
testify. This accused did not know Accused No. 1 before the night the
deceased was killed.
He knew Accused No. 2 from seeing him at his
brother's workshop. He denied having any dealings with Accused No. 2
or that he gave
him R4 300,00 to give to Hendricks. At one stage he
had to take a loom and a gearbox that he had stored at Hendricks'
place to
Sadick Kriel. It was then that Kriel gave him his telephone
number and directions how to get to his house. Hendricks did not
phone
him and instruct him to give money to Accused No. 2. He did not
owe Hendricks any money. All the calls he got from Accused No. 2
were
about obtaining a gun and a motor vehicle to use when the deceased
was to be killed.
283. Accused No. 2 phoned him one
evening and told him about the people who wanted to be robbed.
Accused No. 2 also phoned him repeatedly
to give him instructions on
how to drive to Hendricks's house where they were to meet. Hendricks'
name was not mentioned. This
could have been on the Friday before the
murder but he thought it was the Wednesday. Accused No. 4 was with
him. When he followed
Accused No. 2's instructions he eventually
realized he was at Hendricks' place. This was late at night, past
nine or ten. He and
Accused No. 4 arrived there in his 1400 bakkie.
Accused No. 4 remained in the vehicle while he, Accused No. 2 and
Hendricks stood
in the driveway to Hendricks' place. There Hendricks
told him, in the presence of Accused No. 2, that he had a friend who
was having
a lot of trouble with her husband and she needed people to
stage a robbery at their house and kill the man, making it look like

a robbery gone wrong. It was said that she would assist them and that
there would be between R50 000-00 and R70 000-00 available
as
payment.
284. They left in Accused No. 2's
Honda to view the house. Accused No.2 drove, his girlfriend sat in
front with him while Accused
No.3 and Hendricks sat at the back. He
then took them to 101 Grasmere Street in Athlone where Hendricks
explained to him that he
should first look for the deceased in the
studio because he is in the musical industry and spent most of his
time in the studio.
Hendricks also told them that the lady would open
the gate and front door for them and switch the cameras off. They
drove back
to Hendricks' home where he told Hendricks that the money
was not enough. Hendricks sent an SMS, received an answering call and

told the caller that he had found people to do the job but that they
wanted at least R150 000-00. He did not contact the lady by
phone
himself.
285. He told them that he was not
prepared to shoot someone for money. Accused No. 2 said he would do
the shooting but Hendricks
said that he preferred Accused No. 2 not
doing the shooting as they were too close. During this conversation
Accused No. 4 remained
in Accused No. 3's bakkie, in other words he
was not party to this conversation. This incident could have taken
place on 15 December
2006 as it was mentioned that the people would
be attending a 21
st
birthday the next day and the hit had to be done after they had
returned from the party.
286. Accused No. 3 was referred to
exhibit "CCC". According to it the first call he got from
Accused No. 2 was on 15 December
2006 at about 23h10. He agreed and
pointed out that when he wrote his own (handwritten) statement he did
not have a calendar available
in the cells. He arrived at Hendricks'
place after the last call he received from Accused No. 2 on 15
December 2006 as reflected
on exhibit "CCC".
287. During the late afternoon on 16
December 2006 he received a call from Accused No. 2 enquiring whether
he had found a gun. During
the evening, while he and Accused No. 4
were test driving the bakkie he decided that as he was now getting
too many calls about
the lady wanting them to finish the job and the
money was available, he decided to go to Kriel's place to get the
gun. This he
did. He phoned Hendricks to hear where Accused No. 2 was
but Hendricks told him Accused No. 2 was on his way to Strandfontein
and
that he would have to do something else to finish the job. He
decided to do it himself. He thought they could get away with it if

they were to arrive, hold up the inhabitants, rob them, assault the
deceased and leave without killing anyone. He told Accused
No. 4 on
their way to the house that they were to rob the people at the house
who would then claim their loss from insurance. Accused
No. 4 did not
know about the gun before they entered the house. Before they entered
the property they covered their faces with
scarves because Hendricks
told him that the lady of the house did not want to see their faces.
288. The front gate was ajar as was
the front door of the house when they entered. Accused No. 4 went to
look towards the kitchen
but did not find the deceased there. Having
found nothing downstairs they went up and found the deceased sitting
there watching
TV with his back towards them. He said to the deceased
"stand up, hands up, we are here to rob your place." He had
his
firearm in his hand. Accused No. 4 had seen the weapon as they
entered the house. They grabbed the deceased's arms and bent them

behind his back. His hands were tied with cable ties. Accused No. 1
came out of the main bedroom towards them. She went to the
deceased
and tried to hug him but he attempted to head butt her. Accused No. 4
kicked the deceased in his face causing him to fall
backwards.
Because of the deceased falling over backwards and him still holding
on to the deceased he had to put the firearm down
to prevent himself
from falling with the deceased. They turned the deceased over on his
stomach. His face and mouth were bleeding
but Accused No. 1 went to
him and kissed him and said something to him. Accused No. 3 could not
hear what was said as the deceased
was crying bitterly. They decided
to tie him up as he was moving about too much. They used the table
cloth on the coffee table
to do this. At this stage his firearm was
still lying on the settee. He held the deceased down with his knees
in his back while
Accused No. 1 and Accused No. 4 tied the deceased's
feet.
289. He lifted Accused No. 1 up and
asked her where the safe was. He followed her to the main bedroom.
Before they entered she told
him that her baby was sleeping in the
room and he mustn't make a noise. The room was dark. They went
through it to the bathroom
where there was still some water in the
bath and a ring of candles on the edge of the bath, giving the only
light in the room.
Accused No. 1 led him through the bathroom, opened
a cupboard, bent down to a safe, took out a bag, she gave it to him.
He tried
to see what else was in the safe but there was insufficient
light and she was spoiling his view. The bag she gave to him was a
white material bank bag. She told him that there was R27 000,00 in
the bag. He peeked and saw that there was real money in the bag.
He
told her that the
R27 000,00 was not the amount they
discussed with Hendricks. She said they had got the money they came
for and must now finish the
man. He saw that there were new R100 and
R200 notes in the bag. There were no American dollars in it. He
folded the bag and put
it in his pocket.
290. After leaving the main bedroom
he told her that for it to look like a real robbery they should take
other things as well, like
jewellery and cell phones. She took off
her watch and gave it to him. He asked her if there were other people
in the house. She
then told him that her son and his wife were in
another bedroom and took him there. He waited for her to open the
door and followed
her into he room with the firearm in his hand. She
switched on the light. The son, Achmat, and his wife, Insaaf, were
awake. Accused
No. 1 moved straight to Insaaf to calm her and he went
to Achmat's side of the bed. Insaaf started crying and Accused No. 1
went
to her to calm her down. He told them that they were about six
people robbing the house and if they cooperated no-one would be
injured. He took two cell phones and two watches from the table next
to Achmat's side of the bed. He picked up a pair of jeans lying
on
the floor, searched the pockets and took the money from the pockets.
It was about R1 600.00. He also got a camera from Insaaf's
side of
the bed. When they entered the room he pointed the gun at them. As he
was about to leave the room he noticed the baby in
the cot. He bent
down and kissed the baby on the forehead. Insaaf picked up the baby
up who started to cry. He told them to come
over to the main bedroom
because he wanted to lock them all up together but they asked to stay
in their room as the baby was crying.
He locked them in their room
leaving the key in the lock on the outside of the door.
291. Accused No. 1 left the room
before him and waited for him while he locked the door. He wanted to
look for other valuable things
in the house and Accused No. 1 walked
arm in arm with him urging him to finish off with the man, to shoot
him and to shoot him
tonight
("kom
julle moet nou klaarmaak met die man, julle moet hom skiet, julle
moet hom vannaand skiet).
She
was on his left and he had the gun in his right hand. He went into a
room which appeared to be a boy's room while Accused No.
1 waited
outside. When he came out he saw the deceased lying on the floor. It
appeared that Accused No. 4 had put one of his gloves
into the
deceased's mouth and he was looking at them. They walked past the
deceased and he removed the glove from the deceased's
mouth. He
immediately started reciting the
kalima
-
the Islamic
statement of belief. Accused No. 4 was sitting on his knees next to
the deceased. It looked as if he was speaking to
the deceased. He had
toilet paper or tissues which he was using to wipe the blood and
tears from the deceased's face. A part of
Accused No. 4's scarf came
loose from his face and some of his sweat drops fell to the floor.
Accused No. 3 told Accused No. 4
to wipe the sweat from the floor
with the glove so as to avoid DNA identification.
292. Accused No. 1 asked them not to
shoot the deceased there but to take him down to the ground floor and
shoot him there. Accused
No.4 stood up, started towards the stairs,
saying he had not come there for that purpose. The woman was still
asking him to shoot
the deceased. Accused No. 3 told Accused No. 4 to
go out and to act as lookout
("vang
'n pos").
He
realized that the woman was very desperate to have the deceased
killed for whatever reason. Because the deceased repeatedly uttered
Allahu Akbar
-(God
is great) and recited the
kalima
in his presence, he
could not go so far as to hit the deceased. He turned around and went
to another room and looked on the bed
but did not find a pillow big
enough for the gun. He also looked in the cupboard but found no
pillows on the shelves. Then he saw
a pillow on the floor of the
cupboard and took it. He put the gun in the pillow and folded it over
the firearm. He held the firearm
in the folded pillow pointing
downwards. Accused No.1 was standing next to him. She inserted her
hand into the folded pillow -
as demonstrated in court, put her hand
over his left hand and a shot went off. They were standing about 2
steps from the deceased
at this stage. He pushed her away towards the
main bedroom and locked her in, throwing the key towards the
Gamieldiens' bedroom.
He left but had to jump over the pillow to get
to the stairs.
293. He left the house and closed the
front door and front gate. He found Accused No. 4 in the bakkie. They
drove towards Kriel's
place. As they were driving he noticed that the
slide of the gun was still slightly open and that the shell of the
cartridge was
not expelled from the loading chamber. He removed it
from the chamber and, from frustration, because he did not intend
killing
a person, started chewing it. He later spat it out of the
window. On their way to Kriel's place he took the money from the bag
and put it in his pocket. He took the other items which he had taken
from the house in the bag, except for one cell phone he thinks,
and
threw it away. At Kriel's place he returned the gun and they had
coffee. He gave Accused
No. 4 R6 000,00 of the money and
Accused No. 2 R4 000,00. Accused No. 2 wanted more money because he
was under the impression that
there would be R100 000,00 involved but
when he told Accused No.2 what he got, he accepted the money and said
he would talk to
Hendricks about it. This was about 2 or 3 days after
the incident. Accused No.2 must have known that the deceased had been
killed
and that the money was taken from that home. He informed
Hendricks - who met him at a branch of Nando's - about his troubles
with
the money. He wanted to tell Hendricks about the money but
Hendricks said he did not want to know anything and the less he knew

of the events in that house the better.
294. Later, after Friday prayers he
noticed Hendricks waiting for him. Hendricks told him not to worry,
the police had been questioning
Accused No. 1 about the phone calls
she made to Hendricks and that she told them that he owed her money
and she was phoning to
get her money back. He also said that Accused
No. 1 was going to give them more money but Accused No. 3 declined
and said he no
longer wanted anything to do with the incident. He
also told Hendricks that he still had the cell phones from the scene
to make
Hendricks aware of the fact that he could still be connected
to the scene to prevent them from getting rid of him. At a later
stage
he again met Hendricks at the Mandalay Mosque. Hendricks told
him that the police did not believe their story about the money but

that they had decided to say they were having an affair. Hendricks
asked him if he couldn't put the cell phones somewhere and lead
the
police off their track. He decided that he would do it. On a third
occasion Hendricks told him that the police were harassing
them again
and that they had decided to say that Accused No. 1 gave him diamonds
and had phoned him about them. At one stage Hendricks
also told him
not to worry if the police arrested Accused No. 1 - she would pretend
to be mad.
295. Hendricks lied if he said he did
not know Accused No. 3. He wrote a complete statement out of his own
volition shortly after
he was arrested. He did so because he wasn't
satisfied with what he had said in his previous 2 statements and that
there were several
matters that he still wanted to reveal. He did so
because he was feeling bad and ashamed and wanted to make peace.
296. Mr Scott indicated that he was
finished with his witness, however,
Accused No. 3 indicated to the court
that he had a further matter that he wanted to bring to the notice of
the court. He informed
the court that since his arrest there were
attempts made to bribe him to get Accused No. 1 out of the case.
These allegations were
almost entirely based on hearsay evidence and
can be safely ignored.
297. After his rather prolonged and
repetitive evidence-in-chief Accused No. 3 was cross-examined by Mr
Engelbrecht.
298. Accused No. 3 explained that he
made one statement to superintendent Aspeling when he went to the
scene and pointed out certain
places, handed in as exhibit "Z";
one statement to superintendent Spangenberg when he made what is
commonly known as
a confession, handed in as exhibit "Y".
Over and above these statements he wrote what he calls a 15 page
letter to record
everything that happened in detail, handed in as
exhibit "AA". In his cross-examination of Accused No. 3 Mr.
Engelbrecht
concentrated mainly on contradictions between his
evidence-in-chief and his statements and contradictions between
statements put
to the other witnesses by his counsel and his own
evidence.
299. In his earlier evidence he
stated that Accused No. 4 had been outside the house, or not present
when the deceased was shot.
When Accused No. 1 was cross-examined by
Accused No. 3's counsel, it was put to her that she and Accused No. 4
were standing in
he TV room when he, Accused No. 3, returned with the
cushion. In his statement to the police, exhibit "Y", he
says he
told supt. Spangenberg that he wanted Accused No. 4 to go
down to keep a look out after he got the pillow from the room. He
maintained
that what he was saying in court was the truth. The
handwritten statement was made by him with the intention of
supplementing the
statement made to the police because he realized
that the first statement was not entirely correct and complete. He
decided to
make this statement freely and voluntarily. He admitted
disputing the admissibility of the statement in the aborted
trial-within-a-trial
and explained that he had a constitutional right
to test the state's case against him.
300. He was given instructions to get
a gun to use during the hit. Both Accused No. 2 and Hendricks asked
him to get a firearm.
He agreed that his counsel put it to Accused
No. 2 that he, Accused No. 2, had asked
Accused No. 3 to obtain a firearm. It
was not put to anyone that Hendricks also asked him to do it. He did
not point this out to
his counsel because they had discussed the hit
together.
301. Accused No. 2 phoned him on 15
December 2006 to tell him that there were people who wanted to be
robbed and that they must
meet because they should not discuss such
matters over the phone. In his statement, exhibit "Y, he,
however, stated that he
received this phone call on 7 December 2006.
This, he says, was incorrect because he did not have a calendar or
cell phone records
available when writing his statement. Further on
in the same statement he recorded that Accused No. 2 and Hendricks
phoned him
the whole week enquiring if he had managed to get a
firearm. Although he now stated that Hendricks and Accused No. 2 went
to show
him the house on 15 December 2006, he said in his statement,
exhibit "Y", that
"nou
onthou ek op die dag dat Fahiem op die 7de vir my die huis gaan wys
het."
He
agreed this was said to supt. Spannenberg but it was not the truth.
302.
According to Accused No. 2, Hendricks was lying when he testified
that he only discussed the hit with Accused No. 2 and no-one
else.
303. He did not mention in his
statement, exhibit "Y", that Accused No. 1 helped to tie
the deceased's feet. It was because
of such omissions that he wrote
his own statement, exhibit "AA". At first he had thought it
unrealistic that Accused
No. 1 would have become so involved in the
deceased's death.
304 Mr. Engelbrecht dealt with the
matter of the scarves or balaclavas but not much turns on this
evidence.
305. Accused No. 3 said he intended
to go to this house to rob the inhabitants although Hendricks said
that the wife wanted her
husband killed and that it must be made to
look like a robbery gone wrong. He decided to contain the deceased by
tying him up so
as to prevent him from raising an alarm. They used
cable ties to tie his hands. He confirmed that his counsel first put
to Accused
No. 1 that the deceased head butted her away and later
that deceased tried to head butt her away and that counsel was wrong
in
putting it to the witness that deceased tried to head butt her.
306. Insaaf Gamieldien was correct in
her evidence when she said that, with the baby crying, he decided not
to take them to another
room to be locked up as this would cause too
many problems. Achmat suggested that they be locked up in their room
and he and Accused
No. 1 decided to leave them there and lock them in
their own room. He agreed that during his evidence-in-chief he did
not mention
the fact that anyone else but Achmat said anything about
leaving them there. He did not do so because he did not think it was
important.
307.
He was then questioned about his meetings and discussions with
Hendricks after the murder and it was pointed out to him that
his
version did not correspond with Hendricks' evidence and that his
version was not put to Hendricks during cross-examination
by his
counsel. He did not instruct his counsel to question Hendricks on it
because, at that stage, he already knew that the cell
phone records
would show that Hendricks was lying.
308.
Sometime
was spent on Accused No. 3 saying that two linked cable ties were
used to tie the deceased's hands behind his back. In
cross-
examination he stated that only one was used.
309. He noticed that there was a
glove in the deceased's mouth after he came from Achmat's room. The
glove was later removed from
his mouth. If a state witness saw a
piece of cloth in the deceased's mouth he would accept it. A lot of
cross-examination about
the cloth followed without taking the matter
any further.
310. The witness was unable to
explain why it was necessary for the people who arrived after the
murder to kick down the doors if
he left the key to the Gamieldien's
room in the key hole or threw the key to the main bedroom in the
direction of the other bedroom.
311. When it was pointed out to him
that he said in his statement, exhibit "Y", that Accused
No. 4 kicked the deceased
in the face because he refused to lie down
on the floor, he said that he had already explained that this
statement was not entirely
correct. He did not really mind not
telling the whole truth when making a statement because he knew that
he would be giving evidence
in court where he could tell the truth.
He also said that he was very emotional when he made the statement.
312. He was questioned about the
demonstration on video as to how the deceased was shot. He did not
sound convincing in this regard.
If we take into account the later
evidence of inspector Dicks and the wounds reflected in the
post-mortem report - from the left
hand side of the neck, slightly
upwards towards the head - Accused No. 3's version of the shooting is
open to some doubt.
313. In dealing with the admissions
made by Accused No. 3 Mr. Engelbrecht raised several examples where
his evidence differed from
the formal admissions he had made. Accused
No. 3 said he met Hendricks and Accused No. 2 at Hendricks' place on
13 December 2006
not on 15 or 7 December. He informed his counsel
that the date was incorrect but did not think it was important. In
his admissions
he explained that he and Accused No. 2 went to
Hendricks' place because there was a woman that was prepared to pay
R150 000,00
for a hit on her husband. According to him, this was
wrong - the amount mentioned was the amount they wanted and it was
communicated
by Hendricks to Accused No. 1.
314. With reference to the cell phone
records the last call made by Accused No. 2 to him on 15 December
2006 was made at 17 minutes
to 12. This was before he arrived at
Hendricks' house because Accused No. 2 was still giving him
directions to get there. It was
only after that, that they took him
to see the house. Hendricks spoke to Accused No. 1 about the money
when they had gathered at
his house before they left to see the
victim's house and again afterwards. It was pointed out to him that
the timing of the calls
was not consistent with the cell phone
records. He could not explain this difference.
315. It was also pointed out that in
his admissions he stated that Accused No. 1 helped them to bind the
deceased and that she then
accompanied him to the Gamieldiens' room
for the robbery and that they then went to the main bedroom where he
received the money.
He explained that this version was not quite
correct.
316. When questioned about the video
where he showed how the deceased was killed he had difficulty in
explaining what actually happened.
He also admitted that he had
threatened the Gamieldiens with the gun by pointing it at them to
scare them.
317. For the rest of his
cross-examination by Mr. Engelbrecht, Accused No. 3, for the most
part, denied Accused No. 1's version.
318. Ms Abrahams cross-examined
Accused No. 3.
319. Initially Accused No. 3 was just
asked to repeat his evidence-in-chief. He once more denied that he
went to Hendricks' place
on 15 December 2006 to collect a loom and
computer box or that he gave Accused No. 2 R4 300-00 to give to
Hendricks. He gave Accused
No. 2 R4 000-00 after the incident on 19
December 2006, it being part of the money obtained during the course
of the robbery and
murder. The computer box and loom belonged to him
and he sold it to a Boeta Ismael Gabier for R2 500,00.
320. He became involved in this
matter when Accused No. 2 phoned him and requested him to get a
firearm. He was interested in the
money. He thought Accused No. 2
asked him to get a firearm because Accused No. 2 may have had
problems obtaining one. He was not
satisfied with the R50 000-00 to
R70 000-00 on offer and said he wanted R150 000-00 in advance. He,
however, went through with
the plan because Accused No. 2 repeatedly
phoned him, told him of Hendricks' complaint that the lady was
waiting, that the money
was available and that it would just be a
matter of in and out.
321. On the night of 16 December 2006
he got the firearm from Kriel and phoned Hendricks to find out where
Accused No. 2 was. He
was told that Accused No. 2 was on his way to
Strandfontein. He did not phone Accused No. 2 himself because he did
not have airtime
on his cell phone. He asked Hendricks who returned
his call and told him that Accused No. 2 was on his way to
Strandfontein. Hendricks
phoned him at 27 minutes past eleven. The
next time he spoke to Hendricks was when he phoned Hendricks from
Kriel's place at eight
minutes past twelve on the morning of 17
December 2006. This was after he had punched in airtime on his phone.
He did not punch
in airtime before the incident to phone Accused No.
2 to find out where he was because it wasn't important to him.
322.
He fetched the pillow because Accused No. 1 asked him not to make a
noise as her baby was asleep in the main bedroom. He wanted
to give
her the pillow to see if she was prepared to shoot the deceased. He
wasn't prepared to do her dirty work. If he knew that
there was any
ammunition in the firearm he would have left the place with Accused
No. 4. When the shot was fired they were standing
next to deceased
towards his head to the left. It was not the place he pointed out on
the video. He said to Accused No. 1 that
she should do it herself, he
did not tell her to shoot the deceased herself.
323. Cross-examination by Mr
Konstabel amounted to a repetition of what Accused No. 3 had said. He
agreed with everything except
for the fact that he took out the
firearm downstairs in the house and not while they were mounting the
stairs.
324. Cross-examination by Ms Riley
revealed the following.
325. On the evening in question
Accused No. 1 did not appear to be sleepy or unsteady on her feet.
She appeared to be normal but
anxious and hurried. At one stage she
became upset because he was taking so long to shoot the deceased.
326. He confirmed that he was
prepared to plead guilty on two occasions but that the state did not
want to accept his plea. His
legal adviser said that he should plead
"not guilty" and test the state's case, which he did.
327. He confirmed that he was
approached by Accused No. 1 who tried to bribe him
"om
haaruitdie saak uittepraat".
He
reported the matter to the investigating officer.
328. He regarded Hendricks as the
coordinator of everything that had happened. He would have preferred
to see Hendricks also charged
but was satisfied that he had
eventually spoken up.
329. He was questioned at length
about Accused No. 4's involvement in the case. He first informed
Accused No. 4 while they were
driving from the Athlone robots to 101
Grasmere Street, Athlone. After they stopped they put on gloves and
covered their faces
with scarves that had been in the cubby-hole.
They also took the cable ties that were lying on the dashboard. They
wore the scarves
because Hendricks told him the woman did not want to
see their faces and they used the gloves to avoid leaving
fingerprints on
the scene.
330. Accused No. 4 saw the firearm
before they went up the stairs. He did not ask why a firearm was
involved. He decided not to
leave the firearm in the bakkie because
he realized that all the people in the house may not be in on the
robbery. He took the
firearm with him in order to bring the people to
submission, if necessary, as he did not know what to expect.
331.
He told Accused No. 4 that the people of the house wanted them to rob
the house and would claim their losses from insurance.
Accused No. 4
was present when he held the deceased up and helped to tie him up.
Accused No. 4 kicked the deceased; it may have
been to get the
deceased to lie down on the floor. When he told Accused No. 4 that he
must
"gaan vang
n pos"
he meant
that Accused No. 4 must go and keep a look out.
332. He knew Hendricks through Sadick
Kriel. When referred to exhibit "WW" he agreed that the
numbers appearing under
"Dickie 1" and "Dickie cell"
are the cell phone numbers of Sadick Kriel. He also confirmed that
the cell phone
records, exhibit "WW", show that he phoned
Sadick at 22h06 on 16 December 2006. He was at home in Belhar.
Nineteen minutes
later he received a call from Accused No. 2, also in
Belhar. These calls were made in connection with the firearm he was
told to
get. At 22h40 he got a call from Hendricks while he was still
in Belhar. He started moving away from his home because the next call

he got was from Sadick Kriel at 22h58 which was picked up by him from
the Radnor Road station. These calls were also about the
firearm.
Immediately after the last call he phoned Hendricks to inform him
that he was on his way to collect the firearm. From
Sadick's place
they traveled towards 101 Grasmere Street. Hendricks phoned him to
let him know that Accused No. 2 was on his way.
In the last call he
received, Hendricks told him that Accused No. 2 was actually on his
way to Strandfontein.
333. On 19 December 2006 he gave R4
000,00 of the money he got from the house to Accused No. 2 after
Accused No. 2 phoned him and
arranged a meeting. He pointed out that
the cell phone detailed billing showed that he and Accused No. 2 were
in Lansdowne at the
same time.
334.
The cell phone billing also showed that he did indeed receive a call
from Accused No. 1 at Heideveld at 23h43 on 15 December
2006. Further
questions, about several other calls reflected in the detailed
billing of the phones used by the
dramatispersonae,
confirmed parts of
Accused No. 3's evidence.
335. His evidence corresponds mainly
with that of Hendricks. Even though he may not have pulled the
trigger he agreed that he is
just as guilty as the one who did it.
336. Mr Scott called Hermanus
Johannes Dicks to testify on behalf of Accused No. 3. It is
sufficiently clear from his
curriculum
vitae,
exhibit
"III", that he is highly qualified as a ballistics expert.
He came to court well prepared to comment on the several
matters he
was asked to testify on; having prepared some visual material to
confirm his opinions. He was in court when Dr. Wagner
and Accused No.
3 testified. He did not agree with the evidence with regard to the
abrasion ring that Wagner pointed out on the
photos handed in as
exhibit "A". He prepared an enlargement of photo
45, exhibit "A", showing
the entrance wound, which he handed in as exhibit "DDD". He
explained that the black
colour that can be seen on the inside of the
wound is the ring of abrasion. The purple parts, which are seen on
the rim of the
wound, show bruises caused by the bullet on entering
the body. If it had been soot one would have expected propellant to
be present
as well. Soot can be washed off as probably happened in
this case but if this was a very close or contact shot, propellant
would
have been visible in the bullet tract. If the shot had been
fired from a little further away there would have been tattoo marks

around the wound. These marks were caused by the burning propellant
and cannot be washed off because the propellant causes small
burn
wounds on the skin. In order to assist the court he fired a few shots
on the morning before testifying and photographed the
results.
337. On the first photograph, exhibit
"EEE", the result of a shot from 15cm, as suggested by Dr
Wagner, is shown. The
entrance wound is visible as well as the soot
and the tattoo of burn marks are clearly visible. Photograph "FFF"
shows
the marks caused by a shot fired from a distance of 25cm. The
soot is noticeably less than in exhibit "EEE" and the
tattoo
pattern less dense and bigger. He then stood up straight next
to the bag filled with Kevlar which was lying on the ground. The
result is shown on exhibit "GGG". Tattoo marks can still be
seen on the photograph. The Kevlar bag is about as high as
a normal
person lying on the ground. The witness is about 1,91 metres tall. He
fired the shot at the Kevlar bag while standing
directly next to it.
His arm was extended down towards the bag. This evidence contradicts
that of Dr Wagner who said that the shot
could not have been fired
from more than 15 cm away from the deceased.
338. No burn or tattoo marks are
visible on exhibit "DDD" - the entrance wound in the
deceased's neck. There could be
two reasons for this. Tattoo marks
were found after shots fired from a Z88 fire arm 9mm Parabellum from
as far as 1 meter. The
second reason could be interference by an
intermediary target like, for instance, a shot fired through a
pillow. Therefore, in
this case the shot must have been fired from a
distance (more than a meter) or there must have been an intermediary
target.
339. The shot killing the deceased
could not have been fired from 15 cm or less as one would then have
found soot and propellant
inside the entrance wound.
340. He also made an enlargement of
photo 22 of exhibit "A" showing the mark made by the bullet
after passing through
the deceased's body, exhibit "HHH".
The formation of the damage to the tile which was caused by the
bullet shows that
the shot must have been fired from about 10°
away from the vertical. The witness demonstrated how this could be
shown using
a doll and a straw. The shot must, accordingly, have been
fired from almost directly above the deceased as he was lying on his
stomach.
341. The witness also did not agree
with Dr. Wagner that the portion of the casing of the bullet could
not have broken off when
it went through the vertebra. The piece
found outside the wound stuck to the clothes of the deceased was so
small and light that
it would have remained stuck inside the body of
the deceased. He thought that the piece of casing broke off when the
bullet hit
the tile and bounced back to stick to the deceased's
clothes and the exit wound. He also did not agree with Dr. Wagner
when he
said that the sternal bone tissue could have caused
deflection to occur making the extrapolation, of the exact position
from which
the handgun was fired, very problematic. The weight of a 9
mm bullet leaving the barrel at a speed of 350 meter a second is
relatively
high. Any deflection in such a case will be minimal. He
pointed out that you could shoot a 9mm bullet right through a motor
vehicle
which is made of metal.
342. He saw the demonstration by
Accused No. 3 of how the arm was held in a folded pillow when the
shot was fired. He agreed that
it would be difficult to fire the arm
from that position. It was quite possible that the pillow held in
that position could have
prevented the shell from being expelled from
the breech of the gun.
343.
Taking all into account he opined that the shot must have been fired
through an intermediary target like a pillow.
344. After seeking an adjournment to
consult with his expert, Mr Engelbrecht at a later stage
cross-examined this witness. A section
212(4) statement made by
sergeant Roberts, also a ballistics expert, was handed up as exhibit
"JJJ". The witness did
not agree with her observation that
she saw evidence of blackening surrounding the hole. She made the
wrong observation, according
to him, because there was no evidence of
propellant in or around the entrance wound. The witness agreed with
the observation in
the post mortem report paragraph 4.2.1(a) stating
that
"there is
a surrounding ring of abrasion on the superior aspect of the wound"
but disagrees with
Dr. Potelwa, who conducted the post mortem, when he found
"(t)here
is burning of the skin around the entrance wound".
He
confirmed that he did not see the body but only had the photographs
available to him. He agreed that the gasses given off by
the
explosion would differ from gun to gun but not how often the barrel
is cleaned. He agreed that if an intermediary target like
a pillow
was present, soot and propellant tattooing may not have been present
in this case but there would still be a ring of abrasion.
If the
soot, however, passed through the pillow propellant burns would also
have been present. He preferred not to give an opinion
as to whether
a pillow would have a silencing effect on the shot.
345. The evidence of Accused No. 4
was as follows:
346. In December 2006 he was
effectively employed by Accused No. 3 whom he assisted in his
air-conditioning business and in repairing
motor vehicles. He had not
seen Accused No. 1 before 16 December 2006. He knew Accused No. 3 for
a period of about two years before
this incident. He had only seen
Accused No. 2 at Accused No. 3's workshop or house but had not spoken
to him.
347. On 15 December 2006 he was
working in Accused No. 3's workshop until the evening when he was
asked by Accused No. 3 to drive
him to Athlone. When they got to a
certain house in Athlone Accused No. 3 told him to wait there while
he, that is, Accused No.
3 got out of the motorcar. It was late, past
ten or before twelve at night. He saw Accused No. 3 talking to
Hendricks and Accused
No. 2. They then got into a Honda and drove
off. He could not hear what they were talking about. Before they
drove off Accused
No. 3 told him to wait for him. When they returned
he took Accused No. 3 home and then went home himself.
348. On 16 December 2006 Accused No.
3 came to the workshop and asked him to come to his home to work on
his Golf and bakkie. They
worked on these vehicles the whole day. The
bakkie was having gearbox problems. They finished late that evening
and took the bakkie
for a test drive. While they were conducting the
test drive Accused No. 3 got a telephone call. He did not listen to
what Accused
No. 3 was saying. Accused No. 3 told him to take him
home as he wanted to get his own car to go to Dickie, (Sadick Kriel).
He told
Accused No. 3 that as they were busy test driving the bakkie
they might as well drive there with the bakkie. At Sadick's place
Accused No. 3 said he was going in for a short while. Accused No. 4
remained in the vehicle. Accused No. 3 did not tell him what
he was
going to do there.
349. When Accused No. 3 came back he
did not notice anything on him or in his possession. Accused No. 3
said they had to go to Athlone
and told him where to go. On their way
Accused No. 3 got another call. He did not hear what Accused No. 3
said but concentrated
on the trouble with the gearbox. After they
passed the police station in Athlone Accused No. 3 told him of people
who wanted to
be robbed to claim from insurance. Accused No. 3 told
him the people wanted to be tied up and that was all. They would open
the
doors and gates. At the house Accused No. 3 again explained to
him what was about to happen.
350. They went in. The gate and door
were open as Accused No. 3 said it would be. Before going in he
covered up his face with a
scarf. Inside the house Accused No. 3 went
to where the studio was and instructed him to look in the direction
of the kitchen.
They went up the stairs. When Accused No. 3 was on
the second or third step he gestured to him to follow and it was then
for the
first time that he saw the firearm in Accused No. 3's
possession. He did not know if it was a real gun. He was not told
beforehand
that there would be a firearm and he thought that the
people wanted the robbery staged. At the top of the stairs they saw a
man
watching TV. He jumped up and put his hands up. He thought the
man was waiting for them.
351. They tied the man up with his
hands behind his back. While they were doing this Accused No. 1 came
out of the main bedroom.
She appeared to be wide awake. Accused No. 1
hugged the deceased and he head butted her. Accused No. 4 kicked the
deceased because
Accused No. 3 told him outside that the people in
the house had agreed to be assaulted. Accused No. 3 and the deceased
fell and
he slapped Accused No. 1 because of what Accused No. 3 told
him. Accused No. 3 stopped him from assaulting Accused No. 1. He
then took a "doily" and tied the deceased's feet with it.
Accused No. 1 pointed to a hairdryer and it was used to tie
the
deceased's feet. While he was busy with deceased's feet his scarf
came loose and both Accused No. 3 and Accused No. 1 saw a
part of his
face. After the deceased's feet were tied Accused No. 1 stood up and
went to sit with the deceased. Accused No. 3 told
him to wipe his
sweat drops and he took Accused No. 1 by her arm and led her to the
main bedroom. He could not hear what they were
saying.
352. He heard the deceased crying and
saw that he was bleeding from his mouth and his nose. He told the
deceased that he did not
intend to kick him so hard and that he was
going to wipe the blood from his mouth and face. It was then that he
took his glove
off and wiped the blood from the deceased's mouth. It
may be that at this stage he inserted a part of the glove into the
deceased's
mouth to stop the bleeding. Accused No. 3 and 1 were on
their way towards the room in which Achmat and his wife were
sleeping.
A while later he saw Accused No. 1 and 3 come out of that
room. He was busy trying to staunch the flow of blood from the
deceased
to see where the wound was. He saw Accused No. 3 close the
door. He also saw a box of tissues on the settee. He fetched it and
returned to the deceased. Accused No. 1 and 3 returned to where he
was sitting with the deceased. He took some of the tissues and
put
them under the deceased's head because of the cold tiles.
353. Accused No. 1 asked Accused No.
3 when they were going to finish the deceased. At that stage the
deceased asked him, Accused
No. 4, not to kill him because he has
children, and he told the deceased that no one was going to be
killed. He stood up and asked
Accused No. 3 what was going on because
he did not come here to have anyone killed. Thereafter he started
swearing and said that
he did not want any thing more to do with what
was going on. Accused No. 3 then told him to go and
"vang
n pos"
and he
again told Accused No. 3 to forget about him being a lookout.
354. He went out and got into the
bakkie when he heard a sound like a boom. It did not sound like a
gunshot to him. A while after
he heard the boom Accused No. 3 came
out and got into the bakkie. He saw the gun in Accused 3's hand and
asked him what had happened.
He says
"Ek
vra vir hom wat de fok was daai? Hy se vir my sy. Ek se vir hom kyk
hier man, ek wil fokol meer verder hoor nie en so het
ek gery".
355.
From
there they went to Sadick Kriel's place and then home. At Sadick's
place Accused No. 3 went in and left him in the bakkie.
He was later
called in and had coffee with them. He saw a firearm lying on the
table.
356. The next day he saw in the paper
that Taliep Petersen had been murdered. He confronted Accused No. 3
who said it wasn't him.
Accused No. 4 was arrested in June 2007 and
immediately made a statement.
357. Mr Engelbrecht cross-examined
Accused No. 4. After the deceased's hands were bound he resisted
severely. Accused No. 4, however,
still thought it was a staged
robbery. He only realized that it wasn't a staged robbery when
Accused No. 1 urged them to kill the
deceased. This was when the
deceased pleaded not to be killed as he has children. He was arrested
on 20 June 2007 at about 08h15
in the morning. He was taken to Supt.
Barkhuizen later on the same day where he made a statement. He denied
that he used the words
"
en
toe bam, boem hoor ek
n
skoot"and added that he would not have said "bam" and
"boem" if he heard only one shot.
358. Accused No. 4 used to wear a
scarf when he went out at night and the one he used that night was in
the bakkie. The gloves were
provided by Accused No. 3 for his
employees to wear to protect their hands from sharp objects they may
have to handle at work.
The gloves are also worn to avoid your hands
from becoming dirty when loading stuff at factories.
359. When Accused No. 3 came out of
the house after he heard the shot he asked him what happened. He
immediately assumed that something
had happened and told Accused No.
3 that he did not want to know anything. He saw that the deceased had
been murdered in the papers
the next day. He did not put a glove into
the mouth of the deceased; he used it to wipe some of the blood from
the deceased's face.
He then saw a box with tissues, fetched it "took
the glove out" and used the tissues. He put the glove in his
pocket.
360.
When he saw the shell of the bullet he assumed that the gun had been
used. Accused No. 3 told him earlier during the day that
there was an
insurance job to be done but he only found out that this was to be a
robbery when they arrived outside the house they
intended to rob. He
denied that he was trying to play down his part in the whole
incident. That evening the firearm was not pointed
at Accused No. 1
in his presence. Accused No. 1 took Accused No. 3 all over the house.
He added that she acted almost like a tour
guide.
361. He denied that Accused No. 1 was
taken to the main bedroom directly from the Gamieldiens' room. He
could not comment about
what happened to the Gamieldiens.
362. When cross-examined by Ms
Abrahams, Accused No. 4 conceded that he entered the house with the
intention of taking part in a
staged robbery. He did not think of
forcing an entry into the house in order to make it look like a real
robbery because Accused
No. 3 had said that the people would leave
the gate and door open. He was prepared to assault the people in the
house because Accused
No. 3 said they wanted to be assaulted to make
the robbery look real. He thought the firearm was also part of the
play acting.
He kicked the deceased but with the top part of his
shoes. This could not have caused the footmark obviously made by the
sole of
a shoe. The deceased's mouth and nose bled after the kick. He
was not making a mistake; he was sure he saw Accused No. 2 at
Hendricks'
place talking to Accused No. 3 and Hendricks on 15
December 2006. The rest of her cross-examination did not take the
matter any
further.
363. Mr Scott cross-examined Accused
No. 4. When Accused No. 3 jumped into the bakkie after he heard the
shot he asked him what
had happened and Accused No. 3 started to say
that
"she
He
stopped him and told Accused No. 3, that he did not want to hear
anything further. When Accused No. 3 used the word "she"
he
assumed that he was referring to Accused No. 1 as he had just left
Accused No. 1 in the house with Accused No. 3. He never saw
a pillow.
When he left he tried to convince Accused No. 3 to go with him but
Accused No. 1 pulled Accused No. 3 back towards where
the deceased
was lying. He agreed that Accused No. 3 never pointed the firearm at
Accused No. 1 to make her comply with his instructions.
The firearm
was always pointed downwards.
364. During cross-examination by Ms
Galloway he stated that he only realized that matters weren't going
the way he thought they
would when Accused No. 1 and Accused No. 3
returned from the bedrooms and the shooting of the deceased was
mentioned. Accused No.
3 came out of the house shortly after he,
Accused No. 4, left. Accused No. 3 would not have had enough time to
take money or other
items from the house during that short period. By
the time the shooting was mentioned the robbery must have been
completed. He
realized that there might be children in the house but
did not know of the plans that had been made in this regard. The
deceased
jumped up from where he was sitting watching TV when he saw
them and Accused No. 3 pointed the firearm at him and told him that

it was a robbery. It was then that the deceased said something like
"My broers wat
soek julle"
and
"Allah u Akbaf.
He still thought
that this was all in accordance with what had been previously
discussed. He agreed the fact that deceased appeared
to try to run
away indicated that he was not in on an arranged robbery. He knew
nothing about the deceased's wedding ring or wrist
watch. There was
an arrangement between him and Accused No. 3 that Accused No. 3 would
pay him for the work done whenever he had
money. He assumed that the
R6 000,00 that Accused No. 3 gave him after the incident was the
money which Accused No. 3 owed him.
On 16 December 2006 Accused No. 3
still owed him money and a few days later Accused No.3 paid him R6
000,00. He knew that Accused
No. 3 had sold his Nissan Sentra and
thought that the R6 000,00 was part of that money. Although he was
very cross with Accused
No. 3 because of the murder he did not go to
the police because the attitude of the public made him afraid of what
could happen.
365. Re-examination by Mr Konstabel
did not take the matter any further.
366. When questioned by assessor
Marais Accused No. 4 said he did not know Accused No. 1 or the
deceased at all. He only knew the
deceased from seeing him perform.
367. Questioning by the court
established that he recognized the deceased when he was busy wiping
the blood from his face. He never
thought that he was taking part in
a real robbery. It was only when Accused No. 1 mentioned shooting the
deceased that he realized
that something had gone wrong. While they
were wrestling with the deceased he got the impression that they may
be busy with a real
robbery.
368. It is against this background
that the Court had to determine the guilt and innocence of the
individual accused in respect
of each of the charges with which they
were indicted.
369. The State's principal witness in
this case was Hendricks. As already noted, his evidence must be
approached with a great deal
of caution as he is a self-confessed
accomplice. A cautionary rule of practice is applicable in respect of
such a witness. It was
most recently restated in
5
v
Scott-Crossley
2008 (1)
SACR 223
(SCA) paragraph 7:
"The cautionary rule
applying to accomplices was stated as follows by Holmes JA in S v
Hlapezula and Others
1965 (4) SA 439
(A):
It is well settled that the
testimony of an accomplice requires particular scrutiny because of
the cumulative effect of the following
factors. First, he is a
self-confessed criminal. Second, various considerations may lead him
falsely to implicate the accused,
for example, a desire to shield a
culprit or, particularly where he has not been sentenced, the hope of
clemency. Third, by reason
of his inside knowledge, he has a
deceptive facility for convincing description - his only fiction
being the substitution of the
accused for the culprit. Accordingly,
even where sec. 257 of the Code has been satisfied, there has grown
up a cautionary rule
of practice requiring (a) recognition by the
trial Court of the foregoing dangers, and (b) the safeguard of some
factor reducing
the risk of a wrong conviction, such as corroboration
implicating the accused in the commission of the offence, or the
absence
of gainsaying evidence from him, or his mendacity as a
witness, or the implication by the accomplice of someone near and
dear to
him... Satisfaction of the cautionary rule does not
necessarily warrant a conviction, for the ultimate requirement is
proof beyond
reasonable doubt, and this depends upon an appraisal of
all the evidence and the degree of the safeguard aforementioned."
370. The evidence of Hendricks was
not without noteworthy blemishes. He is quite obviously not a very
intelligent person. The circumstances
in which he testified, and the
fact that he spoke very softly, may cause one to be more critical
about his evidence than is, perhaps,
justified. However, on his own
version, his first two statements to the police contain lies which
were intentionally made to protect
himself and Accused No. 1 against
a possible prosecution. In fact, he initially omitted to mention the
second statement. His evidence
in court and the statements are
substantially different.
371. Both the aforementioned
statements by Hendricks were made to give an explanation, which was
false, for the numerous calls between
him and Accused No. 1. He
alleged that one or more of these explanations were devised by him
and Accused No. 1 jointly in order
to deal with the queries being
raised by the police.
372. The differences between his
third statement - the section 204 statement - and his evidence in
court are less significant. However,
there are certain improbable
features which Mr von Lieres sought to highlight with varying degrees
of success. For instance, the
fact that Hendricks sought to arrange
the murder without any prior arrangement as to payment. He furnished
an answer in this regard,
which seems acceptable.
373. Of greater importance in
evaluating Hendricks as a witness are the differences between his
evidence and that of Accused No.
3. According to Accused No. 3,
Hendricks was the person who issued him with the instruction to
commit the offence. Hendricks testified
that he did not speak to
Accused No. 3 when planning the crime. He only spoke to Accused No.
2. Accused No. 3 also testified that
Hendricks accompanied him and
Accused No. 2 when the house of the deceased was shown to him.
Hendricks denied this. He said that
Accused No. 2 took Accused No. 3
to see the place and that he had previously shown the place to
Accused No. 2 with the earlier
group of potential assassins from
Hanover Park. Then there are the meetings at the mosque which both
agree were co-incidental.
However, according to Accused No. 3 they
had discussions about the investigation of the murder by the police.
Hendricks testified
that they merely greeted each other. He also
denied any meeting between them at Nando's as was suggested by
Accused No. 3.
374. Hendricks also testified that
while the events leading up to the murder were in progress he spoke
to Accused No. 2 on Accused
No. 3's phone. He gave a rather
complicated explanation of how he pushed the re-dial button on
Accused No. 2's phone and got through
to an unknown person,
presumably Accused No. 3. Accused No. 3's evidence is somewhat
different. He says that Hendricks was in direct
contact with him. The
problem with this evidence is that Accused No. 3's counsel did not
put his client's version to Hendricks.
Accused No. 3 himself gives an
unsatisfactory explanation for this. He says that he did not ask his
counsel to dispute the evidence
as he knew the cell phone records
would bear him out.
375. I may mention that after Accused
No. 3 allowed his confession to be admitted in evidence, Mr von
Lieres indicated to the Court
that he would seek the Court's
indulgence at a later stage to recall Hendricks for further
cross-examination. Neither he nor his
successor elected to pursue
this approach.
376. Ms Riley has sought to minimize
these differences by suggesting they are not material. They are
certainly of some significance.
On the other hand, the evidence of
Hendricks and Accused No. 3 was entirely consistent on the key issues
which underpin this matter.
377.
Although it seems that Hendricks has sought to distance himself from
Accused No. 3 who, as we now know, was one of the intruders
in the
deceased's house the night he was murdered, his evidence was fairly
logical and consistent and, as I have already stated,
he did not give
the Court the impression that he was being less than frank. However,
he is an accomplice whose evidence is susceptible
to the criticism to
which I have already referred. In the circumstances, one is obliged
to approach his evidence with the degree
of circumspection our law
demands and to seek proper corroboration for it.
378. The cell phone records afford
compelling corroboration of the State's case. It supports the
evidence of Hendricks in several
material respects. Its impact
emerges graphically from the evidence of Peter Schmitz, a very
competent witness whose evidence was
not seriously challenged.
379.
Mr Engelbrecht sought to avoid the obvious consequences of this
evidence by loudly and brusquely asserting that matters which
are
common cause between the State and the accused cannot provide
corroboration for matters in dispute. In support of this proposition

he relied upon
S
V
Gentle
2005 (1)
SACR 420
(SCA).
380. In this case the fact that the
calls were made, is not in dispute. It would, in any event, be
difficult to do so. Objective
evidence establishes that the calls
were made and when such calls were made. The dispute relates to why
these calls were made.
According to the accomplice Hendricks the
calls had to do with the pending attack upon the deceased. Accused
No. 1, and also
Accused No. 2, attempted to give innocuous
explanations for these calls.
381. The timing, sequence and the
location of the parties when making the calls, provide important
indicators in the resolution
of the issue in dispute. It is evidence
from an independent source, not from the witness whose evidence is
sought to be corroborated.
On the issue in dispute it renders one
version far less probable. This amounts to corroboration as envisaged
in
S
v
Gentle,
(supra)
at
430j-431a.
382. The number and sequence of the
telephone calls have been referred to in some detail at an earlier
stage in this judgment. Accused
No. 1's brazen assertion that the
calls -which were made up to a short while before her husband's
murder- related solely to money
deals, is most unlikely. Coupled with
the calls being followed by Hendricks' with calls to the people
carrying out the attack,
her version becomes even less plausible.
Accused No. 2 endeavoured to explain the sequence of the calls on the
basis of co­incidence.
Such co-incidence is far-fetched and
incapable of fair minded support.
383. The version furnished by
Hendricks provides a logical framework for the calls. Each stage of
his narrative is borne out by
the cell phone records. The area where
the respective parties find themselves when making or receiving the
calls, such as the airport,
or near the Luxurama, or in Athlone, is
also consistent with Hendricks' version. Moreover the flurry of cell
phone calls immediately
before the attack on 101 Grasmere Street,
between those involved on the version of Hendricks, Accused No. 3 and
Accused No. 4.
384. I am, accordingly, of the view
that the various cell phone records, and their collation and
interpretation by the witness Schmitz,
provide important support and
corroboration for the evidence of Hendricks.
385.
Further corroboration for Hendricks' version that Accused No. 1 gave
the instruction for the commission of these crimes is
to be found in
the evidence of Accused No. 3 and, to a lesser extent, Accused No. 4.
They are also accomplices and like the other
accomplice may have a
possible motive to lie. The Court is accordingly not relieved of the
duty to examine their evidence also
with caution (See
S
v Van
Vreden
1969 (2) SA
524
(N) 531).
386. The problems in Accused No. 3's
evidence include the differences between his evidence and that of
Hendricks and, in our view,
he seeks to minimise his role in the
actual killing. On the other hand, unlike Hendricks, he has not been
promised, nor will he
receive immunity and accepts that he is guilty
of murder. Corroboration of his evidence is to be found in the
evidence of the other
accomplice, Accused No. 4, Hendricks and also
the cell phone records.
387. Similar considerations apply in
respect of Accused No. 4 although he does not admit to his
involvement in the actual murder.
388. There are accordingly sufficient
safeguards for the State's reliance upon Hendricks and the other
accomplices for a finding
that Accused No. 1 gave the instruction for
the commission of these orders. That does not end the matter. The
Court must still
examine the evidence of the accused to determine if
it is reasonably possible that she might be innocent.
389. Mr Engelbrecht urged the Court
to brand Hendricks a liar and to reject his evidence as false. He
focused on certain apparent
discrepancies in the evidence of
Hendricks in order to advance this argument.
390. Reference was made to the date
on which the R70 000 was allegedly given by Accused No. 1 to
Hendricks. He gives different dates,
namely 18 and 19 December 2006.
This is a wholly understandable error if one has regard to the fact
that the witness gave his statement
to the police 7 months after the
incident. In these circumstances one would expect errors of this
nature to appear in his testimony.
Similarly, there are three
apparently conflicting versions given by Hendricks of the reasons
furnished by Accused No. 1 for the
murder of her husband. There is
some uncertainty in this regard and the court does not know whether
different or additional reasons
were given by Accused No. 1 for the
attack.
390. This type of discrepancy, if
such, hardly made Hendricks a lying witness as suggested by Mr
Engelbrecht. At the end of the
day Hendricks' version is the most
consistent and logical explanation for what transpired that fatal
night at 101 Grasmere Street.
391. Much of the evidence given by
the other State witnesses was not seriously disputed. Soeker was a
reasonably independent witness,
save for the assertion that Accused
No. 1 and the deceased were on good terms. He premised this view on
the terms of endearment
used by them. The evidence overwhelmingly
established that the deceased and Accused No. 1 were not sharing a
common bedroom and
had not done so for almost 9 months. The evidence
of the deceased's brother and sisters is of diminished value largely
because
of its emotional nature and their obvious hostility towards
Accused No. 1. Jawaahier Petersen appeared to be a credible witness.

Her evidence was largely common cause. We have no reason to reject
any aspect of her evidence. Bedford, Achmat, Kramer and the
cell
phone people were all good witnesses and their evidence was not
seriously challenged, if at all.
392The evidence of Insaaf Gamieldien,
the daughter-in-law of Accused No. 1, was subjected to some criticism
by Mr Engelbrecht because
of relatively minor differences between her
version and that of her husband. Woken up, robbed by an armed
intruder late at night,
with a baby crying and then being locked up,
it is hardly surprising that she and her husband do not corroborate
each other in
minor details. Her evidence was also attacked because
Accused No. 3 and Accused No. 4 testified that Accused No. 4 had
already
left the house when the shot was fired. She heard footsteps
going down the steps after the shooting. Her impression was that it

was two people. She may be mistaken in this regard. She did not see
the people going down the stairs and did not insist that it
was in
fact more than one person. This criticism of her evidence is unfair.
She was a good witness and there is no real reason
to question her
credibility.
393. Save for the one police officer
to whose evidence I have already referred, that is, Van Tonder, the
evidence of the witnesses
attached to the police force were all
reasonably good witnesses.
394. With regard to Captain Dryden it
must be noted that he had some problems trying to explain why Accused
No. 1 was questioned
in the early hours of the morning on 7 January
2007. This practice may be undesirable but, on the other hand, it is
of vital importance
that serious crimes be resolved speedily. This
possible criticism of his conduct does not place in jeopardy his
credibility.
395. Exhibit "RR", the
first statement by Accused No. 1, was made at an earlier stage to
Dryden when he was not as yet
the investigating officer in this case.
It was a day or two after the deceased's murder and although the
police and some members
of the deceased's family had found the
circumstances surrounding his death suspicious, Accused No. 1 was not
a suspect. The Court
accepts Dryden's evidence that he was
bona
fide
unaware that
Accused No. 1 was a suspect at the time she made the statement. Mr
Engelbrecht's principal grouse with regard to this
statement is that
Accused No. 1 was not informed of her right to silence and other such
rights before the statement was taken down.
He has two problems in
this regard. Firstly, his predecessor, Mr von Lieres, did not object
to the admission of the statement in
evidence. The possibility is
there that he did not object because it was an exculpatory statement
which advanced the accused's
innocence. More importantly, Accused No.
1, the widow of the deceased, was an eyewitness at least of the
events which led up to
the murder of the deceased. She was an
important witness for the purposes of investigating the crime. She
was in effect a State
witness and no rule of law requires witnesses
to be warned of their rights in such circumstances.
396. Munaaz Lawrence mentioned in her
statement that Ma'atoema heard a gunshot sound when she was speaking
to Accused No. 1 on the
night of the murder. In her evidence she
states that she could be mistaken in this regard because she made her
statement two weeks
after the incident had occurred. Ma'atoema does
not confirm this aspect, that is, hearing the gunshot, in her
evidence. Accused
No. 1 does not refer to it either in Exhibit "RR"
or in her first bail application. It seems that she thereafter,
somewhat
opportunistically, latched on to this aspect for her own
purposes.
397. The prosecution led a great deal
of evidence with regard to the financial affairs of the deceased. The
evidence was led to
bolster its belief that Accused No. 1's role in
this saga was based upon the wish to protect her financial interests
in the event
of a divorce. In other words, money was the motive for
this heinous crime - even on the part of Accused No. 1. We know that
Accused
No. 1, on her own version, loved money. We also know that the
marriage relationship between the parties was strained since the
stabbing incident. It is also quite apparent that in the event of a
divorce the deceased would have some claim on Accused No. 1's
not
insignificant estate. However, the evidence with regard to a divorce,
based largely on the evidence of the deceased's family
members, is
not borne out by any other more objective evidence. The deceased
seems to have treated Accused No. 1 with great care
and sympathy. He
looked after her medication and made
thikr
with her to calm
her down.
398. We are not entirely satisfied
that, on the State's case, the alleged motive has been established
beyond a reasonable doubt.
While proof of a motive is not necessary
to prove an offence, its absence is an element in favour of the
accused.
399. Was this a genuine robbery? The
facts underpinning this occurrence, militate against such a
conclusion. Accused No. 3 only
took the money Accused No. 1 handed to
him. He did not attempt to look in the safe for other valuables or
even more money. Accused
No. 1 was left in her room with access to
phones after or during the incident. She was in a position to
immediately contact the
police even while the so-called robbers were
still in the house. She did not, in fact, call the police. The
robbery of the Gamieldiens
did not involve any real violence or
threats of violence. Then, for no apparent reason, the deceased, who
was lying bound and helpless
in the TV room, was shot and killed. The
conduct of the robbers and that of Accused No. 1 points to the
conclusion that the robbery
was staged to hide the intruders' real
reason for entering the house.
400. According to Mr Engelbrecht, the
evidence of Accused No. 3 was destroyed because of his change of
heart in accepting guilt
and his expression of apology to his and the
deceased's family. I fail to understand why an accused who wanted to
plead guilty
but whose plea was not accepted by the State, becomes a
liar when he decides to take the blame. The fact that he wrote out
his
own statement does not mean that he is dishonest. From the
contents of his statement one gets the impression that he has some
iman
to
use the Muslim phrase - a person of belief in his faith. His evidence
must, of course, be treated with caution because he is
an accomplice.
Moreover it seems that he places too much of the blame for the actual
shooting on Accused No. 1 and, on the other
hand, seeks to minimise
the role of Accused No. 4.
401. The suggestion that he or
Hendricks or both of them were involved in a conspiracy with the
police to get at Accused No. 1 is
palpable nonsense. There were
references to the Scorpions being involved and offers of money.
Placing reliance on such an argument,
displays some desperation on
the part of Mr Engelbrecht. I suppose anything is possible in the
realm of ordinary human experience
but the suggestion that the police
would pay someone in these circumstances to wrongly implicate the
innocent widow of a deceased,
is clearly untenable. In any event,
whether Scorpions or not, from which funds would the police access
R250 000 (the figure suggested).
This argument is devoid of any merit
whatsoever.
402. I turn now to the evidence of
the accused and the various witnesses called by one or more of them
in support of their cases.
403. Accused No. 1 was quite patently
an appalling witness. Her evidence, especially under
cross-examination by Ms Riley, was neither
logical nor consistent. It
festers with lies.
404. I do not propose re-stating the
various problems encountered by her while being cross-examined. Only
some of the more salient
features of her evidence will be referred to
at this stage.
405. We know that the occupants of
101 Grasmere Street were very security conscious. There were
extensive security features in place.
Quite fortuitously, however,
the security system was not in operation and the gate and door were
open when the intruders sought
entry to the house. The conclusion is
inescapable that there was a Trojan horse in the home who facilitated
their entry. The deceased
was in the TV room and it was common cause
that he would not have opened the door for strangers. That leaves
Accused No. 1 and
Koekie. Koekie, incidentally, has since died. It is
unlikely that she would have opened the door without being instructed
to do
so. Accused No. 1 was in the main bedroom - the evidence
suggests that she had taken a bath - shortly before the intruders
arrived
and it is possible to open the gate from that room. Hendricks
testified that Accused No. 1 had assured him that the door and the

gate would in fact be open. Accused No. 3 knew that the lady of the
house would leave the door and gate open. Although there is
no direct
evidence that Accused No. 1 left the door and gate open that night,
the probabilities strongly favour such a conclusion.
406. According to Accused No. 1 the
sole purpose of the robbery was to steal the US dollars in her
possession. However, when the
intruder was given the bag allegedly
containing the dollars, he did not open the bag to check what was in
it. He did not know whether
Accused No. 1 had in fact given him
dollars. If he already had the dollars for which he came - in his
possession - why did he then
go after other insignificant items?
Furthermore, why did Accused No. 1 not simply tell him that there
were US $300 000 valued at
over R2 million in the bag and it was
accordingly not necessary to go into her son's room.
407. The allegation that there were
at that stage US $300 000 at Grasmere Street is itself open to
considerable doubt. Neither Hendricks
nor any of the other accused
knew about it. Accused No. 3 denied that he ever got the dollars from
her. Accused No. 1 did not mention
the dollars in her initial
statement to the police. The dollar story first surfaced at a late
stage in Accused No. 1's bail application.
408. Another improbable aspect of her
evidence was her financial relationship with Hendricks. She was
prepared to lend Hendricks
R10 000 although she had no contact with
him for about 10 years. She knew he was struggling financially and on
previous occasions
had phoned him to make payments. Quite improbably
she then handed over diamonds worth R250 000 to Hendricks. When told
that he
had handed over the diamonds to someone else, she made no
enquiries with regard to the identity of the person.
409. While being cross-examined by Ms
Riley, Accused No. 1 was unable to explain the large number of calls
between her and Hendricks.
It was put to Hendricks that she phoned
him continuously
"very
much over money".
410. Despite being informed by
attorney Snitcher that the diamond deals were legal, Hendricks was
still given R20 000 by her family
to pay for a lawyer.
411. According to Accused No. 3 he
got a bank bag of money (±R27 000) which he put in his pocket.
The testimony of Accused
No. 1 is that he was carrying the bag
containing the cash (with US $300 000 probably too big to put in his
pocket) and the firearm.
Despite this, he was able to perform all the
actions described by the Gamieldiens.
412. I have, at an earlier stage in
the judgment, already referred to the suggestion in the bail
application that Accused No. 1
had attempted suicide more than once.
This is untrue.
413.
Accused No. 1 was unable to explain why she did not phone the police
after she was locked up in the main bedroom. She phoned
others who
could not really assist her.
414. Her evidence about how the
robbery started tends to show that she was co-operating with the
robbers. She was not threatened
by the robbers, they simply asked for
the money which she gave to them. Strangely, they did not ask the
deceased for money. Despite
the gun held in her back she took the
chance of hugging the deceased. Her own description of the events
leads to the inevitable
conclusion that she knew what was expected of
her and they knew that she would co-operate.
415. When asked why she was confused
the day she made the statement to Dryden she says it was the medicine
she took. It was the
same medicine she normally took. When it was
pointed out to her that the medicine she normally took did not make
her confused,
she said that her son, Achmat, gave her more medicine
that day. This also could not be correct as Achmat put her medicine
for the
day in three different containers and gave them all to her.
It follows that she administered the medicine herself and should have

known what she took.
416. One of the key criticisms of her
evidence is her memory loss, whether feigned or real. The murder took
place after she had
taken her medicine and fallen asleep. According
to the pharmacist (also an advocate) who testified on her behalf, at
that stage
the medicine must have had its worst effect on her memory.
From the evidence it appears that with regard to the events that
night
her memory is clearer than otherwise. The psychiatrists who
observed her in terms of section 79 (2) of Act 51 of 1977 indicate in

their report that
"she
insisted that she had a vivid memory of the events during the alleged
offence".
They
also found her thoughts to be clear, rational and logical.
417. She did not answer certain
questions, conveniently exhibited memory loss at times and on other
occasions simply could not furnish
answers.
418. The calls to and from Hendricks,
especially the timing and frequency thereof, constitute a severe
challenge to Accused No.
1's credibility. Her version - that she was
phoning Hendricks so often in the hours leading up to the attack upon
the deceased,
and even thereafter, to pursue monetary transactions -
is most unlikely and probably false.
419. There is, furthermore, the
evidence of Viljoen that she deleted certain calls from her phone
prior to it being handed over
to the police. These calls were from
Hendricks. Why did she elect to delete these calls? An obvious
inference is that she was endeavouring
to hide her relationship with
Hendricks or, perhaps, her calls to him, immediately before the
events which led to her husband's
untimely death.
420.
There are also the further problems in her evidence which appear from
the cross-examination by Ms Riley. I have dealt with
them elsewhere
in this judgment.
421. The evidence of her son, Achmat,
does not advance Accused No. 1's case significantly, if at all.
422. Accused No. 2 admitted that he
made all the calls which are shown on exhibit "NN" but
gives an exculpatory explanation
for these calls. His evidence was
that Hendricks was falsely implicating him in the commission of these
crimes.
423. The motive Accused No. 2
furnished for Hendricks drawing him into this matter, was his
friendship with Hendricks' wife. Apparently
the issue between them
was resolved but he could read from Hendricks' body language that he
was still not happy. Save for the money
owed to Hendricks which he
stole, he could advance no other possible reason for Hendricks to
falsely implicate him in such serious
crimes. This is a weak and
improbable motive.
424. Accused No. 2 admits calling
Accused No. 3, two or three times on 15 December 2006. He says that
it was to inform Accused No.
3 that he was not going to give the
money to Hendricks. Asked why he had to phone him two or three times
simply to tell him that
he was not going to give the money to
Hendricks, he came up with the rather implausible explanation that he
ran out of airtime
during the first call, the second time he
continued the conversation about not handing over Hendricks' money
and the third call
"to
do with the similar".
Hendricks
called him several times as he needed the money.
425. As mentioned earlier, Accused
No. 2 was unable to furnish acceptable explanations for the sequence
of calls as set out in exhibit
"CCC". For instance, it was
put to him that on 13 December 2006, Hendricks received a call from
Accused No. 1 at 19h43.
Hendricks then called him at 19h52. At 19h54
he called Hendricks. He says that Hendricks' call to him was about a
pick-up. His
call to Hendricks could have been to ask where the
pick-up was. This answer was somewhat strange in that if Hendricks
had called
him about a pick-up would he not at the same time have
told him about the location of the pick-up? The calls on 14 December
2006
are similar.
Accused No. 1 called Hendricks from
the Cape Town International Airport at 11h51. At 11h52 Hendricks
called him and spoke for 163
seconds. These calls, he says, were also
about a pick-up. He is unable to say what the several other calls
from Hendricks were
about.
426. On the probabilities and in
particular the pattern of phone calls made between 13 - 16 December
2006, Accused No. 2's version
is so improbable that it cannot be
reasonably possibly true. The pattern of calls and its time frame
suggest in all probability
no other explanation than the version
advanced by Hendricks. Accused No. 2 simply could not explain why the
calls became more and
more in number and frequency the nearer it got
to the time of the murder. He said it was co-incidental but then it
is also co­incidental
that the calls fit in perfectly with
Hendricks' evidence.
427. Accused No. 2 was also in a
position to purchase a motor vehicle two weeks after the date of this
incident. He gives an explanation
as to how he had acquired cash to
purchase the vehicle. Part of the purchase price was the R4 300,00 he
says he got from Accused
No. 3 to hand over to Hendricks - the money
he allegedly stole. Both Hendricks and Accused No. 3 deny that the
money was handed
over to Accused No. 2 or that he stole any money due
by Accused No. 3 to Hendricks. The stolen money is a convenient
explanation
both to explain Hendricks' alleged animosity towards him
and to provide some reason for his sudden wealth. More importantly,
he
seeks to avoid the obvious inference that he purchased his vehicle
with the money handed over to him by Hendricks as payment for
his
role in the murder. Accused No. 2's version with regard to the money
he fortuitously acquired at the time of this incident
is also most
unlikely and not reasonably possibly true.
428. Accused No. 3 was also not an
impressive witness when testifying, especially under
cross-examination by Mr Engelbrecht. However,
he acknowledged his
guilt and his crucial role in the commission of these crimes. His
version of what happened is also corroborated
by the phone records,
the evidence of Hendricks and the circumstances in which the offences
were committed.
429. One aspect of his evidence is
somewhat doubtful. He does not go so far as to say unequivocally that
Accused No. 1 actually
pulled the trigger. He says that he had the
gun in the pillow, she put her hands next to his
and
the shot went off
.
He says this more than once.
430. The evidence of both Wagner and
Dicks is to the effect that the shot could not have been fired as
demonstrated by Accused No.
3 on the DVD of the pointing out. Dicks,
however, accepts that a pillow could have been used. Accused No. 1
says she wasn't in
the TV room when the shot was fired.
431. There is also the evidence of
Accused No. 3 that he did not
intend
to participate in the murder of the deceased. Yet he looks for a
pillow, ostensibly to muffle the sound of the shot. In the
circumstances,
his averment that the killing of the deceased was not
intended by him appears to be false.
432. It seems that either Accused No.
3 or Accused No. 1 fired the fatal shot. The Court cannot, however,
come to any firm conclusion
in this regard. The benefit of this doubt
must accrue to the accused. Although the Court cannot find who pulled
the trigger, it
does not mean that the accused did not participate in
the murder.
433. On his own version, Accused No.
4 is quite patently guilty of participating in a robbery at 101
Grasmere Street. He concedes
being there for the purposes of a false
or feigned robbery and admits assaulting the deceased. Even if his
version is correct,
he must have realised when the deceased resisted
that it was a genuine robbery.
434. Insofar as this accused is
concerned the only issue is whether he is also guilty on the murder
charge. Accused No. 3 confirms
that Accused No. 4 was told that this
was to be a robbery for insurance purposes, he did not know that
Accused No. 3 had a gun
until they were inside the house and, it
seems, only became aware that someone was to be murdered when Accused
No. 1 insisted that
the deceased be shot. He endeavoured to
disassociate himself at that stage and, in fact, left the house when
Accused No. 3 told
him to go and
"vang
n pos".
This
means to keep a lookout. He did not agree to do so but left the
house. Accused No. 3 confirms this.
435. The evidence against Accused No.
4 in this regard is that of the
Gamieldiens who heard footsteps of
two people leaving the house after the shot had been fired. Their
evidence, however, is not conclusive.
They did not see the people
leaving the house. They are relying upon the sound of footsteps which
may be misleading for a wide
variety of reasons.
436. Accused No. 3 confirms that
Accused No. 4 was at no stage party to any decision to murder the
deceased. Accused No. 4 testified
that when he became aware of what
may happen, he questioned Accused No. 3 and Accused No. 1 about this
and immediately left the
house in a huff. Accused No. 3 corroborates
his version that Accused No. 4 was not present when the shot was
fired. The Court is
obliged to accept this version and afford Accused
No. 4 the benefit of the doubt which emerges with regard to his
involvement.
437. Both Accused No. 1 and Accused
No. 2 were abysmally poor witnesses. Their evidence is, especially
with regard to the phone
calls, patently false. The scenario sketched
by Accused No. 1 of her several business dealings with Hendricks over
the relevant
period is not reasonably possibly true. The evidence
viewed in its totality ineluctably points to the pivotal role of
Accused No.
1 in the murder of her husband.
438. Counts 4 and 5 amount to a
duplication of offences. I shall treat them as a single offence.
439. In the result:
Accused No. 1
is
found GUILTY on count 1, the murder charge. On counts 2 and 3, the
possession of the firearm and ammunition, she is found NOT
GUILTY and
discharged. On one count of robbery with aggravating circumstances
she is found GUILTY.
Accused No. 2
is
found GUILTY on count 1, the murder charge. On counts 2 and 3, the
possession of the firearm and ammunition, he is found NOT
GUILTY and
discharged. On one count of robbery with aggravating circumstances he
is found GUILTY.
Accused No. 3
is
found GUILTY on counts 1, 2, 3 and on one count of robbery with
aggravating circumstances.
Accused No. 4
is
found NOT GUILTY and discharged on counts 1, 2 and 3. He is found
GUILTY on one count of robbery with aggravating circumstances.
440. This is the unanimous decision
of the Court.
DESAI
J