S v Ismail and Others (SS88/2002) [2004] ZAWCHC 39 (6 December 2004)

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[2004] ZAWCHC 39
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S v Ismail and Others (SS88/2002) [2004] ZAWCHC 39 (6 December 2004)

Reportable (in part)
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: SS88/2002
In the matter between:
THE STATE
and
SHAHEEM ISMAIL
FARIED DAVIDS
ALIVIA DAVIDS
ROY VLOTMAN
IKRAM NORTON
ASHRAF LEE
ABDULLAH BRENNER
JUDGMENT DELIVERED ON 6
th
DECEMBER 2004
_____________________________________________________________
HJ ERASMUS, J
CONTENTS
INTRODUCTION
THE EVENTS OF 10
th
AUGUST 2000
THE INDICTMENT
CONSPIRACY AND INCITEMENT
THE
COURSE OF THE TRIAL
THE PAGAD FACTOR
THE CASE FOR THE PROSECUTION
Wilma van der Merwe
Kerridge
Van Dyk
Slabbert
THE
CROSS-EXAMINATION OF KERRIDGE
EVALUATION OF THE EVIDENCE OF KERRIDGE
THE APPLICATION FOR DISCHARGE AT THE END OF THE
STATE CASE
THE DEFENCE CASE
THE NATURE OF THE CONSPIRACY AGAINST ACCUSED ONE
THE COVERT ACTION UNDER SECTION 252A OF THE
CRIMINAL PROCEDURE ACT
THE TAPING OF THE CONVERSATIONS
The legality of the taping
The authenticity of the
recordings
The accuracy of the
transcripts
The content of the
conversations
THE EVIDENCE OF DAWOOD
THE EVIDENCE OF ACCUSED ONE
THE EVIDENCE OF ACCUSED SEVEN
EVALUATION OF THE CONSPIRACY AGAINST ACCUSED ONE
ILLEGAL POSSESSION OF FIREARMS AND AMMUNITION
THE PRINCIPAL FINDINGS
CONCLUSIONS
VERDICT
INTRODUCTION
In this matter the question arises in what language the judgment is
to be given. The accused are all members of the Muslim community
of
Cape Town. The first accused, Dr Shaheem Ismail, is a well educated
man, a qualified dentist. In the evidence, he was referred
to as
“Doc” Ismail or simply as “Doc”. At the
beginning of the trial, I was given the assurance that although
he
prefers to use English, he understands Afrikaans and that he would
have no difficulty in following the evidence given in Afrikaans.
His
fellow-accused are less well educated and have a limited command of
English. During the trial, evidence given in English was
translated
into Afrikaans by an interpreter who sat with them in the dock.
I
shall give my judgment mainly in English because most of the evidence
adduced at the trial concerns the position of the first
accused. I
shall use Afrikaans when I deal specifically with the evidence
relating to some of the other accused individually.
THE EVENTS OF 10
th
AUGUST 2000
On 10
th
August 2000 at about 18h45 a BMW came to a stop in
Booi de Goede Crescent, Table View, at the entrance to the drive-way
leading
to Regional Magistrate Wilma van der Merwe’s (“Van
der Merwe”) residence at 3 Villa De Angelo. A figure emerged

from the car and walked up the drive-way towards Van der Merwe’s
residence which is situated at the end of the drive-way.
The man had
something in his hand which was wrapped in, or covered by, what
appeared to a patterned scarf. He pressed the bell
at Van der Merwe’s
front door. After a brief lapse of time, the front door was flung
open, two heavily armed policemen rushed
out, overwhelmed the man at
the door and pinned him to the ground. In the process, the scarf and
a 9mm pistol were sent flying.
The man was arrested. He is Mr
Abdullah Brenner who is now before Court as accused seven.
One of the policemen ran towards the BMW along with two other
policemen who had emerged from the house next door to Van der Merwe’s

residence. The BMW pulled away but was forced to stop by police
vehicles which were in the vicinity. The driver of the BMW and
his
passenger were arrested. The driver was one Allistair Kerridge
(“Kerridge”) who was to become one of the principal

witnesses for the prosecution. The passenger was Mr Ashraf Lee who is
now before Court as accused six.
The Court was told that the police had been expecting an attack on
Van der Merwe’s house. A video camera was installed outside
the
front door and the approach of the man was observed on a screen in
the house. The events were video-taped and the video was
subsequently
shown in Court during the course of the trial.
A number of people were arrested, including the accused now before
the Court, and they were in due course indicted on charges arising

from the events.
THE INDICTMENT
The accused are charged on three counts
Count 1:
It is alleged that the accused are guilty of a contravention of
section 18(2)(a) of the Riotous Assemblies Act 17 of 1956 in that
the
accused during the period from November 1999 to 10
th
August 2000 and at or near Pollsmoor Prison and/or several other
places in the Cape Peninsula, within the districts of Cape Town,

Wynberg, Bellville and Goodwood, wrongfully and intentionally
conspired with one another and other persons to commit the offence
of
murder and/or to assist in committing the offence of murder in that
the accused, together with others, agreed to obtain a firearm
and/or
a knife and thereafter wrongfully and intentionally to kill Regional
Magistrate Wilma van der Merwe by shooting her with
a firearm and/or
stabbing her with a knife.
In the first alternative to count 1:
It is alleged that the accused are guilty of the crime of attempted
murder in that the accused on or about the 10
th
August
2000 and at or near 3 Villa De Angelo, Booi de Goede Crescent, Table
View, in the district of the Cape, wrongfully and intentionally

attempted to kill Regional Magistrate Wilma van der Merwe by
approaching her with a loaded firearm with the intention of shooting

her therewith.
In
the second alternative to count 1 (this count is only applicable to
accused number one)
It is alleged that the accused is guilty of a contravention of
section 18(2)(b) of the Riotous Assemblies Act 17 of 1956 in that
the
accused during the period from November 1999 to 10
th
August 2000 and at or near Pollsmoor Prison and/or several other
places in the Cape Peninsula, within the districts of Cape Town,

Wynberg, Bellville and Goodwood, wrongfully and intentionally
incited, instigated, or procured other persons to wit Kelvin Keith

Daniels, Ikram Norton, Roy Vlotman, Faried Davids, Alivia Davids en
Abdullah Brenner to commit the offence of murder and/or to
assist in
committing the offence of murder in that the said Kelvin Keith
Daniels, Ikram Norton, Roy Vlotman, Faried Davids, Alivia
Davids en
Abdullah Brenner agreed to obtain a firearm and/or a knife and
thereafter wrongfully and intentionally to kill Regional
Magistrate
Wilma van der Merwe by shooting her with a firearm and/or stabbing
her with a knife.
Count 2
It is alleged that the accused are guilty of a contravention of
section 2 of the Arms and Ammunition Act 75 van 1969 in that the

accused on or about the 10
th
August 2000 and at or near 3
Villa De Angelo, Booi de Goede Crescent, Table View, in the district
of the Cape, were wrongfully
in possession of a firearm to wit a 9mm
Parabellum calibre Astra semi-automatic pistol 0786E without being
the holder of a valid
licence to posses such a firearm.
Count 3
It is alleged that the accused are guilty of a contravention of
section 36 of the Arms and Ammunition Act 75 van 1969 in that the

accused on or about the 10
th
August 2000 and at or near 3
Villa De Angelo, Booi de Goede Crescent, Table View, in the district
of the Cape, were wrongfully
in possession of ammunition to wit nine
9mm bullets, without being in lawful possession of a firearm capable
of firing that ammunition.
[During the course of the trial, it became apparent that person named
Kelvin Keith Daniels in the second alternative count to count
one, is
in fact known by several other names. When he testified on behalf of
accused one under the name Alex Petersen, he indicated
that he is
also known as Kelvin Keith Daniels, as Dillon Williams and as Dawood.
During the course of the trial, he was mostly
referred to as Dawood,
and sometimes as Dillon. In the judgment, we will refer to him as
Dawood.]
CONSPIRACY AND INCITEMENT
The principal charge against the accused is that they conspired with
one another and other persons to commit the offence of murder
or to
assist in committing the offence of murder. The second alternative to
the principal count, and one which applies only to
the first accused,
is that he incited, instigated, or procured other named persons to
commit the offence of murder or to assist
in committing the offence
of murder.
The degree of proof required to establish that a conspiracy to commit
a crime had taken place between two or more people was set
out as
follows in
R v Ruper and Jane Lewis
(unreported) and cited
with approval in
R v S
1959 (1) SA 680
(C) at 683C—D:
“
Conspiracy to commit a crime requires an
agreement on the part of two or more accused to commit a criminal act
(see
R v Solomon
15 SC
107
, and
R v Dhlamini
1941 OPD 154).
Mere intention is insufficient: there must be an
actual concurrence of minds in an agreement to do the act in
question. Such concurrence
need not necessarily be by way of
explicit, spoken words, for the agreement to commit a crime, as any
other agreement, can be arrived
at tacitly and by conduct (see eg
R
v B
1956 (3) SA 363
(E) at 365). Where,
however, the agreement is sought to be inferred solely from the
conduct of the alleged conspirators such inference
must be on the
cardinal rules of logic enumerated in
R v Blom
1939 AD 188
at 202 and 203, be consistent with all the proved facts,
and the proved facts in turn must be such that they exclude every
reasonable
inference from them save the one to be drawn.”
In
S v Moumbaris and Others
1974 (1) SA 681
(T) at 687A it is
accordingly said –
“
A conspiracy is thus not merely a concurrence of
wills but a concurrence resulting from agreement.”
There is no conspiracy if one of the parties only pretends to agree
but in fact secretly intends to inform the police of the other

party’s plans (
Harris v R
(1927) 48 NLR 330
at 347—48;
Snyman
Criminal Law
4
th
ed 293).
The legislative purpose of making incitement to commit a crime a
punishable offence is to discourage people from seeking to influence

others to commit crimes (
R v Zeelie
1952 (1) SA 400
(A) at
405C—D;
S v Nkosiyana and Another
1966 (4) SA 655
(A) at
659A). In the latter case, an inciter is described (at 658H) as “one
who reaches and seeks to influence the mind of
another to the
commission of a crime”. The means used to influence the other
person are immaterial (
S v Nkosiyana and Another, supra,
659H). The incitement may be express or tacit (
R v Zeelie, supra,
410A).
It is the conduct and intention of the inciter which is vitally in
issue. Hence incitement may be committed even in respect of
a police
trap, who has no intention of committing the real crime (
S v
Nkosiyana and Another, supra,
659A—B; Snyman
Criminal
Law
4
th
ed 296).
THE
COURSE OF THE TRIAL
The trial started before me on 4
th
February 2003. It is
necessary that I deal with the reasons why the trial is only now,
after twenty-two months, nearing completion.
Initially there were twenty-one accused. The case was scheduled to be
heard by a Judge of this Division in the magistrate’s
court at
Atlantis. The charges against fourteen of the accused were in due
course withdrawn. On 3
rd
February 2003 the trial was
transferred for hearing in the High Court in Cape Town.
On 4
th
February 2003 the accused all pleaded not guilty to
the charges. On that day, the State presented the evidence of several
members
of the South African Police Service who were all duly
cross-examined by the legal representatives of the accused.
The next day, Mr Kawalsky, who appeared on behalf of accused one,
informed me that the accused had terminated his mandate. The
trial
was postponed to 10
th
February and thereafter to 13
th
February to enable accused one to apply to the Legal Aid Board for
the appointment of other counsel to represent him. Ms Lötter
was
in due course appointed and the accused informed me that that he was
satisfied with her appointment. On 13
th
February the trial
was postponed to 3
rd
March to afford Ms Lötter the
opportunity to consult with her client and to prepare for the trial.
On 3
rd
March a witness was indisposed and unable to attend
Court, Ms Lötter needed more time to consult and I was informed
that accused
four, Mr Roy Vlotman, had to attend a clinic on
Wednesday 5
th
March.
Prior to the resumption of the trial on the morning of Thursday 6
th
March, Ms Lötter informed me that she had been instructed by the
first accused to apply for my recusal. She asked for the
matter to
stand down to Monday, 10
th
March at 10h00. On that day,
the preparation of the typing of the record of the proceedings on
which the accused wished to rely
had not been completed and the
matter was further postponed to 12
th
March. The
application for my recusal was heard on 12
th
March and on
13
th
March I dismissed the application. My judgment
dismissing the application is reported
sub nom S v Ismail and
Others
2003 (2) SACR 479
(C).
On 17
th
, 18
th
and 19
th
March the
case could not proceed due to the absence of accused four by reason
of illness. On 19
th
March a direction was made in terms of
section 159(3) of the Criminal Procedure Act 51 of 1977 (“the
Criminal Procedure Act&rdquo
;) for the separation of the proceedings
against him from the proceedings in respect of the other accused. His
counsel, Mr Philander,
continued to represent his interests in Court.
It subsequently appeared that he had suffered a massive stroke and he
died on 5
th
May 2003. Accused one was also indisposed on
the 19
th
March. On 20
th
March, Ms Lötter
was indisposed and the matter eventually continued on 24
th
March.
The loss of twenty-seven court days during the six week-period from
5
th
February to 24
th
March 2003 had a
devastating effect on the further course of the case: it worked havoc
with counsels’ diaries and with the
scheduling of witnesses by
the State. I may interpose, at this stage, and point out that on the
day that Mr Kawalsky withdrew,
Mr Robertson on behalf of the second
accused, Mr Johnson on behalf of the third accused, and Mr Philander
on behalf of the fourth
accused, strongly objected to the delay
brought about by the termination of Mr Kawalsky’s mandate. As
Mr Johnson put it at
the time:
“
It is correct as my learned colleague, Mr
Kawalsky has stated before this Court that this matter has been
postponed on numerous
occasions. And it is because of the length of
the trial, M’Lord, we have to set down eight weeks, two months
at a time, and
that makes not only a delay of justice for the client,
it also makes inroads into counsel’s time and how we can
regulate
our day to day business.”
There were further complicating factors which impinged upon the
smooth running of the case. There were many, frustrating delays.

Thus, for example, due to an oversight on the part of the Police,
accused one was not brought to Court on 23
rd
October 2003.
On another occasion, the police vehicle bringing accused one to Court
was involved in an accident. On yet another
occasion, a new police
unit detailed to transport accused one lost their way and could not
find the High Court. Counsel also had
their problems at times, with
cars that did not start or trains that did not run on time. I need
not dwell on the causes of all
the delays.
A further complicating factor had its origin in the period 13
th
February to 3
rd
March 2003 when the matter was stood down
to enable Ms Lötter to prepare for the trial. I was allocated a
civil trial which
was set down for 20
th
February and
estimated (by counsel) to last five days. On that estimate, the civil
trial would have run its course before this
matter was due to resume.
The estimated duration of the civil trial can only be described as a
gross miscalculation. Attempts to
deal with the two matters then
pending before me by “leapfrogging” them, for obvious
reasons proved to be unsatisfactory.
In the end, it was resolved, in
consultation with all counsel involved, to complete the civil trial
during the first term of 2004,
thus leaving the coast clear for this
matter to run its course to completion, however long it may take,
without any further interruption.
Throughout most of the trial, accused one was held in the prison at
Malmesbury. In order to consult with him, his legal representative

either had to proceed to Malmesbury, or accused one had to be brought
to Cape Town. I was informed that the Police do not have
the manpower
to bring accused one to Cape Town for purposes of consultation on
days when the trial was not proceeding. They nevertheless
gave their
co-operation by bringing accused one to Cape Town for purposes of
consultation on 8
th
, 9
th
and 10
th
July 2003. Ms Lötter had occasion to complain that, when the
head of the prison was absent, she was denied access to her client
by
officials on duty. This refusal resulted in the trial being stood
down on 18
th
and 19
th
November 2003 to afford
Ms Lötter the opportunity to consult at Court with her client in
preparation of the cross-examination
of (former) Captain Johan Van
Dyk. (Several persons with the surname Van Dyk feature in this case.
In what follows, a reference
to “Van Dyk” without
qualification is a reference to Captain Johan Van Dyk). Mr Mihalik
subsequently had similar complaints
about difficulties in gaining
access to accused one at the prison, despite the fact the
arrangements had been made beforehand.
On 7
th
June 2004
the head of the prison at Malmesbury attended at my chambers at my
request and undertook to take matters in hand.
The Court did not sit on 25
th
November 2003 -- all the
accused are Muslims and 25
th
November marked the end of
Ramadan and the festival of Eid.
On 26
th
November 2003 Ms Lötter informed me that by
reason of information that had come to her knowledge, she was obliged
for ethical
reasons to withdraw as counsel for accused one. It was
not a decision she made lightly. She discussed the matter with and
elicited
the advice of a senior member of the Bar.
The matter in respect of accused one was postponed to 3
rd
December 2003 in order to receive a report on the progress of his
application to the Legal Aid Board for the appointment of counsel
to
take the place of Ms Lötter. On that day, I was informed that
his application had been submitted to the Legal Aid Board
and that Mr
J Mihalik had expressed willingness to accept the brief to appear on
behalf of the first accused.
It was then resolved, in consultation with all counsel involved, to
postpone the matter to 5
th
April 2004. It was hoped that
this arrangement would leave the Legal Aid Board adequate time to
finalise the appointment of counsel
to take the place of Ms Lötter,
and to afford such counsel time to consult with his client and to
prepare for trial. The idea
was further to enable me to complete the
part-heard civil trial adverted to above, and to enable counsel
representing the other
accused to arrange their commitments in such a
way as to leave the coast clear for trial to resume on 5
th
April 2004 and to run its course to completion, however long it may
take, without any further interruption.
I requested to be kept informed about the progress being made with
the appointment of counsel to take the place of Ms Lötter.
When
in February 2004 I had heard nothing further about the matter, I
started making enquiries. I was concerned that undue delay
in
finalising the appointment of Mr Mihalik (or other counsel if he were
to decide not to accept the brief) would result in counsel
not having
sufficient time to prepare for the resumption of the trial on 5
th
April 2004. After a long and tortuous process, which I need not
detail here, Mr J Mihalik was in mid-April 2004 appointed to act
on
behalf of the first accused.
The delay in coming to finality about the appointment of Mr Mihalik
had a further devastating effect upon a matter already bedevilled
by
lengthy delays. It worked havoc with the diaries and work-schedules
of counsel who represent the other accused, and had a material,

negative effect on their income. It disrupted the planning of Mr
Cilliers, who appears for the State, who had to orchestrate the

calling of witnesses, including an expert witness who had to be
specially brought to Cape Town. And it disrupted the lives of the

other accused who have to wait so much longer for the completion of
their trial.
On 21
st
October 2004 Mr Robertson informed me that
irreconcilable differences about the conduct of the defence had
arisen between him and
his client, the second accused. He accordingly
requested, and was granted, leave to withdraw as counsel for accused
two. Mr Craig
Philander, who had represented accused four prior to
his passing away, was available to step into the shoes of Mr
Robertson. The
Legal Aid Board confirmed the appointment of Mr
Philander as counsel for accused two with commendable expedition. The
matter stood
down for a number of days to enable Mr Philander to
prepare and to consult with his client.
While I am dealing with the course of the trial, I should refer to
the flow of complaints from accused one about his treatment
by
officials of the Department of Correctional Service and the Police.
On 10
th
February 2003 he complained about the manner in
which he was being transported from prison to Court; on 18
th
March 2003 he complained that he was not feeling well and I requested
the district surgeon of Malmesbury to examine him (his report
is
Exhibit “L”); on 25
th
March 2003 he complained
about rough treatment by officials of the Department of Correctional
Services and the Police. I again
requested the district surgeon to
examine him (his report is Exhibit “S”).
On 10
th
September 2003 accused one complained that his
cell had been searched and that some of his documents had been taken.
I ruled that
his complaint be put on oath. This was not done. On 29
th
September 2003 he complained that his cell had again been searched.
He also complained that his privileges regarding a special
diet had
been withdrawn and that he was not taken for an appointment with a
psychiatrist. Ms Lötter undertook to take up the
matter of his
diet with the prison authorities. I ruled that all his other
complaints had to be pursued by way of substantive application
in
which the Department of Correctional Services and any other
interested parties are joined as respondents. These complaints were

repeated when Mr Mihalik took over the defence of accused one. I
re-iterated that the complaints should be pursued by way of
substantive
application in which the Department of Correctional
Services and any other interested parties are joined as respondents.
Again
this was not done.
The fact that the complaints were never put on oath, thus enabling
the other parties involved (the Police and the Department of

Correctional Services) to respond to the allegations, meant that the
complaints could never be properly adjudicated by either myself
or
another judge. (I indicated that it might be more appropriate if the
matter be heard by another Judge if the affidavits showed
disputes of
fact which might necessitate findings of credibility).
In the cross-examination of Captain C van Dyk, who had taken over as
the investigating officer upon the resignation of Captain
Johan van
Dyk, counsel for accused one dealt with two occasions, before the
start of the trial, on which the cell of the first
accused had been
raided. On one occasion Captain C van Dyk was present (according to
him in the background) and of the other he
had no knowledge. On this
latter occasion, Mr Mihalik said, documents were taken from the
accused’s cell which later found
their way into the hands of
the handwriting expert. It was not put to Captain van Dyk that any
other (privileged) documents were
taken during these two raids.
Finally, in a trial of this duration, it is inevitable that occasions
would arise when an accused by reason of illness, or by reason
of
commitments arising from the death or illness of a family member,
would be unable to attend the proceedings in Court. I dealt
with a
number of such occasions under the provisions of
section 159(2)
of
the
Criminal Procedure Act and
allowed an accused, with the consent
of counsel involved, to absent him or herself from the proceedings
for a given time. Thus,
for example, I allowed accused three, with
the agreement and consent of Mr Johnson, to be absent at a time when
she was heavily
pregnant and sitting for long periods in Court caused
her great discomfort. After the birth of her baby, I allowed her to
absent
herself when her baby was seriously ill. I also allowed
accused five to attend a clinic for treatment of complications
arising
from suspected tuberculosis. On two occasions, I allowed an
accused to absent himself for the funeral of a family member –

the accused are Muslims and the funeral of a Muslim has to take place
on the day of death.
Counsel also on occasion craved the indulgence of the Court. Thus the
matter was stood down during the period 4
th
to 17
th
September 2004 in order to enable Mr Mihalik to attend to a
long-standing personal commitment.
Over a week-end, Mr Delbrooke-Jones got stuck in Johannesburg with a
broken down vehicle. With the consent of both Mr Delbrooke-Jones
and
his client, accused five, the case proceeded with Mr Pietersen, who
appeared for accused six, looking after the interests of
accused five
in the temporary absence of Mr Delbrooke-Jones.
THE PAGAD FACTOR
There is in the evidence frequent reference to PAGAD, an acronym for
the organisation People Against Gangsterism and Drugs. It
appears
from the evidence that numerous members of PAGAD were in Pollsmoor
prison, most of them awaiting trial, during 1999 and
2000. The years
1999 and 2000 were characterised by considerable violence in the
streets of Cape Town. Much of this violence was
attributed, rightly
or wrongly, to the activities of PAGAD. There is in the evidence,
reference to the conviction in December 1999
of Dawood Osman, a
member of PAGAD, on charges relating to a shooting incident at the
Waterfront in which several people died.
He was sentenced to a
lengthy term of imprisonment and we were told that in Pollsmoor there
was talk of murdering the Judge who
had convicted and sentenced him.
There was also reference in the evidence to the so-called “Oudtshoorn
Five”, five
alleged members of PAGAD who were arrested near
Oudtshoorn with a large cache of arms and who were to be tried by Van
der Merwe.
In the evidence of and pertaining to Dawood, mention is
made of the bomb blast at the Bronx Bar in Seapoint in which several
people
were killed. In his evidence in mitigation of sentence in the
Regional Court in Malmesbury, Dawood refers to the assassination by

an unknown assassin of regional magistrate P Theron in Cape Town on
7
th
September 2000.
While PAGAD lurked in the background during the trial, it is common
cause that not one of the accused is a member of PAGAD. Kerridge
is
also not a member though it would seem that in prison he tried to
ingratiate himself with the organisation.
THE CASE FOR THE PROSECUTION
Though the prosecution called a total of twenty-two witnesses, the
case for the prosecution is essentially built upon the testimony
of
Kerridge and Van Dyk. However, to set the scene, it will be
convenient to start with the evidence of Van der Merwe.
Wilma van der Merwe
Van der Merwe testified that on 12
th
November 1998 the
trial of accused one on a charge of murder started before her. The
trial proceeded without incident. On 23
rd
June 1999 she
found the accused guilty. After she had convicted him, and before
sentence, she was informed that an application
for her recusal would
be brought. The application was brought on 22 September 1999.
Van der Merwe said, and I quote her words, that –
“…
van die dag van skuldigbevinding af het
daar verskeie vreemde dinge gebeur”.
Thus, for example, letters were written in her name with her
signature forged at the bottom. I need mention only two examples of

such letters. The first is a letter to the Cape Law Society in which
accused one’s attorney, Mr Kahn, is charged with corruption.

The second is a letter to the Minister of Justice in which it is said
that accused one had called her a whore, and in which the
Minister is
informed that her “adultress” affair with another
magistrate “has nothing to do with him or you”.
The
letters came to Van der Merwe’s notice when the Law Society and
the Minister of Justice acknowledged receipt of “her”

letters. I shall in due course return to the letter to the Minister
of Justice which is before the Court as Exhibit 12A.
Friends brought to her attention the following advertisement which
appeared in the classified advertisements of “The Argus”

of 16
th
March 2000:
“
I, W. VAN DER MERWE
of
3 Villa de Angelo, Boy de Goede Cres. Tableview, tel 5560112, my son
Alex Badenhorst, my friend A. Bouwer and friend C Steyn
hereby inform
S. Ismail (doc) ref 32/57/98 of Tokai, we will be filing a
deformation
(sic)
suite
(sic)
against
him for liable
(sic)
and crimen injuria.”
Shortly thereafter (on 19
th
March 2000) the following
advertisement appeared:
“
I, Advocate Wilma
of
suite 31 2
nd
floor, Justicia building, Parade St, Cape Town, hereby notify Shaheem
Koelie DOB: 22/2/1958, that I have taken both legal and criminal

action against him.”
After the appearance of the first advertisement, anonymous telephone
calls were made to her home. The content of the calls was
always the
same: there was a reference to accused one and allegations of racism
on her part. She caused Telkom to link a so-called
Indenticall device
to her phone. This enabled her to identify the origin of incoming
calls. When she noted that the calls came
from Pollsmoor prison, she
did not pick up her phone.
A letter of demand dated 20 April 2000 purporting to emanate from
accused one was delivered to Van der Merwe in which payment of
R100
000.00 is demanded for defamation arising from the two advertisements
At the same time a summons was delivered to Van der Merwe in which
accused one claims damages from Van der Merwe in the sum of
R100
000.00. The Particulars of Claim are handwritten by accused one and
in part state as follows:
On the 1
st
March 2000 I told her she was the mother of a
bastard
child
[emphasis and underlining in the
original]
and the father was a married
Gauteng magistrate by the name of Herman Badenhorst.
The defendant then published two articles under the
personal column of the Argus classified column 245.
The first advert on the 10-3-00 the defendant threatens
to take criminal and civil action against me leaving her telephone
no. and
address (in) the advert. I called her on the 12-3-00 ??? the
advert. She called me a
CRIMINAL COOLIE
and I called her a
slut
.
On the 15/3/00 I received a letter from her dated the
12/3/00 where she again calls me a
CRIMINAL
COOLIE.
On the 15/3/00 she published the 2
nd
advert calling me a
COOLIE.
Her
racist prejudice
towards me has exacerbated my serious post traumatic stress disorder
to dangerous levels that I had to seek urgent psycho-therapy
from my
clinical psychologist. Not only has the defendant impaired my dignity
caused me severe emotional hurt and mental trauma
but she has
defamed
me publicly with her racist slurs.”
The matter was handled on behalf of Van der Merwe by the State
Attorney. An exception to the summons was upheld and amended
Particulars
of Claim were apparently delivered on 13
th
July 2000. In the amended Particulars of Claim it is
inter alia
alleged:
The defendant wrongfully, intentionally, unlawfully and
without justification defamed the plaintiff in that she:
…
Published two articles, in the personal column of the
Argus classifieds of the 10
th
and 15
th
of March
2000 which defamed the plaintiff.
…
…
Nothing further seems to have become of the matter.
Van der Merwe testified that while the recusal application was being
heard, accused one on occasion walked behind her in the corridor
and
said “corrupt magistrate, corrupt magistrate”. On another
occasion, also in the corridor, he called her an “adulterous

slut”.
In the cross-examination of Van der Merwe by Mr Mihalik the following
occurred (I quote from the record):
“
Mr. Mihalik
: Kyk, Doc
Ismael stem saam. Hy sê hy was uittartend, persoonlik,
beledigend tydens die rekuseringsaansoek en veral is hy
baie jammer
dat hy persoonlike aanvalle op u gemaak het.
Beskuldigde 1
: (In
agtergrond). I confirm that that was indeed my instructions to my
advocate that I’m sorry for the hurt that I caused
the
magistrate.”
The recusal application was heard on 1
st
December 1999 and
on 4
th
August 2000 Van der Merwe dismissed the
application. However, on 30
th
August 2000 she recused
herself after it came to light that accused one had been arrested on
a charge of conspiracy to murder her.
Van der Merwe confirmed that she was at home on the evening of 10
th
August 2000 when accused seven rang the front door bell. She told him
over the intercom that she was busy on the phone and that
he had to
wait a while. This was to enable the Police to take up position
before they rushed out and pinned him down.
Kerridge
Kerridge was during 1999 arrested on numerous counts of fraud. He
manipulated matters so as to be accommodated in the hospital
section
of Pollsmoor prison though he was, in fact, in perfect health. He met
accused one while they were being transported to
and from the
magistrates’ court. As is customary in prison, they talked
about their respective cases and accused one told
him about his
grievances arising from his conviction by Van der Merwe. In due
course, Kerridge agreed to testify on behalf of the
first accused at
the recusal application.
Kerridge’s sojourn in the hospital section of the prison did
not last very long. He was placed with other prisoners who were

awaiting trial. In the process, he came into contact with the large
number of members of PAGAD who were then awaiting trial.
On 14
th
March 2000 Kerridge was transferred to the
Drakenstein prison where he remained until he was released on bail.
While he was in
Drakenstein, there seems to have been no direct
contact between Kerridge and the first accused.
Upon his release on bail, Kerridge visited friends of his who were at
the time being held at Pollsmoor. Accused one came to know
of
Kerridge’s visit to Pollsmoor. On 27
th
July 2000 he
wrote a letter to Kerridge’s friends which they passed on to
him when he visited them again. The letter reads,
in part, as follows
(it is common cause that Kerridge at times used the Muslim name Ali
Kahn):
“
I believe Ali Kahn is out and came to visit.
Could you please tell him that I can get contact visits from Mon –
Fr from anyone.
Tell him I would be in C.T. court 31 on the 4/8/2000.
Shahiem – if possible can you give me Ali’s contact no.
or ask
him to phone as my lawyer on 7001177.”
Kerridge on 28
th
July 2000 visited accused one. He says
that accused one told him of the plan to murder Van der Merwe and
requested him to attend
to matters to which he (accused one) could
not attend in prison. Thus he had to arrange for the acquisition of a
firearm and the
engagement of the services of an assassin. Accused
one also wrote a note in red ink on the reverse side of his letter of
27
th
July 2000 which Kerridge had with him. In his
evidence, accused one admitted that he wrote the note. I shall in due
course return
to the note.
According to Kerridge, the idea was that he should make copies of the
note and distribute it in the Cape Town magistrates’
court
building.
Van Dyk
Van Dyk, at the time a Captain in the South African Police Service,
testified that during the course of the morning of 1
st
August 2000 he received a phone call from inspector Eilward
(“Eilward”) of the fraud unit. Eilward asked Van Dyk
whether
his unit was at the time investigating matters involving the
first accused. Van Dyk replied in the affirmative. Eilward then
informed
Van Dyk that he had somebody with him in his office that had
information about a murder being planned by accused one who was at

the time in Pollsmoor Prison. The upshot of their conversation was
that Eilward brought Kerridge to Van Dyk’s office at 14h30
on
the same afternoon. Eilward left immediately because he had another
appointment.
Kerridge informed Van Dyk that accused one had approached him to
assist him in his plan to murder Van der Merwe. He (Kerridge),
who
was out on bail, was to see to the acquisition of a firearm,
recruiting an assassin and providing transport for the assassin.

Kerridge also handed Van Dyk a number of documents which he had
received from accused one. Kerridge informed Van Dyk that he
(Kerridge)
was to be accused one’s outside contact and that
accused one would give him instructions as to what he had to do.
Van Dyk set the wheels in motion to get authority to undertake
undercover operations under
section 252A
of the
Criminal Procedure
Act. He
also applied under the Interception and Monitoring
Prohibition Act 127 of 1992 to make recordings of conversations
between Kerridge
and accused one, three, four and five, and Dillon
Williams.
Conversations between Kerridge and accused one were recorded. In this
way, Van Dyk was kept informed of the details of the unfolding
plans
to attack Van der Merwe. The police were, therefore, prepared for the
attack when it came on the evening of 10
th
August 2000.
The conversations, according to the recordings submitted in evidence,
were mainly concerned with the acquisition of a firearm and
the
identification of a person to do the “hit”. During the
course of the conversations, the names of accused two and
three came
up as possible sources for the supply of a firearm, and the names of
accused four (now deceased), five and seven as
possible assassins.
Finding the cash to pay for the firearm presented a problem. A
suggestion by accused one that he might get
the necessary funds from
one Keith came to nothing. In the end, an amount of R450.00 in cash
(in marked notes) was made available
to Kerridge by the Directorate
of Public Prosecutions. This money was used to acquire a gun from one
Clinton Mostert.
Kerridge testified to two visits to accused three. On the first he
was accompanied by Dawood and on the second by accused seven.
Dawood,
accused two and accused seven confirm that these visits had taken
place. According to Kerridge, they picked up one Igsaan
Moses at the
house of accused two, and he directed them to the residence of
Clinton Mostert where the firearm was handed over.
Accused two denied
any involvement in the supply of the firearm, and accused seven says
that they ran into Igsaan Moses after they
had left accused two.
When Clinton Mostert handed the firearm to Kerridge, he instructed
accused six to get into the car in order to ensure that the
firearm
was returned – it was apparently needed for an armed robbery
planned for later that evening.
Accused seven, the alleged assassin, was then driven to Van der
Merwe’s house by Kerridge in his BMW. Accused six, the alleged
custos
of the firearm, was in the car when it was stopped by
the police after the assassination attempt.
The firearm that had been in the possession of accused seven and
which was sent flying when the Police rushed him, was retrieved
by
the Police. It was a 9mm Parabellum Astra semi-automatice pistol
0786E. The pistol, magazine and nine rounds of ammunitions
were
handed in as Exhibits 1, 1B and 1C. It later appeared that the
firearm had been stolen in Mitchells Plain on the morning of
10
th
August 2000.
Thus it came about that the seven accused were charged with the
offences set out in the indictment, and Kerridge came to be the

principal witness for the prosecution. Kerridge was placed in witness
protection in terms of the
Witness Protection Act 112 of 1998
because
there were fears for his safety.
Slabbert
Mr Nico Slabbert is serving a lengthy sentence of imprisonment for
fraud. He testified that he met accused one in Pollsmoor in
1997. He
testified that during March or April 2000 accused one told him that
he was upset with the magistrate and the prosecutor
in his case and
that “they” planned to kill Van der Merwe, Edwin Grobler
and Kathy Steyn.
THE
CROSS-EXAMINATION OF KERRIDGE
Before
I proceed to the case for the defence, I should deal briefly with the
manner in which the cross-examination of Kerridge was
conducted. He
was cross-examined by the legal representatives of accused one over a
period of eleven days from 6
th
to 28
th
August 2003 and again for seven days on 15
th
and 17
th
June, and 11, 12, 16, 19 and 26
th
August 2004.
In 1964 in the report of the Van Winsen Committee (Committee of
Inquiry into Uniform Court Rules and Costs) reference is made (at

30—31) in regard to civil proceedings to “[r]epetitious
and unnecessary cross-examination” and it is said that
“[n]ot
rules, but the firm intervention of the presiding judges is the
remedy in such cases.”
These sentiments
were echoed twenty years later in the report of the Hoexter
Commission (Commission of Inquiry into the Structure
and Functioning
of the Courts RP78/1983, vol II 148-149 para 6.3.5.5):
“
A number of witnesses have drawn attention to the
abuse of cross-examination during trials. Through broad-ranging,
purposeless and
repetitive cross-examination, not only is the
duration of the trial considerably lengthened but, where appeal is
made in a higher
court against the finding of the trial court, the
records of the proceedings become voluminous and extraordinarily
expensive. The
Commission is convinced that unbridled and improper
cross-examination is increasingly occurring, while trial courts are
far too
tolerant of the practice.”
While the court has the authority to stop protracted, irrelevant
cross-examination, it is a discretion –
“
that should ... be exercised with caution and
with full awareness of the vital role that cross-examination plays in
our system of
evidence.”
(
S v Cele,
1965 (1) SA 82
(A) at 91B. See also the remarks in
Dongwe v Assistant Magistrate Durban
(unreported judgment of
the NPD 10/12/1951, quoted by Pretorius
Cross-examination in SA
Law
(1997) 254, and those of an anonymous author in (1967) 2
Die
Landdros
at 226).
The constitutional right of an accused person to a fair trial does
not include the “right” to misuse or abuse the process
of
the court. In
Klink v Regional Court Magistrate NO and Others
1996 (3) BCLR 402
(SE) it is said at 410A:
“
Vital
as the right to cross-examine may be, it is not an absolute right,
for the trial court retains a discretion to disallow questioning

which is irrelevant, unduly repetitive, oppressive or otherwise
improper.”
One should not lose sight of the fact that in a trial such as this,
the other accused also have a right to an expeditious trial.
In the first period of cross-examination, Kerridge was cross-examined
by the legal representative of accused one over a period
of eleven
days from 6
th
August to 28
th
August. The
cross-examination was suspended on 11
th
, 25
th
and 27
th
August to enable counsel to consult with accused
one. The cross-examination was mainly concerned with collateral
issues on the
basis that the questions posed were relevant to the
credit of Kerridge. I allowed the cross-examination to proceed in the
light
of the guidelines set out in
S v Cele, supra,
at 91H:
“
Latitude in testing by cross-examination the
credibility of a witness where credibility is clearly the issue,
should be allowed
until the court is satisfied, either that the right
to cross-examine is being abused or misused, or that the particular
line of
cross-examination could never be productive of anything which
could assist the court in its eventual decision on credibility.”
I
endeavoured to give counsel, within limits, free range in her
cross-examination of Kerridge. I say within limits, because limits

there are, and it is the duty of the presiding Judge, as it is put in
S v Green
1962 (3) SA 886
(A)
at 888B, “to exclude irrelevancies and discourage repetition”.
The
cross-examination in time degenerated into what Van Dijkhorst J has
on occasion called “a treadmill of repetition and
a quagmire of
irrelevancies” (in
S v Baleka
unreported, TPD, case number CC 482/85, 15 November 1988).
I found it necessary, on
more than one occasion, to point out that the cross-examination
amounted to endless and purposeless repetition.
Mr Cilliers queried
the relevance of some of the questions put in cross-examination, and
I on more than one occasion asked counsel
to explain the relevance of
a particular line of cross-examination. On at least one occasion,
Kerridge was requested to leave the
Court while the explanation was
given.
On about the sixth day of the cross-examination, I pointed out to
counsel that at that stage the Court had not yet been given the

slightest indication of the nature of accused one’s defence and
his response to the evidence given by Kerridge on the principal

issues in the indictment.
The
cross-examination continued, in seeming endless repetition, to focus
on collateral issues and peripheral matter of dubious relevance.
I
ultimately, on more than one occasion, drew counsel’s attention
to the provisions of
section 166(3)
of the
Criminal Procedure Act and
informed her that if the cross-examination continued in the same
vein, I would be constrained to take some form of action to curb
her
cross-examination of Kerridge. (The constitutionallty of the section
is considered by SE van der Merwe
1997
Stellenbosch
Law Review
348
—359).
On the 10
th
day I informed counsel that I had come to the
conclusion that, in the words of Williamson JA in
S v Cele, supra,
at 91H
,
“the right to cross-examine is
being abused or misused”. I accordingly set a limit to the
cross-examination, namely,
the end of court proceedings on the next
day. In doing so, I had in mind also what is said in Hiemstra
SA
Strafproses
6
th
ed by Kriegler and Kruger (2002) at
435:
“
Ook as die hof, nà regterlike oordenking
en vergunning op die reg op inspraak aan die ondervraer, oortuig is
van die aanwesigheid
van een of meer van die faktore wat in
Cele
genoem word, mag ‘n absolute toepaslike perk gestel word.”
Even on the last day of cross-examination, when the limit had already
been set, Mr Cilliers had reason to object to some of the
questioning
as being irrelevant both to the issues and to credibility.
After Kerridge had been
cross-examined by counsel who represent the other accused, and before
re-examination, I acceded to counsel’s
request for an
opportunity to put further questions in cross-examination. She said
that she needed the opportunity to put aspects
of accused one’s
defence to Kerridge which she had omitted to do during her
cross-examination.
The second period of cross-examination came about as a result of the
application by Mr Mihalik for the recall of Kerridge for further

cross-examination on a defence which had not been dealt with by Ms
Lötter in her cross-examination of Kerridge. The defence
to be
debated in the further cross-examination was that the whole case
against accused one was a conspiracy by the police and the
office of
the Directorate of Public Prosecutions.
Kerridge obviously resented his recall and he responded in an
aggressive manner to the further cross-examination. Mr Mihalik, in

turn, adopted a vigorous and confrontational style of
cross-examination. At the outset, he said to Kerridge:
“
Now I want to make it clear from the beginning,
I’ve read this record. I’ve read your record in the
magistrate’s
court where you testified and throughout your
evidence you were pedantic, arrogant, rude, argumentative,
challenging and I don’t
mind if you do that.
Counsel is, of course, entitled to cross-examine a witness as
vigorously as the circumstances of the case require. However, as

Marais J (as he then was) reminds us in
S v Tswai
1988
(1) SA 851
(C)
at 858H
,
belligerent
cross-examination is no substitute for pertinent, properly focussed
and accurate cross-examination.
In the hostile atmosphere that prevailed, the cross-examination was
interspersed (despite objection from the Court) with remarks
by
counsel such as –
“
That’s a lie”.
“
I am going to call you in the course of my
cross-examination repeatedly a lair, compulsive liar”.
“
Now I want to know from you is that your usual
lying style you are now doing to fight, be argumentative, pedantic,
is that while
you are busy lying, is that your style?”
In regard to statements of this nature in cross-examination, Marais J
(as he then was) said in
S v Tswai, supra,
at 858I—859A
:
“
Another tendency which appears to be growing is
for prosecutors and cross-examiners to personalise the
cross-examination and inflict
their own opinions upon the witness and
the court. Remarks such as ‘I find that answer unacceptable’
or cruder variations
such as ‘nou lieg jy’ are not
permissible. … If it is necessary to make it clear to a
witness that his answer
will be submitted to be untruthful or
improbable or wrong it should be couched in the form of a submission,
not in the form of
an assertion of personal belief.”
See also the remarks of Rose-Innes J in
S v Gidi and Another
1984 (4) SA 537
(C) at 540H—I on the personalisation of
cross-examination.
During cross-examination, Kerridge was confronted with statements he
had made under cross-examination by Ms Lötter, and in
the
evidence he had given in support of a bail application by accused one
in the magistrate's court. Mr Mihalik did not comply
with the normal
and proper practice of putting the witness's exact words to him as
they appear in the record of the previous proceedings
(both records
were available). In this regard, Marais J (as he then was) said in
S
v Tswai, supra,
at 858F:
“
If he [cross-examining counsel] thinks, but
cannot be sure, that the witness said something different earlier, he
should either
verify it before asserting that he did or ask the
witness if his [the questioner’s] recollection of what the
witness allegedly
said is accurate. All too often one sees examples
of poorly remembered evidence giving rise to dogmatic assertions by a
cross-examiner
to a witness that the witness said something
contradictory or different earlier in his evidence.”
In regard to the bail proceedings, it should be borne in mind that
the record of the previous proceedings is not in itself proof
of what
the witness said in that case. In
Potgieter and Another v Minty
and Sons and Additional Magistrate Barberton
1929 TPD 745
at 752
it is pointed out that the evidence
as recorded
must be put to
the witness, and should he admit it, such evidence may be noted.
The style of cross-examination adopted by counsel is not only unfair
to the witness, but defeats whatever purpose counsel is trying
to
achieve. It also makes things very difficult for the Court when, as
in this case, the efficacy of the cross-examination has
to be
evaluated for purposes of judgment, months after the
cross-examination had taken place.
EVALUATION OF THE EVIDENCE OF KERRIDGE
When Kerridge gave his evidence in chief, the alarm bells were set
ringing and the red lights flashing. The reasons are threefold:
(i)
Kerridge has been found guilty of fraud and he has admitted to
committing perjury; (ii) he is in many respects a single witness,
and
(iii) he is an informer and a participant in a covert operation.
(i) As indicated earlier in this judgment, Kerridge was
cross-examined at length on issues said to be relevant to
credibility.
In the ultimate result, the cross-examination did not
alter the fundamental approach which it was from the outset clear
should
be adopted; namely, that his evidence was acceptable only in
so far as it was corroborated by other credible evidence.
(ii) In regard to Kerridge as a single witness, it is of course trite
that in terms of
section 208
of the
Criminal Procedure Act, an
accused can be convicted of any offence on the single evidence of any
competent witness. It is, however, a well-established judicial

practice that the evidence of a single witness should be approached
with caution, his or her merits being weighed against factors
which
militate against his or her credibility (see Zeffert
et al
The
South African Law of Evidence
(2003) 799—801 and Schmidt
and Rademeyer
Law of Evidence
(2003, with looseleaf updates)
para 4.3.1). In
Koos Stevens v The State
(unreported, case
number 417/2003; 2 September 2004) the Supreme Court of Appeal
approved of the approach to the application of
this so-called
“cautionary rule” as set out by Diemont JA in
S v
Sauls and Others
1981 (3) SA 172
(A) at 180E—G:
“
There is no rule of thumb test or formula to
apply when it comes to a consideration of the credibility of the
single witness (see
the remarks of Rumpff JA in
S
v Webber
1971 (3) SA 754
(A) at 758). The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether
it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is
satisfied that the truth
has been told. The cautionary rule referred to by De Villiers JP in
1932 [in
R v Mokoena
1932 OPD 79
at 80] may be a guide to a right decision but it does not
mean
“
that the appeal must succeed if any criticism,
however slender, of the witnesses’ evidence were well-founded”
(per Schreiner JA in
R v Nhlapo
(AD November 1952) quoted in
R v Bellingham
1955 (2) SA 566
(A) at 569). It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common
sense.”
(iii) In regard to the position Kerridge as an informer and a
participant in a covert operation, the following cautionary words
in
S v Ramroop
1991 (1) SACR 555
(N) at 559g—i must be kept
in mind:
The proposition is that where trapping is resorted to,
it behoves the court to be doubly cautious because the motive to
secure a
conviction may override honesty. Hence disparities between
the one witness and the other assume a greater significance than
ordinarily
would be the case. While such a submission may not be
faulted as a general proposition, it is subject, as in this case, to
another
consideration. Where in cases the trap is shown as little
more than an
agent provocateur
hoping to share in any fine levied or moneys received, the need for
far greater caution is intensified, but it is correspondingly

diminished when police officers are simply carrying out their duties.
That is not to say that their evidence must be accorded a
greater
acceptability because they are policemen, but, at the same time,
differences in their testimony must not be allowed to
take on a far
more sinister complexion simply because they are traps.
(See also Zeffertt
et al The South African Law of Evidence
(2003) 808—810).
THE APPLICATION FOR DISCHARGE AT THE END OF THE
STATE CASE
At the end of the State case, counsel for accused one and five
applied in terms of
section 174
of the
Criminal Procedure Act for
the
discharge of their respective clients. No such application was
brought on behalf of accused two, three, six and seven.
I refused the applications and indicated that I shall give the
reasons for my decision in my judgment at the end of the case.
The refusal to discharge an accused at the close of the prosecution’s
case entails the exercise of a discretion (
S v Lubaxa
2001 (2)
SACR 703
(SCA) at 705g).
Mr Mihalik, on behalf of accused one, relied on two principal
arguments; one, the unreliability of the evidence of Kerridge; and,

two, the unreliability of the testimony based on the tape recordings
of the conversations between accused one and Kerridge.
Mr Mihalik submitted that Kerridge’s evidence was wholly
unreliable and worthy of no credence whatsoever. Mr Celliers relied

on the following, well-known
dictum
of Williamson J in
S v
Mpetha and Others
1983 (4) SA 262
(C) at 265E—F:
However, it must be remembered that it is only a very
limited role that can be played by credibility at this stage of the
proceedings.
If a witness gives evidence which is relevant to the
charges being considered by the Court then that evidence can only be
ignored
if it is of such poor quality that no reasonable person could
possible accept it. This would really only be in the most exceptional

case where the credibility of a witness is so utterly destroyed that
no part of his material evidence can possibly be believed.
(See also
S v Swartz and Another
2001 (1) SACR 334
(W))
It was apparent from the outset that the evidence of Kerridge was
such that it could only be accepted in so far as it was corroborated

by other acceptable evidence. At the end of the prosecution’s
case, there was a considerable body of evidence around the
evidence
of Kerridge; such as, for example, the evidence of Van Dyk, the
evidence of Slabbert and the testimony afforded by the
recordings of
the conversations.
Mr Cilliers rightly submitted that it would have been premature at
that stage to come to conclusions about the reliability and

credibility of such corroborative evidence.
Moreover, the Court was also entitled to have regard to the fact that
the prosecution’s case against one accused might be
supplement
by the evidence of a co-accused (
S v Lubaxa, supra,
at 708b).
THE DEFENCE CASE
Accused two, three, five and six deny complicity in any conspiracy to
murder Van der Merwe. Accused seven says that he was told
by Kerridge
that he was to commit a staged robbery at Kerridge’s house in
order to enable Kerridge to claim from the insurance.
The defences raised by accused two, three, five, and six will be
separately dealt with in the final part of the judgment.
The defence of accused one, as it emerged half-way through the trial,
was that the entire case against him is a conspiracy hatched
by Van
Dyk and other officials. Thus, when leading the evidence in chief of
accused one, Mr Mihalik told the Court that –
“…
it is central to my client’s
defence that there was a conspiracy because they were angry with Doc
because of certain actions.”
When he took over the defence of accused one, Mr Mihalik applied (on
26
th
May 2004) for the recall of Kerridge for further
cross-examination on the ground that accused one’s defence that
he is the
victim of a conspiracy had not been canvassed with
Kerridge. In other words, on the 65
th
day of the trial
(sixteen months after the trial had begun), the Court was told that
the gist of the accused’s defence had
not been canvassed in the
cross-examination of the principal State witness, Kerridge, who had
been subjected to lengthy cross-examination.
It was clear throughout the trial that accused one took an active
part in the conduct of his defence; he knows the documentation

backwards and in Court was in constant communication with his
counsel. The Court was lenient in allowing Ms Lötter the
opportunity
to consult with her client during Court hours, and, as
has been noted above when I dealt with the course of the trial, on
several
days special arrangements were made to have accused one
available for consultation with Ms Lötter. In the circumstances,
we
find it difficult to understand how it came about that the gist of
his defence was not canvassed in the cross-examination of the
state
witness who was principally involved in the alleged conspiracy
against him.
The defence of accused one will be considered under the following
(interrelated) heads:
The nature of the conspiracy against accused one.
The covert action under
section 252A
of the
Criminal Procedure Act.
The
taping of the conversations.
The evidence of Dawood.
The evidence of accused one.
THE NATURE OF THE CONSPIRACY AGAINST ACCUSED ONE
Accused one said in evidence that after his arrest in 1997 on
numerous counts of fraud, he encountered massive corruption in the

ranks of the Police. He created an organisation named PACJAP (People
Against Corrupt Justice and Policemen). He says that because
of his
efforts to expose the corruption, certain police officers were
obliged to take early retirement and at least one was sentenced
to a
lengthy term of imprisonment. This, he says, is the background to and
the underlying reason for the conspiracy on the part
of officialdom
to pin an attempt to murder a judicial officer on him.
The nature of the alleged conspiracy can best be described in the
words of Mr Mihalik when he applied for the recall of Kerridge
for
further cross-examination:
“
Net baie kortliks is die verweer dat Kerridge is
waarskynlik as ‘n geplante agent op sy eie of in samewerking
met ander agente
en informante vir die Staat, onder andere, Nasionale
Intelligensie agent het hom sedert sy eerste ontmoeting met my kliënt

alles in sy vermoë gedoen om geweldpraatjies aan te wakker,
selfs waar my kliënt al verduidelik het dat hy is besig met

verskeie regsprossese, het Kerridge hom kort-kort weer op die spoor
van geweld probeer plaas.
Kerridge het dit gedoen in die gevangenis reeds en ek
gaan argumenteer dat met samewerking met die gevangenisowerhede, die
hoof
van die gevangenis, waarnemende hoof van die gevangenis, hoof
van opnames en ek sal argumenteer dat die enigste redelike afleiding

wat die Hof kan maak is dat hulle met Kerridge en met ander
informante of agente betrokke was om my kliënt en ander senior

PAGAD-lede of PAGAD-ondersteuners te betrek by allerlei geweldadige
optredes. Ook met die hulp van die Suid-Afrikaanse polisie
het
Kerridge voortgegaan met hierdie optrede …”
In his cross-examination of Van Dyk, Mr Mihalik put it to him:
“
So die twee van julle
[Kerridge
and Van Dyk]
het gaan saamsit, heel
waarskynlik ander beamptes ook, en met hierdie plan na vore gekom,
dat Doc die brein is om landdros Van
der Merwe te vermoor …”
It is contended that the covert action under
section 252A
of the
Criminal Procedure Act was
part of the conspiracy and went beyond
providing an opportunity to commit an offence, and that it is
apparent from the taped conversations
that it was Kerridge who
instigated the attack on Van der Merwe.
THE COVERT ACTION UNDER
SECTION 252A
OF THE
CRIMINAL PROCEDURE ACT
>
In 1996 the legislature regulated traps and undercover operations by
the insertion of
section 252A
into the
Criminal Procedure Act. The
section does not create a substantive defence of entrapment.
Following the recommendations made by the South African Law
Commission
(Working Paper 52, Project 84, October 1994), the
legislature opted for a qualified rule of exclusion. The gist of the
rule is
contained in
section 252A(3)(a)
which provides as follows:
If a court in any criminal proceedings finds that in the
setting of a trap or the engaging in an undercover operation the
conduct
goes beyond providing an opportunity to commit an offence,
the court may refuse to allow such evidence to be tendered or may
refuse
to allow such evidence already tendered, to stand, if the
evidence was obtained in an improper or unfair manner and that the
admission
of such evidence would render the trial unfair or would
otherwise be detrimental to the administration of justice.
The difficulties arising from the use of the phrase “the
conduct goes beyond providing an opportunity to commit an offence”,

which occurs in subsections (1), (2) and (3) of
section 252A
, have
been considered in
S v Odugo
2001 (1) SA 560
(W),
S v
Mkonto
2001 (1) SACR 585
(C) and
S v Makhanyana and Another
2002 (3) SA 201
(N) (and see Zeffertt
et al The South African Law
of Evidence
(2003) 644). In
S v Odugo, supra,
at 566f —g
it is stated:
“
The ordinary meaning of the phrase ‘the
conduct goes beyond providing an opportunity to commit an offence’
suggests
that the court should consider the role that the law
enforcement officer played in the committing of the offence. If the
law enforcement
officer played an active role in inducing or
persuading the accused to commit the offence, it seems that a finding
that the conduct
went beyond providing an opportunity to commit an
offence is inevitable. On the other hand, if the perpetrators of the
offence
were using the law enforcement officer as their instrument in
the crime which they planning to commit, it clearly does not
constitute
conduct that goes beyond providing an opportunity to
commit an offence.”
The above passage is cited with approval in
S v Makhanyana and
Another, supra,
at 206I—207A. At 207D—E it is
stressed that the finding that the conduct in question went beyond
providing an opportunity
to commit an offence is not the end of the
matter, and that in terms of
section 252A(3)(a)
the Court may exclude
the evidence if it was obtained in an improper or unfair manner and
the admission of such evidence would
render the trial unfair or would
otherwise be detrimental to the administration of justice. In this
regard, the following factors
must,
inter alia
, be considered:
(a) the nature and the seriousness of the offence; (b) the extent of
the effect of the trap on the accused; (c)
the nature and seriousness
of any infringement of a fundamental right, and (d) whether in the
setting of the trap the means used
were in proportion to the
seriousness of the offence (
S v Makhanyana and Another, supra,
at 207F—208G; Zeffertt
et al The South African Law of
Evidence
(2003) 644). In the ultimate result, the discretionary
power of exclusion created by
section 252A(3)(a)
remains subject to
the provisions of section 35(5) of the Constitution which entrenches
the fundamental right to a fair trial (
S v Spies and Another
2000 (1) SACR 312
(SCA)).
The question as to whether an accused’s right to a fair trial
has been breached will depend upon the facts of each case.
In this
regard, reference may be made to the statement of Kriegler J in
Key
v Attorney General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996 (2)
SACR 113
(CC);
1996 (4) SA 187
(CC);
1996 (6) BCLR 788
(CC) at par
[13]
, in the context of the admissibility of unconstitutionally
obtained evidence. The statement is as follows:
“
In any democratic criminal justice system there
is a tension between, on the one hand, the public interest in
bringing criminals
to book and, one the other hand, the equally great
public interest in ensuring that justice is manifestly done to all,
even those
suspected of conduct which puts them beyond the pale. To
be sure, a prominent feature of that tension is the universal and
unceasing
endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal by State

agencies in the prevention, investigation and prosecution of crime.
But none of that means sympathy for crime and its perpetrators.
Nor
does it mean a predilection for technical niceties and ingenious
legal stratagems. Ultimately, as was held in
Ferreira
v Levin
, fairness is an issue which has to be
decided upon the facts of each case, and the trial judge is the
person best placed to take
that decision. At times fairness might
require that evidence unconstitutionally obtained be excluded. But
there will be times when
fairness will require that evidence, albeit
obtained unconstitutionally, nevertheless be admitted.”
The crime which the Police were investigating was an extremely
serious one. It was a crime which threatened the very fabric of
our
society -- by the assassination of a judicial officer, the very being
of the judicial system, one of the pillars of a free
and democratic
society, is assailed. In my view, the means used in setting up the
covert operation were in proportion to the seriousness
of the
offence. Moreover, when they set the covert operation in motion, the
Police had reason to believe that the offence was already
being
planned. The conduct of the Police and Kerridge falls under what
could best be described as a covert operation rather than
a trap. The
perpetrators of the offence were using Kerridge, the Police
informant, as their instrument in the crime which they
were planning
to commit
(
S v Odugo, supra,
at
566g).
Van Dyk further stressed that by means of the covert operation, the
Police kept control of the threat. If they lost control, an
unknown
assassin could have surfaced without warning at any time. This was
also the reason why it was decided to make funds available
to
Kerridge for the “rental” of the firearm.
Reference was made in argument to
S v Nortje
1997 (1) SA 90
(C) and
S v Hayes en ‘n Ander
1998 (1) SACR (O). The
facts in those cases differ
toto caelo
from those in this
case. In both those cases, persons who would not otherwise have
participated in the purchase of uncut diamonds
did so after improper
pressure had been brought upon them (
S v Nortje, supra,
at
102B;
S v Hayes en ‘n Ander, supra,
632c—g).
Accused one relies on the tapes to show that Kerridge was the
instigator of the plot and that he did his best to draw a reluctant

accused one into the plot. The time has come to deal with the
recording of the conversations.
THE TAPING OF THE CONVERSATIONS
During the period 4
th
to 11
th
August 2000
conversations between Kerridge and accused one were recorded on tape.
Details of the conversations that were recorded
are as follows:
A conversation on 4
th
August 2000 in the cells at the
Magistrate’s Court, Cape Town. The tape is Exhibit 4A. The
quality of the recording is
bad and no transcript was handed in to
Court.
A conversation at Pollsmoor prison, Cape Town. The tape is Exhibit
5A. The quality of the recording is bad and no transcript
was handed
in to Court.
A telephone conversation on 7
th
August 2000 at 9h06. The
tape is Exhibit 6 and the transcript is Exhibit T.
A telephone conversation on the afternoon of 7
th
August
2000. The tape is Exhibit 7 and the transcript is Exhibit U.
Telephone conversations on the afternoon of 9
th
August
2000. The tape is Exhibit 8 and the transcript is Exhibit V.
A telephone conversation on 10
th
August 2000 at 8h06. The
tape is Exhibit 9 and the transcript is Exhibit W.
A telephone conversation on the afternoon of 10
th
August
2000. The tape is Exhibit 10 and the transcript is Exhibit X.
A conversation on 11
th
August in the cells at the
Magistrate’s Court, Cape Town. The tape is Exhibit 11. The
quality of the recording is bad and
no transcript was handed in to
Court.
The recording by the police of conversations between accused one and
Kerridge raise several issues which need to be considered:
(i) the
legality of the taping; (ii) the authenticity of the recordings;
(iii) the reliability of the transcripts, and (iv) the
content of the
conversations
Before I proceed to deal with the aforesaid issues, I wish to deal
briefly with two other issues by way of introduction.
No
trial-within-a-trial was held in regard to the
admissibility of the tapes. The evidence relating to the
admissibility and authenticity
of the tapes was inextricably
interlinked with the evidence pertaining to the “merits”
and the credibility of witnesses.
The procedure adopted in this case
was given the stamp of approval in
S v Nieuwoudt
[1990] ZASCA 74
;
1990 (4) SA
217
(A) at 231B—C where the following is said about the fact
that no trial-within-a-trial was held in the Court
a quo
:
“
Hoewel die egtheid van die [bandopname] dus
beoordeel is met die oog op die toelaatbaarheid daarvan, is daar nie
‘n binneverhoor
gehou nie: die Staat het, met die instemming
van die verdediging, voortgegaan om al sy getuienis op die meriete –
insluitende
getuienis oor die egtheid van die band – voor te
lê, waarna die verdediging dieselfde gedoen het. Die egtheid
van [die
bandopname] is eers in die slotbetoë beredeneer en in
die Hof se finale uitspraak behandel. Hierdie prosedure was
ongetwyfeld
die mees praktiese omdat die egtheid van die band ten
nouste verbonde was aan die geloofwaardigheid van ‘n hele
aantal getuies
wat ten beste beoordeel kon word na die aanhoor van al
die getuienis.”
A similar procedure was followed in
S v Kidson
1999 (1) SACR
338
(W) at 340e.
Dr LPC Jansen was called to give expert evidence about the
identification of the voices on certain of the tapes and on the
question
of interference with the tapes. For the purposes of his
investigation, Dr Jansen needed a sample of the voice of the first
accused.
Despite a court order, accused one refused to co-operate –
that the magistrate was entitled to make such an order and that
the
accused was obliged to obey the order, is apparent from the decision
of the Supreme Court of Appeal in
Levack and Others v Regional
Magistrate, Wynberg and Another
2004 (5) SA 573
(SCA).
Eventually, use was made of a recording of his voice made during
proceedings in the regional court.
When Dr Jansen was called to give evidence, it became clear that
accused one did not dispute the fact that it was his voice on
the
tapes. In response to a question by the Court whether “die
kwessie van stemidentifikasie” is in dispute, Mr Mihalik
said
that it was not and that what he puts in dispute is –
“…
dat daar wel met die bande gepeuter kon
word.”
The cross-examination of Dr Jansen was accordingly confined to his
findings in regard to the question whether or not the tapes
could
have been tampered with. The technical evidence which underpins his
finding that he has no doubt that accused one was one
of the
participants in the three conversations recorded on Exhibits 8 and 10
(the relevant transcripts are marked Exhibits V and
X), was not
canvassed in cross-examination and his findings were not put in
issue.
The legality of the taping
The purpose of the Interception and Monitoring Prohibition Act 127 of
1992 (“the Monitoring Act”) is to prohibit the

interception and the monitoring of certain conversations, and to
provide for the authorisation to do so in certain circumstances.
The
monitoring of conversations not carried out in pursuance to a
direction properly and lawfully applied for, and issued, in terms
of
the provisions of the Monitoring Act, may be unlawful as having been
prohibited in terms of section 2(1)(b) of the Monitoring
Act. The
Monitoring Act has been the subject of a number of reported
decisions:
Lenco Holdings and Others v Eckstein and Others
1996 (2) SA 693
(N);
Protea Technology Ltd and Another v Wainer
and Others
[1997] 3 All SA 594
(W);
S v Naidoo and Another
1998 (1) SACR (N);
S v Kidson
1999 (1) SACR 339
(W) and
Waste
Products Utilisation (Pty) Ltd v Wilkes and Another
2003 (2) SA
515
(W).
Section 2(2)(c) of the Monitoring Act provides that a Judge may
direct that conversations “by or with a person, body or

organisation”, may be monitored. In terms of section 3(1)(a)
such a direction may only be issued by a Judge designated by
the
Minister of Justice. It was not disputed that Justice Goodman Gordon
who issued the directives on 4
th
August 2000 and 8
th
August 2000 was properly designated in terms of the section. It is
further not disputed that he did so on applications approved
by
Assistant Commissioner AW Eksteen and Divisional Commissioner JH
Deysel, both police officers who had been authorised by the
National
Commissioner of Police in terms of section 3(2)(a) of the Monitoring
Act to give such approval.
Section 3(1)(b)(i) of the Monitoring Act provides that a direction
may be issued by the designated Judge if the Judge is convinced
on
the grounds mentioned in a written application that complies with the
directives in section 6 –
(i) that the offence that has been or is being or will
be committed, is a serious offence that cannot be properly
investigated in
any other manner and of which the investigation in
terms of this Act is necessary.
The directives referred to in section 6 are directives jointly issued
by the respective Judges-President of the High Court regulating
the
manner and procedure of applications in terms of sections 3(1) and
(4).
“Serious offence” is defined in section 1 as meaning,
inter alia
, any offence in Schedule 1 to the
Criminal
Procedure Act, including
any conspiracy, incitement or attempt to
commit such an offence, provided that –
that offence is allegedly being or has allegedly been
committed over a lengthy period of time;
that offence is allegedly being or has allegedly been
committed on an organised basis by the persons involved therein;
that offence is allegedly being or has allegedly been
committed on an regular basis by the person or persons involved
therein;
or
that offence may allegedly harm the economy of the
Republic; or
…
..
It was held in
S v Naidoo and Another
1998 (1) SA 479
(N) at
505g—h that the semi-colons at the end of subparagraphs (i) and
(ii) should, like that after subparagraph (iii), be
regarded as
disjunctive and the proviso should be read as if there was an “or”
after subparagraphs (i) and (ii). It
follows, and I agree with the
conclusion reached by McCall J at 506b, that paragraphs (i), (ii) and
(iii) contemplate three different
ways of committing a serious
offence such as referred to in Schedule 1 of the
Criminal Procedure
Act. The
offences under consideration in this case fit the
description in paragraph (ii) in that they were allegedly being
committed “on
an organised basis by the persons involved
therein”.
Mr Johnson raised the question whether there had been compliance with
the requirement of
section 3(1)(b)(i)
that it must be shown that the
offence “cannot be properly investigated in any other manner”.
Divisional Commissioner
JH Deysel said in evidence:
“
Ons was oortuig dat ook ander ondersoekmetodes
uitgeput gewees het en dat hierdie ondersoekbeampte wel ons hulp in
hierdie geval
nodig gehad het.”
Van Dyk said that –
“…
in hierdie geval was die tydsbeperking
wat ons gehad het, redelik dringend en daar was nie ‘n ander
manier om die inligting
wat daar was, te verifieer behalwe die
gesprekke tussen dan Allistair Kerridge en die persone soos genoem
nie. Daar was nie ander
beriggewers – daar was ander
beriggewers binne-in die tronk, maar hulle sou moes infiltreer en al
die klas goed wat ontsettend
baie tyd sou neem.”
As I have indicated above, the threat was an extremely serious one
which warranted a covert operation under
section 252A
of the
Criminal
Procedure Act. The
imminent threat was itself part of an undercover
operation and, in the circumstances, I find Van Dyk’s
explanation acceptable
as to why the offence could not properly have
been investigated in any other manner. He conceded that other methods
of investigation
were available, but added that due to time
constraints, those other methods were not feasible – in other
words, the offences
could not have been
properly
investigated
by those methods.
Mr Johnson submitted that the fact that Kerridge had on occasion
operated the recording apparatus attached to the telephone which

Kerridge was using, constituted a contravention of the Monitoring
Act. He submitted that nowhere in the Act has the legislature
made
provision for a member of the public, let alone an informer, to
execute a direction or assist in the execution of a direction
in
terms of the Act.
In
S v Kidson, supra,
at 343c Cameron J (as he then was),
relying on the jurisprudence of the North American Courts, draws a
distinction between two
forms of monitoring: third party monitoring
(which the American courts refer to as third party surveillance) and
participant monitoring.
Third party monitoring involves an outsider
monitoring the conversation between two participants thereto;
participant monitoring
involves one of the participants “monitoring”
(recording) the conversation.
The prohibition on monitoring in the Monitoring Act does not apply to
participant monitoring by members of the public (
S v Kidson,
supra,
at 346f). When members of the Police, Defence Force or
intelligence services wish to engage in monitoring conversations
“with”
a person, that is participant monitoring, they
must obtain authorisation in terms of the Act (
S v Kidson, supra,
at 346e). Although it was held in
S v Kidson, supra,
that
the monitoring in that case was participant monitoring by a member of
the public which was not prohibited by the Act, the learned
Judge
described the situation as follows:
“
The events surrounding the conversation between
the accused and Rabane certainly bore the hallmarks of a police
operation. Even
if the operation was not initiated by the police, the
crucial equipment was supplied by them; they permitted Rabane to
operate
while he was under their supervision; they indeed directed
him in how to go about the operation; and immediately after it was
performed
they retrieved the monitoring device and the recording from
him.”
On the facts before us, the Police initiated the monitoring, obtained
a directive from the designated Judge and proceeded to engage
in
participant monitoring. Kerridge was acting as agent for the Police
who had supplied the monitoring equipment which they permitted
him to
operate while under their supervision, and after the recording had
been made, the Police retrieved the monitoring device
and the
recording from him.
The authenticity of the recordings
There have been differences of opinion in our courts as to the
categorisation, and the criteria for admissibility, of audio and

video tape recordings. In
S v Singh and Another
1975 (1) SA
330
(N) and
S v Ramgobin
1986 (4) SA 117
(N) the Natal courts
have taken a strict and limiting approach to the reception of such
evidence. In the latter case, Milne JP
held (at 135C, and see 179F)
that for recordings to be admissible it must be proved that they (a)
are the original recordings and
(b) that, on the evidence as a whole,
there exists no reasonable possibility of “some interference”.
In
S v Mpumlo and Others
1986 (3) SA 485
(E) and in
S v
Baleka and Others (1)
1986 (4) SA 192
(T) and
S v Baleka and
Others (3)
1986 (4) SA 1005
(T) the Eastern Cape and the
Transvaal courts have taken a more liberal approach. In
S v
Nieuwoudt
[1990] ZASCA 74
;
1990 (4) SA 217
(A) the Appellate Division preferred
the approach of van Dijkhorst J in
Baleka (1), supra,
to that
of the Natal Provincial Division in relation to the distinction drawn
by van Dijkhorst J between the originality of the
recording and its
authenticity, but did not express a view on whether or not
authenticity affected admissibility or the evidential
value of the
recording. The different views were considered in
Mbulelo Klaas v
The State
(unreported, Cape Provincial Division, case number
A517/2003, 16 September 2004). In a joint judgment, Knoll J and
Mitchell AJ
held that the limitations to the admission of tape and
video recordings set out in
S v Ramgobin, supra,
are not
necessary to protect the rights of the accused (p 16 of typescript).
They did, however, hold (at p 17 of typescript):
“
Whether the authenticity of the recordings is a
criterion for admissibility, or goes only to the evidential weight
thereof, it is
quite apparent, in our view, that the State bears the
onus to prove its accuracy and reliability before it can be given any
evidential
weight.”
The prosecution adduced evidence of the circumstances under which the
tapes were recorded, and the time and manner in which they
were made.
The original recordings, copies of the originals and transcripts of
the recordings were handed in as exhibits. Counsel
were afforded the
opportunity to listen to both the originals and the copies, and they
were furnished with copies of the transcripts.
During the trial it
became common cause that one of the voices on the recordings was that
of accused one.
The principal thrust of the case made by the defence is that the
tapes were deliberately tampered with and that neither the originals

nor the copies that were handed in as exhibits give an accurate
reflection of the conversations that had taken place. In others

words, the objections raised by the defence pertain particularly to
what has been termed (in
S v Nieuwoudt, supra,
at 232C) the
“second rule” in
S v Singh and Another, supra,
at
333F and
S v Ramgobin, supra,
at 135C—D, namely, that
for recordings to be admissible it must be proved that, on the
evidence as a whole, there exists
no reasonable possibility of “some
interference”. In
S v Ramgobin, supra,
at 179C—E
it is said that in a criminal case it must be proved beyond
reasonable doubt that the tapes “have not been
interfered with
in any way – whether by mistake or otherwise – since the
original recordings were made”.
In regard to this “second rule”, Hefer JA said in
S v
Nieuwoudt, supra,
at 232C – 233B that even if proof of
authenticity is a prerequisite for admissibility, the fact that there
has been some
interference with the recording would not mean that the
whole of the recording should be excluded from the evidence.
Interference
might affect its evidential value depending on the
materiality of the missing or affected part. The crucial issue is
whether the
State has excluded the reasonable possibility of a false
recording – as Hefer JA put it (at 232G) –
“…
.. die gevaar waarteen gewaak moet word,
[is] die toelating … van ‘n opname ten opsigte waarvan
daar ‘n redelike
moontlikkheid bestaan dat dit ‘n
verwronge weergawe van die werklikheid is.”
Dr Jansen examined Exhibits 4A, 5A, 6, 7, 8, 9, 10 and 11A. His
method of examination included –
Physical (visual) inspection and measurement of the tapes.
Electronic measurement of residual noise levels (“ruisvlakke”)
on the tapes.
Analysis of the wave patterns of the recorded signs on a computer
screen, with specific regard to pulses that cannot be regarded
as
part of the sign that was recorded.
Listening to the tapes.
He found no signs of tampering with the tapes and no indications that
the recordings were not original recordings.
The cross-examination of Dr Jansen was confined to the question
whether the tapes could have been tampered with. His response was

that the possibility of tampering always exists and that the question
is whether in a particular case there had in fact been tampering.
It became apparent during the evidence of Dr Jansen that it may
nowadays be possible, with sophisticated equipment, to edit audio

tapes in a manner which makes it very difficult to find the
footprints of the editing. By the same token, the sophistication of

modern equipment makes it possible to detect even carefully disguised
footprints.
Former Captain FC Scheepers was, before his retirement at the end of
January 2004, attached to the Technical Support Unit of the
Police
and in charge of their electronic workshops. Though his evidence was
brief and confined to an isolated issue, we found him
a most
impressive witness. He confirmed that, in his view, it is not
possible, without sophisticated electronic and computer equipment,
to
edit tape recordings in such a manner that it would not be possible
to pick up the alterations. He was adamant that with “gewone

toerusting” it would not be possible to tamper with a tape
without leaving traces of the tampering which can be detected
with
modern equipment. The Police did not have such sophisticated
equipment while he was attached to the service.
In
S v Nieuwoudt, supra,
at 232G it is said that if it is kept
in mind that the danger that must be guarded against is the admission
of a recording in respect
of which there is a reasonable possibility
that it is a distorted version of reality, it follows that every
interference has to
be examined in order to determine whether such a
possibility indeed exists (“is dit vanselfsprekend dat elke
steuring nagegaan
moet word ten einde te bepaal of daar inderdaad so
‘n moontlikheid bestaan”.)
Accused one did not have the benefit of an expert to testify on his
behalf. However, he participated in the conversations and one
could
reasonably have expected that he would have been able in his evidence
to identify instances of interference. He referred
to a number of
instances where he believed passages had either been removed or had
been transferred from one place to another.
None of these passages
were canvassed in the cross-examination of Dr Jansen. Moreover, one
cannot but wonder, as Mr Cilliers did
in argument, what was to be
gained by transferring bits and pieces of a conversation from the
beginning to the end of a tape? Furthermore,
if there had been a
purposeful tampering with the tapes, one might have expected that,
for example, those parts of the conversations
that deal with accused
one’s proposed appeal would have been eliminated.
When cross-examined by Mr Cilliers, accused one for the first time
asserted (he did not do so in his evidence in chief) that certain

passages which appear in the transcript and on the tapes did not form
part of the conversations. He said that those passages might
have
been inserted by making use of the voices of actors who can, I quote
form the record, “mimic your voice”, or voices
that are
“computer generated”. He denies whole pages of some of
the transcripts as representing conversations that
had in fact taken
place. Thus, for example, he denies that large parts of the
conversations recorded on Exhibit 8 (transcript Exhibit
V) and on
Exhibit 10 (transcript Exhibit X) ever took place. It will be
recalled that these were the two tapes on which Dr Jansen
was
requested to do voice identification tests. His conclusions were not
put in issue – in fact, Mr Mihalik explicitly stated
that voice
identification was not in issue and that the issue in dispute was the
possibility that the tapes might have been tampered
with. However,
accused one’s subsequent evidence in cross-examination that
passages might have been inserted by making use
of the voices of
actors or by way of computer generation makes the question of voice
identification a major issue and one which
should have been canvassed
in the cross-examination of Dr Jansen. The inference is irresistible
that it was only when he was under
pressure from Mr Cilliers to
explain certain passages in the recordings that accused one resorted
to the expedient of asserting
that the passages were inserted into
the tapes.
There is interesting and significant extraneous confirmation of the
accuracy of the recording of part of a conversation –

significant also because it reflects adversely on accused one’s
credibility. The passage in question occurs in telephone

conversations between accused one and Kerridge on the afternoon of
the 9
th
August 2000 (Exhibit 8; transcript Exhibit V). The
passage is as follows:
Bron
[Kerridge]
:
Yes, …(indisctinct) … so what? You are going to phone
Abdullah now?
Doc
[Accused one]
: Yes.
Bron:
Okay.
Doc:
Wait there for my
call.
Bron:
Oh, …
(indisctinct) … cool.
Doc:
Ja.
Bron:
Fine.
Doc:
Cool.
Bron:
Cool, bye.
(CONVERSATION ENDS)
(PHONE RINGS)
Bron
: Hallo.
Doc:
Allie?
Bron
: Yes,
Doc.
Doc:
You
can phone him.
Bron
: Hey?
Doc
: You can phone him. I
just phoned Abdullah and speak to him and you can meet him and you
can discuss it. Don’t discuss anything
over the phone.
Bron
: Okay.
Doc
: If he can do it, he will
do it.
Bron
: Yes, but I mean, so he
knows nothing about …
Doc
: No, he says that Slams
did phone there.
Bron: Who is Slams?
Doc: Slams Faried, man.
After some conversation about Slams Faried, the following is said:
Bron
: So what is his
number? What is his number?
Doc:
715
5355.
Bron
:
715 5355.
According to the record of calls (the record was handed in by
agreement as Exhibit LLL) which were made to and from number 701
1008
in Pollsmoor prison, there was a conversation with number 534 1682
which started at 14h07. It is common cause that this was
the phone
from which Kerrdige made and received his calls. The call lasted a
little more than five minutes. There then followed
a call that
started at 14h13 to number 715 5355, the number of Abdullah Brenner
(accused seven). The call lasted one minute and
forty-eight seconds
and was followed at 14h15 by a call to 534 1682 which lasted just
under three minutes.
The record of the calls made confirms the course of the conversations
as recorded. Moreover, the denial by accused one that he
phoned
accused seven at 14h13 on that afternoon is without substance.
In view of all the foregoing, we are of the view that the recordings
are an accurate reflection of the conversations between Kerridge
and
accused one.
The accuracy of the transcripts
The accuracy of the transcripts was also put in issue. In this regard
it should be kept in mind that the real evidence is the tape
itself,
and that the parties (and if need be, the Court) can check the
accuracy of the transcripts (
R v Koch
1952 (3) SA 26
(T) at
30C;
S v Mpumlo and Others, supra,
at 490F—G); Zeffertt
et al The South African Law of Evidence
(2003) 708). As has
already been pointed out, the defence was afforded the opportunity to
listen to both the original tapes and
the copies.
The transcriptions were typed by Mrs MW Botha who was employed at the
time by Paarl Typing Services. For reasons that are not relevant

here, two pages of Exhibit X were also typed by Mrs SF Ponzi. There
are certain differences between their transcriptions of the
two pages
which were canvassed in cross-examination. The high point of these
differences is that at one point, the one typed “knife”

and the other “life”.
Mr Robertson took Mrs Botha through Exhibits T, V, W, and X and
pointed out to her what he thought were errors in the transcription.

For example, he put it to her that at one point in Exhibit T, he
hears the word “amount” on the tape while she had
typed
“demand”. Her response was simply that when she typed it,
“[het] dit vir my seker soos ‘demand’
geklink”.
Another example is that on the same tape she had omitted the word
“Toyota” before the word “Corolla”.
On
Exhibit V, Mr Robertson pointed out, the word “Doc”
occurs twice on the tape but Mrs Botha had typed it only once.
Mr
Robertson also said that he does not on the tape hear certain phrases
which appear in the transcript. Perhaps Mrs Botha as an
experienced
typist of transcriptions has a better “ear” than counsel
when it comes to listening to audio tapes –
Mr Mihalik admitted
that he is not a good listener to tapes!
Be that as it may. The errors, if such it be, pointed out by counsel
are not substantial and the kind of error which is to be
found on
most transcriptions of audio tapes. Thus errors occur in the running
record of the proceedings in this case (the transcript
of a recording
made in favourable conditions in the sense that there was little or
no extraneous noise at the time of recording).
Examples of such
errors are, “Van Wyk” instead of “Van Dyk”;
the attribution to counsel of a remark I made,
and one of the
transcribers did not know what to make of the name “Kerridge”.
There are, no doubt, many other examples.
In our view, the transcripts handed in as exhibits, are a
substantially accurate representation of the recording on the tapes
that were handed to Mrs Botha for transcription.
The content of the conversations
Accused one’s evidence was that in his conversations with
Kerridge, he was mainly concerned with his proposed appeal against

(review of) Van der Merwe’s dismissal of the application for
her recusal. He says that he always wanted to go the legal route,

that he wanted an affidavit from Kerridge to use in the proposed
legal proceedings, and for that reason he continued to maintain

contact with Kerridge despite Kerridge’s efforts to draw him
into a conspiracy to murder the magistrate.
An analysis of the recorded conversations does not support this view.
There are indeed references to the legal proceedings in the

conversations, and there are passing references to the affidavit
which accused one says he so desperately required.
I shall, in what follows, cite a number of passages which show that
accused one was the initiative and driving force of the plan
to
murder Van der Merwe. In doing so, I shall take care not to quote
passages out of context.
In a conversation on 7
th
August 2000 (Exhibit T) accused
one gives the name of accused seven to Kerridge and a telephone
number, 701 5355 – the number
is incorrect, the correct number,
715 5355, being given to Kerridge by accused one during a
conversation on 9
th
August 2000 (the relevant part of that
conversation is cited above under the head
The authenticity of the
recordings
). The conversation turns to Roy (Vlotman), the late
accused four, who was on the point of being released. Accused one
says that
Roy Vlotman “is coming out today”, and, in
response to a question from Kerridge, he says:
Doc:
Well, then we don’t
need these other at all to hit.
Bron:
Yes, but now what is
going to happen? Must I pick him up or what?
On the 7
th
August 2000 (Exhibit U) there is a long
conversation during the course of which there is again reference to
Holland (accused four)
as the possible hit man. Kerridge asks whether
Hollland is safe and accused one assures him that he is:
Doc
: That is his work, to
rob the place that is his work, man.
Bron:
But what has Wilma got
to steal?
Doc
: She is mos …
(indistinct) … she owns a place, jewellery.
Bron
: Okay; so you want to
make it look like a robbery?
Doc
: No, he is going to do
that, he wanted to rape her, so I said, no, don’t, leave that
kak man. He wanted to do that.
Bron
: He wanted to rape her
as well.
Doc:
He was so keen on it.
Later in the conversation, accused one laments the fact that –
“I can’t work things out from inside”.
The conversation of 9
th
August 2000 (Exhibit V) at one
point turns to the affidavit and the following ensues:
Doc:
So you must have an
affidavit you must give to my lawyer here.
Bron:
Okay, all right.
Doc:
Just to verify your
story and then they .. you have to see, got to stand down, man, the
bitch.
Bron:
What?
Doc:
That bitch, bastard,
rubbish, pig.
Bron:
What …
Doc:
No, you must get rid of
her.
The conversation then turns to Abdullah (accused seven) and the part
of the conversation cited above under the head
The authenticity of
the recordings
follows.
In a conversation on 10
th
August 2000 (Exhibit W) there is
again talk of the affidavit that Kerridge must give to attorney Kahn.
Thereafter the talk turns
to the acquisition of a firearm. Kerridge
says that accused seven wants to do the hit that evening and –
“
And then I told him, listen here, no, you have to
speak to Doc. Doc is the one that must give the order and things like
that, you
know.”
Later during the conversation, Kerridge says –
“He wants to do it today, you know, and I can get
it quickly done for you.”
Accused one then says that he is going to arrange for Faried (accused
two) to get a firearm.
The problem of the acquisition of a firearm again surfaces in a
further conversation on 10
th
August 2000 (Exhibit X). The
disappearance of Dawood seems to have caused a problem and there are
references to him in colourful,
uncomplimentary language. Kerridge
then says:
“
Listen here now, listen here, what is the second
option? What of for a … it is just the R450 that we need
basically, you
know. What do you suggest I do? I mean, if you tell me
what, I will do it, you know. But I mean it is your … you have
to
…”
They agree that trying to get the money from accused one’s
father is not a good idea because, as accused one puts it, “he

is not stupid” and he “already smells a rat”. The
conversation continues as follows:
Doc:
You
see that R450 is not a problem.
Bron
: R450,
ja.
Doc
: I
can get that. The way to get it is …
Bron
Not
now, you don’t have to get it now.
Doc
: I can get it via Keith,
you know Keith, look here, you need more money, a thousand rand, I
need it urgently, you know what I am
saying.
Bron
: Ah ha.
Doc
: Then I can get I back
easily.
Bron
: So you want to say to
me, you will get it … (indistinct) ..
Doc
: You can get it, you can
organise it for me.
Bron
: Okay. So you want me to
organise it, and you will repay him that?
Doc
: Obviously, yes.
Bron
: Okay, no cool
Doc
: No, I mos told you last
time, man. I am just … it is just a matter of time. If that
thing can happen, then I’m out
of here.
Bron
: Okay, Doc, so basically
it is going to be done. If this Abdullah guy is genuine tonight, he
is going to be there for me, I hope
so, then it will be done, you
know .. Then it will be done.
Doc:
If
you can get that, nè.
Bron
: Ja.
Doc:
I
will sort you out, you know that.
Bron
: Okay,
obviously.
Doc
: No
problem, I can get it through Keith.
Bron:
Look, he told me last
night, this was his words, he doesn’t want to talk payment, he
wants to talk payment after it is done.
Doc:
Oh,
yes.
Bron:
So obviously, I am
going to say to him, listen here, I will arrange a visit with you and
Doc and you guys can talk. Pick him up
like a Friday, bring him with
me [to] court, you know, or something like that, you know?
Doc:
Ja.
Bron
: Okay,
so that will be done.
Doc
: So
you are going to do it tonight then?
Bron
: He
wants to do it tonight.
Doc
: Finish,
man.
In our view, it is apparent from the recorded conversations that
accused one was the initiator and the driving force behind the
plan
to murder Van der Merwe, and that Kerridge was working on his behalf
and regularly reporting back to him.
Finally, according to Van Dyk it was on the basis of the last
conversation cited above that it was decided that the Director of

Public Prosecutions should make the amount of R450 available for the
rental of the firearm. This was part of the object of the
covert
operation to keep control of the situation.
THE EVIDENCE OF DAWOOD
Dawood gave evidence under the name Alex Petersen. He admitted that
he was also known as Dillon Williams, Kelvin Keith Daniels
and
Dawood.
He was in Pollsmoor prison during 1999 and part of 2000. During that
time, he converted to the Muslim religion. In prison, he met
both
accused one and Kerridge.
He was released on parole during July 2000 and took up residence with
the family of Dawood Osman, the member of PAGAD who had in
December
1999 been sentenced to a lengthy term of imprisonment.
Dawood said that while they were together in prison, Kerridge had
given him his phone number. Out on parole, he was desperately
looking
for work and decided to phone Kerridge. Kerridge responded to the
call and visited him at the Osman residence.
The further evidence of Dawood, in essence, amounts to the following:
Kerridge endeavoured to draw him into the plan to murder Van der
Merwe.
He skipped his parole and disappeared.
He later heard that his photograph was in the newspapers and that he
was being sought in connection with the bomb explosion at
the Bronx
Bar in Green Point in which people were killed. He admits that he
was on the scene when the bomb went off.
He was in September 2000 arrested at the Waterfront on a charge of
theft.
He was induced by Van Dyk to confess falsely to complicity in a plan
to murder Van der Merwe.
He was induced by Van Dyk to plead guilty to a charge of conspiracy
to murder Van der Merwe and to give false evidence in mitigation
of
sentence.
He was induced by van Dyk to make statements implicating not only
accused one, but also a number of PAGAD members in a conspiracy
to
murder Van der Merwe.
He was induced into entering into an agreement with the Director of
Public Prosecutions in which he was promised indemnity form

prosecution in regard to his involvement in the Bronx bar bombing in
exchange for information
The agreement that was entered into arose from an offer of
conditional indemnification from prosecution made to him on 19
th
October 2000 by the Director of Public Prosecutions. Dawood responded
in writing as follows:
Hiermee bevestig ek dat ek die skrywe van die Direkteur
van Openbare Vervolgings gedateer 19/10/2000 deurgelees het, en dat
ek
die geleentheid gehad het om die inhoud daarvan met my
regsverteenwoordiger te bespreek.
Ek bevestig dat ek ten volle bewus is van die inhoud
van die voormelde skrywe en ook die implikasies van die skrywe
verstaan.
Ek, Kelvin Keith Daniels, aanvaar u aanbod vir
vrywaring teen vervolging ten opsigte van die Bronx-“bar”
ontploffing
en onderneem:
Dat ek my volle samewerking deurgaans aan die
ondersoekbeampte sal verleen by verdere ondersoek;
Dat ek
alle
kennis
en inligting wat ek aangaande enige persone se betrokkenheid by
misdaad aan die ondersoekbeampte sal openbaar maak; en
Om teen enige sulke persone te getuig in ‘n
daaropvolgende strafregtelike vervolging.
Ek bevestig dat ek kennis neem dat u bovermelde aanbod
om vrywaring onmiddelik sal verval indien dit blyk dat:
Die inligting vervat in my bovermelde bekentenis met
betrekking tot die ander betrokkenes nie akkuraat en korrek blyk te
wees
nie;
Ek nie my volle samewerking aan die ondersoekbeampte
verleen tydens verdere ondersoek nie;
Ek nie verder bereid is om teen die persone genoem in
par 1 (iii) te getuig as ‘n artikel 204-staatsgetuie nie;
Ek afwyk van my getuienis of onbevredigend getuig in
enige daaropvolgende bovermelde strafsaak.
Ek neem kennis dat hierdie vrywaring teen vervolging
nie geld ten opsigte van enige van my ander uitstaande sake wat
reeds op
die hofrol is of was of reeds aanhangig gemaak is voor die
datum van hierdie bovermelde bekentenis nie.
On 14
th
September 2000 Dawood appeared in the Regional
Court in Malmesbury on a charge of conspiring with accused one to
murder Van der
Merwe. The magistrate was Mr KM Nqadala, a regional
magistrate from Kimberley. Dawood was represented at the trail by Mr
GW Cook,
and attorney form Malmesbury, who was instructed by the
Legal Aid Board. Dawood said that the evidence he gave in mitigation
of
sentence in the regional court in Malmesbury was false and that
everything he said there was said on the instructions of Van Dyk.
The evidence of Dawood must be approached with the greatest
circumspection. Firstly, he admits to perjury. Secondly, there is the

sheer improbability that Van Dyk would induce him to memorise pages
of notes, the contents of which he then regurgitated in his

statements to the Police, confession to the magistrate and in his
evidence in mitigation. Thirdly, the agreement of indemnity from

prosecution on certain conditions was openly entered into, and his
case was heard by a regional magistrate from another regional

division.
There is a small but significant piece of evidence which exposes the
unreliability of his evidence. He says that Kerridge told
him that
there was a person by the name of Chalkie (that is accused five) in
Bonteheuwel whom he wanted to visit but he was not
sure that he was
going to make it. Dawood said that Kerridge gave Chalkie’s
address to him and that he undertook to go round
to Chalkie. In his
evidence in this Court, Dawood said that he never went to Bonteheuwel
and that he threw the address away. In
his evidence in mitigation in
the regional court in Malmesbury, he stated that he did go to
Bonteheuwel to get a firearm. When
taxed by Mr Cilliers about the
discrepancy, he said that he was told by van Dyk to say that he went
to Chalkie’s house.
When accused five gave evidence, he was adamant that Dawood had come
to his house early in August 2000. He said that on 4
th
August 2000 a person who called himself “Doc” phoned him
and asked him for a firearm. The person calling himself “Doc”

said that he would send one Dawood to him. Accused five said that he
had no firearm but he thought that he might “con”
the
people looking for a firearm – “’n kop aansit”
as he put it. When Dawood duly arrived, he did not look
like a
suitable candidate to be “conned” and accused five
thought it better not to speak to him. He asked his sister
to put
Dawood off.
Though he cheerfully admitted that he makes a living from
housebreaking, theft and the sale of mandrax, accused five impressed

us as a truthful witness.
In our view, no reliance can be placed on the evidence of Dawood.
THE EVIDENCE OF ACCUSED ONE
Certain aspects of the evidence of accused one have already been
dealt with; for example, the underlying reasons he gives for the

alleged conspiracy against him; his dissatisfaction with his
conviction on the charge of murder and his apology for the way in

which he had abused Van der Merwe in the corridors of the
magistrates’ court building; his denial that the tape
recordings
are not an accurate reflection of the conversations
between him and Kerridge, and his assertion that the tapes had been
tampered
with by moving, removing and insertion of material.
It is apparent from the evidence of accused one that he endeavours to
minimise his involvement in the campaign of vilification
to which Van
der Merwe says she was subjected. Thus he denies authorship of the
forged letter to the Minister of Justice in her
name. And yet,
comparison of the letter with the note in red ink, over a signature
which purports to be that of Van der Merwe,
which accused one admits
he wrote and handed to Kerridge on 28
th
July 2000, is
instructive.
The text of the letter is as follows:
“
Sir
The accused (Mr Ismael) whom I convicted of murder on
the 23-7-99 brought a recusal application against me on the grounds
of prejudice.
Yesterday he defamed me by calling me a whore since he
spoke to the father of my illegitimate 3 year old son - ?????? Reg.
Crt
Magistrate Herman Badenhorst who also told him that prosecutor
André Bouwer was my lover again after the birth of my son.

This rubbish murderer told the court that he had written to you
regarding my adultress
(sic)
affair with Magistrate Badenhorst and all I want to tell you is that
my private life has got nothing to do with him or you. I don’t

care if you take disciplinary steps against me since I have a private
job waiting for me with my colleague Adv Edwin Grobler, 2
nd
Floor 42 Keerom St Cape Town Tel 4220664. In any case, since you
blacks took over the SA justice system is in shambles.”
The note in red ink reads as follows:
“July 2000
I, magistrate Wilma van der Merwe presiding in Ct
Regional court 31 hereby confirm I seduced married Gauteng magistrate
Herman Badenhorst
during 1996. I gave birth to his illeg bastard son
– Alex. I would like to apologise to the community for my evil
adultress
(sic)
affair. I would also like to take this opportunity to apologise to Mr
Shaheem Ismail (Doc) for calling him a koelie. I was very
angry
because he called my ex-lover prosecutor Andre Bouwer a dutch pig and
my friends Cathy Steyn a dutch bitch en Edwin Grobler
a neonazi.
Because of the above circumstances I hereby notify the public I will
be recusing myself from Mr Ismails present murder
case.”
The tone and content of the letter (which in time precedes the note)
and the note are similar, and the tell-tale spelling error

“adultress” occurs in both. The inference is irresistible
that accused one, who admits to authorship of the note, was
also the
author of the letter.
It may be objected that the handwriting of the letter to the Minister
differs from the handwriting of accused one as it appears
on his
letter of 27 July 2000. In this regard it is not without interest
that both Kerridge and Dawood remark on accused one’s
ability
to imitate any handwriting. His skills in this regard are apparent
from three documents before the Court which he admits
emanate from
him, viz the letter of 27
th
July 2000 to Kerridge’s
friends in Pollsmoor, the note in red ink on the back of that letter
and the sample of his handwriting
which he gave to Captain Y Palm
(Exhibit 12 T(v)).
The letter of demand and the Particulars of Claim of the summons in
which accused one claims damages for defamation from Van der
Merwe
were hand-written by accused one. In both the letter of demand and in
the Particulars of Claim, he bases his claim on the
two
advertisements in the Argus newspaper which he alleges she had
placed. However, in evidence under cross-examination by Mr Cilliers,

he said that the advertisements were placed by Mr David Tshabalala.
Mr Tshabalala was a former inmate of Pollsmoor who, after his release
on bail, established the New Era Rehabilitation Centre. The
Centre
inter alia
assisted people with applications for Legal Aid. In
this capacity, he was allowed contact visits in Pollsmoor and had
contact with
accused one who seems to have assisted people in prison
with legal aid applications. It was he who conveyed accused one’s

letter of 27
th
July 2000 to the friends whom Kerridge was
visiting in Pollsmoor. If accused one knew that the advertisements
were placed by Mr
Tshabalala, the basis of his claim against Van der
Merwe was fraudulent.
I have already dealt with two other features of his evidence which
undermine the veracity of his testimony. The first is the
introduction
for the first time, on the 65
th
day of the
trial, of what his counsel termed the central part of his defence;
namely, that the whole case is built upon a conspiracy
against him by
Van Dyk and other officials.
The second is his
volte-face
in his attitude to the tapes. It
is only in cross-examination that he raises the possibility that
material might have been inserted
in to the tapes by persons
imitating his voice or imitation of his voice by computer simulation.
Finally, as has been pointed out above, the telephone records show
that on the afternoon of 9
th
August 2000 a telephone
conversation between Kerridge and accused one was interrupted for a
call to be made to the telephone of
accused seven. The records
further show that after the call to accused seven, the conversation
with Kerridge was resumed, and
that accused one told Kerridge that he
had “just phoned” Abdullah and that Kerridge can phone
Abdullah, “and
you can meet him and discuss it”. The
frantic efforts by accused one in cross-examination to deny that he
made a call to
accused seven do not hold water, especially in view of
the evidence of accused seven that he in fact on that day received a
call
from accused one. The deliberate vagueness of accused seven
about the time of the call must next be considered.
THE EVIDENCE OF ACCUSED SEVEN
Accused seven as the armed hit man who was arrested on the scene, was
in a difficult position. His efforts in his evidence to extricate

himself from that position were not impressive.
He said that Kerridge visited him on the afternoon of 9
th
August 2000 and that the conversation went as follows:
“
Hy het vir my gevra of ek vir Doc ken. Ek het vir
hom gesê, wel, hier het een gebel wat hom bekend gestel het as
Doc. Maar
ek wou toe seker weet van wie hy praat, toe vra hy vir my
of die persoon hom gevertel het wat om te doen. Toe sê ek vir
hom
nee. Toe sê hy nou, wel, die man wil hê jy moet
iemand vermoor. Wel, ek was deurmekaar gerook en ek het nie vir hom

ernstig opgeneem nie. Hy het toe ook verder bygevoeg dat hy wil hê
ek moet die joppie doen, dan moet ek sommer sy huis inbreek,
want hy
wil ‘n insurance claim insit.”
He confirms that on 10
th
August 2000 he went with Kerridge
to accused three in search of a firearm. In large measure, his
version of what happened there
is similar to Kerridge’s
version, including the detail that when they arrived at her home, she
was not there, they went in
search of her at another house where they
were told that she had gone home, and that on their return they then
found her at home.
His version differs from that of Kerridge in so
far as he says that she told him that she had no firearm, and that
they did not
meet Igsaan Moses at her house, but ran across him in
the street after they had left accused three. He confirms that Igsaam
Moses
joined them in the car and that they went to the house of
Clinton Mostert where they “rented” a firearm for
R400.00.
He also confirms that Clinton Mostert instructed accused six
to accompany them and to see to it that the “dinges” (as

he put it) is returned.
He said there was talk in the car that they would stop at Kerridge’s
house and that he would use the firearm to frighten
the African
servant and that he would then commit the robbery as arranged with
Kerridge. When they stopped at the house, Kerridge
handed him the
firearm after he had cocked it (“Hy het vir my die vuurwapen
gegee en dit ook oorgehaal”). One may ask,
why cock the gun
when the idea was merely to frighten the African servant? He agrees
that he was handed a scarf to wrap around
the firearm.
He says that he was surprised to hear the voice of a white women over
the intercom when he rang the bell at the front door. He
realised
that he was at the wrong house and threw the gun and the scarf to one
side. He was then overwhelmed by the policemen who
came rushing out
of the house. His evidence that he threw the gun and the scarf away
before he was overwhelmed by the Police is
not confirmed by the video
which shows that at the front door, accused seven held his hands
behind his back and did not throw anything
away.
In cross-examination by Mr Mihalik, he says that he received the call
from the person who identified himself as “Doc”
on the
8
th
or the 9
th
of August – “ek is
nie seker nie.” Accused seven said that after the person had
introduced himself as “Doc”,
nothing more was said except
–
“…
hy het ook gesê hy kan nie oor die
telefoon praat nie, daar sal iemand kom na my toe.”
When cross-examined by Mr Cilliers, he added that “Doc”
told him that a person by the name of Ali Kahn would come to
him. He
further agreed that –
“
Daar kon meer gesê gewees het, maar ek kan
nie onthou nie. Dit kan moontlik wees”
When confronted by Mr Cilliers with the telephone record of a call
from Pollsmoor to his number at 14h13 on the 9
th
August
2000, accused seven was adamant, despite his earlier uncertainty
about the time of the call from “Doc”, that
he had
received the call on the morning of the 9
th
, that he had
received no further calls during the day and that Kerridge came to
visit him in the afternoon.
When asked by Mr Cilliers whether Kerridge had identified the person
he was to murder as magistrate Van der Merwe, he said, “Ek
kan
nie onthou nie”. In response to the further question whether he
could have said it, accused seven’s response is,
“Dit kon
wees, ek is nie seker nie”, and “Dit is moontlik dat hy
die naam genoem het, maar ek kan nie onthou
nie”.
In our view, the acceptable evidence leads to only one conclusion:
that at 14h13 on the 9
th
of August 2000, accused seven
received a call from a person who identified himself as “Doc”.
As indicated before, there
can be no doubt that the call was made by
accused one. The call lasted one minute and forty-eight seconds which
suggests, as accused
seven conceded, that more might have been said
than merely that Ali Kahn would visit him.
Only one inference can be drawn from accused one’s denial in
the face of overwhelming evidence that he had spoken to accused

seven, and accused seven’s equivocation in regard to the time
of the call and the content of the conversation: accused one
had
requested him to assassinate Van der Merwe and he had agreed to do
so.
E
VALUATION OF
THE CONSPIRACY AGAINST ACCUSED ONE
Mr Mihalik, when he applied for the recall of Kerridge for further
cross-examination, said that the defence of accused one, which
had
not been put to Kerridge in eleven days of cross-examination, is that
Kerridge was in all probability a planted agent who worked
together
with other agents and informants of the State and National
Intelligence. He said that it would be contended that with
the
co-operation of various officials attached to the Department of
Correctional Services, Kerridge and other informants were involved
in
efforts to implicate accused one and senior members of PAGAD in
crimes of violence, and that these activities were promoted
with the
active co-operation of the Police. [The full text of Mr Mihalik’s
own words is cited above under the head
THE NATURE OF
THE CONSPIRACY AGAINST ACCUSED ONE
]
Dawood was called as a witness to bolster accused one’s defence
of a conspiracy against him. We have found the evidence of
Dawood to
be wholly unreliable.
Police complicity in the conspiracy is based,
inter alia
, on
the contention that while he was in the witness protection programme,
Kerridge was allowed free range to commit crimes, such
as falsely
giving himself out as a lawyer, committing fraud and driving around
in a motor vehicle he had stolen from the estate
of his late
step-father.
Kerridge certainly posed as accused one’s lawyer when he
participated in the covert operation prior to the assassination

attempt on Van der Merwe. It can be accepted, as we do, that he did
so with the knowledge of Van Dyk and perhaps with the knowledge
of
certain prison officials. It is, however, not without interest that
the idea that Kerridge should pose as his lawyer, was first
mooted by
accused one in his letter of 27
th
July 2000.
Mr Mihalik sought support in the evidence of Captain Van Rooyen for
the allegations vigorously stated in the cross-examination
of
Kerridge and van Dyk, that Kerridge was allowed freedom to commit
crimes while in witness protection. Captain Van Rooyen is
the Police
officer in whose charge Kerridge was while in witness protection. The
evidence of Captain van Rooyen did not support
the allegations made
in cross-examination. In his evidence, Captain Van Rooyen stressed
that the purpose of witness protection
is to secure the safety of
persons placed in the programme. The conduct of people in the
programme is not monitored by the Police.
If a person in witness
protection should commit a crime, the law will take its ordinary
course. And this is precisely what happened
in the case of Kerridge –
at the time when Captain Van Rooyen gave evidence, Kerridge was under
arrest and in prison awaiting
trial for offences allegedly committed
since April of this year while he was in witness protection.
In the cross-examination of Kerridge, the assertion was repeatedly
and vigorously made that he had stolen a BMW vehicle from the
estate
of his stepfather. In the cross-examination of Van Dyk it was
asserted that Kerridge was allowed to drive around in the
vehicle
which the Police knew had been stolen. These assertions are repeated
in the heads of argument filed on behalf of the first
accused.
The file pertaining to the estate of Mr Damoes, the late stepfather
of Kerridge, was handed in by Mr Smit, an Assistant Master
of the
High Court. From the file it is clear that the BMW was not an asset
in the estate. In the preliminary inventory, a BMW valued
at R125
000.00, is listed as an asset in the estate. No final inventory, no
liquidation account and no distribution account ever
saw the light.
In the file there is a copy of a credit (hire-purchase) agreement
with a financial institution entered into in respect
of the BMW by
the Mr Damoes about a month before his death. In terms of the
agreement, the ownership of the vehicle vested in the
financial
institution. At the time of the death of Mr Damoes on 12 October
1999, the value of the vehicle (judging by the purchase
price) would
have been in the vicinity of R94 000.00 and the amount owing to the
financial institution (assuming that the first
monthly instalment had
been paid on 1 October 1999) was about 112 000.00. Mr Smit confirmed
that when the value of an item which
is subject to a credit agreement
is less than the amount owing to the owner (financial institution) of
the item, such an item is
normally not reflected in the estate
accounts as an asset. The documentation in the file does not support
the allegation of theft
repeatedly levelled at Kerridge in
cross-examination.
The Police may have had reason to suspect that Kerridge came into
possession of the vehicle in an unlawful manner. The only party
that
can clarify the position is the owner of the vehicle, the financial
institution. An examination of the manner in which the
financial
institution dealt with the vehicle is not relevant to the issues in
this case.
It is possible, and indeed probable, that in the climate of violence
that prevailed in Cape Town during 1999 and 2000, the Police
would
have infiltrated informers into the ranks of groups suspected of
being responsible for the acts of violence committed at
the time.
PAGAD was one of the groups so suspected. It would be safe to accept
that there were attempts by the Police and security
agencies of the
State to infiltrate the ranks of the PAGAD members held in Pollsmoor
prison at the time. The purpose of such infiltration,
one would
assume, was to prevent the commission of crimes of violence by early
detection, and to bring to book those who had committed
crimes of
violence.
No evidence has been placed before the Court that the Police, the
Department of Correctional Services and security agencies of
the
State devoted their energies to building an intricate plot against
accused one in order falsely to implicate an innocent individual
in
the planning and commission of a serious crime.
ILLEGAL POSSESSION OF FIREARMS AND AMMUNITION
In counts 2 and 3 of the indictment, the accused are charged with the
illegal possession of a pistol and nine rounds of ammunition
in
contravention of sections 2 and 36 of the Arms and Ammunition Act 75
of 1969.
What is prohibited by those sections is the existence of a state of
affairs, namely, having possession of a firearm or ammunition.
A
conviction will be competent only if that state of affairs is shown
to exist (
S v Mbuli
2003 (1) SACR 97
(SCA) at 114h). That
state of affairs will exist simultaneouly in respect of more than one
person if they have common, or joint,
possession of the firearm or
ammunition. In
S v Mbuli, supra,
at 114i – 115b it was
held that the contravention of the sections does not arise from an
application of the principles applicable
to common purpose (as was
held in
S v Khambule
2001 (1) SACR 501
SACR (SCA) at 508b (par
[10])) but rather from the application of the ordinary principles
relating to joint possession. In
S v Mbuli, supra,
at 115b –
d the Supreme Court of Appeal gives its stamp of approval to the
exposition of the legal position (“apart
from a misplaced
reference to common purpose”) in
S v Khosi
1998 (1) SACR
284
(W) at 286h—i:
“
The issues which arise in deciding whether the
group (and hence the appellant) possessed the guns must be decided
with reference
to the answer to the question whether the State has
established facts from which it can properly be inferred by a Court
that:
the group had the intention (
animus
)
to exercise possession of the guns through the natural detentor and
the actual detentors had the intention to hold the
guns on behalf of the group.
Only if both requirements are fulfilled can there be
joint possession involving the group as a whole and the detentors, or
common
purpose between the members of the group to possess all the
guns.”
The position of accused seven presents little difficulty. He was
clearly in possession of the pistol and the ammunition in
contravention
of the relevant sections.
Even though accused one may have had a hand in the acquisition of the
firearm and ammunition, he was not part of any group that
had the
intention (
animus
) to exercise possession of the firearm and
ammunition through the natural detentors, Kerridge and accused seven,
nor did the actual
detentors have the intention to hold the firearm
and ammunition on behalf of a group of which he formed part.
Accused six was instructed by Clinton Mostert to get into the car
with Kerridge and accused seven, and to see to it that the pistol
is
returned. He was the
custos
of the firearm, on behalf of
Clinton Mostert, who was due to take physical possession of the
firearm at a later stage. He was part
of a group that had the
intention (
animus
) to exercise possession of the firearm and
ammunition through the detentors, first Kerridge and then accused
seven, and the actual
detentors had the intention to hold the firearm
and ammunition on behalf of a group of which he formed part.
THE PRINCIPAL FINDINGS
As is apparent from the foregoing, the case turns very largely on the
evidence of four witnesses: Kerridge, Van Dyk, Dawood and
accused
one.
The evidence of Kerridge is such that it can only be accepted to the
extent that it is corroborated by other acceptable and credible

evidence.
The evidence of Dawood and of accused one is of questionable veracity
and must be treated with circumspection.
Van Dyk was a good witness; he was fair in his evidence and prepared
to make concessions and admit mistakes. He was, however, a

participant in a covert operation and as such his evidence must be
treated with the measure of circumspection set out in
S v Ramroop,
supra,
at 559g—i.
The principal findings of the Court on the totality of the acceptable
evidence are as follows:
Accused one was arrested on charges of fraud and murder. Kerridge was
subsequently arrested on charges of fraud and met up with
accused one
in prison.
Accused one was tried on the charge of murder by Van der Merwe and on
23 June 1999 she convicted him on the charge. After his conviction,

he brought an application for her recusal. The application for
recusal was heard on the 1
st
December 1999 and Kerridge
testified at the hearing on behalf of accused one.
After she had convicted accused one, Van der Merwe became the target
of a vicious and crude campaign of personal vilification.
Accused one
played a major part in this campaign.
During March or April 2000, accused one told Nico Slabbert that
“they” were planning to murder Van der Merwe, Edwin

Grobler and Kathy Steyn.
In March 2000 Kerridge was transferred to Drakenstein prison and for
practical purposes lost contact with accused one.
In July 2000 Kerridge was released on bail. He visited friends who
were being held in Pollsmoor prison. Accused one heard that
he was
visiting friends in Pollsmoor and on 27
th
July 2000 sent
them a letter, delivered by Mr David Tshabalala, in which he conveyed
to them his request to Kerridge to visit him.
Kerridge duly visited
accused one on 28
th
July 2000.
Kerridge thereafter informed the Police, first Eilward and
thereafter van Dyk, that accused one was planning an assassination

attempt on Van der Merwe, and that accused one had requested him to
assist him with the necessary organisation and planning from
his
position outside prison. From subsequent events, particularly the
recorded conversations between Kerridge and accused one,
it is
apparent that accused one had in fact so requested Kerridge.
Van Dyk set in motion a covert operation under the provisions of
section 252A
of the
Criminal Procedure Act and
under the provisions
of the Interception and Monitoring Prohibition Act 127 1992 obtained
a directive from the designated Judge
authorising the monitoring of
certain conversations.
Conversations between accused one and Kerridge were monitored and
recorded. The recordings and transcripts that were handed in
as
exhibits are an accurate reflection of the content of the
conversations that had taken place.
From the conversations it is apparent that accused one was the brain
behind the planned assassination of Van der Merwe, and that
Kerridge
was acting on his instruction and behalf.
Various possible assassins were identified. The first was Dawood who
was out on parole. He and Kerridge visited accused three
in search
of a firearm. Dawood also visited accused five in search of a firearm
but accused five avoided him. Thereafter Dawood
skipped his parole
and disappeared.
The late Roy Vlotman, who was accused four, seems to have agreed with
accused one to do the hit (we did not, of course, have the
benefit of
hearing Mr Vlotman’s side of the story).
In a conversation with Kerridge, accused one identified Abdullah
Brenner, accused seven, as a suitable assassin. On 9
th
August 2000, accused one had a telephone conversation with accused
seven and agreement was reached that accused seven would do
the deed.
Kerridge visited accused seven shortly thereafter and arrangements
were set in motion for the hit on 10
th
August 2000.
The acquisition of a firearm was a problem. Various possibilities
were discussed by Kerridge and accused one. In the end, a firearm
was
obtained from one Clinton Mostert at a “rental” of
R400.00. The money was made available to Kerridge by the Director
of
Public Prosecutions under the aegis of the covert operation under
section 252A
of the
Criminal Procedure Act.
On
the evening of 10
th
August 2000, Kerridge and accused
seven went to the house of Clinton Mostert who handed them a firearm.
Clinton Mostert instructed
accused six to get into the car with them
and to see to it that the firearm was returned later that evening.
The party drove to the house of Van der Merwe. Accused seven
approached the front door and rang the doorbell. After a short while,

policemen came rushing out, overwhelmed accused seven and in the
process the firearm he was carrying, was sent flying. Accused
seven,
Kerridge and accused six were then arrested.
The firearm that was sent flying by the onrush of the Police was
retrieved. It was a 9mm Parabellum Astra semi-automatic pistol
0786E
that had been stolen on the morning of 10
th
August 2000 in
Mitchells Plain.
Accused one was not the victim of a conspiracy by Van Dyk and other
State officials to implicate him in a crime which he had not

committed.
CONCLUSIONS
Accused one (Dr Shaheem Ismail)
From the evidence that was adduced and the principal findings of the
Court, the conclusion inevitably follows that accused one
had
conspired with accused seven to murder Van der Merwe.
Although accused one had a hand in the acquisition of the firearm and
ammunition, he was never in possession thereof in contravention
of
the relevant sections of the Arms and Ammunition Act 75 of 1969.
Beskuldigde twee (Faried Davids)
Daar is geen direkte getuienis wat beskuldigde twee verbind met die
misdaad nie. Hy het Kerridge nooit ontmoet nie.
Beskuldigde twee het ‘n verklaring voor ‘n landdros
gemaak wat as ‘n bewysstuk ingehandig is. Daar is namens
hom
erken dat die verklaring voldoen aan al die toelaatbaarheidsvereistes
wat vir so ‘n verklaring gestel word. In kort kom
sy verklaring
daarop neer dat beskuldigde een hom genader het vir ‘n
vuurwapen en dat hy besluit het om beskuldigde een te
kul. Hy het sy
vrou, beskuldigde drie, gebel en gesê sy moet die mense wat
opdaag aan ‘n lyntjie hou. Hy het ook later
beskuldigde sewe se
telefoonnomer aan beskuldigde een gegee sodat beskuldigde een hom kan
kontak om ‘n werkie vir hom te
doen.
[Daar moet, tussen hakies, beklemtoon word dat beskuldigde twee nie
getuig het nie en dat sy bovermelde verklaring dus nie toelaatbare

getuienis teen beskuldigde een daarstel nie]
Daar is geen getuienis dat beskuldigde twee ‘n
samesweringsooreenkoms met beskuldigde een gesluit het om Van der
Merwe te
vermoor nie. Beskuldigde twee het nie ‘n vuurwapen
gehad nie, en daar steek miskien waarheid daarin dat hy sy vrou
aangesê
het om die mense aan ‘n lyntjie te hou. Volgens
haar het sy eers gesê dat sy met haar man moet praat. Hoewel hy
beskuldigde
sewe se telefoonnomer vir beskuldigde een gegee het, is
daar nie getuienis dat hy geweet het waaroor beskuldigde een met
beskuldigde
sewe wou praat nie.
In die lig van voorgaande het Mnr Cilliers, na ons oordeel tereg,
toegegee dat beskuldigde twee die voordeel van die twyfel behoort
te
geniet.
Beskuldigde drie (Alivia Davids)
Sy word by die sameswering betrek slegs deur die getuienis van
Kerridge. Alleenstaande is sy getuienis nie voldoende om haar skuldig

te bevind nie.
Uit die getuienis is dit duidelik dat sy self geen vuurwapen gehad
het nie. Die rede waarom daar telkens na haar toe gegaan is
om ‘n
vuurwapen te kry, kan wees dat die indruk bestaan het, as gevolg van
wat beskuldigde twee aan beskuldigde een gesê
het, dat daar wel
‘n vuurwapen was.
Haar getuienis dat net Kerridge en beskuldigde sewe by haar huis was,
word deur beskuldigde sewe gestaaf. Hy staaf haar ook dat
hy
uitgeklim het en na haar gegaan het en dat sy gesê het dat sy
nie ‘n vuurwapen het nie.
Sy was nie in alle opsigte ‘n bevredigende getuie nie, maar op
die totaliteit van die getuienis kan daar nie gesê word
dat sy
deel gehad het aan ‘n ooreenkoms om Van der Merwe te vermoor
nie.
In die lig van voorgaande het Mnr Cilliers, na ons oordeel tereg,
toegegee dat beskuldigde drie die voordeel van die twyfel behoort
te
geniet.
Beskuldigde vyf (Ikram Norton)
Beskuldigde vyf het vir ‘n paar ligter oomblikke gesorg tydens
sy getuienis. Hy het geredelik toegegee dat sy beroep is huisbraak,

diefstal en mandrax verkope.
Volgens hom wou hy kyk wat hy uit die ding kon kry. Na ons oordeel is
hy uitgeslape genoeg om juis dit te probeer doen. As hy ernstig
was,
sou hy Dawood te woord gestaan het toe dié by sy huis opgedaag
het. Op die ou end verklaar hy teenoor Kerridge dat
hy bereid is om
die werk te doen teen ‘n prys wat hy baie goed weet
onrealsities en onaanvaarbaar is. Hy probeer van sy kant
nie weer om
met Kerridge kontak te maak ná Kerridige se besoek aan hom
nie. Daar is bowendien geen getuienis dat hy probeer
het om ‘n
vuurwapen in die hande te kry nie.
Ook in sy geval is die toegewing tereg gemaak dat hy die voordeel van
enige twyfel behoort te geniet.
Beskuldige ses (Ashraf Lee)
Die posisie van beskuldigde ses is minder eenvoudig. Hy was die
custos
van die vuurwapen in dié sin dat hy opdrag
ontvang het van Clinton Mostert, die verskaffer van die vuurwapen, om
toe te
sien dat die vuurwapen terugkom.
Mnr Cilliers het aangevoer dat as hy nie deel was van die sameswering
nie, hy minstens skuldig is aan poging tot moord en onwettige
besit
van die vuurwapen en ammunisie.
Volgens Kerridge het beskuldigde ses nie kennis gedra van die oogmerk
van die operasie nie. Hy was, volgens Kerridge, bloot “op
die
verkeerde plek op die verkeerde tyd”.
Beskuldigde ses se ontkenning dat hy nie geweet het nie dat dit ‘n
vuurwapen is wat hy moet terugbring, kan nie aanvaar word
nie. Sy
ontkenning dat hy kennis gedra het van die aard van die beplande
operasie het meer om die lyf. Miskien is hy gelukkig dat
die
bandopname wat gemaak is van die gesprek in die motor, niks opgelewer
het nie. Die bandopname kon moontlik aangedui het dat
hy moes kennis
geneem het van die aard van die beplande operasie. Onder die
omstandighede moet hy egter die voordeel van die twyfel
kry en kan hy
nie skuldig bevind word op die aanklag van sameswering om Van der
Merwe te vermoor nie.
Hierbo is reeds bevind dat, in die lig van die toepaslike beginsels
soos uiteengesit in
S v Mbuli, supra,
en
S v Nkosi, supra,
beskuldigde ses skuldig is aan onwettige besit van ‘n vuurwapen
en ammunisie ter oortreding van artikels 2 en 36 van die
Wet op
Wapens en Ammunisie 75 van 1969.
Accused seven (Abdullah Brenner)
From the evidence that was adduced and the principal findings of the
Court, the conclusion inevitably follows that accused seven
had
conspired with accused one to murder Van der Merwe.
Upon his arrest at the scene of the crime, he was found in unlawful
possession of an unlicensed firearm and of ammuniation.
VERDICT
In view of the foregoing, our verdict is as follows:
Accused one (Dr Shaheem Ismail)
Count 1:
Guilty
Count 2:
Not Guilty
Count 3:
Not Guilty
Accused two (Faried Davids)
Count 1:
Not Guilty
Count 2:
Not Guilty
Count 3:
Not Guilty
Accused three (Alivia Davids)
Count 1:
Not Guilty
Count 2:
Not Guilty
Count 3:
Not Guilty
Accussed five (Ikram Norton)
Count 1:
Not Guilty
Count 2:
Not Guilty
Count 3:
Not Guilty
Accused six (Ashraf Lee)
Count 1:
Not Guilty
Count 2:
Guilty
Count 3:
Guilty
Accused seven (Abdullah Brenner)
Count 1:
Guilty
Count 2:
Guilty
Count 3:
Guilty
HJ ERASMUS, J