S v Josephs and Others (SS13/2002) [2000] ZAWCHC 1 (14 March 2000)

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[2000] ZAWCHC 1
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S v Josephs and Others (SS13/2002) [2000] ZAWCHC 1 (14 March 2000)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
CAPE OF GOOD HOPE
PROVINCIAL DIVISION
CASE
NUMBER
:
SS13/2002
THE
STATE
versus
EUGENE
JOSEPHS
Accused
1
JULIAN
TROUT
Accused2
J[...]
C[...]
Accused
3
JUDGMENT
DELIVERED
:
14
MARCH 2000
MEER
J:
INTRODUCTION
[1]
T[...]
S[...], aged 29 was sexually assaulted and murdered on the night of 9
November 2000 at her home at 1[...] S[...] K[...] Road
Athlone. Her
body was found in the bath, battered and bruised. Dr Lorna Martin, a
state pathologist performed the autopsy on the
deceased the following
day ,10 November 2000.
She
found the cause of death to be consistent with drowning and that the
deceased had been sexually assaulted prior to death. The
autopsy
report indicated external injuries to the deceased’s eyelid,
nose, upper arms, wrists, and thighs.
There
were also injuries to the external genitalia which, according to Dr
Martin could have been caused by the forceful penetration
of a blunt
object. The fact that a broom handle with what appeared to be blood
on it, was found next to the bath, suggested to
Dr Martin that the
broom handle was used to inflict the injury to the genitalia. The
time of death could not be ascertained by
Dr Martin due to the
refrigeration of the deceased’s body prior to the autopsy.
[2]
Four
people were charged with the murder. They are the 3 accused before
Court and Ricardo Little. Accused 1 and 2, Eugene Josephs
and Julian
Trout, were found at the deceased’s house by the police on the
night of the murder. Accused 3, J[...] C[...] was
the husband of the
deceased.
Charges
against Ricardo Little were withdrawn and he became a witness for the
prosecution in terms of
section 204
of the
Criminal Procedure Act 51
of 1977
[3]
The
charges faced by the three accused are:
“
Count
1: MURDER,alternatively
contravening
section 18(2)(a)
of  Act 17 of 1956
[1]
IN
THAT
on Thursday 9 November 2000 and at
1[…] S[...] K[...] Road, Crawford in the district of Wynberg,
the accused unlawfully and
intentionally killed
T[...]
D[...] S[...]
a female person by
drowning her in  a bath tub
alternatively
,
that over the period 6-9 November 2000 and in the district of
Wynberg, the accused unlawfully conspired with one another and /or

with a person unknown to the state to commit the offence of murder.
Count 2: INDECENT
ASSAULT
IN
THAT
on Thursday  9 November 2000
and at S[...] K[...] Road Crawford in the district of Wynberg, the
accused unlawfully and intentionally
indecently assaulted
T[...]
D[...] S[...]
by forcing a broom handle
or other object into her vagina.”
[4]
The
Accused pleaded not guilty to both charges in terms of
section 115
of
the
Criminal Procedure Act, disputed
all the elements of the counts
charged and put the State fully to the proof of its allegations.
Certain formal admissions
only as to the identity of the deceased,
and date and place of her murder, were made by the accused.
[5]
The
Court was presented with three different and conflicting versions of
how the deceased came to be murdered. These were the versions
of the
state witness Ricardo Little, the version of Accused 1 and 2 and that
of Accused 3.  This judgment deals with the three
versions, in
its elucidation and assessment of all the evidence presented. It
seeks to ascertain the truth as between the conflicting
versions.
Evidence of the Police
[6]
Five
policemen testified for the state. They were Inspector Vlotman,
Sergeant Adams, Constable Lekay, Sergeant Engelbrecht and Detective

Fredericks, the investigating officer in this case. The former four
were among the first to arrive at the scene on the night of
Thursday
9 November 2000. It is convenient to deal with their testimony
together and then set out that of Fredericks separately.
[7]
From
the testimony of Vlotman, Adams, Lekay and Engelbrecht, the following
emerges:
On
9 November 2000 at about 22h00 Vlotman and Adams received a report
from police radio control of a possible “hostage situation”

at 1
[…]
S[...]
K[...] Road, Crawford
.  In response
thereto, two police patrol vehicles arrived at the scene soon after
22h00. Vlotman, and Adams (policemen of
16 and 10 year’s
respective experience, stationed at Athlone) arrived in the first
vehicle. Lekay and Engelbrecht (with 5
and 7 year’s respective
experience, also of Athlone) were in the second vehicle. They were
instructed to look out for a red
Ford Escort vehicle which was
alleged to be involved in the hostage drama.
[8]
On
arriving at 1
[…]
S[...]
K[...] Road they observed the red Ford Escort vehicle parked
diagonally opposite the house. Seated in the front passenger
seat was
a lady, subsequently identified as Nasreen Adams. They encountered
Ricardo Little (subsequently the state witness) walking
away from the
front door of the house towards the car. Vlotman testified that
Ricardo Little informed him there was no one inside
the house. Adams
asked Little if he had phoned the police, and Little said he had
not.
Little informed them that
he had got a phone call to pick up a friend Julian at the house.
According to Vlotman, Little appeared
to be calm.  Engelbrecht
and Lekay took the car keys out of the ignition. Whilst his 3
colleagues approached the front of
the house, Engelbrecht proceeded
to the side thereof and the street behind to check if anybody was
escaping out back.
The
front door of 1
[…]
S[...]
K[...] Road was ajar, but it shut closed before the police entered,
and the lights in the front section of the house went
out.
[9]
The
police knocked on the door, no one answered. Mindful of a possible
hostage situation, Vlotman, Adams and Lekay then took out
their
firearms, pushed the front door open and entered.
They found Accused 2,
Julian Trout standing in the entrance hall with a baby in his arms.
Vlotman observed that he
was wearing a light blue T shirt and jeans, that the top section of
his body was wet and he was smelling
of alcohol. He appeared to be in
a state of shock. Vlotman described his condition as “distressed,
in a state of panic, petrified
and under the influence but not
paralytic drunk”. Adams also observed that Accused 2 reeked of
alcohol.  Accused 2 pointed
to the the inside of the house and
said “there are people with firearms in the house”.
Vlotman specified that he pointed
with his right hand. According to
Vlotman the baby which appeared to be only a few weeks old was being
carried in such a way that
he feared Accused 2 might drop the child.
He also said he feared the baby’s neck might break because of
the way Accused 2
was handling the child. He observed moreover that
the baby was dressed in white and smelt fresh as if it had just been
bathed.
Adams told Accused 2 to stand outside the front door with the
baby.
[10]
The
3 policemen went towards the back of the house where they encountered
Accused 1 in the back or children’s bedroom. The
room was in
shambles. Adams who encountered Accused 1 first, said that he was on
the floor of the room “scratching in a bag”.
Adams said
when Accused 1 saw the police, he got up, looked like a person in
great shock and pointed in the direction of the bathroom,
making a
movement with his fingers indicative of firearms, but did not say
anything. Adams testified that he was wearing a dark
blue T shirt and
black jeans. By the time Vlotman and Lakay (who were behind Adams
when they approached the children’s room),
encountered Accused
1 he was standing up. Vlotman testified that Accused 1 was standing
more or less in the doorway and his clothes
were wet from top to
toe.  He said Accused 1 was petrified, and he pointed as if he
knew what was happening in the bathroom.
Although Vlotman testified
that he could not say if Accused 1 was under the influence, he
conceded that he had made a statement
on the night of 9 November 2000
to the effect that Accused 1 seemed to be under the influence of
alcohol. Accused 1 was observed
by the other policemen also to be in
a state of shock and dripping wet. Adams took Accused 1 outside and
later arrested him, after
he had allegedly tried to escape, as stated
below.
[11]
The
bathroom door was closed. Lekay opened the door and to their
astonishment the 3 policemen discovered the deceased lying submerged

in the bath, the tap still running and the water flowing over the
bath. Vlotman closed the tap and tried to pull the deceased out
of
the bath.
She was heavy and he
struggled to get her out of the water. He checked for a pulse but
there was none. He thought she was dead but
to make certain he called
for the metro police to do a medical check up. Vlotman remained in
the bathroom with the deceased until
the metro unit arrived.
[12]
Whilst
Vlotman remained in the bathroom with the deceased, Adams and Lekay
checked the rest of the house. They discovered that the
windows were
all secured and burglar-barred, the back door was closed, (not
locked) but the security gate to the back door was
locked. Vlotman
also testified that there was no breakage into the house. Their
observation was that the only access to the house
was via the front
door, given that the back security gate was locked and that all the
windows were burglar barred.
[13]
Whilst
the policemen were busy in the bathroom and searching the rest of the
house, Adams testified that Accused 1 who was outside,
attempted to
run away. However he was brought back to the house, apparently by
people who had gathered outside the scene. Adams
then asked Accused 1
why he was running away and what he had been doing in the house. In
response, Accused 1 said he had come to
the house to fetch J[...].
Adams searched accused 1 and found a balaclava in his back pocket and
a black bomber jacket lying next
to him. Adams thereafter arrested
Accused 1 and placed him in a police vehicle on his own.
Adams
denied under cross examination that Accused 1 had informed him he was
not running away but running o seek the protection of
the police
because people outside the house wanted to assault him.
Adams disputed that this
could have been the explanation for his running away.
[14]
Lekay
testified that when he went to check the back of the house Accused 2
followed him to the kitchen. He asked him to go outside
in case there
was shooting and the baby got hurt. Both Lekay and Engelbrecht
testified that later when they encountered Accused
1 and 2 who had
been made to lie on the front lawn of the house, Accused 2 informed
them that he knew who the persons were that
had run away, naming,
J[...]. Accused 2 offered to go with Lekay and Engelbrecht in their
police vehicle to look for J[...], a
reference to Accused 3. Lekay
testified that in the car Accused 2 informed them that he did not
know what was going on in the house
as he himself had arrived there
just before the police. Whilst in the vehicle Lekay asked Accused 2
if he had any weapons on him,
searched him and discovered that the
light blue sweater he was wearing was wet. Accused 2 explained that
his sweater was wet because
of the lady in the bath. Lekay became
suspicious about Accused 2's involvement with the murder of the
deceased and returned with
him to the scene of the crime and arrested
him.
[15]
Upon re-entering the house after
arresting Accused 2, Lekay and Engelbrecht discovered Accused 3 in
the kitchen. At this stage various
other policemen had arrived at the
scene.
[16]
Vlotman
also testified that after the metro police arrived and he left the
bathroom he became aware of Accused 3's presence in the
house.
According to Vlotman when Accused 3 arrived his concern was about his
son. He had said, “My little boy, where is my
boy” and
“My boy must not testify”. The police looked for the boy
and found him under the couch in the front
room.
[
]     According to Vlotman the boy, about 5-6
years old was in pyjamas, recently bathed,
and was in a very bad
state. Vlotman did not allow the boy to be questioned as arrangements
would be made for the police psychologist
to attend to the boy. The
boy was later taken away. Vlotman also testified that Accused 3 made
some contact with his son, but the
boy did not really speak to him.
Vlotman denied in cross examination that upon hearing his father’s
voice the little boy
came out from under the couch and ran to him.
Vlotman said Accused number 3 told him that he had been taken to the
kitchen by the
“suspects and ordered to sit on the floor whilst
they took his wife away”. They had also taken his wallet.
Vlotman
testified that accused 3's demeanour was not that of a person
who was terribly shocked or showed great remorse at what had happened

to his wife. Vlotman testified also that after Accused 3 came to the
house he had still drank milk. He showed no empathy according
to
Vlotman. There was a time that he did cry but according to Vlotman he
never cried with feelings, more to show that he was crying.
Vlotman
testified he had come to the conclusion upon observing Accused 3 that
he had to know something about the murder, he was
guilty as well.
[17]
Vlotman
and Adams left the scene once photographs had been taken and the
fingerprint unit arrived. The dog unit was also brought
in to search
the premises, but found no trace of firearms. At the scene of the
crime Accused 1, 2, Ricardo Little and Nasreen Adams
were arrested on
the night of 9 November 2000 and taken to the Lansdowne police
station. Accused 3 was arrested the next day.
TESTIMONY OF
INVESTIGATING OFFICER FREDRICKS
[18]
From
the testimony of Inspector Fredericks, the investigating officer in
this case, and a member of the police force for twenty
years, the
following emerges:
[19]
Fredericks
arrived at the murder scene at 22h00 on 9 November 2000. He
encountered Accused 3 at the house and took a statement from
him,
being Exhibit “P”. He said accused 3 appeared to be
without emotion that night. The statement mentioned that Accused
3
had gone to the Shell Select Store nearby, that night but made no
mention of his meeting Little there.
[20]
On
the morning of 10 November 2000 Fredericks viewed the Shell Select
Store video of 9 November 2000, the previous night. He recognised

Accused 3 and Little in the shop making a purchase. He had obtained
the till slip for the purchase, Exhibit “Q”
which
indicated that a coke and cigarette had been purchased at 10:47.
On this aspect, Mr Richards, the owner of the
Shell Select Store  who  was called as a witness to prove
the video footage
and the till slip, testified that whilst the time
on the video camera could not be relied upon as accurate, the time
indicated
on the till slip he believed, was accurate. Fredericks
decided to arrest Accused 3 after seeing him with Little on the
video. Accused
3 told him upon his arrest that he had not been
involved in the murder, but that he had been framed by Fredericks
himself.
[21]
Fredericks
met Accused 1 and 2, Little and Nasreen Adams on the morning of
Friday 10 November 2000, the day after the murder. Accused
1 and 2
did not tell him that they had come to 1[…]
S[...]
K[...] Road to attend a party.
[22]
Frederick
testified that he found a few pieces of black insulation tape on the
ground at the entrance to the front bedroom as well
as on the floor
of the main bedroom. The tape looked like it had been wrapped around
something. A matching roll of insulation tape
was found on the seat
of the Red Escort.
THE THREE DIFFERENT
VERSIONS OF HOW THE DECEASED CAME TO BE MURDERED
As has been stated the
court was presented with three different versions.
THE VERSION AND
TESTIMONY OF RICARDO LITTLE
[23]
Ricardo
Little was warned by the Court in terms of
section 204
of the
Criminal Procedure Act 51 of 1977
that his evidence could incriminate
him and that if he gave his testimony frankly and honestly he could
be discharged from prosecution
of the offence.
[24]
Ricardo
Little aged 24 years testified that during November 2000, he worked
at Dialogue Communications, a call centre, with Accused
3, and one,
Trudy Noemda. He was approached at work by Accused 3 who asked Little
if he knew someone that would kill “a bitch
who had information
that could get him into serious trouble and in jail”.
Accused 3 said that he
was prepared to pay R20 000 to have this person killed. At first,
Little took this as a joke because his
impression from work was that
Accused 3 was a jocular person Little however said that he would get
back to Accused 3 and gave Accused
3 his home telephone number. That
same day their contracts at Dialogue Communications was terminated.
[25]
On
the evening of 9 November 2000, Little got a telephone call on a
friend’s cell phone from his mother. His mother informed
him
that Accused 3 had telephoned in connection with a job offer to work
at Accused 3's brother’s construction company. The
next morning
Little spoke to Accused 3 on the phone and asked him about this job.
Accused 3 told him that it was not about the
job he had phoned, but
about the killing.  Little again told Accused 3 that he would
get back to him. He realised that Accused
3 was serious about the
killing. Little testified that he had heard from an acquaintance
about a person known as “Green Eyes”
who had just come
out of jail and was looking for something to do for money. Little
decided to approach “Green Eyes”
on Accused 3's behalf,
which he did the next day, as unfolds in the following detailed
account of activities on 9 November 2000,
culminating with the murder
of the deceased.
[26]
Accused
1 and 2 live in the same road as Little, Baakens Road in Primrose
Park. Little and Accused 1 are neighbours and had been
friends for
about 3 years as at November 2000. Accused 2 and Little have known
each other for about 15 years and went to primary
school together.
They often spent time together and on 9 November 2000 they spent the
entire day in each other’s company.
The morning of November 9,
2000 commenced with Accused 1
coming o
Little’s house. Accused 1 and Little went to pay accounts in
Athlone and thereafter bought some beers. On returning
to Little’s
house they met Accused 2 and his girlfriend, Nasreen Adams, standing
outside the house. They asked them in and
the men started drinking.
They consumed about four 450ml bottles of beer. All four of them left
the house in Accused 1's
red Ford Escort, just before 13h00 and went
to Mongrel’s shebeen at Mannenberg. There they bought a crate
of 12 beers, also
the 450 ml size and  continued drinking at the
shebeen. At around 4pm Accused 1 said that he had to leave them to
fetch his
sister but that he would return later on. Accused  1
dropped them all off at a shop and there Little learned that “Green

Eyes” was at a shebeen across the street. Little went to the
shebeen and told “Green Eyes” about Accused
3's
plan and gave “Green Eyes” Accused  3's cell number.
According to Little “Green Eyes” telephoned
Accused 3 but
Little did not hear what was said. “Green Eyes” however
told Little after the telephone conversation
that he was not
interested in the job as “it does not sound right”.
[27]
Thereafter
Accused 1 fetched Little and the others in the red Ford Escort and
they all went to another shebeen, this time in Silvertown,
where they
bought a bottle of brandy and coke. It was now about 17h00. They
decided to go to Ackerman’s field, a municipal
sport’s
field in Athlone Industria, and spend the rest of the afternoon
drinking. They spent the next 3 to 4 hours parked
at Ackermans Field,
relaxing in each others company, the men sharing the alcohol, and
watching the sporting activities on the field.
At various times they
got in and out of the car. Nazreen was the only one that did not
drink and she appeared to spend a great
deal of time playing games on
Accused 2'cell phone. At some stage before 6 pm Little told accused 1
and 2 and Nasreen about Accused
3's request to pay R20 000 for a
killing, and Little suggested that the 3 of them (he, Accused 1 and
2) actually do the job
[2]
and
split the money equally amongst them. They all agreed to this plan.
Little asked Accused 2 if he could use his cell phone to
phone
Accused 3 but Accused 2 said he should wait until after 8pm before
phoning Accused 3 as the call would be cheaper at that
time.
[28]
At
20.01 15h00 as appears from Exhibit “F”, the cell phone
records of calls made to Accused 3"s cell phone, Little
phoned
Accused 3 and said he had found someone to do the killing. It was
agreed that they would go to No. 1
[…]
S
[…]
K[...] Road Rondebosch East, Accused 3's house at
about 21h00. Little testified that at that stage their plan was
simply to get
their hands on the money and not do the killing. They
reasoned that if they did this Accused 3 would not go to the police
because
how would he explain why they had gone off with his money. He
asked Accused 3 to give them half the money up front and said that

Accused 1 and 2 wanted to see the money,
but
Accused 3 had said he did not want to do this because people had run
away with his money before.  Accused 3 said
the money was
in Woodstock at a safe place and that they would receive it after the
job had been done. This was agreeable to them.
[29]
Thereafter
they left Ackerman’s Field. According to Little they were drunk
but Accused 1 was still capable of driving. They
went first to
Accused 2's house at Nasreen’s suggestion where Accused 2
collected a balaclava and a BB gun. They then proceeded
to 1
[…]
S
[…]
K[...] Road and got there at about 21h00. The
house was in darkness. From outside the house Little phoned Accused
3, to announce
their arrival, once again using Accused 2's cell
phone. The cell phone records indicate this call to have been made at
21.11.18h00.
As they were speaking Accused
3 came out of the house and told Little to meet him at the Shell
garage on the corner. They drove
to the  garage and parked
across the road.  Accused 3 arrived  and he and Little went
into the ‘Shell Select’
shop. Accused 3 bought a coke for
himself and a cigarette for Little. As mentioned already, the till
slip from the shop handed
in as “Exhibit “Q”
indicated the time of the purchase to be at approximately 21h47. As
also indicated a video
from the “Shell Select Shop” ,
Exhibit ”2" shows Accused 3 and Little purchasing these
items. In fact Little
testified that Accused 3 had told him to watch
out for cameras at the shop.
[30]
Little
and Accused 3 came out of the shop and walked towards the red Ford
Escort. Accused 1 and 2 got out of the car whilst Nasreen
remained in
the car. Little introduced Accused 1 and 2 to Accused 3 and told the
latter that these were the people who were going
to do the job. They
asked Accused 3 about the money and he assured them it was safe in
Woodstock. Accused 3 told them that he had
left the front door
unlocked so that they could gain access to the house. Accused 1 and 2
left for the house whilst Accused 3,
Little and Nasreen remained at
the car. It had been agreed that Accused 1 and 2 would do the
killing, whilst Little and Nasreen
would wait in the car for them.
Thereafter Accused 3 would take them to Woodstock where he would hand
over the money to them.
[31]
A
few minutes later Accused 1 and 2 returned to the car, upset
according to Little, because contrary to what Accused 3 had said,
the
front door of the house was locked. They reported that a lady had
answered the door and they had asked for directions. Accused
3 said
that he would go back to the house, Accused 1 and 2 should follow a
few minutes later and that he, Accused 3, would open
the door for
them.
[32]
Before
Accused 1 and 2 returned to the house Nasreen taped their palms and
fingertips with black insulation tape. Little and Nasreen
were left
behind waiting in the car.
[33]
After
a while Nasreen became anxious and asked Little to check what was
happening at the house. Little accordingly drove the car
to the
house. As they arrived there Little saw Accused 3 leaving the house,
speaking on his cell phone. Little flicked the car
lights at him but
Accused 3 looked at them, seemed a bit nervous and just went on.
Little tried catching up with him, but without
success. Little then
phoned Accused 3 twice on his cell phone but got the voice mail.
These calls appear to
have been made at 22 .07.45 h00 and 22 .09 from the cell phone
records, the aforementioned Exhibit ”F”.
[34]
Little
then decided to investigate what was happening in the house. The door
was slightly open, he pushed it further open. He saw
someone with a
balaclava. At first he did not recognise the person but when the
person spoke he recognised his voice as that of
Accused 2.
Little
told Accused 2 that Accused 3 had disappeared. Accused 2 told Little
to leave the house. Little could hear a baby crying
and running water
splashing from within the house. He thought that the killing was
taking place.
[35]
Little
went back to the car and waited for a while, the plan being that as
soon as Accused 1 and 2 emerged, they would flee the
scene.
He
became anxious as they were still not emerging so Little returned to
the house to call them. As Little approached the house the
police
pulled up in front of the house. The police asked him whether he had
made a phone call and Little indicated that he had
not. Half an hour
later Little was arrested and put in a police van with Accused 2.
[36]
Whilst
in the van Little and Accused 2 concocted a story for the police,
namely that Accused 3 had invited them to a party and when
they came
to the house, they had discovered the deceased in the bath. Little,
Accused 1 and 2 were locked up that night. Little
made a statement
before a magistrate the following day, 10 November 2000 at 2 pm.
Whilst he did not relate this version testified
before me, in its
entirety
to the magistrate, it is common
cause that he implicated both himself and Accused 3 in the murder of
the deceased in that statement.
Little and the other Accused applied
unsuccessfully for bail on 28 November 2000, bail being granted
subsequently only in July
2001. Just before his bail application
Little discovered from newspaper reports that it was in fact Accused
3's wife who had been
killed and there were children involved.
Thereafter, he said, he could not live with himself, and decided to
“come clean”.
THE EVIDENCE OF
RICARDO LITTLE’S MOTHER
[37]
The
evidence of Little’s mother corroborated Little’s
testimony about his being informed on 8 November 2000
telephonically by her that Accused 3, J[...], had
phoned about a job offer at his brother’s construction company.
Her testimony
also lends credence to Little’s evidence about
speaking to Accused3 on the phone on the morning of 9 November 2000
to enquire
about the job offer.
Mrs Little testified that
on 8 November 2000 she received a phone call at her home at about
16h00 from a J[...] who wanted to speak
to Ricardo, her son. She said
that Ricardo was not there and J[...] informed her that he worked
with Ricardo at Dialogue Communications.
J[...] said that he had a
job for Ricardo with his brother’s construction company.
Mrs. Little was very excited as Ricardo
had finished his job that day
and was without employment. She said she would give Ricardo the
message. J[...] informed her that
he was phoning from his
girlfriend’s house and asked that Ricardo call him on  his
cell phone. He gave her his cell
phone number which Mrs Little wrote
down on a scrap of paper, which subsequently became Exhibit “M”.
J[...] asked that
Ricardo contact him before 12 that night and
let him know if he was interested in the job. Mrs Little relayed
J[...]’s message
to her son later that evening by phoning him
on his friend’s Randal’s cell phone. Little told her that
he was interested
in the job.
[38]
After
Little’s arrest Mrs Little visited him at the police cells at
about 1 am on the morning of 10 November 2000.  Her
son had told
her J[...] had invited them to his house. He had also said, ”but
now J[...] is missing, he’s gone. Where
is J[...]?” At
that stage she had not realised that the murder had involved J[...].
Mrs Little informed the investigating
officer Inspector Fredericks at 2am that morning about J[...]’s
phone call to her about
the job offer for Little. Her son’s
enquiries about J[...] prompted her to phone Accused 3's cell phone
in the early hours
of the morning soon after her visit with Little
but his cell phone was off. She said she wanted to know how J[...]
was connected
to her son’s arrest. The following morning she
reached Accused 3 on his cell phone hoping that he would shed some
light on
events. She enquired if Accused 3 had spoken  to Little
the day before about the job. He said he had.
[39]
Then
Accused 3 told her there had been a tragedy, and his wife had just
been murdered. He told her two men had held him up. Mrs
Little was
shocked However she did say to Accused 3 that she did not know he had
a wife as he had told her the previous day that
he was phoning from
his girlfriend’s house. Accused 3 replied that he must have
been joking when he had mentioned a girlfriend.
Mrs Little testified also
that about a week before the murder she and her husband had fetched
Little from work and had in fact given
Accused 3 a lift on the
request of Ricardo. Accused 3 was not introduced to her on that
occasion and it was only after all these
events that she realised
that he was the person they had given a lift to.  Mrs. Little
impressed the court as an honest and
reliable witness.  Her
testimony was that of a concerned parent.
THE TESTIMONY AND
VERSION OF ACCUSED 1 AND 2
[40]
Accused 1 and 2 deny the version of Ricardo Little as set out above.
Their version, as appears more
fully below, very simply is that they
knew nothing about a planned killing whatsoever, and had no part in
the conspiracy or murder
as suggested by Little. On the evening of 9
November 2000 Little took them to 1[…]
S[...]
K[...] Road on the pretext that they were going to a party at his
friend, J[...]’s house. Upon entering the house in
search of a
party they discovered the deceased instead. Before they could leave
the house to get help, the police arrived, found
them at the scene
and arrested them.
[41]
For the sake of convenience I shall deal with the testimony of
Accused 1 and 2 together, indicating
those areas in which they
differ.
The following
biographical details emerged from their testimony.
Accused 1, Eugene Josephs
was born on 9 May 1975, and was just over 25 in November 2000.
He lives with his parents
and his sister. He left school in  standard nine at the age of
18. His last job before the events
of November 2000 was at Edgars in
the security and maintenance section.
On 9 November 2000, he
was unemployed having left Edgars. Since being released on bail he
has been employed at Bruce Dundas Construction
doing general
carpentry work. He also has a part time job as a waiter. Accused 1
and 2 are childhood friends and Accused 3 is unknown
to him. Accused
1 is unmarried and has no children.
[42]
Accused 2 is 24 years old and lives with his retired parents. He left
school in standard eight. He
is currently employed by a security
firm. His girlfriend Nasreen Adams is expecting their child in mid
March.
[43]
The testimony of Accused  1 and 2 of events on 9 November 2000,
when they were in Little’s
company coincides  with that of
Little until   20 01.15 h00, the time  Little made the
first phone call to
Accused 3 whilst the group was at Ackermansfield.
Contrary to Little’s testimony Accused 1 and 2 said they were
both outside
the car with Nasreen Adams talking to two friends,
Mogamat Tape and Ziyaad  when Little made the call to Accused 3.
They did
not hear Litlle’s conversation with Accused 3.
According to Accused 1, Little was sitting by himself in the driver’s

seat at the time as Accused 1 had prior thereto been sitting in the
front  passenger seat, securing the tape deck with black

insulation tape. It was only when they got back into the car that
Little told them he had phoned his friend who had invited them
all to
a party that night at 9 pm.
According to Accused 1
Little said the party was to be a  braai. According to Accused
2  it was not established
what kind of party it was, and he had
assumed it to be a birthday party. Only Accused 2 testified that
Little had made a second
call  to Accused 3 from Ackermansfield
about 30 minutes after the first call to ask if they could all go to
the party.
Accused 1 did not mention
a second call nor did Nazreen Adams (see below).
[44]  Like Little,
Accused 1 and 2 testified that from Ackermansfield they drove to
Accused 2's house. However their testimony
was that they went there
to fetch Nasreen’s jacket. They denied that a balaklava and BB
gun were fetched as testified by
Little. Accused 2 said that they
proceeded directly to S[...] K[...] Road thereafter, whilst Accused 1
was not sure whether they
returned first to Ackermansfield and then
to S[...] K[...] Road.
Like Little they said
Accused 3 had been phoned by Little when they reached his house which
was in darkness, and it was arranged
for Little to meet with him at
the Shell Select Store.
However both Accused 1
and 2  denied that they themselves had ever got out of the car
to meet with Accused 3 at any stage outside
the shop. Their testimony
was that Little had met with Accused 3 himself, gone into the shop
with him, where after Accused 3 had
left and Little returned to the
car alone.
Little
informed them that his friend, J[...] had said they should wait 10 to
15 minutes before coming to his house as there were
people who had to
leave before the party could start. They waited, in the car, pouring
another round of drinks, and after 10 to
15 minutes returned to 1[…]
S[...] K[...] Road, this time Little driving the
car. Accused 1 also said that whilst waiting he got into the
passenger seat and
continued fixing the tape deck, using pieces of
insulation tape, which he had removed from the roll and stuck to his
pants.
[45]
When they reached the house only Accused 1 and 2 alighted and went
in. Accused 1 explained that Little
did not accompany them into the
house as he had asked Little to reverse the car into the driveway,
and he had alighted to get
permission from J[...] to park
there. Later on however, under cross examination Accused 1 was vague
about this, and he testified
that it was Little’s idea that he
and Accused 2 go into the house on their own.  He also said his
car had a starter
problem and he did not want Little to switch it
off, as he would have to open the bonnet to restart it, something he
had done each
time the car had switched off that day.
Accused
2 seemed totally unaware of this reason for Little not alighting from
the car, or indeed of the starter problem which they
had on Accused
1's version experienced all that day. In contrast to Accused 1,
Accused 2 said there were no problems with the car
[3]
and
moreover that when they returned to the house, Little parked the car
diagonally opposite it and the engine was switched off.
Accused
2 assumed that all four of them would go in together but when Nasreen
and Little remained in the car, he assumed that Nasreen
was finishing
off a game on the cell phone, Little was waiting for her and they
would follow.
[46]
Accused 1 and 2 testified that they knocked on the door which was
very slightly ajar. When nobody answered
they entered cautiously,
calling out “Anybody home?” They could hear loud disco
music coming from the back of the house.
They could also hear a baby
crying. Accused 1 followed the direction of the music and went to the
kitchen and back door which he
discovered to be open but the security
door locked. Accused 2 on the other hand went straight into the
bedroom where the baby was
crying. He shook the bed to pacify it, put
the dummy in the baby’s mouth and picked up the baby, who
stopped crying. Accused
1 testified that he had by this time come
back form the kitchen area and could see Accused 2 in the bedroom. He
could also see
the bathroom door which was slightly open. There was
water running out from under the door.  He said as there was
nobody in
the rest of the house and this was the only room left, he
went in, not knowing for sure at the time  what room that was.
[47]
He pushed the door open and he saw the person lying in the bath.
He could not remember if the
tap was running. His first instinct was
to help the person in the bath. He has some medical training which
included assisting drowning
victims, and a certificate in
firefighting. He did not know whether she was alive or dead. He tried
helping her out by pulling
her by her wrists but the person was heavy
and he himself fell into the bath head first. He testified in
reference to photograph
6 of exhibit “D” that his head
landed  in the space marked “X” on the photograph,
his feet were in
the air and that the top section of his body was on
the upper part of the deceased’s body. He struggled to pull
himself up,
bringing his feet to the area in which his head was and
standing up there in the space marked “X”. He called to
Accused
2 for assistance, as he was stumbling. Accused 2 came into
the bathroom carrying the baby. Accused 1 however got out of the bath

himself, although he said that Accused 2 helped by giving him his
right hand.
[   ]
Accused 2's account differs somewhat. He said that Accused 1 leaned
on his right shoulder
in getting out of the bath. In so doing Accused
1 had wet Accused 2's T- shirt, and this explains why he was wet.
Moreover contrary
to the testimony of Accused 1,Accused 2 testified
that Accused 1 was standing up in the space marked “Y”
on  photograph
6 of Exhibit “D” before getting out
of the bath. Unlike Accused 1,  Accused 2 said the tap was
running and that
he did not close it as he did not want to tamper
with the evidence.  Accused 2 also said he was in the bathroom
with the body
for just 1 minute.  Furthermore, contrary to the
testimony of Accused 1, Accused 2 said there was no water running
from under
the bathroom door.
[48]
Accused 2 said they should  leave everything, take the baby and
go and phone the police. Accused
1 could not remember if he had
closed the bathroom door.  Even at the stage when they left the
bathroom, Accused 1  said
he was not sure if the person in the
bath was dead or alive. He came out of  the bathroom and
proceeded to the doorway of
the children’s room.
Accused 2 was not with
him . It was whilst standing in this doorway that he was found by the
police. He denies that he was fumbling
on the floor when the
policeman found him as testified by the latter. He denies also that
he at any stage switched the lights off.
He testified that he was
spellbound and he simply pointed towards the bathroom when he saw the
police. He denied pointing in such
a way as to indicate firearms.
Accused 2 said that on leaving the bathroom he proceeded to the front
door with the baby, it swung
open and he was confronted by 3 police
officers who asked if he had made the call. He said “ there’s
people in the
house” referring to  Accused 1 and the body.
He denies saying there were people with firearms as testified to by
the
police.
[49]
Accused 1 denied that he had tried to run away as testified by the
police. His testimony about this
is that after he was put in the
police van, the crowd that had gathered outside tried to pull him
out  and assaulted him.
He had run to the police for protection
and he was then  put  in a police vehicle with Accused 2
and Little. Accused
1 also denied as stated by Little, that
they concocted the version about coming to a party, whilst in the
van. Accused 2
moreover denied that he had offered to assist the
police to search for J[...], insiting he had been ordered to go with
them.
THE TESTIMONY OF
NASREEN ADAMS
[50]
Nasreen Adams testified on behalf of Accused 1. Her  testimony
in Court was not entirely satisfactory,
in that she clearly went out
of her way to cast her boyfriend Accused 2 in a favourable light (and
he conceded to this), and changed
her testimony as she went
along to this end. Despite this, a part of her testimony was
corroborated and found to be satisfactory.
In addition to her
testimony in Court she made a statement, being Exhibit “R”
to the police on the night of 9 November
2000. Given the
predominantly biased nature of her testimony in Court, I accept the
veracity of the statement over that of her
oral testimony. I also
accept any oral testimony not contained in the statement only, in so
far as it is corroborated.
On the acceptance of a
portion of evidence only, in R v P (1957) SA (3) 444 at 450- 45 1H
(A) it was said: “Now, when oral
evidence is led to confirm the
evidence of an accomplice, that does not mean that a magistrate must
accept or reject this oral
evidence in toto.  He may accept a
portion of it and reject some other portion, and it cannot be said
that the portion he
rejects as not establishing certain facts, can be
relied upon as confirmatory evidence.
Like Accused 1 and 2 she
said during evidence in chief that Little was alone in the car when
he made the call to Accused 3 from
Ackermansfield, but she heard some
of the conversation.  She heard Little mention her name, and
that of Julian’s
(Accused 2) and Eugene’s (Accused
1)’, No. 12 of the address, but not the street name they were
going to, and he spoke
about a party.  However, when pressed
under cross examination, she said that all four of them (Little,
herself, Accused 1
and 2 ) were in the car when the call was made.
This is in corroboration with her statement to the police, Exhibit
”R”
which also states all of them were in the car when
that call was made.
[51]
About Accused 1 and 2 meeting with Accused 3 prior to the murder on
the night of 9 November 2000 she
testified as follows. In
corroboration with Little, she said that both Accused 1 and 2 had
got out of the car when Little
and the man he was with came out of
the Shell Select Store and spoke with them behind the car.  She
also said they  had
enquired whether the man was getting into
the car. Upon learning under cross examination that Accused 2 denied
that he ever spoke
to the man who went into the shop with Little, she
attempted to adjusted her testimony. However when pressed further
under cross
examination, she conceded that Accused 1,2,3 and Little
spoke to the man behind the car. this is also in corroboration of her
statement
which also states that Accused 1 and 2 got out of the car
and went to Little and the other person. The statement even refers to

an argument between Little and  Accused 1 during that encounter.
Although she did not identify Accused 3 as the man who had
been with
Little in the shop that night, her statement, states that Little was
outside the car talking to a well built light person.
This fits the
description of Accused 3. It is in any event common cause that
Accused 3 was the man with Little at the shop that
night.  Her
statement and corroboratory oral evidence of the meeting of Accused 3
with Little and the other two Accused stands
above her adjusted
testimony in Court.
[52]
Her testimony corroborated also that of Little and Accused 2 that the
car was parked opposite as opposed
to in the driveway of 1[…]
S[...] K[...] Road. Like Accused 2 she did not
back up  Accused 1's testimony that he had starter problems with
the car which
required the bonnet to be opened each time before
starting the car that day. Also  she had no knowledge of Accused
1 fixing
the tape deck with insulation tape at the garage as he had
testified.
[53]
Mogamat Tape Mustapha who was called to corroborate Accused 1's
testimony that he was not in the car
when Little made the call to
Accused 3 at 20.01.15 from Ackermansfield, was unable to do so. He
conceded  that he could have
left Ackemansfield before 20.00h00.
THE EVIDENCE OF THE
DECEASED’S MOTHER -W[...] S[...]
[54]
Mrs W[...]  S[...], the deceased’s mother testified for
the state and was able to shed some
light on the relationship between
her daughter and Accused 3. She impressed me as a truthful and
forthright witness. Mrs S[...]
portrayed the relationship between
Accused 3 and her daughter as a troubled one characterised by
constant struggle. From her testimony
the following emerged.
[55]
The deceased married Accused 3 in 1990  after she became
pregnant. At the time she was a first
year student at the University
of Cape Town and had to give up her studies on account of her
pregnancy. At the time of the deceased’s
death she had three
children, the youngest being a baby who was born approximately 6
weeks before the deceased was murdered.
[56]
Throughout the  marriage Accused 3 had long periods of
unemployment. He was unable to support
his family and  the
deceased’s parents had assisted them financially. The deceased
was however in fixed employment at
Alexander Forbes Pension Fund
Administrators where Mrs S[...] also worked. The deceased was the
main breadwinner. The deceased
and  Accused 3 had separated from
June 1998 until December 1999 during which time the deceased and her
children moved in with
her parents. For some of  this period,
Accused  3 had kept in touch with his family. They became
reconciled in December
1999 and rented the house at 1[…]
S[...] K[...]  Road.  Her daughter had
paid the rent of R2 200 per month. Her daughter was an intensely
private person
and Mrs S[...] had decided not to probe into the state
of her daughter’s marriage after the reconciliation.
[57]
Mrs S[...] testified that the deceased was planning to leave Accused
3 after the expiry of the lease
on the house at S[...] K[...] Road,
in December 2000, and had indicated to Mrs S[...] that she and the
children would be moving
into her parents home.
[58]
Mrs S[...] also said that after the murder, she had been shocked to
learn from her daughter’s
diaries how acutely unhappy she had
been. Nonetheless Mrs S[...] did not go out of her way to present
Accused 3 in a bad light.
She said he was a good father, and even
said she could not conceive of her daughter’s husband having
killed her.
Mrs. S[...] was an honest
and convincing witness.
[59]
The 3 children now live with Mrs S[...] and are supported by a life
policy of the  deceased. Mrs
S[...] said that Accused 3 does not
contribute to their financial support. She said also that after the
murder there had been a
court order preventing the child found under
the couch on that fateful night , from communicating with Accused 3.
Despite
this, there had been contact between them on one occasion.
[   ]
Details of the deceased’s policies were provided by Ms Burger,
the Director
of the Cape Town branch of  Alexander Forbes where
the deceased had worked.  According to her Accused 3 stood to
gain
R77 837.82, being 20% of each of her 3 policies, should the
trustees governing these  policies decide to award this sum to

him. The trustees of the policy were awaiting the outcome of Accused
3's trial before deciding whether he would gain therefrom.
In
addition a sum of R10 000 had already been paid out to Accused 3 from
the state Unemployment Insurance Fund.
The testimony of Trudy
Noemda
[60]
Trudy Noemda who had worked with Little and Accused 3 at Dialogue
Communications was called as a witness
by the Court because Little
testified that Accused 3 had made enquiries about him from Noemda
prior to approaching him about the
killing. Trudy Noemda was a
credible witness.
[61]
She corroborated Litlle’s testimony saying that Accused 3 had
questioned her about Little at
work. He had asked her where Little
lived, about his family and his social habits. She had thought these
questions strange and
when she asked Accused 3 why he was so
interested in Little he had not replied. Accused 3 had told her to
look out for Little,
saying that if Little did anything to her she
must tell him, as he had friends in high places and would sort Little
out. She had
asked Accused 3 what he meant by this to which the
latter replied that she should just trust him.
[   ]
She said the computer at work had listed employees phone numbers but
not their addresses.
The only way of establishing a person’s
address was to ask for it, thus suggesting that Little must have
asked Accused 3
for his home address. Accused 3 had not questioned
her about anyone else at work. When Little was absent from work
Accused 3 had
asked her to phone Little’s  mother to find
out when he was coming back to work, which she did. She testified
that the
period between 6 and 10 pm was a quiet time at work, and for
about 2 hours during this time they would just sit at their work
stations
and there was time to socialise.
[62]
She described Accused 3 as a jolly person and said he was friendly
with Little and had spoken to him
at work.  Accused 3 had told
her he lived in a big house in Rondebosch but did not say he was
married.
The testimony of
S[...] C[...]
[63]
The Court also called S[...] C[...], the son of Accused 3 and the
deceased as a witness. S[...] was
the child discovered by the police
hiding under the couch on the night of November 9, 2000 after the
murder had been committed.
He was six years old at the time.
[64]
Bearing in mind the cautionary rule applicable to the testimony of
children, and the tenor of his testimony,
I am of the view that his
evidence cannot be regarded as reliable and that he was not a helpful
witness. His tesimony gave the
impression that he had been schooled
by his father. [Mrs S[...], the deceased’s mother had testified
that although there
had been a court order prohibiting Accused 3 from
communicating with S[...], there had on one occasion been contact
between them
and thereafter the boy had spoken to her about
testifying in Court.] S[...] himself in his testimony referred to the
deceased’s
head being put in the bath by the two men who had
entered their house but said he had not seen this. His father had
told him about
this. He initially said that his parents and the men
were lying on the kitchen floor. Thereafter he said he had seen his
parents
lying on the kitchen floor and the men were holding them. He
also spoke about the men having guns. However it was simply not
possible
to establish from his evidence what he had seen and what his
father had told him.
The testimony of
Accused 3
[65]
The version of Accused 3 is that on the night of 9 November 2000
Accused 1 and 2 entered his home to
commit a burglary and held him
and his wife at gunpoint. He managed to escape and phoned the police.
By the time the police arrived
at the scene, his wife had been
murdered and her body was found in the bath. He denies being part of
any conspiracy with Ricardo
Little, Accused 1 and 2 to kill his
wife.  Accused 1 and 2 had come to burgle his house through
Ricardo Little who had worked
with Accused 3.
[66]
Accused 3 is 31 years old and lives in Bridgetown with his parents.
He and the deceased had  three
children currently, aged
10, 7 and 1,  who  live with the deceased parents.
He testified that he is
currently contracted to 2 organisations in a sales capacity. In his
spare time he repairs and upgrades computers.
[67]
He and the deceased had been  married for one month short of ten
years at the time of her death.
Contrary to the testimony of the
deceased’s mother he said that they  loved each other
although they had the usual ups
and downs. During 1998 they had
separated for 12 - 18 months as they were both under emotional and
financial pressure. He had
fully supported his wife’s
decision to move in with her parents. In contrast to the testimony of
the deceased’s mother,
Accused 3 testified that he had regular
contact with his family during the separation and supported them.
[   ]
They reconciled in December 1999 and rented 1[…] S[...]
K[...]  Road together
on a year’s lease. He disputed the
testimony of the deceased’s mother that her daughter had paid
the rental of R2200
per month. He said that he had initially paid the
rent but conceded that his wife had taken over the rental during the
latter part
of the year. He testified that at the end of the lease he
and his wife were planning to move in with her parents. He denied
that
his wife’s intention was to divorce him and move in with
her parents.  He also testified that the landlord had agreed
to
extend the lease. He moreover denied that his wife was desperately
unhappy with him as stated by her mother. He testified also
that the
diaries of the deceased recording her unhappiness which were
mentioned in Mrs S[...]’s testimony, referred to the
time
before their separation.
[68]
Accused 3 testified in chief that in November 2000 he had worked at
Dialogue Communications  for
10 to 12 working days with Little
and Trudy Noemda. Contrary to the evidence of Noemda, he said they
worked non stop having 5 minute
toilet or smoke breaks with no time
to socialise.  He did not get to know Little personally and
Little did not interest him.
In fact he referred to Little as a
person of lesser calibre. It was only in the last hour of the last
day that he gave Little his
cell phone number, saying Little was
welcome to call him to enquire about job possibilities. He also said
that virtually everybody
at the workplace was younger than him and
lived with their parents. It was exciting for them that he had his
own comfortable house
in Rondebosch.
His testimony about the
day of the murder is as follows:
[69]
On 9 November 2000 Accused 3 had an appointment with a new client,
Sean Oliver in Queens Road Woodstock.
He worked on his computer and
then forgot his cell phone on the desk at Oliver’s house. He
decided that he would return to
Sean’s house the following day
to collect his cell phone. He was therefore without his cell phone
all day and did not personally
receive any calls from Little. At
about 21.30 that evening Accused 3 was leaving his house to go to the
shop, when Sean Oliver
and his girlfriend, Lee Anne Johnson pulled up
to return his cell phone. Sean told him that Little had phoned 4
times, the last
time being 10 minutes before. Little phoned again in
the presence of Sean, and enquired about work. His speech was
slurred. Accused
3 became upset with Little, said he was busy with a
client and did not have time for him, and asked him to call at a
later date.
Oliver left after 15 minutes, giving Accused 3 a lift to
the Shell Select Store, and dropped him at the corner of Taronga Road
and Bridgeway.
[70]
Accused 3 was surprised to meet Little outside the Store. Little said
he was attending a party in the
area. According to Accused 3 he was
quite irritated by Little and had told him he had no work for him and
asked Little not to make
a nuisance of himself. Little “bugged”
him for a cigarette. Accused 3 went into the store with Little and
bought him
a cigarette and purchased a coke for his wife. The till
slip records this purchase at 21.47h00. A video camera recording of
the
Store depicts Little and accused 3 in the shop. According to
Accused 3 his irritation with Little is not apparent on the video as

he had completed being irritated with Little outside the store.
[71]
According to Accused 3 when he returned home from the shop the door
was latched. His wife informed
him that she had latched the door
because two strangers had come to the stoep and asked for
Malcolm and then left. He and
his wife had watched television, while
the children were sleeping in the main bedroom. Just before 10 pm
there was a knock
on the front door. They looked out through the
blinds and saw a man on the stoep. He asked where Alexander Road was.
He seemed
like a decent person. Accused 3's wife said that he should
open the door and give him directions.
[72]
Accused 3 opened the  door, and  he  recognised
Accused 1 holding a silver or chrome
pistol which he stuck  into
Accused 3's forehead. Accused 1 said , ‘hou net jou bek’.
A second person then appeared
whom he later recognised as Accused
2, wearing a balaclava which did not cover his entire face. Accused 2
had a black pistol.
Accused 1 and 2 had black insulation tape on
their fingers.  They forced Accused 3 and his wife at gun point
to the kitchen
and made them  lie down on the  floor, all
the time guns  pointed at them.  The gunmen  wanted to
know
who they were and seemed agitated . Accused 1 ordered the wife
to get up,  pulled the back of her night clothes, and marched

her to the front door. Accused 3 had a gun pointed at him. Accused 2
walked after them, keeping one eye on Accused 3 who
was still
sitting on the kitchen floor.
Accused I heard a scuffle
at the door . Accused 2 came in from the front door followed by
Accused 1 and the  wife. Accused
1 then smacked the wife and
they went into the bathroom. Accused  2 ordered Accused 3 to get
up, his left arm around his neck,
the gun against the side of his
head and marched him to the lounge. The blinds were opened, they
signalled to two people in a red
car parked opposite. The
people in the red car flickered back.
[73]
Accused 2 then forced Accused 3 at gun point into the bathroom where
Accused 1 was  holding his
wife by the hair over the bath and
fiddling  with the taps.  At that stage the baby cried.
Accused 2 became agitated
and said “Ek gaan die kind skiet”.
Accused 1 said, “ los daai gedagtes” at which point
Accused 1 and 2
became embroiled in an argument and it seemed as if
they were going to come to blows. Accused 3 pushed Accused 2 who
stumbled into
Accused 1 and they were thrown off balance. Accused 3
then made for the door and escaped.
[74]
Accused 3  said he was desperate and  had to abandon his
family to seek help. When he got
outside he observed  the red
car  parked about 40meters down the road. He  ran in the
opposite direction towards
C[...] Road, and phoned the police from
his cell phone.  Mr Royker who was outside his house in C[...]
Road, watering
his lawn took Accused 3  to the Landsdowne
Police Station where he was told the police had already gone to his
house.
[75]
Accused 3 stated that when he returned to his  house 5 minutes
after he had left it, he discovered
his wife had been murdered. He
also said his baby was outside with a neighbour and that his 6 year
old son  emerged from behind
the couch in the lounge and ran to
him. He denied that he had expressed concern that his son should not
testify. Instead he had
said the child should not be questioned in
the house, but taken to friends nearby. He also denied  as had
been stated by the
police that he was cold and expressed no emotion
at his wife’s death. Inspector Fredericks took a statement from
Accused
3 on his return to the house. Accused 3 complained that what
he had thought was going to be an informal chat turned out to be a

formal statement. He said the statement had not been read out to him.
He also said he was in such a state that he would have signed

anything. The statement, Exhibit “P” differs from Accused
3's testimony in Court in that it states Accused 3 walked
to the shop
as opposed to being dropped there by Oliver, and moreover makes no
mention of Oliver or of Accused 3's meeting with
Little at the shop.
[76]
Accused 3 testified that when he had escaped to seek help his wife
was clothed, alive  and the
house was in a tidy state. Five
minutes later upon his return she was bruised, drowned and the house
was in a shambolic state as
appears from the photographs before
court, being Exhibit “D”. These indicate especially at
photographs “D 11
and 12 “ the bedrooms to have been
ransacked with clothes all over the floor and in black bin bags.
[77]
Accused 3  testified that he did not have valuables in the
house, and said also that Accused 1
and 2 had not asked for money.
[78]
Further, he testified that he had no idea why Little would have
implicated him in a conspiracy to murder
the deceased.
[79]
Accused 3 also said  that he did not know about the deceased’s
Insurance policies
before her death which he understood to be
group life assurance policy which a lot of companies take out to
cover employees.
He conceded as per the testimony of Burger
that he had claimed  R10 000 U.I.F. benefits due to the deceased
in November 2000
because if it had not been claimed, it would have
lapsed.  He had spent two thirds of this amount on medical
expenses for
himself and the rest went towards his board and
lodgings. He has been seeing a psychologist since the event. He said
he had not
contributed any of this amount or any other sum towards
the maintenance of his children as his parents in law do not want
financial
assistance from him. He had found employment only 6 months
after his release on bail in April 2001.
ASSESSMENT OF THE
EVIDENCE
ASSESSMENT OF
TESTIMONY OF THE POLICE
All the policemen who
testified  impressed the Court as credible, honest and reliable
witnesses. With regard to the four policemen
who arrived first at the
scene of the crime, whilst there were a few discrepancies as between
their respective testimonies, and
as between oral evidence and
statements, these were not material and in fact of a kind to be
expected when different people recall
the same event after some time,
so much so that I have not even dwelt upon this. I am satisfied that
they corroborated one another
in all material  aspects They
basically told the same story.
ASSESSMENT OF THE
TESTIMONY OF THE ACCUSED
[80]
The onus of proof in a criminal case is proof beyond reasonable
doubt. “ In order to convict,
the evidence must establish the
guilt of the accused beyond reasonable doubt, which will be so only
if there is at the same
time no reasonable possibility that an
innocent explanation which has been put forward might be true. The
two are inseparable each
being the logical corollary of the other”
[4]
In
assessing the three versions and the evidence of Little, Accused 1,
Accused 2 and 3 in turn, I am required to consider if there
is a
reasonable possibility that their versions and evidence is
substantially true.
[5]
I
am bound to acquit any accused if there exists a reasonable
possibility that his version and evidence may be true
[6]
.
ASSESSMENT
OF THE TESTIMONY OF ACCUSED 1 AND 2
[81]
Whilst  Accused 1 and 2 give the same version about innocently
coming to a party and discovering
a dead body in the bath, there are
troubling discrepancies in the telling of the version by each of
them. They differ on whether
1 or 2 calls was made by Little to
Accused 3 from Ackermansfield and whether they returned to
Ackermansfield before setting off
for S[...] K[...]’s Road.
More significantly they differ as to whether there were car problems,
as to where the car came
to be parked outside Accused3's  house
and as to why Little did not go into the house. They differ also with
regard to details
in the bathroom as to whether the tap was running
or not, as to where Accused 1 stood in the bath (Acc1 says at area
“X”,
accused 2 Says At “Y”) and finally as to
how Accused 2 helped Accused 1 out of the bath, Accused 1 testifying
Accused
2 gave him his right hand, the latter saying he offered his
shoulder.
[82]
Perhaps more significant is the absence of an adequate explanation as
to why Little, the friend
of the host does not go into the
house and why Accused 2 leaves his girlfriend with Little whom he
knows she does not like, and
goes into the party without her. Nor
could they explain their strange conduct, save for conceding that
their conduct was indeed
strange, in remaining in the house when it
was abundantly clear that the party they had come to was not
happening.
Accused 2 admits to
entering a stranger’s bedroom with no thought as to its
possible occupants and picks up a baby, when he
is supposed to be
following the music coming from the back of the house. Likewise
Accused 1 enters a stranger’s bathroom
with no regard to
whether there is someone taking a bath, or in a state of undress.
[83]
Their conduct in the bathroom is completely at odds with Accused 1's
testimony that their intention
was to help the person in the bath
whom they thought might be alive. It could not be explained why the
plug was not pulled out,
why the head was not lifted so that the
person in the bath could breathe, why there was no attempt at
resuscitation, especially
in the light of Accused 1's “medical
training”, why both of them did not simply lift the person out
of the bath. Nor
could it be explained why, given the professed
intention to assist they abandoned the body, that too when they were
still not sure
if the person in the bath was dead! Then there is
Accused 1's description (much embellished upon)  as to how he
fell into
the bath and the acrobatic feat by which he extricated
himself therefrom, an account which defies reasonable explanation and
understanding.
[84]
When asked why if they were so eager to contact the police for help,
they did not immediately and in
great relief on seeing the police
tell them precisely what had happened, Accused 1's response was
simply, “I don’t
know, I cannot explain that.”
Likewise Accused 1 could not explain why, given his eagerness to
leave the house and get help,
he did not proceed to the front door on
leaving the bathroom, but proceeded to the children’s room
instead ,where he was
discovered in the doorway by the police. Nor
could he offer any explanation as to why the police would want to
fabricate evidence
that he was searching amongst the clothes on the
floor of the children’s room , or that they found a balaklava
and bomber
jacket on him.
[85]
Accused 1 and 2's version consists of a complete denial of any
conspiracy with Little and Accused Number
3 to kill. Consistent with
this version is their denial of any meeting by them with Accused 3
whatsoever on the evening of 9 November
2000. Their version permits
them only to concede that Little met Accused 3 in the shop that night
whilst they remained outside.
Against this is the testimony of
Little, that Accused 1 and 2 met Accused 3 outside the shop that
evening and discussed the killing
as well as the money. Little’s
evidence in this regard is corroborated by that of Nasreen Adams
both  in her testimony
before Court and in her statement to the
police,  Exhibit “R”., which I have accepted.
[86]
By reason of the afore going, regard bing had to the general quality
of their testimony, the inconsistencies
within the context of their
own version, the extent to which they contradicted each other, their
improbable, bizarre, somewhat
surreal  relating of the scene in
the house upon entering it ,  and the events which unfolded
thereafter, I am unable
to pronounce them credible, reliable and
indeed honest witnesses. The defects and  shortcomings in their
testimony prevent
me from doing so. In a word the truth has not been
told by them.
ASSESSMENT OF THE
TESTIMONY AND VERSION OF ACCUSED 3
[87]
Accused 3's evidence was unsatisfactory in a number of respects.
Firstly and crucially he was not an
honest witness and his testimony
lacked consistency even within the context of his own version. The
tenor of his evidence ranged
from lying  outright, to self
contradiction, to adapting his evidence to suit his version,
especially under XXD, to giving
vague and elusive answers. He simply
was not a credible witness. In addition he was beligerant and
excessively defensive under
cross examination. His lack of veracity
is evident from the following:
[88]
In his evidence in chief Accused 3 was adamant that he displayed
no interest in Little during
the time they both  worked at the
Dialogue call centre, thus lending support to his version that he
would not have approached
Little about the killing. When confronted
with evidence to the contrary by Noemda Accused 3 contradicted
himself under cross examination,
and admitted to enquiring about
Little from Noemda and even warning her about him. He also admitted
to asking Noemda to phone Little’s
mother to enquire why he was
not at work when Little was absent. Under cross examination Accused
3  also conceded that he
had got al lift from work with Little’s
parents. Trudy Noemda’s testimony on the interactions between
Accused 3 and
Little, is in contrast convincing, and  reliable
and must be accepted. Her evidence is moreover corroborated by that
of Little
who also testified that  Accused 3 had made enquiries
about him from Noemda.
[89]
Other aspects concerning Accused 3's  testimony about Little
were also contradictory and
did not  stand up well to
scrutiny.  Whilst in his evidence in chief he was at pains to
distance himself from Little
whom he perceived as a person of lesser
calibre, with whom he did not communicate, he nonetheless said he
offered to help Little
find a job. Under cross examination he could
not explain satisfactorily, why he would offer to assist Little in
this way, given
his low opinion of him. Nor could he satisfactorily
explain how Little knew his address or that his brother had a
construction
company. Accused 3 was also not able to satisfactorily
explain the coincidence of Little being in his area at the Shell
Select
Store on the evening of 9 November 2000 at precisely the same
time as him, in the absence of the conspiracy theory. His retort that

Little said he was attending a party in the area was unconvincing and
in my view a feeble attempt at trying to get out of a tricky

situation.
[90]
His denial that he had phoned Mrs Little on the evening of 8 November
2000 and discussed a job for
Little is unacceptable in the light of
Mrs Little’s evidence on this point corroborated both by Little
and Exhibit ”M”,
the scrap of paper upon which Mrs Little
wrote his phone number. His suggestion instead that Mrs Little was
lying about the phone
call to protect her son, is in the
circumstances ludicrous. The evidence of Mrs Little contrary to that
of Accused 3 stands.
[91]
His evidence on the burglary version was self contradictory. His
version as put to Little, and his
co accused was that Accused 1 and 2
had come to burgle his house that night because they had heard from
Little that he was a wealthy
person with a big house. Under cross
examination when pressed on this version, he contradicted himself
saying he had no idea why
the thugs had come to his house and then,
astonishingly, said that he was not in a position to say where his
counsel had got the
information that they had come to rob him, from.
Nor could he explain why, if Accused 1 and 2 had come to burgle, they
did not
run away immediately Accused 3, one of their victims made his
escape, probably to contact the police, but remained in the house.
He
further offered no explanation as to why his cell phone would have
been called from one of his attacker’s cell phone,
that of
Accused 2 at 22.07 and again at 22.09 after his escape.
[92]
Another anomaly in relation to his version about the burglary, is his
admission under cross examination
to having no valuables in his house
and therefore not being able to say why someone would chose to rob
his house.  His evidence
is that the intruders repeatedly
enquired what his and the deceased’s names were and he could
not explain why, if they were
there to rob them they did not ask for
money.  In response to  cross examination on this anomaly,
he changed his evidence
to give credence to the burglary, and for the
first time mentioned that the video recorder was stolen. Yet he is
unable to explain
why this had not been reported to the police.
[93]
He lied outright that the owner of the house, at S[...] K[...] Road,
rented by the deceased and him
had agreed to extend the lease upon
its termination in December 2000.This was proved to be an untruth
from a note to the contrary
signed by the landlord, handed in as an
exhibit by the state, another one of many troubling aspects of
Accused 3's testimony.
[94]
A further unsatisfactory aspect was his vague and evasive testimony
about his family life, marriage
and work record. He was at pains to
present a picture of a happy married life with normal ups and downs
and an image of himself
as a caring parent. In his anxiety to do so,
he portrayed a barely credible and unrealistic picture of domestic
harmony during
the troubled time when he was separated from the
deceased, and deftly suggested that his wife’s extreme
unhappiness as recorded
in her diaries related to the period before
this separation. This of course is in contrast to the more realistic
and credible testimony
of the deceased’s mother, about this
aspect. He was evasive about the reasons for his separation from his
wife,  mentioning
emotional and financial pressures in vague
terms.
[95]
Equally evasive was his testimony about his work record, not being
able to recall what employment he
had prior to 1998, and being unable
to explain precisely what was the work he did. His evidence on this
aspect ranged between declaring
himself self importantly to be some
kind of consultant who was at times between contracts, to someone
with bouts of unemployment
during which he could always work for his
brother’s construction company, to an unemployed husband whose
wife was the main
bread winner, accepting financial assistance from
his in laws.
[   ]
His  carefully crafted image of himself as a man of the world
with contacts who
gets around, with a happy and stable family life
living close to domestic bliss in the up market suburb of Rondebosch
East, could
not stand up to close scrutiny and I daresay crumbles
completely under the credible and qualitatively superior testimony of
Mrs
S[...]. His  denial that he was  in an unhappy marriage
from which he and the deceased could not become disengaged, and
that
his wife planned to leave him once again at the termination of the
lease in December 2000, cannot be accepted in the light
of Mrs
S[...]’s convincing testimony.
[96]
Another example of Accused 3 being unable to give satisfactory and
convincing explanations to difficulties
in his version is his
response to the discrepancies between his statement to the police and
his testimony in Court. He  was
unable to explain satisfactorily
why in his statement to Inspector Fredericks, Exhibit “P”
given on the night of the
murder, he omitted to mention crucially his
meeting with Little at the shop earlier that evening, or the fact
that Sean Oliver
gave him a lift to the shop. The statement indicates
that he walked there. In argument it was suggested that these
discrepancies
are reasonable, given the traumatic state Accused 3 was
in when the statement was taken that night immediately after the
murder.
In my view the trauma on its own  does not explain away
the omission from the statement of  the potentially damaging

encounter with Little. He further failed satisfactorily to explain
why his meeting with Oliver and Little in particular were not

reported to the investigating officer Fredericks, when he was
arrested on the day after the murder. Another discrepancy  is

that the e statement t refers only to a slight disagreement between
Accused 1 and 2 in the bathroom whilst Accused 3's evidence
in Court
was that Accused 1 and 2 were embroiled in an argument, it seemed
they were going to come to blows, and this gave Accused
3 the
opportunity to escape.    Accused 3 clearly
adjusted his evidence in order to overcome these discrepancies,
but
without success.  In the circumstances I accept the veracity of
the statement ,Exhibit “P” over Accused
3's testimony in
Court in so far as the two differ.
[97]
Then there is the crucial question of the whereabouts of Accused 3's
cell phone on 9 November 2000.
It was argued  that Accused 3 at
some stage became aware that the evidence of cell phone calls
received by him from Little
on 9 November 2000, would be harmful to
his version  and give credence to  Little’s version.
Consequently he fabricated
the evidence that his cell phone had been
in the possession of Sean Oliver for much of the day, to escape
implication in Little’s
conspiracy version. (This would
explain why Sean Oliver does not appear in the statement given to
Fredericks).
[98]
Lee Anne Johnson, (the girlfriend of Sean Oliver who was at Oliver’s
house when accused 3 allegedly
forgot his cell phone there, and with
whom together with Oliver the cell phone is alleged to have been all
day on 9 November 2000),
was called as a witness by Accused 3 to
corroborate his evidence that his cell phone had been left at the
house of Sean Oliver
on 9 November 2000.
[99]
The sole purpose of Lee Anne Johnson’s evidence was to
corroborate Accused 3's evidence that
he did not have his cell phone
that fateful day. This purpose  took on almost the magnitude of
a mission as her testimony
studiously mimicked with remarkable
accuracy that of Accused 3's on the leaving behind and return of the
cell phone to him by Lee
Anne and her boyfriend Sean.
[100]   Lee
Anne Johnson also displayed a  remarkable almost superhuman
memory for detail relating to  November
2000, and Accused 3's
cell phone, yet her short term memory was found to be lacking. An
example of modifying her evidence to support
Accused 3's version, is
her omission in her eagerness to dispense with the calls received
from Little, during evidence in
chief,( whilst the phone was in her
and her boyfriend’s possession, )to explain the longest call
received that day, being
of 433 seconds duration at 16 .51.29. Under
cross examination when asked to explain this call, she commits the
error of saying
that call too was from Little and explains its
duration by saying the phone was put on hold. This is an untruth. For
from the evidence
and cell phone records it is  common cause
that this particular call did not emanate from the cell phone number
Little had
access to, namely  the phone of Accused 2. On the
contrary this call emanated from another cell phone, the same cell
phone
number that called Accused 2's cell phone four times on that
very day between 12.49 and 14.10.
[101]   She
also untruthfully states that calls had come through on Accused 3's
cell phone prior to 2 pm, when  she
and Sean Oliver had
proceeded initially to Accused 3's house to return the cell phone to
him.  The cell phone records, Annexure
“F”
indicates that no calls were made to Accused 3's cell phone between
before 2pm that day whilst the cell phone
is alleged to have been in
the possession of Oliver and Johnson. From the records it is clear
that the first call during that time
was at 16.51.29. Her testimony
was unconvincing in the extreme.
[102]
It has been said by Professor Starkie,
[7]
a
renowned commentator on the law of evidence,
“
Where
several witnesses bear testimony to the same transaction, and concur
in their statement on a series of particular circumstances
and the
order in which they occurred,
such
coincidences
exclude all apprehension
of
mere chance and accident
,
and can be accounted for by
only one or
other of two suppositions
;
either
the testimony is true, or the coincidences are the result of concert
and conspiracy.
If therefore the
independency of the witnesses be proved and the supposition of
previous conspiracy be disproved or rendered highly
improbable, to
the same extent will the truth of their testimony be established.”
Applying this to the
over-rehearsed tenor of the testimony of Lee Anne Johnson, and the
arranging thereof to match Accused 3's version,
I am of the view that
her testimony was as a result of concert and conspiracy with Accused
3,something which was not disproved,
is not truthful and must be
rejected.
In addition to all of the
above there is also the intriguing chance encounter testified to by
Accused 3 which lead up to Lee Anne
Johnson coming to testify for
Accused 3. He said the met her quite by chance at Pick and Pay some
14 Months after the murder and
asked her if she would testify on his
behalf. Now, on his own admission at that time he did not know that
evidence pertaining to
cell phone calls received on his phone would
be relevant or that the whereabouts of his cell phone on 9 November
2000 would be
in issue. He said he only got knowledge of this after
the commencement of the trial.  Given that the only relevance of
Jophnson’s
testimony pertained to cell phone calls why
the need to ask her to testify at that time?  This account
too, must I beleive,
be fabricated.
[103]   A
careful  assessment of the content and quality of the testimony
of Accused  3, and  Lee Anne
Johnson about the cell phone
whereabouts, and the contrasting thereof with the testimony of
Little, leads I believe to the conclusion
that the evidence about the
cell phone being with Sean Oliver from the morning until 21.30 that
day, is fabricated and must be
rejected. This finding is fatal for
Accused 3 for it places the cell phone very firmly in his possession
for all of the day of
9 November 2000, and marks him as the recipient
of all calls, including those of Little and the inexplicable call
received at 16.51.29.
[105]   Then
there is the question of the mysterious call at 16.51.29 in relation
to the conspiracy theory of Little’s.
Despite the denial
of the conspiracy theory between himself Little and his co accused,
Accused no 3 is unable to explain why the
same person who called
Accused 2's phone four times that day, called him later that
afternoon. Accused 2 suggested the caller to
have been J[...]2
C[...], from the evidence of Little the call could have been made by
the infamous “Green Eyes “ around
that time. The identity
of the caller is unclear, but what is clear is  a link between a
third party and both Accused 3 and
Little  and company that day,
which, given the evidence, further corroborates Little’s hired
killer version.
[106]   A final
and fatal flaw in Accused 3's testimony is, I believe the 5 minute
time frame within which his version
asks, one accepts the undressing
of the deceased, her sexual assault, the filling of the bath,
drowning of the deceased and ransacking
of the house (as depicted in
the photographic exhibits),occurred. He was, not surprisingly, simply
unable to explain how it was
reasonably possibly true,  during
the 5 minute period in which he left the house and phoned the police
at 22.05, and his return,
Accused 1 and 2 could have undressed his
wife, filled the bath sexually assaulted her and ransacked the house.
[107]   I am
not satisfied that the truth has been told by Accused 3. His
testimony indicates that his version was concocted.
Assessment of the
Evidence and version of Ricardo Little
[108]
Little’s evidence is that of an accomplice, to which the
cautionary rule requiring one  to be astute
to the special
danger of convicting on the evidence of an accomplice, applies. The
rule has been aptly set out in
Sv
Hlapezulu
[8]
where
at 440E-Holmes JA stated “It is well settled that the testimony
of an accomplice requires particular scrutiny because
of the
cumulative effect of the following factors. First he is a self
confessed criminal. Second, various considerations may lead
him
falsely to implicate the accused, for example, a desire to shield a
culprit or, particularly where he has not been sentenced,
the hope of
clemency. Third, by reason of his inside knowledge, he has a
deceptive facility for convincing description - his only
fiction
being the substitution of the accused for the culprit.”
[109]
It has also  been said “
the
most satisfactory way of meeting the dangers of accomplice evidence,
is by corroboration implicating the accused, but it will
also be
reduced if , for instance the accused proves to be a lying witness or
if he does not give evidence to contradict or explain
that of the
accomplice or if he implicates , in addition to the accused, someone
near and dear to him and against whom he has no
ground for rancour
Even in the absence of such features a conviction will still be
possible if the merits of the accomplice as
a witness and the
demerits of the accused are beyond question”
[9]
.
In S v Francis
[10]
it
was held that it is not necessarily expected that the accomplice’s
evidence should be wholly consistent and wholly reliable
or even
wholly truthful; the ultimate test, after cautiously considering the
accomplice’s evidence, is whether the court
is satisfied beyond
reasonable doubt that in its essential features the story he tells is
a true one.
[110]   I set
out to assess  Little’s evidence in general and to
consider how it counters the dangers inherent
in the testimony of an
accomplice.  Regard being had to the general quality of Little’s
testimony, his consistency within
the context of his own version, his
candour, personal interest in the outcome of the matter, his
demeanour and crucially the extent
to which his testimony is
corroborated by others, I find Little to be a credible, reliable and
truthful witness.
[111]   In
addition to his own testimony, there is sufficient corroboration of
crucial aspects of Little’s version
to lend credence thereto.
To begin with his evidence that Accused 3 showed an interest in him
and  made enquiries about him
at work from Trudy Noemda, prior
to approaching him about the killing is corroborated by Trudy Noemda
and ironically even by Accused
3 in his eventual concession on this
point under cross examination. Then Little’s  testimony
that Accused  3 phoned
Little’s mother on the evening of 8
November 2000 purportedly to offer him a job is corroborated by the
evidence of Mrs Little
herself.
[112]   The
evidence pertaining to the crucial cell phone call made at 20.01 .15
to Accused 3 (setting up arrangements
for the killing on Little’s
version), is corroborated both in the oral testimony and statement,
Exhibit ”R”,
of Nasreen Adams and Little’s evidence
regarding cell phone calls generally, is satisfactorily backed up by
the cell phone
records. I accept Little’s evidence that he
spoke directly to Accused 3 on the occasion he phoned the latter’s
cell
phone at 20.01.15 from Ackermansfield, on 9 November 2000.
[113]   His
testimony about Accused 1, 2, 3 and himself meeting on that fateful
nght to discuss arrangements after
he and Accused 3 came out of
the shop is corroborated by the testimony of Nasreen Adams on this
aspect, as well as in  her
statement, Exhibit” R”
.
[114]   His
evidence about fetching a balaklava form Accused 2's house is
corroborated by that of the police as well as
the photograph of the
balaklava being Exhibit ”D”  As is his evidence that
Accused 1 and 2's fingers were taped
with black insulation tape,
given the testimony of Fredericks that black insulation tape matching
the roll in the car was found
in the house.
[115]   It was
suggested  that a credibility finding be made against Little
because  he testified to telling
the police when they
encountered him at Accused 3's house, that he was fetching a friend
there, whilst the testimony of the police
was that he was fetching
Julian. A discrepancy of this nature is of little consequence when
viewed against the backdrop of Little’s
corroborated evidence.
Issue was also taken with the fact that Little could not remember
some of the cell phone calls recorded
on Exhibit “F”.
Little, I believe ought to be commended for simply admitting he did
not know about these calls instead
of adjusting his evidence to
explain them. I do not agree with the further cause for credibility
findings against Little suggested,
namely the fact that Little’s
version excluded himself from the actual killing, and  Little’s
explanation on why
he came clean to the police. Little’s
evidence regarding this is acceptable, namely , that the plan was
that Little, being
slighter than Accused 1 and 2 would not engage in
the actual killing but would man the getaway car instead. Little’s
explanation
on why he came clean is also acceptable.
[116]
Little’s Testimony has, I believe satisfactorily met the
dangers inherent in accomplice evidence, referred
to above. There is
corroboration of his evidence which implicates the three accused
Little has also implicated two very close
friends in Accused 1 and 2
against whom he had no ground for rancour. The merits of Little as a
witness and the demerits of the
three accused are simply beyond
question. I am satisfied  that the account told by Little is in
its essentials true.
[117]   It was
argued by Counsel for Accused 1 that his version whilst strange, was
reasonably possibly true.  Counsel
for accused 2 and 3 also
argued that their versions were reasonably possibly true.  The
respective versions of Accused 1,
2 and 3, in my view may at best
only be probable, in the same way that anything may be probable ,
and  therefore cannot be
accepted. For, as was so aptly put by
Denning J, in the English case of Miller v Minister of Pensions
[1947] All ER 372
(King’s Bench) it was said at 373H by Denning
J: “Proof beyond reasonable doubt does not mean proof beyond a
shadow
of a doubt. The law would fail to protect the community if it
admitted fanciful possibilities to deflect the cause of justice. If

the evidence is so strong against a man as to leave only a remote
possibility in his favour, which can be dismissed with the sentence

“of course it is possible, but not in the least probable”,
the case is proved beyond reasonable doubt, but nothing
short of that
will suffice”.  This wisdom is particularly apt to the
present case. About the versions of Accused 1,
2 and 3 it can be said
, “Of course it is possible but not in the least probable”.
This is a standard well below that
of of “reasonably possibly
true”, the Accused are required to meet.
[118]
I was reminded also of the rules which govern the assessment of
circumstantial evidence in a criminal case, namely
(a) the inference
sought to be drawn must be consistent with all the proved facts, and
(b), the proved facts should be such that
they exclude every
reasonable inference from them save the one to be drawn
[11]
.
In applying these rules to the totality of the evidence  I am
satisfied that the  only inference to be drawn is that
Accused
1,2 and 3 conspired with a common purpose to  murder  the
deceased as a result whereof her murder was executed.
I am accordingly
satisfied that there is proof beyond reasonable doubt that Accused 1,
2 and 3 are guilty of the murder of the deceased
as charged.
[119]   On the
second count of indecent assault, the state submitted that there is
not a proper factual basis for a conviction
on sexual assault in
respect of Accused 3, as from the evidence one does not know if he
was present when the sexual assault occurred,
and consequently
whether there was a common purpose between him and Accused 1 and 2 to
commit that particular crime.
In respect of Accused 1
and 2 however, the state argued, that they effected the death of the
deceased and the indecent assault in
the bathroom in concert and with
a common purpose and should accordingly be found guilty on the second
count. There is merit in
this argument. It is common cause that
Accused 1 and 2 were in the bathroom with T[...] S[...], their wet
clothing also establishes
this. There is no evidence that either one
of them was not present when she was indecently assaulted before her
death. Nor indeed
that either one of them did not participate in the
indecent assault or attempted to prevent it. Accordingly I am
satisfied that
the only inference to be drawn is that Accused 1 and 2
indecently assaulted her with a common purpose. I am therefore
satisfied
that there is proof beyond reasonable doubt that Accused 1
and 2 are guilty of indecent assault as charged.
[120]   I am
satisfied that Ricardo Little Answered all questions put to him
frankly and honestly in terms of
Section 204
of the
Criminal
Procedure Act, No 51 of 1977
. He is accordingly in terms of the said
section discharged from prosecution with regard to the offences
specified in the charge
sheet and with regard to any offence in
respect of which a verdict of guilty would be competent upon a charge
relating to the offences
so specified.
Accused 1,  you
are found guilty as charged on:
Count 1,  Murder
Count 2,
Indecent Assault.
Accused
2,
you are found guilty as charged
on:
Count 1,  Murder.
Count 2,
Indecent Assault.
Accused 3, you have
been found guilty as charged on:
Count 1, Murder
MEER, A.J.
[1]
Riotous
Assemblies Act No 17 of 1956. Section 18 (2) (a) states: “ Any
person who conspires with any other person to aid
or procure the
commission of or to commit any offence, whether at common law or
against a statute or stautory regulation, shall
be guilty of an
offence and liable on conviction to the punishment to which a person
convicted of actually committing that offence
would be liable.”
[2]
Page
236 Record
[3]
In
response to questions from the courtYSM
[4]
S
v Van der Meyen 1999 (2) SA 79 (WLD)
[5]
Rv
M
1946 A D 370
at 373
[6]
S
v Kubeka 1982(1) SA 534(w) AT 537 F -G
[7]
Referred
to in an Article by H C Nicholas JA, entitled “CREDIBILITY OF
WITNESSES”, SALJ Vol 102 1985 at page 35
[8]
1965
(4) SA 439 (A)
[9]
LAWSA
Vol. 9 ( Reissue para 628)
[10]
1991
(1) SACR 198 (A)
[11]
LAWSA
(Vol 9) Reissue paragrph 643