S v Carlson and Another (SS70/99) [2000] ZAWCHC 4 (12 April 2000)

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[2000] ZAWCHC 4
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S v G.C and Another (SS70/99) [2000] ZAWCHC 4 (12 April 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
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NO
: SS70/99
DATE
:
12 APRIL 2000
In the matter between:
THE STATE
and
G[...]
C[...]
Accused 1
FAGHRIE
ABRAHAMS
Accused 2
JUDGMENT
IMMELMAN,
AJ
In this trial before me
and my two assessors, Mr B Martin and Mr M J Groenewald, the two
accused are prosecuted on the following
charges:
1. Murder of Ashraf
Maistry on 23 March 1998, at 3[...] F[...] Avenue, Kensington.
2. Robbery of the
following items in the ownership or lawful custody or control of
Ashraf Maistry; namely a Nokia cellular telephone;
a cellular
telephone charges; a black leather jacket; a black and green sweater;
two Panasonic car radio/tape players; two Seiko
wristwatches; cash in
the amount of approximately R600.
Both accused pleaded not
guilty to the charges. Pursuant to
Section 115
of the
Criminal
Procedure Act, No 51 of 1977
accused 1 presented a written
explanation of his plea, which was handed in as
Exhibit A
.
This is an 8 page document, the essence whereof is as follows:
1. That on Sunday 22
March 1998 accused 2, a friend of his, invited him to visit him at
his home in [...]
th
Avenue, Kensington on the following
day;
2. That on the morning of
the following day, that is Monday 23 March 1998, some time after his
arrival at the house of accused 2,
he was informed by accused 2 that
they were going to the house of the deceased, Ashraf Maistry, and
that the deceased was going
to give them a lift to Woodstock where
they were going to smoke Mandrax. Accused 2 also told him that the
deceased was able to
organise cell phones and he gave accused 2 the
sum of R300 with which to strike a deal with the deceased for the
purchase of a
cell phone for him.
3. That they arrived at
the deceased's home at 3[...] [...]th Avenue, Kensington, where
accused 1 knocked at the back door. After
a while it was opened by
the deceased and the two accused entered the house.
4. That accused 1 looked
at a cell phone which was attached to a charger on the kitchen
cupboard, he removed the phone and while
examining it took a few
steps towards the back door, not intending however to leave the room.
Suddenly however the deceased hit
him on the back of his head,
accused 1 then drew a small penknife from his right hand pocket,
opened it and without looking turned
around and at the same time he
stabbed at the deceased, a bigger person than he. He accidentally
stabbed him in the right side
of the neck. His intention was simply
to the defend himself against the attack and not to stab the deceased
in the neck, or to
do him serious injury. The penknife had a short
blade of only approximately five centimetres in length and because of
this he did
not believe that it could do serious injury to the
deceased.
5. That he then dropped
the knife on the kitchen floor and moved forward in an attempt to
assist the deceased who then pushed him
away.
6. That at that point his
co-accused, accused 2, took a sock containing a padlock and hit the
deceased several times over the head
with it. When he, accused 1,
asked accused 2 what he was doing he was told by accused 2 to keep
quiet.
7. That accused 2 then
told the deceased to open the safe, but the deceased replied that he
did not have the key. Holding the deceased
around the neck accused 2
then dragged him to the main bedroom.
8. That accused 2 briefly
left the deceased on the floor while he fetched a large kitchen
knife. Accused 2 then knelt over the deceased
and again requested him
to open the safe. He then repeatedly stabbed the deceased with the
knife.
9. That the deceased
managed to get to his feet and run into the adjoining bathroom and
managed partially to close the door thereof.
Part of his arm however
protruded into the room and accused 2 stabbed at this. In a bid to
assist the deceased accused 1 attempted
to push accused 2 away but
without success.
10. That accused 2
managed to get into the bathroom, stabbed the deceased in the back a
number of times and caught him by the neck.
He then cut the
deceased's throat with the knife and instructed accused 1 to do
likewise. Accused 1 refused to do this, left the
house by a sliding
door and stood alone outside.
11. That a short while
later accused 2 emerged from the house carrying a blue Karrimor bag.
He was angry with accused 1 for not
assisting and the two of them
argued. During the argument accused 2 stabbed him with the large
knife which went through his left
hand, while this knife was stuck in
his hand accused 2 produced the aforementioned penknife and stabbed
accused 1 with it in the
palm of his right hand.
12. That the two of them
returned to accused 2's house where they changed their clothes. They
agreed that if asked they would say
that they had been attacked by
the Junior Mafia gang. Later they met Sharief Abrahams and Mogamat
Cader who were on their way to
the house of Ruwaydah Sables in L[...]
Crescent, Kensington. The two accused decided to accompany them.
Accused 2 gave the Karrimor
bag to Sharief to carry.
13. That at Ruwaydah's
house they went into the bedroom of Ruwaydah's sister, Shanaaz, when
asked about the injuries to their hands
they replied that they had
been in a fight with the Junior Mafia. Accused 1 in fact had no idea
as to how accused 2 had sustained
the injury to his hand.
14. That inside the
bedroom of Shanaaz accused 2 directed Mogamat and Sharief to empty
the bag, which they did. The items therein
included a cell phone, two
car radio/tape players and a cell phone charger. Accused 2 had been
wearing a black leather jacket when
they left the deceased's house.
When they reached Ruwaydaha's house accused 2 had handed accused 1
the jacket to carry. Accused
1 also realised at Ruwaydah's house that
accused 2 had money in his possession.
15. That accused 2 asked
Ruwaydah to take the two accused to hospital. She agreed to do so
after accused 2 had given her money for
petrol. A[...] M[...]
accompanied them. On the way to Somerset Hospital accused 2 changed
his mind and instructed Ruwaydah to take
them to G[...] Street,
Woodstock, to the house of a friend. There accused 2's friend
doctored the hands of the two accused. They
then went to the house of
the ex-wife of accused 2 in Brooklyn in which accused 2 remained for
a short while.
16. That in returning to
Kensington accused 2 instructed Ruwaydah to stop near her house,
there he placed certain bloodstained material
in a drain. As Ruwaydah
pulled into the driveway of her home accused 1 left and parted
company with the rest of the group.
17. That accused 1 had
stabbed the deceased only once, and this in self-defence and he
played no active role in his killing, nor
did he remove items from
the deceased's home. It was never his intention that the deceased
should be killed or robbed.
18. That he was under the
influence of accused 2, a person older than he, and he feared that
accused 2 would harm him if he did
or said anything contrary to his
wishes.
At the commencement of
the hearing, and with the consent of both accused a street plan of
the Kensington area was handed in by the
State. This was
Exhibit
"N"
. Likewise at the commencement certain written
admissions were made by the two accused in terms of
Section 220
of
the
Criminal Procedure Act, No 51 of 1977
, and were handed in as
Exhibit C and D
respectively, these admissions were:
1. That the deceased was
at all times correctly identified as Ashraf Maistry, the person
mentioned in the indictment;
2. That the deceased
suffered no further injuries from the time he was found by his
mother, Aminah Maistry, until a post mortem
examination was carried
out on his body;
3. That on 23 March 1998
Dr Denise Lourens conducted a post mortem examination on the body of
the deceased.
4 That a set of
photographs, taken by police sergeant Clive Gareth Carstens on 23
March 1998 at 14:30 at 3[...] [...]th Avenue,
Kensington, correctly
reflect the deceased as found on the scene by Aminah Maistry and the
condition of the house at the time.
They key to the set of
photographs was also admitted as correct and by agreement the
photographs and the key thereto were to be
handed in as an exhibit,
which they were, being
Exhibit G
.
5) That a photograph
taken by Sgt Carstens on 23 September 1998 correctly reflects the
location in Kensington of 3[...] [...]th
Avenue Kensington, and
2[...] L[...] Crescent Kensington. The key to this photograph was
also admitted and by agreement the photograph
and key thereto were to
be handed in as an exhibit, which they were being
Exhibit H
.
It was further admitted
during the trial, on behalf of each of the two accused;
a) That the correct
analysis of the deceased blood indicated a concentration of 0.00
grams alcohol per 100ml blood, and by agreement
the report of this
analysis was to be handed in as an exhibit, which it was being
Exhibit F
.
b) That the telephone
service with code number 021 and telephone number 5[...] was at all
relevant times situated at 1[...] [...]th
Avenue Kensington.
c)
That a duplicate invoice from Telkom SA Limited regarding the said
telephone number - 5[...] - correctly reflects the telephone
calls
made from this telephone for the relevant period and by agreement
this invoice was to be handed in as an Exhibit, which it
was being
Exhibit G
.
The abovementioned
admissions are contained in written document, being
Exhibits L and
O
respectively. Further admissions were made on behalf of the two
accused during the presentation of the State case, so on behalf
of
accused 1 it was admitted that accused 2 placed certain bloody
material in the drain and that his, accused 1's blood, would
have
been on some of such material, so also by way of
Exhibit U
it
was admitted in writing on behalf of accused 2 that on 23 March 1998
he threw certain items in a drain near 2[...] L[...] Crescent,

Kensington, and that his blood was on some of these items.
The State also handed in,
as part of its case, with the consent of accused 1, a statement made
by him in terms of
Section 217
(1)(b) of the
Criminal Procedure Act,
No 51 of 1977
. This was
Exhibit J.
In essence accused 1 stated
therein as follows.
1. That on Monday 23
March 1998 he arrived at the house of accused 2, who was still
sleeping. After initially running an errand
for accused 2 to a nearby
shop accused 1 returned to accused 2's house to find accused 2
speaking on the telephone. Accused 2 thereafter
told him that he had
been speaking to one Ashraf.
2. That the two accused
then went to Ashraf's house where accused 2 spoke to him through the
toilet window. Accused 2 then told
accused 1 that they were going to
have a lekker day and a good time.
3. That Ashraf opened the
backdoor for them.
4. That he, accused 1,
had given accused 2 the sum of R300 to purchase a cell phone for him.
5. That Ashraf was busy
charging the phone and he, accused 1, walked out the back door with
the phone in his hand.
6. That Ashraf must have
concluded that he was stealing the phone because he struck accused 1
against the head from behind with
his fist.
7. That accused 1 took
out his knife and without meaning to do so, stabbed Ashraf once in
the neck. Accused 1 then panicked and
tried to stop the bleeding
caused by this stab wound.
8. That accused 1 then
saw accused 2 taking a sock with a padlock tied to it and repeatedly
hitting Ashraf over the head with it.
Accused 2 instructed accused 1
to be quiet.
9. That accused 2 then
pulled Ashraf into the bedroom, took a knife from the kitchen and
with hit slit Ashraf's throat. He then
directed accused 1 to take the
knife and to do likewise which accused 1 however refused to do.
10. That he, accused 1,
then told accused 2 that he was going to leave.
11. That accused 2 had a
backpack on his back.
12. That accused 2 pulled
Ashraf into the toilet and he, accused 1, heard water running there.
He left by the sliding door.
13. That accused 2 had
two knives with him, and with one knife stabbed accused 1 through the
left hand and swore at him, with the
knife stuck in accused 1's hand
accused 2 then stabbed at his face with the other knife, accused 1
blocked the blows with his right
hand, which however was cut in the
process.
14. That he, accused 1,
ran away and while running pulled the knife from his left hand and
threw it away and went to the house of
a friend, one Tittie.
15. That the persons at
this house refused to take him to hospital and that he went to his
girlfriend's school in Trafalgar to get
money for medical fees, but
did not get that far, as he was in too much pain and ended up in
Woodstock.
16. That in Main Road,
Woodstock, near Shoprite, he saw accused 2 in a car, that the car
stopped and accused 2 beckoned to him but
accused 1 did not go to
him.
17. That he went to
another friend who bandaged his hands and then went home via
Factreton where a nurse friend advised him to go
to hospital.
18. That a friend,
Shafiek, then took him to hospital and while there he was arrested by
the police.
This statement was made
at 3:15 pm on 25 March 1998, before Magistrate Mr P Engelbrecht.
By
consent of the two accused
Exhibit K
was handed in by the State, this is a rough sketch of the house of
the deceased.
The first witness called
by the State was Aminah Maistry, the stepmother of the deceased. His
evidence was as follows; on Monday
23 March 1998 Aminah left her
house at 3[...] [...]th Avenue, Kensington at 11:45 am. This is the
house marked A on the photograph,
Exhibit H. Before leaving the house
at 11:45 am she had spent most of the morning at the house with the
deceased. He was then 26
years of age, and a taxi driver by
occupation, operating with his father's taxi on the Maitland/Montague
Gardens Route. His usual
practice was to leave the house early in the
mornings, past six am, to conduct his taxi operation, and then to
return home at about
10am for breakfast.
For about two months
prior to 23 March 1998 accused 2 had been a guard on the deceased
taxi and was known to Aminah for about a
year and a month prior to
that date. He had in fact been inside her house on a number of
occasions. On leaving the house that Monday
she had locked the doors
and windows of the house, as well as the security gate, known as a
Trellidor, which was located in front
of the front door of the house.
When she left the deceased was in a bedroom of the house, located on
the right hand side of the
front door. The deceased had given her no
indication that he was expecting visitors. His HiAce minibus taxi was
parked in the driveway
outside the house on the right hand side. On
the other side of the road, opposite the house, was a shop. When
Aminah was in the
process of leaving the house she observed accused 2
and another male person, unknown to her, walking towards the shop.
Accused
2 at that point greeted her. She then drove from the house,
and as she came to a nearby stop street she saw accused 2 and his
companion
walking towards accused 2's house. That was the last she
saw of them.
She returned to her house
at some time close to 1.30 pm. At that stage she had with her her
four year old grandson. On her return
the Trellidor and front door
were locked. She opened them and she and her grandson entered the
house. On entering they noticed
blood on the passage walls and floor
and more blood in the main bedroom. They also heard water running in
the bathroom of the main
bedroom. On the floor of the bathroom, lying
face down, was the dead body of the deceased. The hand basin was
plugged and the tap
thereof was running and water was spilling over
the basin. There was blood all over the bathroom.
The photographs in
Exhibit G
graphically depict the condition of the various
rooms of the house as she found them on her return. Close to the back
door of the
house lay one of the pieces of wood of the backdoor
itself, according to Aminah it was prone to fall off on occasions
when the
back door was banged closed. Prior to her leaving the house
earlier that day this piece of wood was still attached to the back
door. On her return to the house she also observed blood in the
kitchen and in the back ironing room. None of the rooms had had
blood
in them when she had earlier left the house. In the main bedroom she
also found a chair which had been whole at the time
of her departure,
broken and lying in pieces. Also in the main bedroom she found the
wardrobe open. When she had earlier left the
house the wardrobe had
been closed. On the floor in front of the open wardrobe was a box
which had earlier been in the wardrobe
itself, inside the wardrobe
was a safe bolted to the wardrobe floor. She alone had kept the key
thereof. This was the safe in which
the takings from the taxi
business was kept. In the kitchen a drawer of one of the kitchen
cabinets was standing open, she had
left it closed when she had left
earlier that morning. A utility knife with a blade of about 15cm was
missing from this drawer.
The back door was slotted closed as she had
left earlier that day but a sliding door at the side of the house was
now open. According
to Aminah the deceased was a soft person who as
far as she was aware had not had any prior trouble with accused 2.
The deceased had a cell
phone and a charger for it, usually kept in the kitchen, and which in
fact were in the kitchen when she
left the house. These were missing
in Aminah's return. In addition two car radio/tape players belonging
to the deceased were missing.
These had been in the kitchen when she
had left the house earlier. Also missing from the house were the
deceased's black leather
jacket, a green and blue Hang Ten sweater,
and two watches. An amount of about R600 that the deceased had on him
was also missing.
Some time later Sgt
Bailey visited her and showed her certain items. From these she was
able to identify the black leather jacket
and Hang Ten sweater as
belonging to the deceased. Nothing else was however recovered.
Specifically with regard to the watches
she was unable to explain
adequately why they were not kept in the safe, and more importantly
why they were not on a list of stolen
items which she had provided to
the police in September 1998. With regard to the cash it became clear
under cross-examination that
her evidence as to the possession by the
deceased of any sum more than R400 which she had earlier given him
was based purely on
assumption. In view of these factors it cannot
reliably be accepted that the theft of the watches had taken place,
or of cash more
than the sum of R400.
According to Aminah the
deceased had not received a telephone call that morning prior to her
leaving the house at 11:45 am. She
did however indicate that she had
also been absent from the house previously that morning. This was at
about 10:00 am at which
time the deceased was not yet home. She had
returned home at about 10:15 am at which time the deceased had
already returned home.
The deceased, according to Aminah, was broader
and taller than accused 2.
Dr Denise Lourens, a
highly qualified forensic pathologist, was called by the State and
presented the Court with her findings with
respect to a post mortem
examination which she conducted on 23 March 1998 on the body of the
deceased, which was according to her
1.72 metres in length and had a
mass of 87 kilograms. Her findings are contained in her post mortem
report which is in the form
of an affidavit,
Exhibit E1
, and
in an ancillary letter dated 26 January 1999,
Exhibit E2
.
In essence what Dr
Lourens found was as follows:
1) There were two wounds
in the deceased's head, both with sharp delineated edges, with sharp
ends. One of these was on the right
frontal region of the head, being
25mm and one in the left temporal region, being 35mm. Tissue bridges
were present in the opening
of these wounds.  These wounds
are  compatible with lacerations, that is wounds sustained
through the application
of blunt force, such as a solid object placed
in a sock. Moderate force would have been required to cause these
wounds.
2) In the area of the
deceased's chin and neck were five incised wounds, namely (a) one
superficial incised wound measuring 30mm
in its length; (b) one
deeper incised wound that involved the underlying soft tissues and
fat 130mm; (c) one very superficial incised
wound measuring 10mm in
its length; (d) one deep penetrating incised wound that involves the
underlying soft tissues, muscles as
well as the base of the tongue;
(e) one very deep incised wound involving the skin, the muscles of
the neck being perforated, the
left common curative artery as well as
the left internal jugular vein being perforated, the right common
curative artery being
perforated, the body of the thyroid cartilage
being perforated. This wound track stretches up to the bodies of the
cervical vertebrae
without any penetration. The last mentioned wound
being a slit across the deceased throat involved three large blood
vessels. There
would have been profuse bleeding from this wound and
it is this wound which was the cause of death.
3. On the deceased left
hand were multiple incised wounds of the palma aspect, included in
these were four incised wounds of the
palm, one of the thumb, two of
the index finger and three of the middle finger. Dr Lourens describes
these as defence wounds, probably
resulting from attempts by the
deceased to grab the knife with which he was being attacked.
4. On the palma aspect of
the deceased's right hand were three penetrating incise wounds. One
of these, 40mm, was at the base of
the thumb and involved the
underlying soft tissues, muscles and tendons. The two others, also
involving the thumb, were 10mm and
20mm respectively. She describes
these also as defence wounds.
5. On the front of the
right wrist of the deceased was a 40mm superficial incise wound.
6. On the distal aspect
of the deceased's right forearm, overlying the radius, was a
penetrating incise wound of 10mm.
7. On the right forearm,
overlying the ulna was a 17mm penetrating incise wound
8) On the right side of
the neck was a 10mm penetrating incise wound which involved the
underlying soft tissues and muscles, but
no major blood vessels. This
wound was not fatal and not lethal but nevertheless compatible with a
wound intended to kill the deceased
but which fortuitously turned out
to be non-fatal. It could quite easily however have been fatal had
its angle and direction been
anterior, in which case it would have
penetrated a major blood vessel.
9. On the right side of
the deceased's face between the eye and the ear was a 15mm
superficial incised wound.
10. On the left cheek
just in front of the left ear was a 40mm superficial incised wound.
11. On the left side of
the chest, just below the clavicle was a 20mm superficial incised
wound.
12. A penetrating incised
wound of the left side of the chest, this wound measured 100mm
inferior of the jugular notch and 70mm
to the left of the midline.
This wound had a sharply delineated edge with two sharp ends. An
additional wound was also present.
This wound measured 20mm in its
length. From this wound leads a wound tract which stretches towards
the posterior aspect of the
body. This track involves the skin, the
muscles of the anterior chest wall being perforated, the muscles of
the third intercostals
space being perforated, the superior aspect of
the lower lobe of the left lung being penetrated, and the wound track
ending there.
13. On the dorsal aspect
of the right hand was a 10mm superficial incised wound.
14. On the superior
aspect of the right shoulder were two superficial incised wounds, one
45mm and the other 25mm.
15. On the posterior
aspect of the right shoulder were two penetrating incised wounds, one
10mm and the other 30mm.
16. On the posterior
aspect of the neck were two penetrating incised wounds, one 12mm and
the other 1 5mm.
17. On the posterior
aspect of the left shoulder were four penetrating incised wounds
measuring 20mm, 30mm, 20mm and 23mm respectively.
18. No skull fractures
were present.
19. In respect of the
intracranial contents no extradural or subdural haemorrhages were
present, but a layer of sub-arachnoid haemorrhage
was present over
both hemispheres. No penetrating or perforating wounds were present.
Dr Lourens gives the
mechanism of death as blood loss and the cause of death as a
penetrating incised wound of the neck, namely
the slit across the
deceased's throat referred to above. Overall, according to Dr
Lourens, there were signs of the application
of blunt and sharp force
to the body of the deceased. It was however impossible to say how
many knives had caused the incised wounds
or the length of their
blades. Dr Lourens also took a specimen of the deceased blood for
alcohol analysis and for blood grouping.
This she handed to Inspector
Canary. As three major blood vessels were involved, which supply
oxygen and blood to the brain the
deceased would, according to Dr
Lourens, have lapsed into unconsciousness soon after the infliction
of the fatal wound and died
within minutes thereafter.
From the evidence of the
finding by Aminah of the body of the deceased at her home at 3[...],
[...]th Avenue Kensington, and of
the examination of the body by Dr
Lourens, the evidence of the next witnesses called by the State
shifted to events at a house
at 2[...] L[...] Crescent, Kensington.
This is the home of Ruwaydah Sabels, known as Tittie, and her
parents. Ruwaydah's evidence
was as follows: she is 20 years old and
knows accused 1. They used to do sports together at school. She also
knows accused 2 well,
as her sister, Shanaaz, was dating accused 2's
cousin, Sharief.
According to Ruwaydah she
and the two accused were still friends and no ill feeling existed
between them. On Monday 23 March 1998
she was watching television in
her mother's bedroom, which is the first room of her house from the
front door, when she heard a
knock at the front door. She did not
herself answer the knock, but heard accused 2's voice asking if she,
Tittie, was there. She
then heard people coming inside the house.
After a few minutes she went to the room of her sister Shanaaz. There
she saw the two
accused as well as Sharief Abrahams and Mogamat
Cader. Her sister, Shanaaz, and her A[...] M[...] were also in the
room.
She did not take particular note of what each of these
persons was doing, and was not in the room throughout.
She testifies that she
saw a blue Karrimor bag on the floor of the room. According to her
accused 2 asked Sharief to help him take
out the contents of this
bag. She recalls that two car radio tape players, one with a
detachable face and one an ordinary car radio
player, as well as a
cell phone and a charger were removed from the bag by accused 2 and
Sharief. The cell phone was in a black
leather pouch and there was
wire hanging from the phone, which looked like charger cable. She
also later saw a white carrier bag
on the floor. In the white carrier
bag were clothes and there was blood on the carrier itself. Accused 2
removed from the carrier
bag a white sock which had blood on it and
wrapped it around his bleeding hand. When she first entered Shanaaz's
room Ruwaydah
noticed that the two accused had injuries. Accused 1
had cuts on both his hands and both his hands were bandaged. Accused
2 had
a cut on his right hand. He had a cloth around it. The bandages
all had blood on them.
She asked accused 2 what
had happened and he replied that he had had a fight and killed a man
at the Liesbeeck River near Brooklyn.
This conversation took place
prior to the clearing of the Karrimor bag. She saw the actual
injuries to their hands because they
removed the bandages at her
request and showed her their injuries. Accused 2 asked her to take
them to hospital. When accused 2
asked her this she suggested
Conradie Hospital but accused 2 rejected this and elected instead to
be taken to Somerset Hospital.
When the cell phone was removed from
the Karrimor bag accused 2 dialled a number on this phone. Sharief
then told him to remove
the SIM card from the phone, to deactivate
the phone. Accused 2 tried to do this but did not succeed because of
his injured hand.
Sharief also tried to do so but without success and
finally Mogamat was able to break the card.
Ruwaydah was still in
Shanaaz's room when accused 2 gave Sharief money. The money was made
up of notes but she was unaware of the
amount there of. Accused 2
asked Sharief to give him R40, being R20 for petrol and R20 for their
hospital. Ruwaydah did not take
as to whether A[...] was present in
the room when this was taking place, as she herself was in and out of
the room, nor was she
aware whether A[...] was in the room when
accused 2 requested Ruwaydah to take the two accused to hospital.
Ruwaydah, the two accused
and A[...] then entered Ruwaydah's car in order to drive to hospital.
As they were about to drive off
Ruwaydah's sister approached the car
and announced that her brother, Ashraf, had just phoned, and that
Ruwaydah was to pick him
up in Woodstock. The car was then driven
off. Ruwaydah was driving and in the front passenger seat was A[...].
Accused 1 sat on
the back seat behind A[...] and accused 2 on the
back seat behind Ruwaydah. Sharief and Mogamat were left behind at
the house.
The items removed from the bag at the house were also left
there.
The party in the car then
proceeded to Francis Street, Woodstock where Ruwaydah's brother was
waiting. On arriving there she spoke
to her brother through the open
driver's side window of the car, in the ensuing conversation she and
accused 2 told her brother
what had happened, namely that accused 2
had killed someone at Liesbeeck River. Her brother then responded by
asking how the accused
could have done something like that. Her
brother asked her to drop him off in Ardyle Street, Woodstock, which
she did. In the meantime
accused 2 had changed his mind about going
to hospital and directed Ruwaydah instead to the address of his
cousin, Shireen, in
G[...] Street, Woodstock in order there to have
treatment for his injuries. Ruwaydah drove to the address in G[...]
Street where
accused 2 initially left the car, knocked at the door
and entered his cousin's house. Thereafter accused 2 exited the house
and
called accused 1 to come in, accused 1 then accompanied him into
the house.  At a later stage Shireen herself came to the car
to
fetch Ruwaydah to help her bandage the wounds. While inside the house
Ruwaydah heard Shireen ask accused 2 what had happened
to which he
replied the Junior Mafia had stabbed him at Shoprite, Woodstock. This
was the first that she had mention being made
of the Junior Mafia and
represented the second story that she heard from accused 2 as to how
he had received his injuries. After
leaving Shireen's house they came
to the traffic lights at Koeberg Road, there accused 2 directed
Ruwaydah to turn left and to
drive to a certain peach coloured house
in Brooklyn. There accused 2 went into the house while the others in
the party remained
in the car. Accused 1 told Ruwaydah that this was
the house of accused 2's ex-wife, while he was in the house Ruwaydah
heard accused
2 speaking to someone in the kitchen of the house.
Accused 2 then returned to the car, carrying a pair of white jeans.
Accused
2 was wearing white tracksuit pants and a black and white
sweater. When he returned to the car there was a woman with him who
asked
accused 1 what had happened. Accused 1 explained that they were
stabbed by the Junior Mafia in Woodstock. This was however overheard

by the woman's daughter, who retorted that this was not the same
story that accused 2 had told them in the kitchen and that accused
2
was speaking nonsense to her mother. There was no reaction to this by
either of the two accused.
From the Brooklyn house
Ruwaydah drove back to her house in Kensington. As she took the turn
from 10th Avenue into L[...] Crescent
accused 2 directed her to stop
the car near the corner, where there was a drain. She stopped the car
there and threw the open door
of the car accused 2 deposited the sock
and bloody pieces of cloth which the accused had earlier had on their
hands.
From the drain Ruwaydah
drove to her home and parked in the driveway. She did not see accused
1 again after that. When she entered
the house she noticed that
Sharief and Mogamat and the Karrimor bag were not there, but the
white carrier bag was there as well
as the black leather jacket on
top of it. In the white carrier bag were bloody jeans, one black Levi
jeans and one brown Levi jeans,
and sweaters. Ruwaydah herself then
went back to the yard of the house, not taking particular note as to
where the others went.
While she was in the yard hanging out washing
accused 2 came to the yard and requested a scrubbing brush, according
to Ruwaydah
accused 2 had indicated that he wished to clean his
takkies. These were his takkies on which she had noted blood spots
and she
subsequently observed him scrubbing these takkies. After some
time Mogamat returned to the house and came to the yard. There he

told accused 2 that a story was circulating in Kensington to the
effect that accused 2 had been seen in 4th Avenue and that the
Junior
Mafia was after him. Accused 2 was concerned as to how it had come to
people's ears that he had been in 4th Avenue, he thereupon
asked
Mogamat to go to Sharief's house to fetch his All Star takkies.
Mogamat then left the yard to go inside Ruwaydah's house,
she states
that she did not see him again that afternoon.
According to Ruwaydah her
aunt, Laika, took her and A[...] that evening to the police station.
Later that night friends and relatives
of the deceased arrived at
Ruwaydah's house. There they asked her if she had been with accused
2, but being somewhat afraid and
not knowing what to say she replied
in the negative. The deceased family and friends then left. Ruwaydah
told her father what had
transpired and he went outside to call back
the deceased's family and friends. They had driven away but turned
around and returned
to the house. They then told Ruwaydah that
something was wrong and that they believed that A[...] and Ruwaydah
had not been truthful
with them. According to Ruwaydah she and A[...]
then told them everything that had happening, thereafter Sgt Bailey
was phoned
to come to the house.
With regard to the car
trip Ruwaydah testified that there was a conversation in the car
while she was driving, but she could not
testify as to what the
accused and A[...] were talking about as her concentration was on the
road. Ruwaydah agreed that in relation
to the events described by her
accused 2 did all the talking. She admitted that she had made two
statements to the police, one
on 23 March 1998, at about 7:00pm,
which she had signed, being
Exhibit S
, and then another on 24
March 1998, at 4:00pm,
Exhibit T
, which she had also signed.
She readily conceded that the first statement was partially
incorrect. This she in fact acknowledged
in the second statement. The
second statement was however, according to her, correct.
According to Ruwaydah the
clothes and takkies referred to by her were given over to Sgt Bailey.
One of the friends of the deceased
who came calling at Ruwaydah's
house on the night in question was Mogamat Fadiel Waggie, a taxi
operator, who was also called as
a State witness. The deceased was
known to him, more particularly has he had engaged the services of
the deceased in the past under
sub-contract to assist him in the
conveyance in the evenings of staff of Pick 'n Pay Tableview. He knew
the deceased's telephone
number which he gave as 5[...], according to
him the deceased had a Nokia cell phone, model no 2110, with cell
number 0[...].
On 24 March 1998 in the
afternoon Waggie had received the news of the passing away of the
deceased. Information had come to his
knowledge through the ex-wife
of accused 2 that accused 1 and 2 had been seen being driven by two
girls in a white car, and it
was only that night that the identity of
the two girls was ascertained by him. He, together with a group of
men, which included
the deceased's uncle, made their way at about
1.00 am, that same night, to the house at 2[...] L[...] Crescent,
Kensington, the
address of the two girls. The purpose of the visit
was to discover the reason for their transportation of the two
accused. At this
address he spoke to A[...] M[...], who appeared to
be extremely nervous. During discussion with her she mentioned that
accused
2 had deposited in a drain opposite the house a white sock
which had blood on it. She accompanied him to the drain where he saw,

and from which he recovered the sock and a piece of cloth. He placed
these in a plastic bag. On their return from the drain A[...]
took
him to the yard of her house where she showed him a pair of takkies
lying in Jik water. She told him that they had been worn
by accused
2. These were also placed in a plastic bag. They then went into the
kitchen w here she showed him two pairs of jeans,
being a pair of
black Levi jeans and a pair of brown Levi jeans. These had apparently
been washed and were still damp. She then
took him into the bathroom
where in the ceiling, accessed by a trap door, he found a bag of
clothing which he retrieved. The bag
was a white carrier bag and he
could see blood on the plastic inside the bag.
The police were then
phoned, Sgt Bailey arrived and took possession of the various items
referred to. The witness indicated that
he knew accused 2, as the
latter had been working on their rank as a taxi guard. He also knew
accused 2 from the Kensington area
where he, the witness, had resided
for some time. According to the witness accused 2 had worked on the
deceased taxi, he was not
however working with the deceased at the
time of the latter's death.
According
to the witness the group of the deceased's family and friends made
two visits that night to the house at 2
[...]
L[...] Crescent, Kensington. On the occasion of the first visit they
obtained no information and they left, but in the process
of leaving
they decided to turn back as the girls at the house had appeared to
be very nervous, especially A[...]. It was on the
second visit that
A[...] began go volunteer information. Accused 1 was not known to the
witness and he had seen him for the first
time in this Court during
the trial. According to the witness the deceased also had a small
flat Eriksson cell phone.
Ruwaydah's
evidence in its basic features was supported by the evidence of
A[...] M[...], aged 15 at the time of the incident, who
was also
called by the State to testify. She knew accused 1 as Mol, and
accused 2 as Faghrie. Her evidence was as follows; on Monday
23 March
1998 A[...] was at Ruwaydah's house at 2
[...]
L[...] Crescent, she was watching television together with Ruwaydah's
two children, Ruwaydah's sister, Shanaaz, and younger
brother in the
bedroom of Ruwaydah's mother, where the latter was sleeping. At about
2:00 pm she answered a knock at the front
door. On opening the door
she saw the two accused together with Sharief and Mogamat. This group
then entered the house and went
into the bedroom with Ruwaydah's
sister, Shanaaz. A[...] followed and there on the floor she saw a
navy blue Karrimor bag.
It was put to her in
cross-examination that in her statement to the police she had said
that Mogamat and Sharief had each been carrying
a Karrimor bag but
apart from conceding that it was a possibility that these two had
each carried such a bag, she could not remember
this. She heard
accused 2 tell Sharief to empty the bag of its contents, which
Sharief then did. She observed him removing bloody
clothes as well as
a black leather jacket, and two car radio tape players, a cell phone
and something which looked like a cell
phone charger.  One of
the car radio tape players had a removable face, and the other was
standard. Accused 2 then instructed
Sharief to destroy the sim card
of the phone, which Sharief unsuccessfully tried to do. The cell
phone fell to the floor and came
apart. Accused 2 then directed
Mogamat to destroy the SIM card, which Mogamat then broke into
pieces. Although it was her evidence
in chief that it was Sharief
that accused 2 had instructed to empty the contents out of the bag it
appeared under cross-examination
that she could not really recall
with certainty that it was Sharief who had been told to do so. She
ascribed this also to nervousness
on her part. She also conceded
under cross-examination that it was possible that the black leather
jacket did not come out of the
bag and that accused 1 had carried it
with him into the house.
According to A[...] she
noticed in the bedroom that one hand of accused 1 was cut as were
both hands of accused 2, but she conceded
under cross-examination
that she was really unsure which was which. According to her the cut
hands were bleeding. Accused 2 was
wearing white pants and a black
and white striped sweater and she thought that accused 1 wore navy
blue pants, although she was
not sure of this. When the two accused
entered the house they had material on their hands. She asked them
about this and one of
them replied that they had been in a fight with
the Junior Mafia gang. She was unable to recall which of the accused
it was that
said so. No elaboration or detail was given by the
accused of this fight. A[...] however did not believe this and told
accused
1 that it was a lie. Her reason was that their wounds were
incongruous with a gang fight. Accused 2 did not make any comment on

her statement, and she could not remember if accused 1 did so. She
recalls that at some stage Ruwaydah had come into Shanaaz's
room,
this was shortly after A[...] had gone in there. The bloody clothes
removed from the Karrimor bag were in a white carrier
bag and
included a pair of black Levi jeans and a pair of brown Levi jeans
and at least one sweater.
According to her she used
to see accused 1 on a daily basis, wearing these brown jeans. The
black jeans which were fairly new belonged,
according to her, to
accused 2. This was however an assumption she made because she knew
accused 2 liked wearing new clothes. Accused
2 was also wearing a
pair of bloody takkies. Also in the Karrimor bag was a pair of bloody
socks as well as a clean sock with fresh
blood on it, which she
described as having the appearance of blood clots. Inside the sock
was a big bronze padlock which was removed
from the sock. With
reference to this sock she heard accused 2 remarking to accused 1
"onthou jy my broer ek het hom oor die
kop geslaan met die
ding", no details of this assault were given. Accused 1 gave no
reply to this statement.
At a stage when she was
in Shanaaz's room accused 2 asked Ruwaydah to take them to hospital.
Ruwaydah suggested Conradie Hospital,
which was the nearest hospital
to them, but accused 2 rejected this. Somerset and Groote Schuur
Hospitals were also mentioned,
but accused 1 rejected Groote Schuur
Hospital saying "dat die boere (meaning the policemen) daar is
te lastig". Accused
2 then settled on Somerset Hospital. With
regard to paying Ruwaydah for the trip A[...] does recall accused 2
saying to Sharief
"waar is die kroon my broer", according
to her the word "kroon" means money. At this remark Sharief
took money
in the form of notes out of his pocket and gave some of
them to accused 2. Ruwaydah, A[...] and the two accused then went off
by
car to hospital, with Ruwaydah as the driver, the clothes were
left behind. A[...] cannot recall what happened to the car radio
tape
players. Sharief and Mogamat did not accompany them on the trip.
According to A[...] she sat on the passenger seat in the
front of the
car, but she could not really recall how the two accused were seated
in the car. Before they left however a telephone
request was received
for Ruwaydah to fetch her brother in Francis Street, Woodstock. When
they arrived at this location in Woodstock
and Ruwaydah's brother
heard that their mission was to go to the hospital he decided to get
off elsewhere in Woodstock, which is
what happened.
Accused 2 however decided
not to go hospital, but instead directed Ruwaydah to drive to the
house of his cousin in G[...] Street,
Woodstock, for treatment to be
obtained for the injured hands of the two accused. Once there accused
2 got out of the car and went
to find out if anyone was at home.
Someone opened the door of the house and after initially entering the
house accused 2 then returned
to the car to call accused 1. Both
accused 1 and 2 then went into the house. Afterwards Ruwaydah was
also called to come into the
house and A[...] was left alone in the
car. When the others in the group again emerged from the house about
ten minutes later A[...]
noticed that the hands of both accused were
bandaged. From this house they drove back towards Kensington, but
when they came to
the Koeberg Road traffic light intersection accused
2 directed them to the house of his ex-wife, Laika, in Brooklyn. On
arrival
there only accused 2 left the car and went into the house. He
later returned to the car, carrying a pair of white jeans in his
hand. Thereafter they drove back to Ruwaydah's house in Kensington.
Before they arrived there however accused 2 instructed Ruwaydah
to
stop the car at a drain in L[...] Crescent. Ruwaydah stopped the car
there whereupon accused 2 opened the door and threw the
bloody socks
and piece of cloth into the drain. This done they returned by car to
Ruwaydah's house. According to A[...] the clothes
and the Karrimor
bag were still there, although it became clear that she was uncertain
about the presence of the Karrimor bag.
Accused 2 then asked A[...]
to place the clothes in a white plastic bag, which she did. Then at
his request she passed the bag
up to accused 2 who opened the ceiling
trap door, climbed into the ceiling and inserted the bag therein.
Mogamat and Sharief were
no longer present at the house on their return. A[...] was under the
impression however that Mogamat had
returned later but was not
certain of this. She did however remember that accused 2, who had
been wearing bloodstained white takkies
had on his return to the
house thrown them into Jik water and scrubbed them. Later that night
a group of family members and friends
of the deceased arrived at
Ruwaydah's house. They were looking for the two accused and
approached A[...] who was in the dining
room. This was about 1.00 am
on 24 March 1998. A[...] was not however then aware of the
whereabouts of the two accused. According
to A[...] she and Ruwaydah
lied to this group and they then left. She gives as the reason that
she was scared and that the two
accused were her friends. The group
however returned later that morning to the house and insisted that
they be told the truth.
A[...] then decided to tell them the truth
and showed them where the clothes were secreted in the ceiling above
the toilet. A bag
of clothes was then retrieved from the ceiling by a
member of the group. A[...] also took the group to the drain where
the socks
and material were retrieved. Detective Sgt Bailey was then
phoned and he arrived at the house and took possession of the items
found.
A[...] recalled that in
Shanaaz's bedroom the two accused had mentioned that they had killed
am an in Brooklyn. She thought further
that in the car mention was
made by one of the accused that they had thrown the body into the
river in Brooklyn, no other details
were given. A[...] was unable to
recall however which of the two accused had mentioned this. She did
nevertheless recall that accused
1 mentioned to them that he had told
the man to take his last breath and that he then slit the man's
throat.
During cross-examination
in connection with the killing A[...] mentioned that she had heard
accused 2 saying that the man had made
off with his rocks, meaning
drugs. She conceded that she had not mentioned this in her evidence
in chief, or in any of her statements,
but explained that she had
only now recalled this. A[...] conceded the possibility that upon
their return from Brooklyn accused
1 had left and not again entered
Ruwaydah's house. According to her accused 2 had left the house later
that night after spotting
helicopters flying in the area. Earlier in
her cross-examination it was A[...]'s evidence that prior to her
dealing with the family
and friends of the deceased that night she
had not made a statement to the police. She later testified that
during the tea adjournment,
which followed this evidence she had
recalled that she and Ruwaydah had gone to the Kensington Police
Station at about 7.00 pm
that evening where they had made a
statement. She indicated however that this statement was partially
untrue. She gave as the reason
that she was afraid and did not want
to pimp the two accused.
Subsequent to the
departure of the group of family members and friends of the deceased
she had made a second statement. This was
to detective Sgt Bailey.
According to her she gave a third statement later on 14 January 1999
at Bishop Lavis. These statements
were respectively
Exhibits P, Q
and
R. According to A[...] accused 2 throughout appeared to be
the one of the two accused who was in control and who made the
decisions.
The State also called
Cornelius Peter Daniels, formerly a constable in the South African
Police Service. According to him consequent
upon a complaint received
he attended the house of the deceased at 3[...] [...]th Avenue
Kensington, there he was shown the body
of the deceased, lying in the
bathroom. The body was lying face down with the head towards the
bath, as indicated on photograph
G1. The body was barefoot and was
clothed in a pair of blue jeans and green shirt. The green shirt was
partially up. The bath itself
was full of water which had begun to
spill over the side. Without turning the body over but just lifting
it up slightly by the
shoulder the witness was able to see that the
deceased had a cut wound on his neck. The witness contacted the
ambulance service
as well as the Detective on duty, the ambulance
arrived and its personnel declared the deceased dead. In the kitchen
he found a
partially open cupboard drawer containing knives and forks
as indicated on photograph G18. The main bedroom, next to the
aforementioned
bathroom was in a state of disorder and there was
blood on the bed as well as a broken chair therein, as indicated on
photograph
G9. He found no other knives elsewhere in the house. He
remained at the house until the arrival there of Detective Sgt
Bailey.
Detective Sgt Gregory
Bailey, the investigating officer, testified as to attending at the
deceased's house at about 2.00 pm on 23
March 1998. He testified as
to finding the deceased body in the bathroom of the main bedroom and
as to the presence of bloodstains
in the main bedroom, passage, rooms
and kitchen. He searched the premises but found no bloodstained knife
or other sharp object.
In the bathroom the bath was full of water and
overflowing. In the main bedroom was a chair, broken into pieces, no
fingerprints
were found in the premises.
From
the deceased's mother he received a report of items missing from the
house, including two Panasonic car radios, and a Nokia
cell phone.
According to Detective Sgt Bailey there were no gang related fights
reported that day in the Kensington/Factreton area.
This would not
include Woodstock or Brooklyn however. At about 7.00 pm Detective Sgt
Bailey conducted an interview in his office
with Ruwaydah Sabels and
A[...] M[...]. They reported to him as to certain events which had
taken place earlier that day, which
had involved the two accused and
inter alia two Panasonic radios and a Nokia cell phone. At about 3.00
am the next morning he received
a telephone call directing him to the
house of Ruwaydah Sabels in L[...] Crescent, Kensington. There he
again spoke to Ruwaydah
and A[...]. According to them their earlier
information to him had not been completely correct, the reason being
that they were
scared that they would otherwise land themselves in
trouble.
Nevertheless on this
occasion Ruwaydah pointed out to him certain wet bloodstained
clothing lying in a white plastic bag in the
passage, a pair of wet
takkies was also handed to him. The two girls made reports to
Detective Sgt Bailey in respect of all these
items which linked the
two accused there with. Of the clothing recovered in the white
plastic bag the deceased's mother later identified
a Hang Ten sweater
and a black leather jacket as belonging to the deceased. The radios
and cell phone however were not recovered.
A total list of items
found by Detective Sgt Bailey in the white plastic bag comprised the
leather jacket, the green and blue Hang
Ten sweater, a black bomber
jacket, a blue long-sleeved corduroy shirt, one green t-shirt, a pair
of short blue pants, a pair of
bloodstained brown Levi jeans, a pair
of bloodstained black Levi jeans, a pair of white tracksuit pants, a
grey t-shirt, five bloodstained
white socks, a white and brown cloth,
and a bronze lock.
Sgt Bailey later arrested
accused 1 at Conradie Hospital where he found him with both hands
bandaged and where he had recently undergone
an operation. He
indicated a willingness to make a statement to a magistrate and this
was arranged and the statement made and received.
He later arrested
accused 2 on 25 March 1998 at the Kuilsriver Police station where
accused 2 had handed himself over. Accused
2 however at no stage
furnished him with an explanation or statement. Detective Sgt Bailey
denied when it was put to him on behalf
of accused 2 that accused 1
had remarked to him that he had been forced to make his statement,
that he was under the influence
of cocaine and that it was he who had
in fact committed the murder.
A further State witness
was Abdullah Giddiem, a cousin of the deceased. According to him
accused 2 is a cousin to his wife Fariel,
whose parents live in
G[...] Street Woodstock. Giddiem testified that accused 2 telephoned
him at his home at [...] O[...] Street,
Woodstock, on 30 March 1998
wishing to speak to his wife Fariel. She was however ill at the time
and the witness told accused 2
so. Accused 2 then asked for a
telephone number of another party. The witness undertook to ascertain
this number and asked the
accused to call him back. After a few
minutes accused 2 again phoned him. The witness informed him that he
had not been able to
ascertain the number in question. Accused 2
however started talking. As his telephone was attached to a telephone
recording device
the witness recorded, except for about two and a
half minutes worth this second telephone conversation with the
accused on a cassette
tape. This tape was handed in as
Exhibit I
.
Giddiem thereafter placed the tape in a safe until 5 October 1999
when he told Sgt Bailey of its existence. It was then removed
from
the safe and after allowing Sgt Bailey to listen to the conversation
recorded on the tape Giddiem made a typed transcript
of the
recording. This was handed in as
Exhibit V
. Certain
corrections were brought about to this transcript to more accurately
reflect portions of the recording. These are recorded
in the evidence
of Giddiem.
According
to Giddiem a family meeting had been held following the death of the
deceased and the outcome thereof had been that accused
2, his mother,
and the rest of his family were disinherited. Giddiem's impression of
the purpose of the accused call was that he
was trying to clear
himself. Giddiem also testified that on the day of the deceased's
death his wife, Fariel had been staying at
her mother's house at
5[...] G[...] Street, Woodstock.
Cecil Petersen, the
caretaker of the small park located near the house of the deceased
also testified on behalf of the State. He
was patently nervous and
uncomfortable in testifying and extremely guarded in his evidence.
All that emerges from his testimony
is that on the day in question he
observed two people in the park, only one of whom he recognised,
namely accused 2. They soon
left and he did not see them again. He
did however thereafter in the afternoon of the same day see the
mother of accused 2 passing
by the park and he heard her to say that
her son Faghrie had been stabbed.
Accused 1, aged 17 at the
time of the incident, testified in chief essentially in keeping with
the content of his statement to the
magistrate,
Exhibit J
, and
plea explanation,
Exhibit A
. His testimony was essentially as
follows; On Sunday 22 March 1998 he met accused 2 in Bunny Street,
Kensington, he invited him
to his home for the following day to smoke
Mandrax. On the morning of the next day he accordingly went to
accused 2's house. Accused
2 then sent him to the shop to purchase
cigarettes and he returned from the shop to find accused 2 speaking
on the phone. Accused
2 informed him that he had been speaking to
Ashraf. At that stage accused 1 thought this was another Ashraf known
to him and accused
2. However accused 2 explained that this Ashraf,
to whom he had been talking, lived a short distance away down the
road, and that
Ashraf would give them a lift to Woodstock. He also
told accused 2 that Ashraf arranged for cell phones. On receiving
this information
he handed accused 2 the sum of R300. He and accused
2 then went to the shop located in the same street as the deceased's
residence
to purchase food for the artisan removing timber flooring
from the house of accused 2's mother. When they exited the shop
accused
2 greeted a woman, now known to accused 1 as Aminah Maistry.
They then returned to accused 2's house where they delivered the
items
purchase at the shop and accused 2 visited the toilet. They
then left the house for the deceased's house, who let them in through

the back door which was then closed.
On a cabinet in the
kitchen of the house was a cell phone attached to a charger. Accused
1 removed the cell phone to examine it,
and holding it in his hand he
walked in the direction of the back door. The next moment he was
struck a fist blow from behind against
his head by the deceased. With
this the cell phone fell to the ground. Accused 1 thereupon took out
from his trouser pocket an
apple knife with blade some 5 to 6cm in
length and swung around wildly there with at the deceased, without
knowing where on his
body the deceased would be struck. He describes
his intention in doing so as being to defend himself. He saw that the
deceased
had in fact been struck on the right side of his neck. The
deceased's neck was bleeding and he held his hand against the
bleeding
wound on his neck. The deceased however pushed him away when
he approached to assist the deceased.
Accused 1 dropped the
knife but accused 2 then took a sock, to which a lock was attached
and hit the deceased therewith continually
over the head. The
deceased tried to defend himself and asked accused 2 what he was
doing, only to receive the reply from accused
2 to keep his mouth
shut. Accused 2 then asked the deceased to open the safe to which the
latter replied that he did not have the
safe key. Accused 2 then
continued to strike the deceased and looked to accused 1 as if the
deceased was half unconscious. Accused
2 then dragged the deceased
from the kitchen into the main bedroom, accused 1 followed. In the
main bedroom the deceased lay on
his back, again asking accused 2
what he was doing. Accused 2 however simply swore at him. Accused 2
then went to the kitchen and
returned after a matter of seconds
holding a kitchen knife. He then knelt down next to the deceased and
again directed to open
the safe. The deceased replied as before. With
this accused 2 commenced stabbing the deceased with the knife while
the deceased
in turn protested that they were friends. Accused 2 then
stood up and while accused 1 at that stage attempted to restrain
accused
2 the deceased climbed over the bed, accused 2 chased after
him, the deceased managed to get into the bathroom and tried to close

the bathroom door, with accused 2 pulling on the other side against
this. Again at this point accused 1 attempted, unsuccessfully,
to
restrain accused 2. Accused 2 then stabbed at the protruding arm of
the deceased and then forced open the door. The deceased
turned
around and accused 2 stabbed him in the back. The deceased then fell
to his knees. While in that position accused 2 placed
his arm around
the deceased's head, pulled it backwards and slit his throat with the
knife. Accused 2 then insisted that accused
1 do likewise, but which
he refused to do.
Seeing that the deceased
was dying accused 1 left the room and made his way outside. Shortly
thereafter accused 2 exited through
the sliding door, carrying a blue
Karrimor bag on his back. He then continued swearing at and abusing
accused 1, berating him for
not participating and stating that they
were both together in the thing. Accused 2 stabbed him in his left
hand with the knife,
similar to the one he used on the deceased and
which stuck in his hand. Accused 2 thereupon produced the
aforementioned apple knife
and stabbed accused 1 there with in the
right hand. Accused 1 managed to remove the knife stuck in his left
hand and threw it down.
With this accused 2 again informed him of his
involvement and that if he, accused 2, went to jail, so would he,
accused 1, as people
would see that both of them were covered in
blood. Accused 1 then left the scene with accused 2 following him.
They went to the
house of accused 2 where the latter told him to
remove and change his clothing. Accused 2 also advised him there to
inform anyone
who asked how they had been injured that the Junior
Mafia had injured them.
Accused 2 gave him a blue
tracksuit to wear and accused 2 also removed and changed his own
clothing. Accused 2 placed the clothing
that they had removed into a
plastic bag, which he in turn placed in the blue Karrimor bag. They
then left and made their way to
the corner of Bunny Street and Ninth
Avenue, Kensington. There they met Sharief Abrahams, and Mogamat
Cader, and accompanied the
latter two persons to the house of
Ruwaydah Sabels.
Accused 2 at that stage
was wearing a black leather jacket but which he handed to him,
accused 1, when they were near Ruwaydah's
house, and accused 1
carried it under his arm. At Ruwaydah's house they all went into
Shanaaz's room, there accused 2 directed
Sharief to empty the bag,
which he did. He removed form it the plastic bag of clothing, and
then two car radio tape players and
a cell phone, being the same cell
phone as he had seen at the deceased's house. Ruwaydah came into the
room and asked how they
had come by their wounds. Accused 1 indicated
that the Junior Mafia were responsible there for. Accused 2 asked
Ruwaydah to take
the two accused to hospital, Ruwaydah suggested
Conradie Hospital, but accused 2 insisted that it is Somerset
Hospital. He, accused
1, on the other hand announced that Groote
Schuur Hospital was his preference. They left for Somerset Hospital
but on the way accused
2 instructed that they be taken instead to
G[...] Street, Woodstock. Thereafter they drove to Brooklyn and on
their return journey
to Ruwaydah's house accused 2 threw their bloody
bandages into a drain.
When
they arrived back at Ruwaydah's house he, accused 1, however left the
group and made his way to a friend in Patrys Plain who
asked what had
happened and to whom he gave the same Junior Mafia answer. His hands
were doctored and later he went to Conradie
Hospital where Detective
Sgt Bailey subsequently found him. He later made a statement to a
magistrate. He denies in his testimony
that he told a man to take
your last breath or that he said that the police at Groote Schuur
Hospital were too troublesome. He
testified that the pieces of the
chair were not lying in the main bedroom when he left it, but could
not explain when the chair
was broken and did not hear it being
broken.
Accused
2, presently aged 25 years, who resides with his mother at 1[...]
[...]th Avenue Kensington testified that on Monday 23
March 1998 he
was at home with his mother. In the morning of that day accused 1
came calling on him at his house. His mother answered
the door on
accused no 1's arrival and announced this to accused 2 who was dozing
in the front room. Accused 1 entered the front
room, very neatly
dressed, with a top, brown Levi jeans and a pair of takkies. On his
shoulders was a blue Karrimor bag. According
to accused 2 he had
plans to smoke Mandrax with accused 1 that day, but had about two
weeks previously also promised accused 1
some clothing. According to
accused 2 he had telephoned the deceased numerous times that morning
before he had dozed off.
This was because he was supposed to
help the deceased that day with his taxi, the deceased being a close
friend of his dating back
from their school days. In terms of his
arrangement with the deceased the deceased was to fetch him at his
home. The deceased however
had not as yet adhered to the arrangement
and this was the reason for his telephone calls to the deceased.
After the arrival at his
house of accused 1 accused 2 made his way to the back stable door of
the house. The top section of the
door was open and through the
opening he requested his mother who was in the yard attending to
washing to make something to eat.
Her response was to tell him to go
to the shop to purchase bread and milk. He thereupon, accompanied by
accused 1, made his way
to the shop, it was on the way to the shop
that he saw the deceased's stepmother, Aminah Maistry, and they
greeted each other.
Having then purchased the bread and milk he and
accused 1 returned to accused 2's home. On the way there he told
accused 1 that
the woman he had greeted was the mother of Ashie,
using the deceased's nickname. Upon hearing this accused 1 responded
by stating
that Ashraf had been taking him for a fool long enough
over his phone. Accused 2 was unaware as to what arrangements accused
1
had with the deceased and this was the first time he had heard that
the deceased owed accused 1 a phone. According to accused 2
he used
to assist the deceased in his taxi operation and knew from this
association that it was the deceased's practice to buy
stolen goods
including phones. Accused 1 had however not given him, that is
accused 2, any money with which to acquire a phone
for him from the
deceased. Back at his home accused 2 informed his mother of his
purchase of bread and milk, offering him an apology
for not having
asked him earlier, she now requested him to return to the shop, this
time to purchase cigarettes for her. Prior
to leaving on this errand
he again telephoned the deceased to ascertain when he was coming to
fetch him. The deceased replied simply
to the effect that he would be
there and that accused 2 should just wait for him.
The two accused then
again walked to the shop, there accused 1 purchased a packet of
Rothmans cigarettes and then returned home
where he presented his
mother with the cigarettes and again requested her to make something
to eat. Accused 2 then made coffee
for himself and accused 1 and the
two of them sat drinking this and chatting generally. It was then
that accused 1 asked him for
the promised clothing. He however told
accused 1 that he would have to wait as his mother was busy with the
washing. They continued
to drink coffee. At this time accused 2 again
telephoned the deceased, in his telephone conversation with the
deceased, after enquiring
from the deceased as to when he was coming
and what was happening he told the deceased that accused 1 was
keeping dik over his
phone. The deceased replied that accused 1 could
wait. Following this conversation accused 2 made his way to a section
of the kitchen
in order to prepare some food. As he was about to do
this however he asked accused 1 to go to the deceased's house to
ascertain
whether the deceased's van was still there. Accused 2 gave
as his reason for this request that he did not wish to telephone
again
as his mother had been complaining about his use of the
telephone. In response to the request accused 1 picked up his bag in
order
to go, told accused 2 not to concern himself by preparing any
food for him. He added that if the deceased's van was not outside
his
house he was going to go on his way. Accused 1 then left with his
bag.
Accused 2 then prepared a
meal for himself, polony and eggs, which he then ate. On finishing
this meal called out to his mother
that he was leaving, his mother's
response was to express her surprise that he was still at home,
stating that he was supposed
to assist the deceased and that the
deceased's father would complain about the targeted amount of taxi
fare takings not being met.
Accused 2 then left the house and walked
to the residence of the deceased. Arriving there he found the
driveway gates open and
the van parked outside. As he approached the
van he halted to touch a bullet hole in the bodywork at the back of
the van, it was
now about fifteen to twenty minutes after accused 1
had left him. Accused 2 then knocked at the back door as his usual
point of
entry, the front door, was closed. There was no reply to his
knocking but from the inside bathroom of the deceased's father's
bedroom
he heard noises. He was however unable to make out what the
noises were about. He describes the noises as involving an element of

shouting. He then went around to the side of the house where a patio
door was located, he found it open. He entered through this
door and
heard no further shouting and noises inside. In his approach to the
bathroom in question he saw blood on the floor tiles.
Arriving at the
deceased's father's bedroom he observed a considerable amount of
blood all over the room. In the bathroom he saw
accused 1 sitting on
top of the deceased who was lying face up on the bathroom floor. He
approached and hit accused 1 on his shoulders,
and observed him to be
wielding a large knife. He grabbed hold of the knife with his right
hand and tried to wrench it out of accused
1's hand. In doing so he
felt a burning sensation in his hand.
According to accused 2
accused 1 was accustomed to carry a knife on his person, but this
particular knife was larger than the one
in question and not the one
he knew to belong to accused 1. He then hit accused 1 with his elbow
against his face, with the striking
of this blow accused 1 was forced
off the deceased and he then stood at the bath side of the bathroom.
Accused 2 then tried to
lift the deceased, but he was too heavy. He
observed the deceased to be covered with blood. Unable to lift the
deceased accused
2 sat on the floor next to the deceased and cradled
him in his arms, trying to bring the deceased round he slapped the
deceased
in the face and spread his hands over his face. When he
again did the same the deceased's head went back and accused 2
observed
that there was a cut in his neck. He did not know at the
time whether the deceased was alive or dead. There was a considerable
amount of blood coming from the deceased's neck and the accused
sweater was full of blood.
While continuing to
cradle the deceased in his arms he said a prayer for him. He
ultimately let go of the deceased, and decided
to stand up and wash
his hands at the sink. It was while washing his hands that he saw
that his own hand was cut. He then exited
the bathroom and the
bedroom, in the passage he saw that accused 1 was now wearing a
leather jacket and that on his back was the
Karrimor bag. He
indicated to accused 1 that if the deceased's parents were now to
enter the house and see blood on him, that is
accused 2, they would
conclude that he was involved. He then passed by accused 2 and exited
before him from the patio door. He
again passed the van and went out
of the gates. Accused 1 was walking behind him. He did not ask
accused 1 what had happened, because
he had already concluded that
what he had seen in the house was of accused 1's doing.
Accused 2 returned to his
own house, according to him he was covered in blood, and needed to
change his clothing, and had nowhere
else to go. He says that he was
not speaking to accused 1. Accused 1 simply walked behind him. It was
on his mind however to report
the matter to the police as he regarded
this as his duty. He did not however do so immediately as accused 1,
whom he feared, was
with him all the time, and he, accused 2, was
moreover in a state of shock. In his anxiety to change his clothing
he did not close
the door of his house on entering. He removed all
his clothing, as well as his takkies and placed them in a carrier
bag. When he
next observed accused 1 the latter was standing beside
him, also undressing and placing the clothing he had worn into the
same
carrier bag. His mother was still in the yard attending to the
washing. He called out to her that he would see her later, dressed

himself afresh and left the house. The clothes he now put on
comprised a white tracksuit and a pair of sloffies. Before leaving

the house he asked accused 1 to put the carrier bag of clothing in
the Karrimor bag which accused 1 did.
After leaving the house
both accused then alighted a taxi at the corner of Third and Fifth
Avenue in Kensington, according to accused
2 he was going in the
direction of the police station. Just before 9
th
Avenue
and not far from the police station he requested the taxi driver to
stop the car and the two of them then exited the taxi.
A pool shop
was near to this location. Accused 1 then entered the pool shop, but
accused 2 remained outside looking in the direction
of a certain 9
th
Avenue shop. On the shop corner he observed Mogamat and Sharief whom
he then approached. He ascertained from them that they were
about to
go to Ruwaydah's house. When he received this information from them
accused 1 was already once again by his side. The
group then walked
to Ruwaydah's house. On arrival there either A[...] M[...] or
Ruwaydah opened the front door for them and they
entered the house
and sat in the room of Ruwaydah or of her sister Shanaaz. He then
told accused 1 to hand him the carrier bag.
At that stage accused 1
was complaining that his hands were cut, something which accused 2
had not seen before. Accused 1 took
the carrier bag out of the
Karrimor, in the bag accused 2 saw a cell phone, one of the persons
in the room took a card out of the
phone. In addition Sharief removed
two car radios from the bag. Accused 2 was unaware where these items
had come from and had not
seen them before. According to accused 2 he
had given Sharief R60 or R70 to keep as his own as he regarded him as
a younger brother.
While in Ruwaydah's house
he asked Ruwaydah if she could take him to Somerset Hospital and she
agreed to do this. He then asked
Sharief for R20 or R30 to cover
hospital fees. Ruwaydah then drove the two accused to hospital.
A[...] was also in the car. They
drove to the hospital but Ruwaydah
wanted initially to stop in Woodstock which she did. There her
brother entered the car. According
to accused 2 her brother carried a
gun which he showed him, it was a chrome 2 two shooter. Because of
this and because he knew
of the brother's liking for armed robberies
he was scared of the brother and he therefore requested Ruwaydah
rather to drop him
off at the home of his aunt Byrah in G[...]
Street, Woodstock.
Ruwaydah accordingly
drove there. In the house there he found his cousin Fariel whom he
asked to doctor his hand. To her enquiry
as to what had happened he
stated that he had been in a fight in Woodstock. To a question
whether it was with the Junior Mafias
he replied in the affirmative.
In the car thereafter he had also mentioned to Ruwaydah that he had
been in a fight with the Junior
Mafias. In her treatment of his hand
Fariel had applied Betadine ointment thereto. A[...], Ruwaydah and
accused 1 had also come
into the house and A[...] in fact treated
accused 1's injured hands there.
The group then left the
house and drove on their return journey to Kensington. At the Koeberg
Road traffic lights however accused
2 asked Ruwaydah to drive to the
home of his ex-wife in Brooklyn in order to fetch clothes belonging
to him. At this house his
ex-wife asked what had happened to his
hand, to which he replied that people had assaulted him. The reaction
to this of his ex-wife's
mother was to state that he was not one who
would allow himself to be assaulted.
From this address they
drove back to Kensington. According to accused 2 he earlier had a
sock on his hand. He had taken the sock
out of the carrier bag in
Ruwaydah's house and placed it on his hand. The sock was next to him
on the car seat as they drove into
L[...] Crescent. There was blood
on the sock as well as on a piece of cloth and on some of the other
things in the car, some of
which could also have come from accused
1's hand. These he threw into a drain and they thereupon drove to
Ruwaydah's house. Back
in her house after the strip Ruwaydah made her
way to the yard. Accused 2 was behind her. There he proceeded to
scrub his takkies.
Mogamat subsequently arrived at the house and
reported to him that numerous taxi drivers and the Junior Mafia were
looking for
him. On hearing this, and as quickly as possible he
placed a carrier bag of clothing in the roof of the house, A[...]
assisted
him by handing the bag up to him.  In the roof was a
"mit sak" into which he placed the carrier bag. According
to
him he knew the clothes were safe there. He then left.
He did not go to his own
home but to that of his aunt Aminah in Kensington where he stayed for
two days. During that period his
mother had telephoned to advise him
that taxi drivers were after his blood. After reporting to the police
through his aunt he was
taken to the local police station and from
there to Kensington Police Station. The next day he was taken to
Pollsmoor Prison, at
reception there he saw accused 1 who upon seeing
him started to cry, expressing regret that he had made a statement.
Two witnesses testified
on behalf of accused 2, namely his mother, Mrs Janub Abrahams, and
one Ebrahim Benting. According to Ebrahim
Benting he was a student at
college during 1998. He recalls that on 23 March 1998 he was in
college for only part of the day and
upon his return from college
made his way to the pool shop near the corner of 9
th
Avenue and Bunny Street, Kensington. While he was sitting in the pool
shop that afternoon with one Brandon Wakens accused 1, who
was known
to him, approached him. He asked accused 1 what had happened to his
hands. Accused 1 stated that he had just committed
a murder and he
laughed. There were many people in the pool shop at the time.
According to Benting accused 1 then asked him if
he wished to pay a
cell phone and car radio tape player, his reaction was to tell
accused 1 that he did not have the money to do
so. Accused 1 then
left the shop. According to the witness accused 1 had prior to
leaving the shop shown him a portion of the cell
phone, it was in a
bag which accused 1 had carried on his back, but which he had taken
off. He recognised this as a Nokia cell
phone, it was a large phone
but he did not see the name thereon. He could not recall whether
accused 1 had said anything else to
him, nor could he remember the
colour of accused 1's bag. The witness was also unable to recall
whether the phone was in a pouch
or even the colour of the phone. It
was only the next day that the witness heard about the murder of the
deceased.
According to Benting he
did not then or thereafter report to the police the information which
he had received from accused 1. He
gives as a reason for this that he
was held at gunpoint at the home of accused 2's cousin by a group of
persons who were looking
for accused 2. Under cross-examination it
became clear that the witness had been a friend of accused 2 since
childhood. He claimed
not to have seen much of accused 2 however
during the four months of 1999, during which he, the witness, had
been working. Prior
to that according to him he saw accused 2 readily
in the pool shop in 1998 as Benting was there every day. According to
Benting
he was aware in 1998 that there was talk that accused 2 was
implicated in the murder of the deceased. He however never talked to

accused 2 about the matter as he regarded it as none of his business,
not withstanding the friendship between them and notwithstanding
that
he had information from accused 1 that he, accused 1, had committed
the murder.
When pressed further on
this he gave as his excuse, different on this occasion, that he had
not seen accused 2 for a long time after
23 March 1998. This answer
in turn conflicted with his earlier evidence that in 1998 he used to
see accused 2 regularly at the
pool shop. Confronted with this
contradiction the witness retreated to his earlier testimony that he
had seen accused 2 regularly
but that he had not discussed the murder
case with him. He was unable to give any reason for his failure until
about a mount prior
to testifying to give accused 2 a lifelong friend
of his information which he had learned from accused 1 and which
could be of
great assistance to accused 2. When he did so tell
accused 2 thereof the latter admitted that he had already heard from
others
what accused 1 had said in the pool shop.
The witness gave as his
reason for not reporting the information to the police that he had
been threatened at gunpoint and was scared
to go to the police,
according to him the threat was by a group of persons looking for
accused 2 and did not involve any direct
threat to the witness
himself, if he reported to the police.
Ultimately however he
could give no satisfactory explanation as to why in the many months
that had elapsed since 23 March 1998 he
had not reported the matter
to the police. Nor could he explain why, if he had this information
from accused 1, he never reported
such information to the deceased
brother who was also a friend of his. His lame excuse for this was
that he did not know where
the deceased's brother lived.
According to Benting when
the accused spoke to him in the pool shop on 23
rd
March
1998 the accused was wearing tracksuit pants, a jacket and takkies.
He could not remember the colour thereof. When the accused
made the
admission to him about having committed the murder he did not ask
accused 1 about the person murdered, or if he was indeed
telling the
truth. He gave as his reason that he did not regard these matters as
being any of his business. According to the witness
accused 1 had not
been long in the pool shop on 23 March 1998, he estimated that the
entire transaction between him and accused
1 as having lasted about
ten minutes.  This period of time however conflicts with accused
2's testimony as to the extremely
short period of time which accused
1 had spent in the pool shop. The witness's description of the
footwear worn at the time by
the accused also conflicts with accused
2's testimony.
The mother of accused 2,
Mrs Janub Abrahams, testified as follows; some time during the
morning of 23 March 1998 while she was sorting
out washing at her
home accused 1 arrived there. He was not unknown to her as she had
seen him on several occasions previously,
when he was in the company
of the deceased. On two of these occasions he had been in the
deceased's van when the deceased had brought
accused 2 home, and on a
third occasion accused 1 was in the van when the deceased had given
her a lift to the Waterfront. Her
son and the deceased on the other
hand had been friends with each other ever since their days in
Standard 2 at school. When accused
1 arrived at her house on the
morning of 23 March 1998 her son was sitting on the couch, dozing,
while waiting for the deceased
to collect him at the house. She
announced the presence of accused 1 to her son, and accused 1 then
joined accused 2 on the couch
and she went on with her washing in the
yard of the house.
Apart from the three of
them there were no other persons in the house and no one was
affecting any repair work on the floors of
the house. According to
Mrs Abrahams accused 2 was also waiting that morning for is cousin to
arrive at the house to repay monies
which he had lent him. Accused 2
had told her of this. At some stage later accused 2 came to the yard
stable door, the top portion
of which was open to ask her to make
breakfast. In response she told him to go to the shop to purchase
bread and milk and gave
him the money to do so. With this accused 1
and 2 left for the shop.
During their absence Mrs
Abrahams realised that she did not have cigarettes so that upon their
return from the shop she requested
her son to return to the shop for
cigarettes. On their return from this errand accused 2 handed her the
cigarettes purchased and
again asked her to make breakfast for him.
As there was so much washing for her to contend with however she
directed him to make
his own breakfast. At this stage accused 2 was
speaking to her in the yard from over the bottom of the back stable
door and accused
1 was sitting on the couch. Mrs Abrahams could then
smell that accused 2 was preparing his own breakfast, but she
continued with
the washing. According to her however at some stage
she went inside. She thought that this was in order to get some
StaSoft. Inside
the house she saw her son alone and eating breakfast.
She did not see accused 1 there. She instructed her son however that
as he
had been waiting the whole morning for the deceased he should
ascertain his whereabouts. In response accused 2 told her that
accused
1 had stated that he was going to determine whether the
deceased's van was at his home and if so he would return to inform
accused
2 of this, but if the van was not there he, accused 1, was
going to continue on his way.
Accused 2 also indicated
to her that as soon as he had finished eating he was also going to
go. Mrs Abrahams then returned to the
yard. When he finished eating
accused 2 called out to her that he was going to see if the deceased
was at his home. He then came
to the yard and told her that he would
see her later and then left. She however did not see him again that
day, neither did she
see accused 1 again that day.
Sometime after the
departure of her son Mrs Abrahams heard the Muslim Call to Prayer
from the mosque situated close to her house.
This was the midday
call. She then proceeded to pray at her home, the time being just
after one pm. When she had just finished
her prayers she heard the
siren of an ambulance going past and the sound of the ambulance
stopping nearby. She went outside her
house to see what this was
about and observed a crowd of people standing outside the Maistry
home. She then proceeded to this location,
where she was told that
the deceased was dead. She thereupon made her way to the deceased's
father and extended her sympathies
to him. She was all the more
confused in as much as her son, accused 2, was supposed to have been
with the deceased. At that stage
however the witness, Mr Gerdien,
came to inform her that accused 2 had been stabbed in Woodstock. She
then left to return to her
house thinking that accused 2 might phone
home. Everything was confusing to her.
After five pm that
afternoon Mrs Abrahams received a telephone call from her daughter
informing her that certain persons were after
her son's head. No call
came from her son however, but later that evening her sister, Aminah
Petersen, of Kuilsriver telephoned
her and told her that accused 2
was with her in Kuilsriver and in a state of shock. At the request of
her sister she contacted
the police from whom she ascertained that
Sgt Bailey was in charge of the investigations into the death of the
deceased. As he
was not on duty that night she contacted him the
following day, she told Sgt Bailey to fetch accused 2 in Kuilsriver.
Having reviewed in
essence above the evidence of the various witnesses who testified in
the trial it is appropriate now to expostulate
on the Court's
assessment of their credibility and reliability. I commence with the
witnesses for the State.
With the possible
exception of the witness Cecil Petersen, whose evidence was so
manifestly guarded by reason of his obvious fear
in testifying as to
render it unreliable there is no State witness whom the Court does
not believe and whose evidence the Court
rejects as untruthful or
unreliable. They were open, direct and honest, they made concessions,
and gave acceptable explanations
when due, and their credibility
remained unscathed in the face of long and searching
cross-examination.
This is not to say that
they were perfect in every respect, and that there were no
differences between them, or that there were
no contradictions or
inconsistencies in their individual testimony. None of these
imperfections are however material. In the case
of Ruwaydah Sabels
and A[...] M[...] in particular they relate to matters of recall of
fine detail and/or are acceptably explained.
In any event because of
their friendship with each of the accused one would expect them to be
protective towards the accused, as
is apparent from their earlier
conduct in displaying a reluctance to reveal the full detail of
events to the police and to the
family and friends of the deceased,
rather than to implicate the accused falsely in their evidence.
The same assessment
cannot however be made of the two accused and the witnesses who
testified on behalf of accused 2. The Court
finds that each of them
was untruthful, unsatisfactory, improbable and their testimony is
accordingly rejected by the Court except
where corroborated by the
testimony of one or more of the State witnesses or other objective
evidence, and in certain instances
statements made in their evidence,
which were obviously against interest.
Dealing firstly with
accused 1 - he lied to this Court, his evidence is inherently
improbable, there is no reasonable possibility
that it is true and
his evidence is accordingly rejected as unreliable. Without engaging
in a full scale exposition of every respect
in which his evidence is
unsatisfactory the following examples will suffice.
1) He was unable to
explain, and his evidence in fact left totally unexplained how blood
came to be spread throughout the various
rooms and areas of the
deceased's house in which he was on his own admission present at the
time of the assault and murder. In
fact his version of the incident
is inconsistent, incompatible and irreconcilable with the fact of
such omni-presence of blood.
2) The same applies in
respect of how the wood came to be off the back door and how the
chair in the main bedroom came to be broken
and in pieces.
3) He told lies in his
statement to the magistrate in as much as the content thereof
differed in several material respects from
his evidence in this Court
and in his signed plea explanation in this trial.
4) His evidence is
overwhelmingly improbable in as much as if his role in relation to
the deceased was as limited and as innocuous
as he professes therein,
he would have dissociated himself from accused 2 and reported the
incident to the police.
5) The presence of the
defensive injuries on the deceased testified to by Dr Lourens
indicates that the mechanics of the attack
on the deceased was
different to that described in his evidence by accused 1.
Dealing with accused 2;
he was manifestly a pathological and unmitigated liar. A complete
reading of his evidence amply demonstrates
his abundant mendacity.
Again a few instances will suffice;
1) His evidence differed
materially and in numerous respects from the account given by him
telephonically to Abdullah Gerdien. Moreover
his explanation in his
evidence for these differences is unsatisfactory and amounted in part
to a confession of untruthfulness
for no acceptable reason towards Mr
Gerdien.
2) He contradicted
himself in his evidence as to when and how the arrangement had been
made with his cousin, Sadick Daniels, concerning
the repayment of
monies lent by him to Daniels. He was vague in the extreme about the
amount lent and he contradicted himself as
to what information he
gave to his mother in respect thereof.
3) He testified that he
telephoned the deceased on numerous occasions on the morning of the
day in question, this evidence is gainsaid
by the objective evidence
provided by the telephone records.
4) It is improbable that
he sent accused 1 on his own to look for the deceased as accused 2
professes in his evidence to have done,
when according to his
testimony he had only just spoken to the deceased on the telephone.
Equally improbable and unsatisfactory
is the reason given by him in
his evidence for so sending accused 1 on his own, namely to save the
costs of a telephone call. Accused
2 was moreover unable to explain
his exact instructions given by him to accused 1 with regard to this
mission.
5) His evidence relative
to his continued dealings with accused 1, who according to accused 2
had just murdered the deceased, a
lifelong friend of his, is
improbable and unsatisfactory. So also his failure to report the
incident to the police when ample opportunity
existed to do so, and
his conduct in no way reconciles with that of a person who failed to
report out of fear of accused 1, which
he professes was the position.
6) His testimony that he
placed the bloody clothing in the ceiling to preserve evidence for
the police is patently false, seen particularly
against the scrubbing
of the bloody takkies and disposal of bloody bandages and socks and
is improbable in the extreme.
Coming now to the
evidence of the defence witness Benting - the unsatisfactory features
of his evidence are manifest from the Court's
exposition of his
testimony already dealt with above.
Finally Mrs Janub
Abrahams, the mother of accused 2. For a number of reasons her
evidence needs to be approached with considerable
circumspection. She
is the mother of accused 2 which gives her motive to be sympathetic
towards him, and his interests. She was
moreover present in Court
during the presentation of the evidence of several State witnesses
and thus in a position to adjust her
evidence. She also by her own
admission considered it to be acceptable to be untruthful in
evidence, provided good reason existed
to justify this. Her evidence
on analysis was moreover unsatisfactory in numerous material
respects, thus in important aspects
her evidence conflicts with that
of her son, accused 2, and of the witness Benting. Her evidence
contained major improbabilities.
She seriously contradicted herself,
and her recall of events was suspiciously selective. During her
evidence she was also at times
evasive and at other times arrogant
and querulous. Overall the Court considers her to be a poor witness
and one on whose evidence
it cannot rely.
Proceeding now to the
evaluation of the evidence before the Court. It is important that the
evidentiary material be examined and
evaluated not piecemeal or
fragmentally but cumulatively in its totality. See
S v Radebe
1991(2) SA CR T at 182H, and
Smiedt Bewysreg
3de Uitgawe, bl
93. The total picture which the Court finds to be factually
established is constituted by the following:
1) On the morning of
Monday 23 March 1998 the two accused were together at No 1[...],
[...]th Avenue, Kensington, the home of accused
2 and his mother.
2) On that same morning
three telephone calls were made from the telephone at that address,
being telephone number 5[...]. The first
such call was made at 09:04
and was to the telephone at the deceased's home at No 3[...], [...]th
Avenue, Kensington, being telephone
no 5[...]. This call lasted two
seconds only and the second such call was made to the same telephone
at 11:10 and lasted six seconds;
the third such call was made at
12:24 to a cell phone belonging to the deceased at phone number
0[...], which lasted two minutes
and 46 seconds.
3)
Only two persons were present during that
morning at the aforesaid home of the deceased, namely the deceased
himself and his stepmother,
Aminah Maistry, the deceased from about
10:15 and his stepmother up to about 11:45, except for a short period
from 10:00 to 10:15
when she was absent therefrom.
4)
At about 11:45 the deceased's stepmother
left the house at 3[...], [...]th Avenue, Kensington. At that time
all the doors and windows
thereof were locked, including the security
gate on the front door and the deceased was alone in that house in
his bedroom.
5)
When the deceased's stepmother so left the
house she observed accused 2 together with another person walking to
the shop situated
opposite the house. Accused 2 greeted her and she
returned the greeting.
6)
The deceased's stepmother returned to the
house at about 13:15 or 13:30 on that same day in the company of her
grandson. Upon her
return the front door of the house and the
security gate thereof were locked and upon entering the house through
the front door
they were confronted by a trail of blood on the
passage walls which led to the en suite bathroom of the main bedroom,
wherein was
lying the dead body of the deceased, face downwards, on
the bathroom floor. The bathroom basin tap was running and the basin
was
overflowing.
7)
The deceased had multiple injuries being
those described in the post mortem report of Dr Lourens already
referred to.
8)
The cause of the deceased's death was loss
of blood due to a deep incise wound of the deceased's neck involving
the perforation
of three major blood vessels.
9)
There were also two wounds in the
deceased's head compatible with having been sustained through the
application thereto of blunt
force such as being hit with a solid
object placed in a sock.
10)
There was blood extensively throughout the
house as shown on the photographs in
Exhibit
G
, including on the carpet, duvet cover
and curtaining in the main bedroom and a chair therein was broken and
in pieces. When Mrs
Maistry left the house earlier that day the chair
was whole and located in the main bedroom and there was no presence
of blood
in the house.
11)
A wardrobe in the main bedroom which had
been locked at the time of the deceased's stepmother's departure from
the house at 11:45
was standing open on her return, in front of which
was a box which had earlier been inside the wardrobe. Inside the
wardrobe and
bolted to its floor was a safe to which only the
deceased's stepmother had the key.
12)
Missing from the house on Aminah Maistry's
return, but which had been inside when she left at 11:45 and
belonging to the deceased
were a cell phone and cell phone charges,
two car radio tape players, a black leather jacket and a green and
blue Hang Ten sweater.
13)
The deceased's black leather jacket and
Hang Ten sweater were on a later occasion amongst the items recovered
by the police and
shown to the deceased's stepmother by the
investigating officer, Detective Sgt Bailey, and identified by her as
being the property
of the deceased.
14)
Also missing from the house on Aminah
Maistry's return was a general purpose knife, with a 15cm blade. Upon
her earlier leaving
the house at 11:45 this knife was in the cutlery
drawer of the kitchen cabinet in the house, but on her return was
missing, and
the drawer containing it, which she had left closed, was
now standing open. Apart from this cabinet and the wardrobe earlier
referred
to no other cupboards or cabinets in the house were
disturbed.
15)
Accused 2 was familiar with the house in
question having visited the deceased there on a number of prior
occasions, and knew where
the cutlery drawer of the kitchen cabinet
was situated.
16)
Each of the accused, according to
admissions made by them, had business that morning with the deceased,
each of them had proceeded
that morning from accused 2's house, where
they had been together, to the house of the deceased, and both of
them had been together
at the house of the deceased during the late
morning, early afternoon of that day when no persons other than the
deceased was present
there.
17)
When the two accused left the deceased's
house they had blood on their clothing, and both hands of accused 1
and the right hand
of accused 2 were cut and bleeding.
18)
Both accused proceeded from the deceased's
house together and at about the same time to the house of accused 2,
where both of them
removed their bloodstained clothing, which
included a pair of brown Levi jeans in the case of accused 1, and a
pair of black Levi
jeans in the case of accused 2, and their
sweaters, changed into fresh clothes belonging to accused 2 and their
bloodstained clothing
placed by them in the plastic bag which in turn
was placed by them in a blue Karrimor bag.
19)
Both accused left the home of accused 2 on
the afternoon of the same day, with the aforesaid Karrimor bag, and
the deceased's black
leather jacket in their possession. Together at
about 2:00 pm that afternoon they met Mogamat Cader and Sharief
Abrahams at the
corner of Bunny Street and 9
th
Avenue, Kensington, whence all four of them proceeded to and entered
the house of Ruwaydah Sabels at 2[...] L[...] Crescent, Kensington,

with the said Karrimor bag and the deceased's leather jacket still in
their possession.
20)
On their arrival at Ruwaydah's house the
cut hands of the two accused were already bandaged and the bandages
were bloodstained.
21)
Inside Ruwaydah's house and on the
instructions of accused the Karrimor bag was emptied of its contents,
which included the aforesaid
bloodstained Levi jeans and sweaters of
each of the accused and bloodied socks and a clean sock with a fresh
blood clot thereon,
and a padlock inside as well as a cell phone, a
cell phone battery charger, two car radio tape players and the
aforesaid Hang Ten
sweater.
22)
When the padlock was so produced from the
bag accused 2 remarked to accused 1 with the words "onthou jy my
broer ek het hom
oor die kop geslaan met die ding" to which
remark accused 1 gave no response.
23)
When the cell phone was so produced from
the bag accused 2 at first dialled a number with this phone and
thereafter himself attempted,
unsuccessfully, to destroy the SIM card
thereof.
24)
On the instructions of accused 2 one of the
persons present inside Ruwaydah's house then destroyed the SIM card
of this cell phone.
25)
Also inside Ruwaydah's house the following
fabricated and false information was given to A[...] M[...]:
a. That the injuries to
the hands of the two accused were sustained in a fight with the
Junior Mafia, this being information proffered
by accused 1 in
response to questioning by A[...] M[...] which information she in
fact challenged as being untruthful, but which
brought no response
from accused 1.
b. That they had killed a
man in Brooklyn because the man had made off with accused 2's rocks,
meaning drugs, this information being
given by accused 2.
c. That accused 1 had
told the man to take his last breath before he, accused 1, had slit
the man's throat, this information being
given by accused 1.
26)
Inside Ruwaydah's house accused 2 likewise
furnished Ruwaydah with fabricated and false information in response
to questioning by
her, namely that he had fought with a man and
killed him at Liesbeek River, Brooklyn.
27)
Accused 2 then requested Ruwaydah to drive
him and accused 1 to a hospital to obtain treatment for their
injuries and arranged with
Sharief to place him, that is accused 2,
in possession of funds to cover petrol and hospital expenses.
28)
A debate then ensued in which each of the
accused was involved as to which hospital to attend, accused 1
rejecting Groote Schuur
Hospital on the basis that "die boere
daar" meaning the police "is the lastig" and accused 2
rejecting Conradie
Hospital, notwithstanding that it was known to the
two accused that it was the nearest hospital to their location in
Kensington.
29)
Both the accused then, in the company of
Ruwaydah and A[...], left Ruwaydah's house for Somerset Hospital in a
car driven by Ruwaydah.
On the changed instructions of accused 2 en
route however Ruwaydah drove instead to a house of his relative in
G[...] Street in
order there to solicit private treatment for their
injuries instead of from a hospital.
30)
When the car stopped outside the house in
G[...] Street, Woodstock accused 2 had first entered the house alone,
and thereafter,
at his beckoning, accused 1 joined him inside the
house, where their injuries were attended to.
31)
Inside the house in G[...] Street Woodstock
and in response to a question put to him there by his cousin as to
what had happened
accused 2 replied with a further fabricated
falsehood, namely that the Junior Mafia had stabbed him at Shoprite
Woodstock.
32)
From the house in G[...] Street and on the
instruction of accused 2 Ruwaydah drove to a peach coloured house in
Brooklyn, which
accused 1 advised others in the car was the house of
the ex-wife of accused 2, accused 2 alone entered this house and
returned
to the car with further fresh clothing of his, namely a pair
of white jeans.
33)
At the car accused 1, on being asked by the
ex mother-in-law of accused 2 as to what had happened he told a
further fabricated falsehood,
namely that they had been stabbed by
the Junior Mafia in Woodstock, to which the ex-wife of accused 2
replied that this was in
conflict with the explanation furnished by
accused 2 in the kitchen of her house.
34)
After visiting the Brooklyn house of
accused 2's ex-wife the party drove back to Ruwaydah's house in
Kensington, but on the way
and on the instruction of accused of 2,
Ruwaydah stopped the car at a drain in L[...] Crescent, and there
through the open car
door accused 2 threw into the drain some
bloodied socks and pieces of material which had earlier served as
bandages for the injuries
to the hands of accused 1 and 2.
35)
The party then returned to Ruwaydah's house
whereupon accused 1 left them.
36)
Again inside Ruwaydah's house accused 2
instructed A[...] to replace the aforementioned items into the
plastic bag and to pass this
to him, which she did, accused 2 opened
the bathroom ceiling trapdoor and placed the plastic bag in the
ceiling.
37)
Accused 2 then proceeded to scrub his
bloodstained takkies in Jik water in the backyard of Ruwaydah's
house.
38)
At about three am on the morning of 24
March 1998 and at Ruwaydah's house Detective Sgt Bailey took
possession of the aforesaid
plastic bag, which was recovered from the
ceiling. In it he found inter alia the aforesaid black leather
jacket, the Hang Ten sweater,
and a bronze padlock.
39)
The deceased was considerably bigger in
build, weight and size than either of the two accused, accused 2
being small and slightly
built and accused 1 being a scrawny
youngster.
40)
Neither of the accused reported the
incident to the police, despite the existence of opportunities to do
so.
41)   Accused 1
personally inflicted at least one stab wound to the body of the
deceased, being a stab wound to the latter's
neck.
Having observed the above
total picture it remains to determine what has been established
thereby by the State in relation to each
of the accused, relative to
the charges faced. Each of the accused faces a charge of murder of
the deceased on 23 March 1998 at
his residence at 3[...], [...]th
Avenue Kensington, and the charge of robbing the deceased on the said
date and at the said place
of the items listed in the charge sheet.
Murder by definition is
the unlawful and intentional causing of the death of another human
being. See
S v Ndhlovu
1945 AD 369
at 373,
Snyman, Criminal
Law
3
rd
Edition at page 401:
"Robbery consists in
the theft of property by unlawfully and intentionally using violence
or threats of violence to take the
property or to induce submission
to its taking".
See
Snyman Criminal Law
supra at pg 475.
That the death of the
deceased was unlawfully caused on 23 March 1998 at his said residence
has been clearly established by the
State beyond reasonable doubt on
the evidence making up the total picture seen above. So also that the
deceased was then and there
robbed of the items listed in the charge
sheet, but with the exception of the two wristwatches and cash above
R400. The only questions
therefore relate to whether the State has
established in relation to each of the accused that he caused the
death of the deceased
and did so intentionally and whether he caused
or brought about the robbery of the deceased.
With regard to proof of
the element of causation in respect of each of the charges the State
is assisted by the doctrine of common
purpose which, if established
on the evidence making up the total picture, would mean that where
the accomplishment of the common
aim involved the commission of a
crime, then depending on the circumstances all parties to the common
purpose who participated
in the accomplishment of the common aim
become criminally liable irrespective of who amongst them actually
perpetrated the crime.
This is a legal consequence which the law
attaches to participation in the common purpose. See
S v Safatsa
1988(1) SA 868 AD at 896D-E,
Maqmoed v Janse van Rensburq and
Others
1993(1) SA 777 AD at 809I.
There
are two types of common purpose, namely a common purpose arising by
prior agreement, or a common purpose arising by impulse,
without
prior consultation or agreement. See
Maqmoed
v Janse van Rensburg and Others
supra
at 810G. It is seldom that there is direct evidence of common purpose
by prior agreement, the elements of a common purpose
arising by
impulse have been authoritatively laid down in
S
v Mgedezi and Others
1989(1) SA 687 AD
at 705I as follows:
"1. He must have
been present at the scene where the violence was being committed:
2. He must have been
aware of the assault;
3. He must have intended
to make common cause with those who were actually perpetrating the
assault;
4. He must have
manifested his sharing of the common purpose with the perpetrator of
the assault by himself performing some act
of association with the
conduct of the others;
5. He
must have had the requisite mens rae so in respect of the killing of
the deceased he must have intended him to be killed,
or he must have
foreseen the possibility of him being killed and performed his own
active association with recklessness as to whether
or not death was
to ensue".
Each
of these constituent elements must be proved by the 15 State beyond
reasonable doubt. What inferences are therefore to be drawn
from the
total picture with regard to the outstanding issues of causation and
mens rae. In answering this question the following
principles
applicable to inferential reasoning must be observed. Firstly
inference be distinguished from conjecture or speculation
and must be
founded on property proven objective facts. See
S
v Essack and Another
1974(1) SA 1 AD at
16D. Secondly the requisites laid down in
R
v Blom
1939 AD 188
at 202-3 must be
satisfied, namely;
(a) The inference sought
to be drawn must be consistent with all proved facts, and if not the
inference cannot be drawn;
b) The proved facts
should be such that they exclude every reasonable inference from
them, save the one sought to be drawn. If they
do not exclude other
reasonable inferences then there must be a doubt whether the
inference sought to be drawn.
c) Where the State relies
on circumstantial evidence it is sufficient if the cumulative effect
of the proven objective facts indicate
the guilt of an accused beyond
reasonable doubt. See
S v Ntsele
1998(3) All South Africa Law
Reports, 517, AD, at 526J-527B, where this principle was
authoritatively laid down as follows:
"Ons reg vereis
insgelyks nie dat "n Hof slegs op absolute sekerheid handel nie,
maar wel op geregverdige en redelike
oortuigings, niks meer en niks
minder nie,
S v Reddie
1966(2) SA CLR 1A, at 9D-E. Voorts
wanneer 'n Hof met omstandigheidsgetuienis werk soos in die
onderhawige geval moet die Hof nie
elke brokkie getuienis afsonderlik
betrag om te besluit hoeveel gewig daaraan geheg moet word nie, dit
is die kumulatiewe indruk
wat al die brokkies tesame het wat oorweeg
moet word om te besluit of die aangeklaagde se skuld bo redelike
twyfel bewys is.
R v de Villiers
1944 AD 493
at 508-9."
(d) Proved beyond
reasonable doubt does not equate to proof without the slightest
doubt. See
S v Cleqg
1973(1) SA 34A at 38H-39A. As was stated
in
Muller v Minister of Pensions
1947(2) All England Reports,
at pg 372:
"The evidence must
reach the same degree of cogency as is required in a criminal case
before an accused person is found guilty.
That degree is well
settled. It need not reach certainty but must carry a high degree of
probability. Proof beyond reasonable doubt
does not mean proof beyond
a shadow of doubt. The law would fail to protect the community if it
admitted fanciful possibilities
to deflect the course of justice. If
the evidence is so strong against the man as to leave only a remote
possibility in his favour
which can be dismissed with a 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. Quoted with approval in
E Phallo and Others v the State
,
an unreported decision of the Supreme Court of Appeal, case no
354/1998."
Coming now therefore to
the issues of causation and intention with reference to the charges
of murder and robbery and in accordance
with the requisite principles
applicable to inferential reasoning the Court draws the following
inferences as the only reasonable
inferences from and consistent with
the facts established by the State and constituted by the total
picture.
1. That both of the
accused unlawfully and intentionally assaulted the deceased at his
residence at 3[...], [...]th Avenue, Kensington,
on 23 March 1998,
during the course of which, and part of which, one of the accused
inflicted the knife wound to the deceased's
neck which caused his
death.
2. That the deceased
having been brought by way of such a sort into a state of submission
thereto one or both of the accused physically
took the property of
the deceased.
3. That this assault on
the deceased and the taking of his property were perpetrated pursuant
to a common purpose between the two
accused which arose either by
prior agreement between them or by impulse, to rob the deceased of
his valuable property through
the application upon him of such
violence.
4.
That each of the accused had the intention that the deceased be
killed through the application on him of such violence, either

directly by way of dolis directus as demonstrated by the nature,
number and severity of wounds inflicted on him, or indirectly
by way
of dolis eventualis by his foresight of the possibility of the
deceased being killed by the application of such violence,
and his
performance of acts of association therewith, with recklessness as to
whether or not death was to ensue.
In
the case of each accused the drawing of these inferences against him
is strengthened and/or reinforced by his mendacity and his
evidence
before this Court. Compare
S v Nkonbani
and Another
1963(4) SA 877 AD. In the
circumstances the Court finds that the State has proved beyond
reasonable doubt that each of the accused
committed the crimes of
murder and robbery as charged with the exception of the robbery of
the two wristwatches, and of cash more
than R400, and subject to this
EACH OF THE ACCUSED IS FOUND GUILTY AS
CHARGED
. This is the unanimous finding
of myself and my two assessors.
IMMELMAN,
AJ
12/08/2010