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[2024] ZAECMKHC 71
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S v Dingela (CC 41A/2023) [2024] ZAECMKHC 71 (24 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
Case No: CC 41A/2023
In the matter between:
THE STATE
and
THEMBA
DINGELA
Accused
JUDGMENT
METU AJ
“
To
every man upon this earth Death cometh soon or late. And how can man
die better Than facing fearful odds, For the ashes of his
fathers And
the temples of his Gods.”
[1]
INTRODUCTION
1.
The Accused and his cohorts concocted and
crafted a plan as far back as May 2023 to rob an Isuzu bakkie in
order to rebuild a similar
bakkie belonging to their member. A bakkie
belonging to the late Ms. Zoleka Gantana (“Zoleka”) was
identified as the
perfect fit for this purpose.
2.
Arising out of a spate of events that
occurred between 08 July 2023 and 10 July 2023, Zoleka a 57-year-old
female person and her
shop assistant, Ms. Kholosa Mpunga (“Kholosa”),
who was a 27-year-old person were robbed
(with
aggravating circumstances)
, kidnapped,
murdered, and their mortal remains were burnt, chopped into
fist-sized pieces and thrown into a river stream. The Accused
faced
the charges outlined below.
3.
The Accused was charged with six (6)
counts, comprising two (2) counts of robbery
(the
first being that of the bakkie and the stock in the shop, the second
being of the bank card)
with
aggravating circumstances, two (2) counts of kidnapping and two (2)
counts of murder.
4.
The Accused pleaded guilty to the two (2)
counts of robbery with aggravating circumstances; two (2) counts of
kidnapping and not
guilty to the two (2) counts of murder.
5.
He was legally represented. Mr. Geldenhuys
submitted a plea explanation statement in terms of Sections 112 and
115 of the Criminal
Procedure Act, 51 of 1977 (“CPA”).
The statement was accepted and entered as exhibit “A.”
6.
In the plea explanation in paragraph 3, the
Accused confirmed being guilty of the two (2) counts of robbery
(
simpliciter
)
and the two (2) counts of kidnapping.
7.
In the statement made in terms of Section
112, the Accused set out the events that preceded the offences and
his role in the commission
of the offences.
8.
At the trial, the Accused confirmed that he
understood the charges proffered and confirmed the contents of his
plea explanation
statement.
9.
Ms. Turner, the legal representative
appearing for the state, indicated that the indictment explicitly
stated that the provisions
of Sections 51 (1) (
a
)
and 51 (2) of the Criminal Law Amendment Act 105 of 1997 (“CLAA”)
(the so-called minimum sentences
legislation)
applied respectively to
the counts of murder and robbery.
10.
What was accepted by the Accused in his
plea materially differed from the indictment. Essentially, the
Accused was pleading guilty
to lesser offences.
11.
The Accused did not admit to all the
allegations made in the indictment. By way of illustration, in
paragraph 6 of the plea explanation,
the Accused stated that his role
was to transport his cohorts to the place where they had planned to
rob a bakkie; he then dropped
his cohorts and left for the farm where
he resides. According to the Accused, the plan was for him to wait
for them on their return
and open the gate for them. On the other
hand, the indictment placed the Accused at the scene of crime where
together with his
cohorts, acting in the execution of a common
purpose or conspiracy, unlawfully and intentionally assaulted the two
(2) women they
found at the shop, took by force a white Isuzu bakkie
with registration letters and numbers
H[…]
,
and stock from the shop valued at
R6
930.88.
12.
The same analogy is applicable in respect
of the counts of kidnapping. For instance, in paragraph 7 of the plea
explanation, the
Accused stated that he only noticed (for the first
time) the two (2) women when he was next to the gate of the farm
where he resided.
This is in contradistinction to the indictment that
places the Accused at the scene of the crime where the robbery took
place.
Subsequent to the robbery of the bakkie and the stock from the
shop, the two women were unlawfully and intentionally deprived of
their freedom of movement by being tied with cable ties. Thereafter,
they were removed forcefully and deposited into the back of
the Isuzu
bakkie, wherein they were taken to Daninge Farm in Peddie.
13.
Having regard to the above, a proper
approach was to correct the plea of guilty to that of not guilty,
which is
in favorem innocentiae
to the Accused and as envisaged in Section 113 of the CPA.
14.
Effectively, the Accused’s statement
was that its value and effect on the proceedings was formal
admissions and proof of relevant
facts.
15.
The Defence admitted documentary evidence
collected and collated by the State to buttress its case.
16.
The State called Detective Warrant Officer
Lawrence Human (“D/W/O Human”), who was number 14 on the
list of State Witnesses,
as the first witness to testify. He took
oath and stated that he was based at Kidd’s Beach, with
thirty-one (31) years of
service with the South African Police
Services (“SAPS”) and was the Investigator in this
matter.
17.
D/W/O Human further testified that
originally, there were four Accused, but the other three Accused
pleaded guilty on 04 March 2024
and were sentenced on 08 March 2024.
The trial for the Accused in this matter was separated from that of
the rest of his cohorts.
18.
A report of two missing women was made to
the police on 09 July 2023. Upon receiving the report, the police
visited the place where
Zoleka had a house and was also operating a
shop in the same yard. Photos were taken, and the photo album was
accepted as documentary
evidence and marked “Exhibit B.”
19.
D/W/O Human stated that in Photo 3 of
“Exhibit B,” there are flip-flops belonging to Kholosa.
Then he said Photos 8
to 11 showed a robbery, as items were strewn on
the floor, and the shop was dishevelled.
20.
He further stated that at the crime scene,
they found a lens for spectacles at the back of the shop door. D/W/O
Human stated that
Photo 23 depicted cable ties that were used to bind
the two deceased women.
21.
D/W/O Human interviewed Zoleka’s son,
Uve, and daughter, Nobuntu. He established that items, including an
Isuzu bakkie, were
missing. There was no sign of Zoleka and Kholosa.
He arranged for an extensive search that included the canine unit,
the diving
unit, the mounted unit, and the crime intelligence.
22.
A breakthrough only came on 12 July 2023,
while he was conducting an interview with Nobuntu. Nobuntu’s
cellphone rang, and
she was informed in that call that her mother’s
bakkie had been found in Gcinisa village. Subsequent to this
information,
D/W/O Human solicited backup, and they proceeded to
Gcinisa village and found the Bakkie stuck in the mud.
23.
When they got there, people had already
gathered around the bakkie. Fingerprints were taken from the bakkie,
and the accused's fingerprints
were found in it. Subsequently, the
Accused was arrested.
24.
D/W/O Human further testified that
community members informed him they had seen the Accused driving
around in the bakkie. They said
the Accused went around the local
farms asking for assistance to pull the bakkie out of the mud.
25.
At this stage, the bakkie's registration
plate was different from the one reported to the police. It had no
canopy and no registration
plate on the front. As the bakkie was
submerged in the mud, a brick was in front of the rear right wheel,
which indicated that
someone was trying to get traction from that
wheel to get the bakkie out of the mud.
26.
D/W/O Human proceeded to Daninge Farm,
where the Accused resided. He was in the company of a photographer
and Nobontu, where he
found the Accused’s wife and father. The
photo album in this regard was submitted and accepted as documentary
evidence marked
as “Exhibit D”. Photos were taken on 12
July 2023 and another batch was taken on 13 July 2023. D/W/O Human
stated that
the Photos numbered 21 to 26 show grocery items found at
the backyard flat. Photos 94 to 96 show a wallet found hidden between
the mattress and the base in the bedroom of the backyard flat.
27.
The photos on pages 94 to 96 show a wallet
that belonged to Zoleka. This wallet was concealed between the
mattress and its base.
28.
Nobuntu identified her mother's handbag.
Photos 145 to 146 of Exhibit “D” show the handbag being
retrieved from the
plastic container.
29.
D/W/O
Human established that the Accused and his wife occupied the backyard
flat whilst the accused father stayed in the octagon
hut
[2]
.
30.
According to D/W/O Human he established
that the Accused had been on Daninge Farm.
31.
The mounted unit found a kit bag containing
some robbed from Zoleka’s shop. The Photos numbered 197 to 208
show this kit bag.
32.
Nobuntu recognised a piece of red cloth
that was used at her mother’s shop to cover the cash register
machine. At night, it
had a light beam that could be seen from
outside. This is in Photo 252 of “Exhibit B”.
33.
D/W/O Human turned to photo 258 which had a
beanie that had been turned into a balaclava by poking holes for the
eye area.
34.
According to D/W/O Human, another
breakthrough occurred after the Accused was arrested on 14 July 2023
because this resulted in
his pointing out the crime scene. He
testified that he was not part of this process as, in terms of policy
and procedure, he is
not allowed to participate.
35.
However, during the pointing out procedure,
photos were taken on 14 July 2023 and 18 July 2023, which were then
bound together in
a photo album submitted and admitted in evidence as
Exhibit E.
36.
In Photo 7 of Exhibit E, the Accused could
be seen pointing at an area marked “A” according to the
Key to Photographs.
This is an area in the sandpit where the two
women were allegedly placed and subsequently set alight by their
assailants.
37.
D/W/O Human further elucidated that this
was a far-flung area that was uninhabited, and there were no
buildings in sight. He stated
that no one could hear you even when
you raised an alarm.
38.
D/W/O Human testified that there was an
indication that there had been a fire made in the area marked as “A”
to which
the Accused was pointing.
39.
Points marked “B” and “C”
were areas where freshly cut bark of trees remained.
40.
He testified that Photos 33 to 51 of
“Exhibit E” were half-brick-sized body parts retrieved
from the river pond and
placed in a blue body bag used by the diving
unit.
41.
Then Photos 52 to 55 were the charred
effects on the sandpit area. Photos 56 to 57 were the remnants
of charred false teeth
(dentures).
D/W/O
Human contended that Nobuntu confirmed that her mother wore dentures.
42.
In Photo 66, the Accused points out some
tools kept inside the octagon hut. These implements could be used to
dig and chop wood.
43.
The second witness to be called by the
State was Mr. Mandla Qosho (“the Accomplice”), who took
oath and testified that
during the month of May 2023, he and his
cohorts, including the Accused before Court, planned and conspired to
rob a bakkie to
rebuild the one belonging to Sigagene Mgwatyu
(“Sigagene”), which had overturned. In the main case,
Sigagene was accused
no. 4. They would call each other in planning
for the robbery. Their intention was to use the bakkie whenever they
would be doing
some robberies.
44.
The Accomplice stated that he got along
well with the Accused, as they had been convicted before. They got
along so well that when
he visited the Accused’s place, he
would even get milk or sour milk, as the Accused have cows on the
farm where he resides.
45.
They identified Zoleka’s bakkie as
suitable for the purpose. He stated that he stayed in close proximity
to Zoleka. When he
was at his house, he could see the shop and
Zoleka's house.
46.
According to the Accomplice, the plan was
that he would not speak because Zoleka could identify his voice. On
the day of the executing
their mission, they had collected a side
cutter, balaclavas, gloves, cable ties, and his firearm.
47.
The Accomplice further testified that he
was Accused no. 1 in the main trial, whilst the Accused in these
proceedings was Accused
no. 2 in the main trial. The Accomplice
testified that he was serving two life terms for each of the murders,
15 years for each
of the two robbery counts and 8 years for each of
the two kidnappings.
48.
On 08 July 2023, his cohorts arrived at his
place, having taken a taxi to the village. They did not go directly
to Zoleka’s
shop. They cut a hole in the fence and hid next to
the door, waiting for Zoleka and Kholosa to come out. The Accomplice
and the
Accused hid next to the door, waiting to pounce when the two
women came out.
49.
Indeed, the door was opened and the Accused
entered first and he followed with a firearm in hand. The other
cohorts followed, although
he could not tell who exactly came after
him. According to the plan, Siyanda Makeleni (“Siya”)
then accused no. 3 in
the main case, was supposed to be the one
speaking, but at the crucial time, it appeared Siya was busy with
something else. This
compelled the Accomplice to speak and order the
two women to lie down. The two women’s hands were tied in the
front using
cable ties. They asked for keys to the bakkie, which they
got. Siya fetched the bakkie and brought it closer to the shop door.
They then loaded stock from the shop into the back of the bakkie,
which had a canopy. They left some space on which they deposited
the
two women. The Accused and one Tiger,
aka
Ntshebe, who is still at large, rode at the back with two women and
the stock.
50.
According to the Accomplice, they drove to
Daninge Farm, where the Accused opened the gate, whereafter they
offloaded the stock.
The Accused and the Accomplice went to look for
a place where the two women would be put. The accused knew the place
better, as
it was his homestead, so he led him to a shack that he had
never seen before nor knew of its existence.
51.
They returned to fetch the two women and
took them to the shack. The Accused left the Accomplice. He did not
see him as well as
the other cohorts. At about 03H00, the accused
arrived in the company of Tiger
aka
Ntshebe, who came into the shack
carrying a brownish bag. In the bag was a wallet with bank cards.
Tiger
aka
Ntshebe
and the Accused demanded pins for the bank cards. Zoleka gave them
the pin number of one of the cards in which a sum of
R200.00 was
first withdrawn then shortly thereafter R800.00 was withdrawn.
52.
At the time the Accused’s cohorts
came to ask for the pin numbers, the two women were still handcuffed
with cable ties.
53.
Later, Sigagene came bringing food for the
Accomplice and the two women. The two women refused to eat. At about
19H00, the Accused
just came and said, “Cousin, (signalling
time by pointing at his wrist) it’s time for us to go with the
women”.
54.
They descended a path towards a river
wherein, after a distance of about 1 ½ kilometres, they
stopped at a sandpit
and the Accused asked Zoleka to borrow him
Kholosa. The Accused and Kholosa went behind the bushes and after a
while they came
back. The Accomplice noticed that Kholosa was
adjusting her pair of jeans, although she was still handcuffed by the
cable ties.
The Accomplice also observed that the Accused was
adjusting his trousers.
55.
At this stage the accused said to the
Accomplice he must proceed. The Accomplice testified it was not easy
to shoot the two women
as there was some tussle and resistance from
them. However, he shot both of them in the head and there were three
(3) shots in
total that he fired. After the shooting both, he and the
Accused went back to the house and collected an old tyre, an axe with
a long iron handle, a spade and a bushcutter.
56.
Back at the sandpit, they cut down some
trees to start up the fire. They put the wood together with the old
tyre, on which they
burnt the two bodies. The Accused and the
Accomplice took turns to burn and turn the bodies in the fire. The
Accomplice said this
took a long time as it was drizzling. They
returned to the farmhouse where the accused told the Accomplice that
he would sleep
in his bedroom with his wife. The Accomplice slept at
the octagon hut.
57.
On Monday morning, 10 July 2023, the
Accused came to the Accomplice, telling him that they must go to
finish up their task. The
Accused was carrying a panga. On arrival
where they had left the two bodies the previous night, the Accused
started to chop the
charred remains of the two women. They took turns
to cut the charred remains of the two women. Each piece that they had
chopped
they would throw into the river.
58.
They then used a spade to put sand over the
bloodstains where they had earlier killed and cut up the mortal
remains of Zoleka and
Kholosa. The accomplice testified that it took
them time to chop up the charred mortal remains of Zoleka and
Kholosa. According
to the Accomplice, this was a difficult task that
one person could not accomplish alone.
59.
On their return to the farmhouse, the
Accomplice put the Panga on top of the chicken enclosure and could
not see the bakkie in the
yard. He then asked the Accused to show him
the bakkie before he left. They went somewhere and he pointed at it
from a distance.
He saw the white bakkie, and at that stage, it still
had a canopy.
60.
On Wednesday night, 12 July 2023, the
Accomplice returned to Daninge Farm to collect his share of the stock
and noticed that the
padlocks had been changed.
61.
Under cross-examination, the Accomplice
stated that he did not despise the accused. He was content to serve
jail term for what he
did. He had no problem being sentenced to life
imprisonment for something that he knew he did. This did not make him
resent the
Accused.
62.
After closure of the State case, the
Accused took the witness stand and testified that he was 53 years old
and resided at Daninge
Farm.
63.
He confirmed that he had pleaded guilty to
Counts 1 to 4 and not guilty to counts 5 and 6.
64.
The Accused confirmed that he and his
co-perpetrators had planned to rob Zoleka of her bakkie. They had
started to map out a plan
for this robbery around May 2023. They
would call each other in order to solidify their plan.
65.
They wanted the bakkie belonging to Zoleka
because his brother had a bakkie like that, which had overturned. The
plan was to strip
Zoleka’s bakkie and use its parts to rebuild
Sigagene’s damaged one.
66.
The Accused stated that the idea of robbing
that particular bakkie came from the Accomplice because he was a
neighbour to Zoleka
he had better information and details.
67.
On the day of the robbery, the Accused was
driving his Toyota Tazz, which he used to fetch his co-perpetrators
from Parkside in
East London and transport them to the Accomplice’s
place.
68.
When they were at the Accomplice’s
place, they discussed how they were to do the robbery. The Accused
later told his co-perpetrators
that he would have to rush home
because he had left the gate keys.
69.
While driving back home, he received a call
from his cohorts, who informed him that they would go to Daninge Farm
instead of Middledrift
as originally planned.
70.
When the Accused’s cohorts arrived at
the gate of Daninge Farm he went on foot to open for them and was
surprised to find
the two women. According to the Accused, it was the
first time that he saw in a robbery people would be abducted. He
reasoned with
his cohorts that they should let go the women. The
Accomplice would have none of it, and he just became a changed person
digging
on his heels, refusing that the two women be released.
71.
The Accused opened the front of the bakkie
and found a litre of Coke bottle that had been dr
u
nk
to about three
-
quarters.
He then hit this bottle on the wheel's rim and used the broken
bottleneck to cut cable ties on the women. They then went
to offload
the stock at the back of the bakkie at the farmhouse.
72.
When they returned from offloading the
bakkie, they noticed that it was running out of fuel. The Accused
said they must go with
the women. He ended up leaving with Sigagene
and Siya to hide the bakkie.
73.
After hiding the bakkie, the other two went
to hitch a hike to Parkside and he walked back to the farm and slept
in his bedroom.
74.
In the morning, he looked for the
Accomplice and the two women in the shack. When he got there, he
found no one.
75.
On Monday morning, when he was out feeding
his chickens, he saw the Accomplice in front of the flat where he
stayed. The Accused
went about his business of feeding chicken. Only
after finishing his chore did he enquire about the women. The
Accomplice informed
him that he had escorted them to the hiking spot
and requested that they go and check if they managed to get the hike.
76.
They took the footpath that crossed over
the river, whereupon when they were about the sandpit, the Accomplice
showed him two charred
bodies. There was a log which was emitting
smoke, which the Accomplice threw into the river. The Accused then
asked the Accomplice
if this was what he had done. He was cross with
the Accomplice and called Sigagene, informing him what the Accomplice
had done.
He left for the farmhouse. He then saw the Accomplice at
about 12H00, whereupon they had tea. Thereafter, the Accomplice left.
77.
The Accused got a call from Sigagene who
instructed him to burn the bakkie. He went to fetch the bakkie where
he had hidden it and
deliberately drove it into a muddy area off the
road for it to be stuck. He left the bakkie there with the key in the
ignition
switch.
78.
The Accused went to his Toyota Tazz, which
was not parked far from where he had submerged the bakkie in the mud.
He drank liquor
in the Toyota Tazz and during the night, he patrolled
towards the bakkie to check if no one was taking it away.
79.
The Accused spent the whole night there and
slept in the Toyota Tazz. He was then arrested the following day
Tuesday 11 July 2023.
The police took the Accused back to Daninge
Farm, where he pointed out where he had seen the charred bodies.
80.
According to the Accused, it was the
intelligence of the Police Officer who had taken him to the crime
scene that discovered that
the remains were thrown into the river. He
had no knowledge that the charred remains were thrown into the river.
81.
The Accused stated that he was only
complicit to the crime by being involved in its planning. He was not
at the shop when the bakkie
and stock were robbed.
OBSERVATIONS
82.
During the course of the proceedings, the
Accused would raise his hand and stand up, which, owing to the
benefit I had facing the
Court, would alert his legal representative
and afford him an opportunity to give instructions to his Counsel.
The import of this
observation is that when the Accused accomplice
testified, he made an insinuation that the Accused raped Kholeka just
behind the
bushes before they were killed in the sandpit.
83.
There was no reaction, which could be
expected from a person who was alive in the proceedings and did not
hesitate to give instructions
to his legal representative.
84.
In the wake of the insinuation of rape, a
natural reaction would have been to want to dispel this, more so,
that rape is not even
in the indictment. No reaction came from the
Accused and this allegation was not challenged in cross-examination.
DOES THE ACCUSED’S
EVIDENCE RAISE DOUBT?
85.
The accused has put different versions
before this Court, which he would adjust and tailor-make according to
what would suit the
question he sought to answer. This leaves the
Court with at least three of his versions.
86.
Except for denying that he was present at
Zoleka’s place when the robbery of the bakkie and stock took
place and the two women
were kidnapped, which fact on his own he had
accepted to be complicit in the facts recorded as formal admission
after his plea
explanation was changed to that of not guilty, he does
not bring any evidence that raises doubt that either actively
participated
in the commission of the offences or aligned himself
with their commission.
87.
The Accused does not come up with a cogent
story even with regard to how he was shown the charred bodies on the
Monday morning when
according to his version the Accomplice asked
that they must go and see if the two women managed to get a hike. His
reaction, if
there is any credence to his story, is incongruent and
not in sync with a person who was surprised about what had been done
by
the Accomplice. This must also be viewed with a lens that these
bodies were on his father’s farm. Therefore, how they were
to
be removed must have been important to him. By not informing the
police or a close member of the family,
viz
his father or wife about what he had
just witnessed is out of kilter to someone who had nothing to do with
the killing of Zoleka,
whom he had testified he knew, and Kholosa.
88.
For him to say he was cross (“sulking”)
that the Accomplice had murdered Zoleka and Kholosa does not raise
any doubt,
having regard to the whole conspectus of facts before this
Court, that he had at common purpose that they be killed.
ANALYSIS
89.
Professor J M Burchell deals with the
doctrine of common purpose in
Principles
of Criminal Law
3ed (2008) at 574 where
in essence he sets out what the doctrine of common purpose is:
“
Where
two or more people agree to commit a crime or actively
associate in a joint unlawful enterprise, each will be
responsible for the specific criminal conduct committed by one of
their number which falls within their common design.”
90.
The State's case
rests on the evidence of Mr. Mandla Qosho (“the Accomplice”),
who was accused no.1 in the original
case before the trial was
separated. It is pivotal that the Accomplice's eviden
ce
be properly evaluated in this matter.
91.
The Accomplice did
not downplay his involvement and participation in the commission of
the offence. With clarity, he would place
the Accused at the crime
scene. These were not challenged in cross-examination. For instance,
he stated that the Accused was the
first to enter the shop and he
followed him holding his firearm.
92.
After loading the
stock at the back of the bakkie, the Accused rode at the back with
the two women and Tiger
aka
Ntshebe. This also was not rebutted.
93.
The Accomplice states
at what time the Accused came back and indicated to him that it was
time they had to take Zoleka and Kholosa
from the shack to a spot
where they unfortunately met their demise. The Accused did not rebut
this version. He does not even provide
an
alibi
as to
where he was if he was not with the Accomplice busy with the heinous
acts so described by the Accomplice that they did on
that fateful
night of Sunday, 09 July 2023. On the other hand, the Accomplice did
not hesitate to say that he was the one who pulled
the trigger that
killed both Zoleka and Kholosa.
94.
On Monday morning,
they continued with the desecration of the mortal remains of both
Zoleka and Kholosa. The Accomplice’s
version is demonstrably
possible true as opposed to that of the Accused, which is not
reasonably possibly true. He stated that
they cut the charred
remains, with each piece thrown into the river. This is where the
diving unit retrieved what was left of Zoleka
and Kholosa, following
a pointing out by the Accused.
95.
In as much as the
Accused did not himself pull the trigger that took the lives of
Zoleka and Kholosa, it must be borne in mind that
the Accused
acquiesced to the use of the firearm in the robbery. He was aware
that the Accomplice still had the firearm when they
took the two
women from the shack towards the sandpit, where they were eventually
shot and killed. Different to
S
v Mbanyaru and Another
2009
(1) SACR 631
(C), in this matter, the Accused manifested a common
purpose that the two women be murdered. The Accused’s conduct
even after
their demise is consistent with this common purpose. He
and the Accomplice went back to the farmhouse to collect an old tyre,
spade,
an axe with a long iron shaft,
etcetera
to make
fire that was meant to burn their bodies to ashes. Therefore, I am of
the view that the killing of Zoleka and Kholosa was
a joint unlawful
enterprise between the Accused and the Accomplice.
96.
In scrutinising the
evidence of the Accomplice in this matter, and in want of making a
proper evaluation, I am guided by
Schreiner
JA
R v Ncanana
1948
(4) SA 399
(A) at 405 - 406, where he aptly stated:
“…
[C]aution
in dealing with the evidence of an accomplice is still imperative.
The cautious Court or jury will often properly acquit
in the absence
of other evidence connecting the accused with the crime, but no rule
of law or practice requires it to do so. What is required
is that the trier of fact should warn himself, or, if the trier is a
jury, that it should be warned, of the special danger of convicting
on the evidence of an accomplice; for an accomplice is not merely a
witness with a possible motive to tell lies about an innocent
accused
but is such a witness peculiarly equipped, by reason of his inside
knowledge of the crime, to convince the unwary that
his lies are the
truth. This special danger is not met by corroboration of the
accomplice in material respects not implicating
the accused, or by
proof aliunde that the crime charged was committed by
someone; so that satisfaction of the requirements
of sec. 285 does
not sufficiently protect the accused against the risk of false
incrimination by an accomplice. The risk that he
may be convicted
wrongly although sec. 285 has been satisfied will be reduced, and in
the most satisfactory way, if there is corroboration
implicating the
accused. But it will also be reduced if the accused shows himself to
be a lying witness or if he does not give
evidence to contradict or
explain that of the accomplice. And it will also be reduced, even in
the absence of these features, if
the trier of fact understands the
peculiar danger inherent in accomplice evidence and appreciates that
acceptance of the accomplice
and rejection of the accused is, in such
circumstances, only permissible where the merits of the former as a
witness and the demerits
of the latter are beyond question.”
97.
In
S
v Mahlabathi and Another
Potgieter JA said:
“
It
is clear from the authorities that if corroboration was required it
had, for the purpose of the so called cautionary rule,
to be
corroboration implicating the accused and not merely corroboration in
a material respect or respects.”
98.
The Accomplice has
clearly implicated the Accused in this matter. The Accused was not an
impressive witness, his version changed
from time to time plagued
with impossibilities and inconsistencies. Overall, the Accused was
not a credible witness. For instance,
it is reasonably improbable
that the Accused cut the cable ties on the two women’s wrist
s
with a broken
bottleneck without injuring them.
99.
The Accomplice, on
the other hand, was a reliable witness. He gave a first-hand account
of the incident, and little detracted
from the quality, integrity, and independence of his recollection of
events.
100.
It is trite that the State bore the onus
of proving the guilt of the Accused beyond reasonable doubt. A
plethora of cases
tell us that an accused is entitled to be acquitted
if there exists a reasonable possibility that he might be innocent.
101.
In assessing whether or not the guilt of
the accused has been established this court in
S
v Hadebe & others
1998 (1) SACR
422
(SCA) at 426 E - H approved of the approach adopted in
Moshephi
& others v R
(1980-1984) LAC 57
at 59 F - H in which the following was stated:
“
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.”
102.
In
S v Hlapezula and
Others
1965 (4) SA 439
(A) Holmes JA
formulated the cautionary rule, as applied to accomplices as:
"It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the
following
factors.
First, he is a
self-confessed criminal.
Second,
various considerations may lead him falsely to implicate the accused,
for example, a desire to shield a culprit or, particularly
where he
has not been sentenced, the hope of clemency. Third, by reason of his
inside knowledge, he has a deceptive facility for
convincing
description
-
his
only fiction being the substitution of the accused for the culprit.
Accordingly, even where sec.
257
of the Code has been satisfied, there
has grown up a cautionary rule of practice requiring (a) recognition
by the trial Court of
the foregoing dangers, and (b)
the
safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating the accused in the commission
of
the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or the implication by the accomplice
of
someone near and dear to him; see in particular ...
"
(Court emphasis)
103.
The Constitutional Court in
Thebus
& another v S
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) (para 45) is instructive. The Constitutional Court aptly stated:
“
A
collective approach to determining the actual conduct or active
association of an individual accused has many evidentiary pitfalls.
The trial court must seek to determine, in respect of each accused
person, the location, timing, sequence, duration, frequency
and
nature of the conduct alleged to constitute sufficient participation
or active association and its relationship, if any, to
the criminal
result and to all other prerequisites of guilt. Whether or not active
association has been appropriately established
will depend upon the
factual context of each case.”
104.
The fate of the Accused hinged on the
cogency or otherwise of the evidence. I have weighed up all the
elements which point to the
guilt of the Accused and have concluded
that he is guilty of the offen
c
es with
which he is charged and there is no reasonable doubt about his guilt.
105.
Petse DP in
Tshiki
v S
[2020] ZASCA 92
(unreported)
@ paragraph 40 had this to say:
“
I
accept, as my colleague has pointed out in her judgment, that the
fate of this appeal hinges in large measure on the evidence
of
Maluleke who was a single witness in respect of the events leading up
to and including the commission of the murder and its
aftermaths.
Accordingly,
it behoves a court
in evaluating such evidence to determine whether, having regard to
its shortcomings, defects or contradictions,
the truth has been told
.
(See in this regard
: R v Mokoena
[1956] 3 All SA 208
(A) at 212-213;
S
v Sauls and Others
1981 (3) SA
172
(A) at 180 E-F.)
[my underlining]
106.
It is important to note that there were no
serious or tangible contradictions due to the Accomplice's
cross-examination; any minor
infractions that may be there did not
raise doubt about the truthfulness of his evidence in totality. In
paragraph 62, Petse DP
in
Tshiki
above,
writes:
“
It
is
a fact that Maluleke’s evidence is not
entirely without blemish. This is, however, hardly surprising given
that we are here
dealing with someone who is an accomplice.
Accordingly, it should be remembered, as this Court emphasised in
S
v Francis
1991 (1) SACR 198
(A) at 205 C - E, that it is
not expected that the evidence of an accomplice should be wholly
consistent and wholly reliable, or
even wholly truthful. It is
sufficient that in its essential features it has a ring of truth.”
107.
The only test in criminal trial is whether
the Accused guilt has been proved beyond reasonable doubt. I am
persuaded that the State
has met this threshold.
108.
With the foregoing, I find that the Accused
is as guilty as his cohorts who had pleaded guilty and have been
sentenced for their
frolic and spate of gruesome acts.
109.
In
S v
Makwanyane & another
[1995] ZACC 3
;
1995 (2) SACR
1
(CC) at paragraph 117 the Constitutional Court propounded:
“
The
need for a strong deterrent to violent crime is an end the validity
of which is not open to question. The State is clearly entitled,
indeed obliged, to take action to protect human life against
violation by others. In all societies there are laws which regulate
the behaviour of people and which authorise the imposition of civil
or criminal sanctions on those who act unlawfully. This is
necessary
for the preservation and protection of society. Without law, society
cannot exist. Without law, individuals in society
have no rights. The
level of violent crime in our country has reached alarming
proportions. It poses a threat to the transition
to democracy, and
the creation of development opportunities for all, which are primary
goals of the Constitution. The high level
of violent crime is a
matter of common knowledge and is amply borne out by the statistics
provided by the Commissioner of Police
in his amicus brief. The power
of the State to impose sanctions on those who break the law cannot be
doubted. It is of fundamental
importance to the future of our country
that respect for the law should be restored, and that dangerous
criminals should be apprehended
and dealt with firmly. Nothing in
this judgment should be understood as detracting in any way from that
proposition. But the question
is not whether criminals should go free
and be allowed to escape the consequences of their anti-social
behaviour. Clearly they
should not; and equally clearly those who
engage in violent crime should be met with the full rigour of the
law…”
VERDICT
110.
The Accused is guilty of count 1 being
robbery with aggravating circumstances. I accept the version of the
Accomplice that the Accused
was present at the shop on 08 July 2023
and was the first to enter the shop followed by the Accomplice who
was wielding a gun,
and the other cohorts followed. The shop was
ransacked and stock valued at R6 930.88 was taken. The provisions of
Section (1) (1)
(b) (i) of the CPA are invoked.
111.
The Accused is further found guilty of
counts 2 and 3 in that on the same day a 57
-year-
old
Zoleka was kidnapped together with her employee Kholosa who was then
27 years of age. The two women were kidnapped and bound
by cable ties
from the evening of 08 July 2023 until they met their horrific demise
o
n the night of 09 July 2023 whilst still
under shack
le
s.
112.
Finally, I find the accused guilty of
murder in respect of both Zoleka and Kholosa.
MITIGATING AND
AGGRAVATING FACTORS
113.
The guide in
S v Blaauw
1999 (2) SACR 295
(W) at 311 is
appropriate, where it was held:
“
... a Court is,
in my view, still able to have regard to all the factors which would
traditionally have been considered in imposing
sentence. Moreover, in
my view, a Court should not consider each factor in isolation but
view them cumulatively and if, in doing
so, the Court forms the view
that, bearing in mind all the factors, aggravating as well as
mitigating, a sentence of life imprisonment
would be grossly
disproportionate to the crime committed or, to put it differently,
startlingly inappropriate or offensive to its
sense of justice, then
it should find that substantial and compelling circumstances exist
for departing from the prescribed sentence
...”
114.
In this matter, the Accused is 51 years of
age, married with two minor children, a 13-year-old son and a
4-year-old girl. They stay
at Daninge Farm, which belongs to his
father. He earns R20 000.00 a month and his highest level of
education is Standard 9 (Grade
11).
115.
On the other hand, the Accused has previous
convictions:
115.1.
Rape for which he was sentenced to 5 years’
imprisonment on 10 November 1992;
115.2.
Robbery committed on 25 October 2000; and
115.3.
Robbery committed on 01 February 2001.
116.
The accused has not shown a scintilla of
remorse during the proceedings instead the manner he conducted
himself during the trial
digging to his heels and making bald denial
opened up wounds to the members of the family. Clearly, the Accused
has not been deterred
by the previous convictions and serving time in
jail.
117.
Two members of each of the families of the
deceased testified and were still in pain and have been able to find
closure as they
could not even see their loved ones. Striking is the
fact that some parts of the remains that were retrieved could not be
identified
as to whom they belonged as they were burnt together and
could not be extricated. The families had to take a painful decision
to
share those pieces, which means there are pieces of Zoleka in the
last resting place of Kholosa,
vice
versa
.
118.
In
S v Valley
1998 (1) SACR 417
(WLD) at 420 the court
put it thus:
“
The crimes
which the appellant committed are extremely serious. We live in a
society which is becoming increasingly lawless; firearms
are
frequently used in robberies and victims are not uncommonly shot to
death or badly wounded. Persons who perpetrate such crimes
must be
punished severely. Society demands this and it is absolutely
necessary that the message goes out to the world that people
who
commit these sorts of crimes will be punished severely.”
SENTENCE
119.
In
determining an appropriate punishment and jail time, I take guidance
on the triad of
Zinn
[3]
where it was propounded:
“
what
has to be considered is the triad consisting of the crime, the
offender and the interests of the society”
120.
This became the law, which requires the
trial court to balance these three different elements of the triad to
be in a balance. In
S v Mandlozi
2015
(2) SACR 258
(FB), the trial
court,
despite its consideration of all the relevant factors and being
commended for a good judgment, was faulted on not balancing
the
Zinn-triad
:
“
The
court a quo somehow excessively stressed the gravity of the crime
together with the harm to society’s interest at the
expense of
the profile of the appellant. As a result of the imbalance the court
a quo inappropriately imposed a sentence which
tended to be more
retributive than deterrent in effect.”
121.
Considerations
that have come into play in this matter especially that the
convictions fall within the ambit of Sections 51 (1)
and (2) of the
CLAA, I have taken heed of the warning bells sounded in a myriad of
cases that the Court is not give a clean slate
upon which to inscribe
whatever sentence it may deem fit for the specified crimes
[4]
.
122.
Suffice to say, I find no substantial and
compelling reason warranting deviation from the prescribed minimum
sentence in terms of
the CLAA.
123.
It is important that this Court maintains
that justice must be seen to be done.
In
R v Karg
1961
(1) SA 231
(AD) at 236 the court had the following to say:
“
It is not wrong
that the natural indignation of interested persons and of the
community at large should receive some recognition
in the sentences
that Courts impose, and it is not irrelevant to bear in mind that if
sentences for serious crimes are too lenient,
the administration of
justice may fall into disrepute and injured persons may incline to
take the law into their own hands. Naturally,
righteous anger should
not becloud judgment.”
124.
Terblanche writes in his book,
A
Guide to Sentencing in South Africa
:
“
(1) The
sentencing court has to impose an appropriate sentence, based on all
the circumstances of the case. The sentence should
not be too light
or too severe.
(2) An
appropriate sentence should reflect the severity of the crime, while
at the same time giving full consideration to
all the mitigating and
aggravating factors surrounding the person of the offender; in other
words, the sentence should reflect
the blameworthiness of the
offender, or be in proportion to what is deserved by the offender.
These two factor, the crime and the
offender, are the first two
elements of the triad of Zinn.
(3) An
appropriate sentence should also have regard to or serve the
interests of society, the third element of the Zinn triad.
The
interests of society can refer to the protection society needs, or
the order or peace it may need, or the deterrence of would-be
criminals, but it does not mean that public opinion be satisfied.
(4) In the
interests of society the purposes of sentencing are deterrence,
prevention and rehabilitation, and also retribution.
(5) Deterrence
has been said to be the most important of the purposes of punishment,
although this has been shown to be an
oversimplification. Deterrence
has two components, namely deterring the offender from re-offending
and deterring other would-be
offenders.
(6)
Rehabilitation should be pursued as a purpose of punishment only if
the sentence actually has the potential to achieve
it. In the case of
very serious crime, where long terms of imprisonment are appropriate,
it is not an important consideration.
(7) Prevention
as a separate purpose of punishment is rarely discussed any longer.
(8) Retribution,
as an expression of society’s outrage at the crime, has been
held not to be as important as it was
in the past but may
nevertheless be of great importance, depending on the facts of the
case. Thus, if the crime is viewed by society
with abhorrence, the
sentence should also reflect this abhorrence. Retribution can also be
related to the requirement that the
punishment should fit the crime,
or that there should be a proportional relationship between the
punishment and the crime.
(9) Mercy is
contained within a balanced and humane approach to consideration of
the appropriate punishment. This appropriate
punishment is not
reduced in order to provide for mercy. There is no room for a
vindictive and vengeful attitude from the sentencing
officer.”
[5]
125.
It is apposite the remarks made in the
final paragraph of
S v Matyityi
2011 (1) SACR 40
(SCA) at paragraph 24 where Ponan JA aptly said:
“
In this case
the respondent and his cohorts conducted themselves with a flagrant
disregard for the sanctity of human life or individual
physical
integrity. All three of them acted in a manner that is unacceptable
in any civilised society, particularly one that ought
to be committed
to the protection of the rights of all persons including women.”
…
126.
In
respect of counts 1 and 4, the resultant sentence due to the use of a
firearm in the commission of the robbery and also involving
the
taking of a motor vehicle
[6]
.
The Accused has previous convictions rendering him to be a third or
subsequent offender, which Section 51 (2) (a) (iii) read with
Part II
of Schedule 2 of the CLAA prescribes a minimum sentence of 25 years.
The Accused did not present any substantial and compelling
circumstances warranting the imposition of a lesser sentence.
Therefore, the Accused is sentenced to 25 years’ imprisonment.
127.
For counts 2 and 3, the Accused is guilty
of kidnapping in respect of both Zoleka and Kholosa. The provisions
of Section 51 (2)
(c), read with Part II of Schedule 2 of the CLAA,
kick in. In the premise, I sentence the Accused to 8 years for each
count.
128.
The Accused is also found guilty of counts
5 and 6 relating to the murder of both Zoleka and Kholosa. The
deceased were killed after
they were robbed and kidnapped. The
provisions of Sections 51 (1) read with Part I of Schedule 2 of the
CLAA are invoked. In this
regard, I impose two life sentences in
respect of both counts.
129.
All of the above sentences are to run
concurrently.
B. METU
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the State:
Adv. Turner
National
Director of Public Prosecution
High
Street
MAKHANDA
Counsel
for Defence:
Mr. Geldenhuys
Legal
Aid
MAKHANDA
Date
Delivered:
24 May 2024
[1]
Thomas
Babington Macaulay,
Horatius
[2]
See
photos 1 and 2 of “Exhibit D”
[3]
S
v Zinn
1969
(2) SA 537
(A @ 540 G.).
[4]
See:
S
v Matyityi
2011(1)
SACR 40 (SCA) @ para 11 and
S
v Malgas
2001(1) SA 469 (SCA).
[5]
SS
Terblanche,
A
Guide to Sentencing in South Africa
(LexisNexis, 3Ed. 2016), at 151-2.
[6]
Schedule
2, Part II (a) and (b) of the CLAA.