S v Oosthuizen and Others (K/S21/2020) [2024] ZANCHC 71 (6 May 2024)

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[2024] ZANCHC 71
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S v Oosthuizen and Others (K/S21/2020) [2024] ZANCHC 71 (6 May 2024)

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
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: K/S21/2020
Heard on: 15 -
24/05/2023;
09 – 12/10/2023
Delivered on:
06/05/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
THE
STATE
and
STEPHANUS
DAWID WESSEL OOSTHUIZEN

ACCUSED 1
EDWARD
KABELO DE BRUIN

ACCUSED 2
PIET
GOHENTSEMANG MULLER

ACCUSED 3
JUDGMENT
MAMOSEBO
J
[1]
The accused stands indicted on the following six counts: Count 1:
Murder read
with the provisions of s 51(1) of the Criminal Law
Amendment Act 105 of 1997 (CLAA); Count 2:  Kidnapping read with
the provisions
of section 51(2) of the CLAA; Count 3:  Assault
with intent to do grievous bodily harm; Count 4:  Contravention
of s
3(1) r/w sections 1, 120(1) and 121 of Act 60 of 2000 that of
unlawfully being in possession of a 6.35 mm calibre pistol with
serial
number D[...] without the necessary licence, permit or
authorisation in terms of the Act; Count 5:  Contravention of s
90
r/w sections 1, 120(1) and 121 of Act 60 of 2000 being unlawfully
in possession of 6.35 mm calibre cartridges without the necessary

licence, permit or authorisation in terms of the Act; and Count 6:
Contravention of s 120(10)(a) r/w sections 1 and 121 of
Act 60 of
2000 of unlawfully giving possession of a 6.35 mm calibre pistol and
6.35 mm cartridges to accused 2 and 3, persons who
were not allowed
in terms of the Act, to possess a firearm and ammunition.
[2]
At commencement of the trial I was informed by Mr JJ Schreuder,
counsel for accused
1, that the accused had succumbed to his illness
on 21 December 2022, a submission confirmed by counsel for the State,
Mr J Rosenberg.
As a result, Mr Schreuder was excused from
further attendance.  Mr Rosenberg withdrew count 6 as it was
against accused 1
only.
[3]
Before accused 2 and 3 could plead I ascertained from them if their
legal representatives,
Messrs Pieterse for accused 2 and Mmutloane
for accused 3, had explained the provisions of s 51(1) of the CLAA to
them as well
as competent verdicts and they confirmed receiving the
explanation which they understand.  They both pleaded not guilty
to
all the five counts and chose not to disclose the basis of their
defence.
[4]
Accused 2 and 3 made these formal admissions in terms of s 220
of the Criminal Procedure Act 51 of 1977 (CPA):
4.1
It is admitted that the identity of the deceased is Seun John
Modingwane, an adult male.
4.2
It is
admitted that the
deceased did not sustain
any
further injuries after being injured on 02 January 2019, during his
transportation and hospitalisation until his death on 03
January
2019, and during the further handling and custody of the body until
the post mortem on 07 January 2019.
4.3
It is admitted that the gun recovered on 04 January 2019 at Majaneng
Village is indeed a
firearm as defined in the
Firearms Control Act,
60 of 2000
.  It is admitted that the rounds recovered on the
same date and at the same place are indeed ammunition as defined in
the
Firearms Control Act, 60 of 2000
.  The report by Luvuyo
Lundi Mlindazwe is admitted as true and correct and is handed in as
Exhibit H2.
The State accepted the
admissions.
The version of the
State
[5]
The State called 12 witnesses.  Mr Aobakwe Ishmael Pholoholo, a
25-year-old unsophisticated
male person of a very small stature,
dropped out of school at Grade 5.  He is the complainant in
counts 2 and 3, kidnapping
and assault with intent to do grievous
bodily harm (GBH).  He testified that the incident happened on a
Wednesday in 2021
at around 17:00 but could not remember the month.
The witness later recalled that the date was the second of January
but
could not remember the year.  He was in the company of his
friend, the deceased, known to him as ‘Seun’ or ‘Tiger’.

They were sitting near a ditch at a bridge leading to Magogong
Village waiting for the deceased’s sister.  He estimates

the distance from where they were sitting to the watermelons plot to
be about 20 meters.  Two unknown security guards (accused
2 and
3 jointly referred to as the accused) arrived travelling on the back
of a blue Toyota van driven by Dawie (the former accused
1 and owner
of the watermelon plot, now deceased).  They were guarding
watermelons belonging to Dawie.
[6]
The accused confronted them, demanding to know their reasons for
sitting at the bridge
and telling them that they are not supposed to
be there.  The accused chased him and the deceased.  He
fled but could
not outrun the accused who caught up with him and
apprehended him.  Accused 2 held a firearm in his hand when he
chased him
but did not use it.  After he was apprehended the
accused assaulted him using bricks and pelted him with stones which
struck
him on his face and eyes.  He was further kicked and
pummelled with clenched fists.  Thereafter they took him and
placed
him to lie in the van where he was held.
[7]
While accused 3 kept him under guard, accused 2 pursued Seun, the
deceased, with a
firearm in his hand.  Dawie remained seated in
the vehicle.  After a while he could hear several shots being
fired.
Although he cannot recall how many shots were fired
because he was dizzy and made to lie on his back in the van it was
more than
one shot.  Accused 2 returned to the van and the three
of them took him to Dawie’s plot and placed him inside the
storeroom
depicted on photos 1 and 2 of Exh “A”.
There they made him lie on his stomach and accused 2 and 3 fastened
both
his hands and feet which were lifted behind his back with a wire
as depicted at photos 3, 4 and 5 of Exh “A”.
He is
observed on the photos without any clothing on his upper body and is
barefoot.  His explanation is that during the assault
his
T-shirt was torn and the accused threw it away.  His shoes also
went missing.  After tying him up they locked him
in that
storeroom until he was found and untied by the police.
[8]
He denied going to Dawie’s watermelon field to steal
watermelons.  He also
maintains that he was not found in
possession of any watermelons when he was apprehended.  When he
and the deceased saw Dawie’s
vehicle approaching in their
direction at high speed they fled because Dawie is ruthless and
assaults people on the road as he
does not want people near his
property.  He conceded that he ran into a canal filled with
water and accused 2 and 3 helped
him out of the canal and started
beating him up before putting him at the back of the van.  He
denied that the injury above
his right eye was caused by bumping
against the canal wall or jumping into the tunnel as he knows how to
swim and could not have
injured himself by jumping in the water.
He maintained that the injury was a result of the assault by accused
2 and 3.  After
loading him at the back of the van they then
went to search for the deceased who was found walking with Mtuyedwa.
[9]
Dawie stopped the bakkie where they found them and accused 2 jumped
out of the van
and instructed the deceased to climb onto the van but
he refused.  The deceased then fled and accused 2 chased him,
firing
shots.  He could not see if the deceased was struck
because he disappeared into a bushy area.  Dawie assaulted him
at
the plot after he was removed from the van by kicking him,
slapping him with open hands and clenched fists.  It was put to

the witness that the reason why he was kept in the storeroom was to
keep him safe until the police arrived to arrest him for theft
of
watermelons.
[10]
He sustained an open wound from the top of his right eye above the
eyebrow to the side.  He
also bled from his nose and mouth.  His
hands were swollen as a result of being tied with a wire.  The
police took him
to hospital at Hartswater where he was treated and
discharged.
[11]
Chico Patrick Mtuyedwa is 26 years old and resides at Diplankeng in
Magogong.  He passed
Standard 8 (Grade 10) in 2019.  He is
the eye-witness who was in the company of the deceased when he was
confronted by the
accused.  He knew the deceased as Tiger or
Seun.  On 02 January 2019 he had just knocked off from work at
Dawie’s
watermelon field, where he had worked for a period of
four weeks before the incident.  He saw the deceased lying on
the concrete
floor of a bridge facing upwards with his hands to the
back of the concrete ground.  Dawie arrived at the bridge
driving his
blue vehicle while the deceased was lying there and Dawie
got out of the vehicle and slapped him several times without uttering

a word.  He (Mtuyedwa) did not enquire from Dawie why he
assaulted the deceased fearing that he may be accused of allowing
the
theft to take place at his farm or even jeopardizing his work.
But the deceased asked Dawie why he slapped him and Dawie
said for
stealing his watermelons.  Accused 3 and Aobakwe were at the
back (load box or loading bay) of the blue bakkie.
He estimates
the distance from the bridge to Dawie’s watermelon field to be
about 60 meters.
[12]
Mtuyedwa was working at the watermelon field on the day of the
incident.  Had the deceased
and Aobakwe stolen watermelons he
would have seen them.  He refuted the theft accusation levelled
against them explaining
that he was the one who loaded the
watermelons that were in the bakkie on that day.  He denied that
those watermelons were
found in possession of Aobakwe and that he was
apprehended with them.
[13]
The deceased ran towards Mtuyedwa after he was slapped by Dawie and
they walked home together.
He advised the deceased to flee but
he refused stating that Dawie had already slapped him.  After
walking a distance of about
20 to 23 meters Dawie’s bakkie
approached them again.  The accused and Aobakwe were in the
loading bay of the bakkie
with Aobakwe lying on his back on top of
the watermelons.  Accused 2 jumped out of the bakkie armed with
a firearm.
He did not see wherefrom it was produced but only
observed it when it was already pointing at the deceased.  He
saw accused
2 firing a shot at the deceased which struck him on his
stomach and demonstrated by putting both his hands on his stomach
above
his belt.  He did not hear accused 2 uttering any warning
before firing the first shot except calling the deceased and
demanding
that he climb on the bakkie.  The deceased refused.
After being shot the deceased fled into the bushes.  Accused
2
continued firing shots whilst pursuing the deceased until he stopped
at the canal.  He heard about 5 shots being fired.
He saw
accused 2 returning to the van and boarding the van.  He went
home.
[14]
When he arrived at his home he noticed that there were members of the
community gathered at the
deceased’s home.  He also went
there.  He made a report of the shooting incident to Malati who
subsequently telephonically
contacted D/Sgt Godiamang Gladwin Pico
and reported to him.  D/Sgt Pico arrived simultaneously with two
ambulances.
The paramedics in one ambulance attended to the
deceased who was still alive at that time and rushed him to
hospital.  The
second ambulance was part of the SAPS motorcade
dispatched to Dawie’s place following up on the report that he
had made regarding
Aobakwe.  He accompanied the police to
Dawie’s place.  Among the SAPS members present he recalls
D/Sgt Moatlhodi
David Dikoko, W/O Edward Chabedi, and a female police
Captain whose name had escaped him and D/Sgt Pico.  After the
police
found Aobakwe he accompanied them to the police station.
There he furnished a statement and was later taken home.
[15]
The following day Mtuyedwa was again fetched by one of the SAPS
members, W/O Chabedi, to point
out to them where the shooting had
occurred.  Photographs of the scene and the pointing out were
made to W/O Lebogang Percival
Sechogela.  He ably explained the
points in his evidence as captured in Exh A.
[16]
D/Sgt Pico is stationed at Hartswater Police Station.  He has
been a detective for 6 years.
He resides at Diplankeng in
Magogong.  He knew the deceased as Seun who grew up in front of
him.  On 02 January 2019
he had just knocked off duty.
When he arrived home between 17:00 and 18:00 he was approached by two
ladies, Kedisaletse and
Kedilatile, who made a report to him.
On the basis of that report he accompanied them to the deceased’s
place.
[17]
Upon their arrival he observed that many members of the community had
assembled there.  He
entered the deceased’s residence and
found him lying under a bed sheet which he lifted and noticed that
his upper body was
naked.  He observed a wound on the deceased’s
stomach.  D/Sgt Pico demonstrated by placing his hand on the
right
side of his body just above his waist.  The deceased had
placed his hand on his stomach but it appeared as if he was holding

something.  He enquired from the deceased, who was still alive,
who caused that injury to him but he could not respond due
to
shortness of breath.  He then summoned the ambulances and the
SAPS members to attend the scene.  While the one ambulance
took
the deceased to hospital he, in the company of D/Sgt Moatlhodi David
Dikoko, Sgt Nthutang, and Sgt Lukas accompanied by Mtuyedwa,

proceeded to Dawie’s plot together with the second ambulance.
They were investigating allegations regarding Aobakwe
Pholoholo
who is known to him as he resides in the same village.
[18]
They found Aobakwe fastened in a small room as depicted at photo 4 of
Exh “A”.
Aobakwe was later taken by the ambulance
to hospital and they returned to the police station.  During his
investigations he
received information concerning accused 2 and 3.
When they visited Dawie’s place on the night of the
incident accused
2 and 3 were not present at that scene.  He
arrested the accused on 04 January 2019.  Accused 2 was arrested
at his uncle’s
residence, House No 6[...] Ext […],
Taung.  They were conducting suspect raiding on that day when
the late Sgt Mokgweetsi
was contacted by accused 2’s uncle.
The information received was that they should rush to arrest
him because he was
preparing to flee.  The SAPS members rushed
to the given address and found him in the bathroom with a packed bag.
He
explained his rights to him verbally and arrested him for
attempted murder as the deceased was still alive at that time.
[19]
As they left accused 2’s uncle’s place, they received
further information from accused
2’s uncle that accused 3 is in
Ngolo at his sister’s place.  The police went there and
while still approaching
they were stopped by accused 3’s sister
who was in the company of her husband and accused 3 riding together
on a donkey cart
heading to Taung.  He introduced himself to
accused 3, explained his rights to him and arrested him as well.
The two
accused were taken to Hartswater police station.  There,
he completed the Notice of Rights (SAP14A) for both accused in
triplicate
giving each accused the original copy, one copy for the
docket and the third copy remained in the book, for which they signed
to
confirm that their rights were explained to them and they
understood the explanation made.  The notices were accepted by
this
Court as exhibits “C” and “D”.
[20]
When the accused were arrested D/Sgt Pico was accompanied by many
SAPS members but remembered
offhand D/Sgt Mosalanyane, D/Sgt Markus,
D/Sgt Dikoko, D/Sgt Visser and the late D/Sgt Mokgweetsi.  He
refuted the contention
by accused 2 that he went to seek advice from
his uncle maintaining that the uncle advised the police to rush
because the accused
was preparing to flee.  He neither received
a complaint from Dawie pertaining to the theft of his watermelons nor
was aware
of any report made at the police station in that regard.
Accused 3’s legal representative did not cross-examine D/Sgt

Pico.
[21]
D/Sgt Dikoko is also stationed at the Hartswater Detective Services.
He has been a detective
for the past 6 years.  On 02
January 2019 he was the detective performing standby duties.  He
received a telephone call
from the police station informing him of a
shooting incident in Magogong.  He went to Magogong and met
D/Sgt Pico and the
victim lying in a room in a shack.  There
were many community members present outside his residence.  The
deceased is
unknown to him.  He observed him bleeding from the
right side of his stomach.  He received information involving
another
person at Dawie’s plot and was accompanied by D/Sgt
Pico, and other members of the SAPS to Dawie’s plot.  It
was
between 19:00 and 20:00.
[22]
Upon their arrival they found Dawie at his plot and asked him about
the shooting incident.
Dawie was reluctant to divulge any
information.  He actually acted surprised and seemed not to know
what the police were referring
to.  The police noticed the
storeroom which was locked by chain and a padlock from the outside.
They knocked on the
window and door of that storeroom and heard
sounds of a person groaning.  They peeked through the window but
could not see
clearly.  Dawie eventually gave the key to one of
his employees to unlock the storeroom door.  Aobakwe was found
inside
the storeroom behind the half wall depicted as 2a on photos 1
and 2 of Exh “A”.  The SAPS members used their
cellphone
torches for illumination since it was already dark.  They
found him lying on his stomach facing down with his hands and feet

fastened with wires at the back as depicted on photos 3, 4 and 5 of
Exh “A”.  They summoned the LCRC who took
pictures
of the scene.
[23]
As they were busy in the storeroom Dawie, without saying anything to
anyone, took off in his
vehicle.  The SAPS members, excluding
the LCRC members who remained at the scene, immediately pursued him.
He drove
towards Magogong Village.  The police caught up
with him.  He told them accused 2 and 3 were at the watermelon
field
which was a lie.  Dawie informed the police that he tried
to contact the accused telephonically but neither answered his
calls.
The police left with Dawie to Hartswater police station
where he was arrested after his rights were explained to him and the
Notice
of Rights form was completed.
[24]
W/O Sechogela is a member of the South African Police Service with 17
years’ experience
of which 14 years was with the Pudimoe Local
Criminal Record Centre (LCRC).  He received training in Advanced
Crime Scene
management which entails among others taking official
photographs, collecting evidence from crime scenes, attaching and
packaging
exhibits and sending them to the laboratory.  He also
attended a DNA Recovery Course.  He compiled the affidavit in
terms
of
s 212
of the CPA with key to sketch plan and photographs
under CAS 12/01/2019 and LCRC NO: 06/01/2019.  At the time of
the compilation
of Exh A he held the rank of Sgt.
[25]
W/O Sechogela visited crime scene 1 at Plot 6[…], M[…]
Village, on 02 January 2019
around 20:55. Const.  TW Nthutang
pointed out the scene to him and he took photographs 1 to 8 of
Exhibit “A”.
Photos 3, 4 and 5 depict how he had
found the victim and photo 6 shows the victim after the wires were
removed by one of the police
officers at the scene.  W/o
Sechogela states that visibility was fairly good because of the
adequate illumination from the
lighting equipment that he had brought
with him.
[26]
W/O Sechogela was summoned again by W/O Chabedi on 03 January 2019 at
09:10 to attend the scene
at a gravel road next to Skaalwater
Waterworks (crime scene 2) in Magogong.  Upon his arrival at
crime scene 2 he found several
police officials and the crime scene
was cordoned off.  Mr P Mtuyedwa, who is not a member of the
SAPS, pointed out crime
scene 2 to him.  Photos 9 to 26 of Exh
“A” relate to crime scene 2.  He explained the
different points as
follows:  Point 1b depicted at photo 10
indicates the direction of the victim and the eye witness as they
were followed by
a blue Toyota Hilux; point 2b on photos 10 and 11
indicates the place where the Toyota Hilux stopped and the security
guard had
jumped off;  point 3b on photos 10 and 11 indicates
the place where the security guard stopped and started shooting as
the
witness alleged;  point 4b indicates the area where the
victim was standing when he was shot at by the security guard and it

is the place where the first fired cartridge was found;  point
5b indicates the place where the second fired cartridge was
found;
point 6b indicates the place where the third fired cartridge was
found;  point 7b indicates the place where the
fourth fired
cartridge was found.  Point 8b indicates the place where the
eyewitness was standing.  The fired cartridge
collected at point
4b was packaged in forensic bag with serial number PA6002937072;
fired cartridge collected at point 5b was packaged
in a forensic bag
with serial number PA6002937068;  fired cartridge collected at
point 6b was packaged in forensic bag with
serial number
PA6002937070;  and fired cartridge collected at point 7b was
packaged in forensic bag with serial number PA6002937069.
W/O
Sechogela later booked the exhibits in the LCRC Register SAP459 for
safekeeping.
[27]
Mr William Zwelinzima Dabula is 59 years old and has been residing at
Taung Extension […]
since 1999.  He is accused 2’s
uncle.  On 03 January 2019 he and his wife left their home
around 19:00 to attend
a night vigil.  Whilst there, he received
a call from his daughter between 20:00 and 21:00 informing him that
accused 2 was
at their home.  After the night vigil ended they
returned home where they found accused 2.  Although accused 2
visited
him regularly he never visited them at night.  The
accused informed him that he is fleeing from the police.  When
he
probed for the reason therefor he said he and his friend had
injured someone and their employer demanded that they should flee as

he, their employer, has lawyers and he will stand trial for that
matter.  The employer threatened to shoot them if they did
not
flee.  The accused told him that the name of their employer is
Dawie.  He advised the accused that there was no way
that he
could flee from the crime that he has committed and that he should
hand himself over to the police.  The accused first
raised his
fear that the police might assault him but he managed to persuade him
to hand himself over.  He spent the night
with them.
[28]
After discussing the matter with the accused Mr Dabula sent a
Whatsapp communication around 22:00
to the late detective Mokgweetsi
enquiring from him what he knew about the accused and his friend.
Detective Mokgweetsi informed
him that the police were looking for
them.  He alerted the detective that accused 2 was at his place
and the police should
arrange to fetch him from there.  An
arrangement was made for the next morning.  The following
morning several members
of the police attended to his home and among
them he knew Chabedi and Mosalanyane.  Mokgweetsi was not among
them.  During
that period up to his arrest accused 2 resided
with his mother at her place which is estimated to be about 10 km’s
from his
home.  This witness was not cross-examined.
[29]
Ms Sara Sekabe resides in Taung and is accused 3’s sister.
On 03 January 2019 she
was telephonically contacted by accused 3
arranging to visit her but withheld the reason for the visit telling
her that he will
tell her in person.  She testified that he does
not visit her often.  Upon his arrival he informed her that his
colleague
had shot someone at work and he does not know whether or
not that person is alive.  He sought advice from her.  She
advised
him to hand himself over to the police as fleeing from them
was not a solution.  He was concerned about his minor child.

She assured him that they will look after the child.  Since it
was late they retired to bed.  The following morning as
they
were preparing to go to the police station she received a call from
the police enquiring about his whereabouts.  She
arranged with
them that she will meet them along the road to hand him over to
them.  The accused’s own residence is
at Majaneng.
She was also not cross-examined by either of the legal
representatives.
[30]
Mr Thabiso Mosalanyane is currently employed as an investigator by
Bidvest Protea Coin.
During January 2019 he was employed by the
SAPS as a D/Const in the Hartswater Detective Branch.  He was on
duty when he and
Col Kheswa booked out accused 2 and 3 from the
Hartswater police cells between 09:00 and 10:00 in the morning.
After stepping
out of the cells he explained the following rights to
them in Setswana:  that they have a right not to answer any
questions
that he may pose to them and should they do so anything
said would be used against them in court;  they were entitled to
have
an attorney present during the interaction with him at their own
cost and if they could not afford an attorney one could be provided

from the legal aid.  Neither of them objected to the engagement
without an attorney present.  Both accused were in their
sound
and sober senses and not under the influence of alcohol or drugs.
The subject of the interview was to ascertain the
whereabouts of the
firearm that was used in the shooting.  After he asked them
where the firearm was, accused 2 enquired from
accused 3 in their
presence what he did with the firearm.  His response was that it
fell at the time when they were fleeing.
He then asked them if
they would take the police to the alleged point where accused 3 says
it fell.  They both agreed to take
the police to that point.
[31]
Cst Mosalanyane left the police station accompanied by the accused,
W/O Chabedi, Sgt Pico and
Col Kheswa to a plot known as 1 Lima 3
directed by both accused.  This plot is the property of Dawie.
Upon arrival at
the plot he enquired from accused 3 if he remembered
the exact spot where the firearm allegedly fell but he could not
remember.
They then conducted a field search for the firearm
together with the accused.  During the search they considered
other search
options and agreed to involve the dog unit.
However, before the dog unit could arrive, accused 2 enquired from
accused 3,
in their presence, about the whereabouts of the bullets he
had placed in his bag.  Accused 3’s response was that the

bullets were in the schoolbag at his home in Majaneng.  Cst
Mosalanyane enquired from them if he should accompany them to

Majaneng to show them that school bag.  They agreed.  Cst
Mosalanyane and Col. Kheswa accompanied them to Majaneng leaving
the
other members at the watermelon plot to continue with the search.
[32]
After they alighted from the vehicle at accused 3’s home at
Majaneng accused 3 said to
his girlfriend “
can
you
please bring the bag that I usually take with to work?”
and
she brought it and handed it over to accused 3.  Accused 3
opened the school bag and Cst Mosalanyane saw a box containing

bullets in the bag.  Cst Mosalanyane said to accused 2 and 3 now
that the bullets have been found they could return to the
plot to
continue with the search for the firearm.  Accused 3 walked for
some distance from where they all stood, towards a
wooden box next to
the shack.  Cst Mosalanyane followed him closely.  The top
of that wooden box depicted at photos 2
and 3 of Exh “E”
was covered with a cloth or piece of material.  Accused 3 pulled
the cloth or the material away
and uttered the words “
here
it is”.
Cst Mosalanyane enquired from the accused
what he meant but no response was forthcoming.  As Cst
Mosalanyane peeked
into that box he saw a pistol inside.
Without handling that pistol he informed Col Kheswa to come and
observe.
[33]
Cst Mosalanyane and Col Kheswa telephonically contacted their
colleagues who were still on a
wild goose chase for a firearm at the
watermelon field to join them at accused 3’s place.  They
also summoned the LCRC
to the scene and Sgt Malgas responded.
Cst Mosalanyane pointed out to Sgt Malgas and he took photographs.
According
to Cst Mosalanyane as Sgt Malgas was making the firearm
safe they observed that there was a silver magazine containing five
bullets
in the firearm and one bullet was inside the chamber.
There was an additional silver magazine below the firearm.  Sgt

Malgas collected the evidence and placed it in the forensic bags.
[34]
After all the evidence was collected, Cost Mosalanyane, Col Kheswa
and the accused returned to
the Hartswater police station where the
accused were booked back to the cells.  Cst Mosalanyane
explained the process of booking
the accused in and out of the
cells.  He typed his own statement on 07 January 2019 where he
specified the details of the
firearm.  He recorded the name of
the firearm as a patented model GT 27, calibre.25 with serial number
D[...] and the ammunition
6.35.  It was put to Cst Mosalanyane
by accused 2’s legal representative that the accused were
telephonically instructed
to flee by the owner of the plot Mr Dawie
at the time when he (Dawie) had approached the plot with the police.
Cst Mosalanyane
was subjected to rigorous cross-examination by the
defence but he remained consistent in his version.  I found him
to be a
credible witness.
[35]
Brig Sipho Aron Kheswa is also a SAPS member stationed at the
Provincial office in the Northern
Cape.  On 04 January 2019 he
held the position of Colonel.  He was deployed to the Hartswater
Cluster to oversee the
SAPS festive operations there.  He
accompanied Cst Mosalanyane to the Hartswater police cells where
accused 2 and 3 were booked
out of the cells for investigative
purposes and to recover the murder weapon.  He witnessed Cst
Mosalanyane explaining the
accused’s rights before he conducted
the interview.  He did not witness any assault on the accused at
any time whilst
he was accompanying the investigative team first to
the plot and then to accused 3’s residence.
[36]
After the search for the firearm at Dawie’s watermelon plot
that lasted for half a day
had proved to be an exercise in futility,
accused 2 asked accused 3 where the bullets were that were inside the
bag.  Accused
3’s response was that they are at his home
in Majaneng.  Cst Mosalanyane, accompanied by Col Kheswa and the
accused,
drove to accused 3’s home.  Upon arrival at
accused 3’s residence he called his girlfriend from inside the
van,
and asked her to bring the schoolbag that he normally carries to
work.  She returned with the bag and handed it over to accused

3.  Cst Mosalanyane asked accused 3 to open the bag and
discovered that it contained bullets.  Cst Mosalanyane informed

them that now that they have found the bullets they must return to
the watermelon field to continue with the search for the firearm.

Accused 3 asked Cst Mosalanyane to wait for a moment.  They
had alighted from the police van.  Accused 3 took Cst

Mosalanyane to a place next to his shack where there was an object
used to roll up electricity cables placed upside down.  He

marked with a cross the object on Exh “E” that appears to
be the wooden object from underneath the green cloth below
the arrow
coming from number 2.  It is then that Cst Mosalanyane called
Brig Kheswa.  He confirmed observing the exhibits
found at
accused 3’s home as depicted on photo 3 of Exh E.  Col
Kheswa did not escape the laborious cross-examination.
[37]
Sgt Tebogo Marvin Malgas, a SAPS member with 14 years active service
was attached to the LCRC
as a constable in 2019.  His duties and
responsibilities include, among others, attending crime scenes and
lifting fingerprints,
taking photographs, collecting exhibits and
dispatching them to the Forensic Science Laboratory (FSL).  In
addition to the
Basic Police Training, he also received training in
Advanced Crime Scene and Forensics and DNA Recovery.
[38]
Sgt Malgas compiled Exh “E” which comprises key to sketch
plan and photographs taken
at House Number 1[...] M[...] Village
on
04
January 2019 at 17:00 as pointed out by Cst Mosalanyane.
According to his testimony, point 1 on photos 1 and 2 indicates house

number 1[...], M[...] Village.  Point 2 on photos 1 and 2
indicates where the exhibits (firearm, silver magazine, a box of

bullets) were found.  Points 3 and 4 on photo 3 is a blown-up
photo of the spot where the aforementioned exhibits were found.

Photo 4 depicts the exhibits as collected at house 1[...] M[...]
Village.  When he removed the pistol from where it was pointed

out to ascertain its safety before packaging it, it contained a
magazine with 5 live rounds of ammunition and one live round in
the
chamber.  Underneath the pistol there was another silver
magazine which also contained 5 unused rounds of ammunition.

Inside the box there were 25 rounds of ammunition.  He took the
exhibits and packaged them as follows as depicted at photo
4 of Exh
“E”:  the top right forensic bag with serial no PA
60033892871 contained a magazine found under the firearm
with 5
bullets; the bag in the top middle with serial no PA 6002936930
contained 25 bullets in a box; the big bag to the left of
the photo
with serial no PA4001873857 contained two swabs of uplifted DNA from
the handling of the firearm; the middle bag to the
right of the big
bag with serial no PA 60033892840 contained one silver magazine with
five live rounds found inside the firearm;
the bag middle right with
serial number PA 5002628803 contained a firearm found at 1[...]
M[...] Village; and the bottom left bag
with serial no PA 600
33892390 contained a black   S &V6.35 handgun and
ammunition box; and the bottom right bag
with serial no PA 6002936929
contained the one bullet found in the chamber of the firearm.
[39]
Sgt Malgas initially booked the exhibits into the Hartswater Police
Station SAP 13 register then
booked them out of that register and
took them to Kimberley LCRC for the lifting of the fingerprints.
The exhibits were booked
into the SAP 459 register and were
subsequently handed over for ballistic testing.  Sgt Malgas
packaged the exhibits under
the serial no PA 4004168858 and handed
them over to Cst Mogoiwa and not to W/O Chabedi as appearing in the
letter.  Cst Malgas
explained that in the report by Captain
Luvuyo Lundi Mlindazwe, attached to the Ballistic Section of the SAPS
Forensic Laboratory
in Pretoria, exh “H2” mention is made
of “stapled tampered evidence”.  The reason for the
bags being
stapled was because when the Kimberley fingerprint unit
had finalised their examination they re-packaged the exhibits in the
same
bags.  That is why he, Malgas, used the main sealed
forensic bag with serial number PA 4004168858 when sending the
exhibits
to the Forensic Science Laboratory for ballistic testing he
used a sealed bag.  He was not cross-examined by any of the
defence
legal representatives.
[40]
Captain Luvuyo Lundi Mlindazwe filed an affidavit in terms of
s 212
of the CPA (H2) which was admitted by accused 2 and 3 as part of
their admissions made in terms of
s 220
of the CPA.  He is the
ballistic expert whose credentials are not disputed.  On 23
August 2019 he received two intact
sealed evidence bags marked under
Hartswater CAS 12/01/2019 from the Case Administration of the
Ballistics.  In the first
intact sealed envelope he specifies
the stapled tampered evidence under the following exhibits:
40.1
Bag no PA5002628803 containing one 6.35MM Calibre TANFOGLIO model GT
27 semi-automatic pistol with
serial no D[...];
40.2
Bag no PA6002936929 containing one 6.35MM calibre cartridge and
marked it as 7[...];
40.3
Bag no PA60033892840 containing five 6.35MM calibre cartridges
unmarked and one firearm magazine compatible
to be used in the
firearm mentioned in 40.1, unmarked;
40.4
Bag no PA60033892871 containing five 6.35MM calibre cartridges,
unmarked and one firearm magazine,
unmarked;
40.5
Bag no PA6002936930 containing twenty-four 6.35MM calibre cartridges,
unmarked.
The second main sealed
evidence bag with number PA5002628810 contained one 6.35 MM calibre
fired bullet and marked I[...].
[41]
Capt Mlindazwe examined the cartridges mentioned in paragraphs 40.2,
40.3, 40.4 and 40.5 and
found that they consisted of a primer,
cartridge case, bullet and propellant and were designed and
manufactured to be fired by
a centre-fire firearm.  He also
examined the pistol mentioned in 40.1 and found that it functions
normally without any defects.
The mechanism of the firearm in
question is self-loading but is not capable to discharge more than
one shot with a single depression
of the trigger.  He also
examined the fired bullet that was sent separately in the second
intact evidence bag, the projectile
retrieved from the deceased’s
stomach and dispatched for ballistic testing by W/O Chabedi under
serial no PA5002628810 and
those used for test purposes marked 413TC1
to 413TC2 and 413TB1 to 413TB2 to determine if they were fired from
the firearm mentioned
in 40.1.  His conclusion was that it
cannot be determined if the one 6.35 MM calibre fired bullet marked
I[...] was fired
or not fired from the firearm mentioned in 40.1.
[42]
Dr Lemainé Fouché possesses an MBChB degree from the
University of Pretoria obtained
in 1973; a Diploma in Pathology
obtained at the University of the Free State (UFS) in 1985; Diploma
in Community Health obtained
in the UFS in 1996;  M Med (Med
Forens) obtained at the UFS in 2006;  Admitted as a Fellow to
College of Forensic Pathologists
in 2006;  PhD conferred in 2016
in the Health Professions Education Section.
[43]
She is a Principal Pathologist in forensic pathology, stationed in
Kimberley, and appointed on
a sessional basis by the Department of
Health, Northern Cape.  To date she has conducted 4175 post
mortem examinations.
Her credentials are undisputed.  She
conducted the post-mortem on the deceased’s body registered
under number KDR 6/2019
identified to her by the forensic pathology
officer Lesego Kelapisitswe.  It was a body of a black adult
male with a slender
physique whose reputed age is 29 years.  The
body was received naked and wrapped in a body bag.
[44]
When she started her examination of the body she observed that
rigor
mortis,
in other words, the stiffness of the body at death, had
already set in and that hypostasis was present and explained that it
meant
that when death set in and because the body was lying on its
back the blood had gravitated to the lowest part of the body.
[45]
In as far as the external appearance of the body is concerned, Dr
Fouché recorded the
following at para 4 of the post-mortem
report which she supported by highlighting the exact location of the
said injuries on the
male diagram attached at the last page to the
report:
45.1
A defect, 5mm in diameter and surrounded by a rim of abrasion on the
outside aspect of the right lower
arm.  This defect has the
appearance of an entrance wound.
45.2
A slit-like defect, 7mm long in the inner aspect of the right lower
arm.  This defect has the
appearance of a shored exit wound.
45.3
A defect, 7mm in diameter into which a corrugated drain was placed on
the lateral aspect of the right
abdomen.  This defect has the
appearance of an entrance wound.
45.4
A bruise, 1.5cm in diameter and 2.5cm left of the umbilicus.  An
incision into the bruise revealed
the projectile which was removed by
myself, placed in an appropriate container and marked KDR 6/2019 by
myself and handed over
to FPO L Kelapisitswe.
45.5
A defect, 1 cm in diameter with a rim of abrasion on the lateral
aspect of the right hip.  This
defect has the appearance of an
entrance wound.
[46]
Dr Fouché further recorded that the brain of the deceased,
which was pale in colour, was
macroscopically swollen with flattening
of the gyri.  She explained that the paleness of the brain, also
observed on both
kidneys as well as the liver that had a nutmeg
appearance was due to loss of blood.  She also observed and
recorded the presence
of a bloody fluid in both thoracic cavities and
in the abdominal cavity.  Since all organs are supplied by blood
organs and
when circulation stops some of the fluids cipher into the
cavities.  Both lungs were oedematous and congested because of a

lack of circulation of blood.  There are no X-ray facilities at
their institution.  If they had X-rays she would have
taken them
to determine if there were any more projectiles inside the body.
[47]
The Chief post-mortem findings made by Dr Fouché on the body
were the following:
“
The
body of a black adult male with a gunshot through the right arm with
a re-entry wound into the lateral aspect of the right abdomen
with
damage to the mesenterium and the colon.  There was bloody fluid
in both the thoracic cavities and the abdomen.  A
projectile was
retrieved from the anterior abdominal wall left of the umbilicus.”
Dr
Fouché found the cause of death to be the gunshot through the
right arm with a re-entry wound to the right abdomen.
[48]
The doctor answered affirmatively that the wound on the outside
aspect of the lower arm (4.1),
the wound on the inner aspect of the
right lower arm (4.2) and the wound on the lateral aspect of the
right abdomen (4.3) were
caused by one bullet.  Notwithstanding
that she was not in a position to tell the Court which one of the
gunshots was fired
first.  She, however, clarified that the
wound at the hip was a graze and hence the recordal as a 1 cm
superficial tract with
an appearance of an entrance wound.  She
also elaborated on the question whether the deceased was facing his
attacker at the
time of the shooting or not.  Her explanation
was that once a person is in a flight mode it is possible that he may
have turned
because the shots were from the side.
[49]
W/O Edward Chabedi, the investigating officer of the case, also
testified.  He has been
attached to the Hartswater Detectives
since 2018.  He was assigned the case to investigate on 03
January 2019.  He fetched
the witness Mtuyedwa to accompany him
to the scene for purposes of pointing out.  He was accompanied
by Sgt Pico.  Upon
their arrival at the scene there were no
other people present.  After he observed empty cartridges he
cordoned off the scene
and telephonically contacted Sgt Sechogela for
the collection of exhibits and photographs.  W/O Chabedi, did
not handle any
of the exhibits.  W/O Sechogela was responsible
for the collection and dispatch of the exhibits to the laboratory.
He
is aware that the exhibits were sent to Kimberley for fingerprints
but is unsure what happened thereafter.  He personally first

registered the one projectile that was recovered from the deceased’s
body in the SAP 13 under Hartswater CAS 12/01/2019 then
subsequently
dispatched it to the Forensic Science Laboratory in Pretoria for
ballistic testing under serial number PA 5002628810.
[50]
Further investigations conducted on the firearm recovered by
Mosalanyane and Malgas revealed
that the pistol with calibre
description 6.35MM Browning with serial number D[...] belonged to Mrs
Johanna Francina Oosthuizen,
the wife to the late Stephanus Dawid
Wessel Oosthuizen, former accused 1.  The details are recorded
in Exhibits “G1”
and “G2”.
[51]
W/O Chabedi was requested by the State to establish who the SAPS
member was who made the entries
in the Occurrence Book (OB) when
accused 2 and 3 were booked in and out of the cells for purposes of
searching for the murder weapon.
He could not remember the name
of the member and could only confirm that it was a female member who
has passed away.
[52]
W/O Chabedi was further asked about the whereabouts of Dawie’s
bakkie which was seized
and registered under the SAP 13 as well as
the watermelons and the cellphones belonging to accused 2 and 3.
He had no knowledge
or explanation regarding the watermelons but that
the cellphones were handed to Sgt Mojaki to hand them back to the
accused.
The
State closed its case
.
The defence case
[53]
Accused 2 was the only witness who testified in his defence.  He
was 21 years old when the
incident occurred in January 2019.  He
was recruited by accused 3 who was then employed by Dawie as a
security guard.  He
was employed on 01 January 2018 but
officially reported for work on 05 January 2018.  He and accused
3 did not receive any
form of training for the guarding work.
Their responsibility entailed guarding watermelons to prevent theft
or loss.
The watermelon field is located far from Dawie’s
residence or plot.  Dawie placed accused 3, who is older than
him,
in possession of a pistol.  He was not taught how to
operate a firearm and does not know if accused 3 had received any
firearm
training.
[54]
On the day of the incident, they observed Aobakwe at the watermelon
field and chased him.
He did not know Aobakwe.  Aobakwe
fled towards the canal and jumped in the water which could be about 3
m deep.  He tried
to exit the canal on his own and in the
process bumped his head against the canal wall.  He and accused
3 pulled him out.
They waited for Dawie to arrive in his bakkie
and loaded Aobakwe at the back of the bakkie and climbed in with
him.  There
were watermelons at the back of the bakkie.
Dawie informed accused 2 and 3 that he saw another person at the
bridge and drove
towards the bridge.
[55]
As they approached the bridge accused 3, who had the pistol on his
hip handed it to him and suggested
that he should threaten the
deceased with the firearm so that he would climb onto the van.
Dawie screamed at him to load
the deceased.  He (accused 2)
fired a shot to the side and alighted from the van carrying the
firearm in his hand.  He
asked the deceased to board the vehicle
but he refused and produced a knife instead.  He again fired a
shot to the side and
the deceased fled running in a zig-gag fashion.
Because he did not have any knowledge of firearms he just continued
firing.
He was operating a firearm for the first time but fired
randomly towards the direction in which the deceased fled.  He
cannot
remember how many shots he had fired.  The deceased
disappeared in the bushes and he returned to the vehicle and handed
the
firearm back to accused 3.  Dawie and accused 3 left him at
the watermelon field taking Aobakwe with them to Dawie’s
plot.
He does not know whether any of the fired shots had struck the
deceased.  Later, Dawie returned with accused 3
and they loaded
the watermelons on the van.
[56]
Accused 3 informed him that he and Dawie had put Aobakwe in a garage
and that Dawie had told
accused 3 that he will report the matter to
the police.  Dawie later told accused 3 that the police were on
their way.
Dawie advised him and accused 3 to flee and that he
will handle the police.  He fled to his uncle and accused 3 to
his sister.
He denies the intention to injure or kill the
deceased as he just wanted to scare him so that they could catch him
and hand him
over to the police.  The police apprehended him at
his uncle’s place.
Accused
2 did not call any witnesses to testify in his defence but opted to
close his case.
[57]
Piet Gohentsemang Muller, accused 3, also testified and opted not to
call any witnesses to testify
in his defence.  His evidence was
that on          02
January 2019 he was employed
as a security guard to guard watermelons
at Dawie’s watermelon field.  Accused 2 was his
colleague.  He and accused
2 observed Aobakwe and “
Mpharanyane”,
the deceased, at the bridge.  Aobakwe walked next to the
road and went to the pump house.  He followed Aobakwe and as
soon as Aobakwe noticed that he was being followed, he ran and dived
into a canal.  He held out a stick to Aobakwe to help
him to
exit the canal.  Aobakwe was injured above his eye after bumping
against the concrete wall of the canal.  He (accused
3) was
alone with Aobakwe at that time as accused 2 was on the other side of
the field.  He called Dawie.  While they
were waiting for
Dawie to arrive, Aobakwe pointed towards the watermelons stating that
he and
Seun
, the deceased’s other name, had picked
them.  Dawie arrived and enquired from him why Aobakwe was
oozing blood and he
explained to Dawie that he was injured by the
concrete wall of the canal.  Dawie ordered them to load the
watermelons on the
van.
[58]
As they drove towards the bridge Aobakwe pointed to the deceased and
said there is
Seun
.  Dawie drove the bakkie while he and
Aobakwe occupied the load box of the van.  Accused 2 emerged
from the watermelon
fields at the stage when Aobakwe pointed at
Seun.  Dawie ordered accused 2 to pursue the deceased.
Accused 2 chased
the deceased who fled towards the veld and gun shots
were fired.  As far as he knows accused 2 was not in possession
of a
firearm when gunshots were fired.  He heard three-gun
shots.  Dawie then drove towards the bus stop at the bridge
where
accused 2 joined accused 3 and Aobakwe in the load box of the
bakkie after the deceased had outrun him.  Dawie told accused
3
to guard Aobakwe in the load box as they returned to the watermelon
field.  Dawie then told accused 2 to alight and remain
at the
watermelon field while they took Aobakwe to his plot.  At the
plot Dawie ordered him to offload the watermelons from
the bakkie.
[59]
Thereafter Dawie told him to guard the storeroom as he called another
employee by the name of
Rasta and ordered him to lock Aobakwe inside
the storeroom.  Aobakwe was not tied up when Rasta put him in
the storeroom.
Dawie was on the phone and subsequently told
accused 3 that the police were not taking his call.  Dawie then
advised him to
take food from the shop for him and accused 2 and
drove him back to the watermelon field where he re-joined accused 2
and offered
him food.  He and accused 2 never had any further
encounter with either Aobakwe or the deceased.
[60]
Later that evening, around 20:00, Dawie telephonically informed him
that the police were at his
plot.  Accused 2 and 3 saw the
police at the watermelon field around 21:00.  He does not know
what happened to the deceased
but learnt the following day that he
was shot and had died.
[61]
At his shack when the police were searching for a firearm, he asked
his girlfriend to bring the
bag that he normally carries to work.
She brought it and handed it to Cst Mosalanyane who opened it and
found a box of cartridges
therein.  Cst Mosalanyane enquired
about the firearm and thereafter went to a table standing under a
tree and retrieved another
box of cartridges from underneath a
cloth.  He conceded that when accused 2 asked about the
whereabouts of the bullets he
responded by saying they are in his bag
which is at his home.  He denied showing Cst Mosalanyane and
Brig Kheswa the table
where a firearm and cartridges were found and
maintained that he was at all times at the back of the police van.
The law
[62]
It is trite that in criminal cases the
onus
rests on the State to prove its case against the accused beyond
reasonable doubt.
The
test is set out as follows in
S
v Van der Meyden
[1]
:
“
The
onus of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable

doubt. The corollary is that he is entitled to be acquitted if it is
reasonably possible that he might be innocent (see, for example,
R v
Difford
1937 AD 370
at 373 and 383).”
[63]
The proper approach to the evaluation of the evidence has been laid
down by the Supreme Court
of Appeal in
S
v Chabalala
[2]
as
follows:
“
[15]
…The correct approach is to weigh up all the elements which
point towards the guilt of the accused
against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities
and improbabilities on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as
to exclude any reasonable doubt
about the accused's guilt. The result may prove that one scrap of
evidence or one defect in the
case for either party (such as the
failure to call a material witness concerning an identity parade) was
decisive but that can
only be an ex post facto determination and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently)
obvious aspect without assessing it in the context
of the full picture presented in evidence.  Once that approach
is applied
to the evidence in the present matter the solution becomes
clear.”
The issues and the
analysis of the evidence
Count 1: Murder read
with the provisions of
s 51(1)
of Act 105 of 1997
[64]
The State is alleging that the murder was committed in the
furtherance of a common purpose hence
the allegation that it falls
under the provisions of
s 51(1)
of the
Criminal Law Amendment Act.
It
is common cause that the deceased died of a gunshot.
Mtuyedwa was with the deceased when Dawie’s bakkie arrived.

The deceased’s refusal to board Dawie’s bakkie led to
accused 2 firing several shots at him.  The deceased was
struck
by the fired bullets and Dr Fouché found one projectile in his
abdomen.  The reckless shooting incident was
witnessed by
Mtuyedwa who was subsequently helpful in assisting the police with
their investigations.
[65]
Mtuyedwa’s evidence does not stand alone but was corroborated
to a great extent by Aobakwe,
Dr Fouché and D/Sgt Pico.
There is no ground of justification for this killing.  Common
between accused 2 and
Mtuyedwa is that accused 2 alighted the vehicle
pointed a firearm at the deceased and called the deceased but he
refused so accused
2 shot him. To substantiate that there were more
shots fired while the deceased was fleeing, spent cartridges were
retrieved at
the scene by the LCRC.
[66]
Mtuyedwa was taken to task during his cross-examination pertaining to
the difference between
the statement he made to the police and his
vivo
voce
evidence.
He explained that although he spoke in Setswana the statement
was written in English and translated back to him
in Setswana.
Seemingly, there are contradictions between what was contained in
that statement and what he had testified to
in court.  Whether
the deceased held his thigh or stomach after being shot, the evidence
of Mtuyedwa was corroborated by Sgt
Pico and Dr Fouché.
In this regard, pertaining to the perceived discrepancies our law is
settled.  See
S
v Mkohle
[3]
and
S
v Mafaladiso
[4]
.
Contradictions
per
se
do
not affect the credibility of a witness and it is crucial for the
evidence to be evaluated holistically.  Mtuyedwa did not
mislead
the Court.  While a bullet was retrieved from the deceased’s
stomach the post-mortem report also shows an injury
on his right
thigh area.  This therefore means that it is plausible that he
may have also held on to his thigh before holding
his stomach.
It is not a material issue whether the deceased had held his stomach
or his thigh or hip as he was fleeing.
The fact of the matter
is that the deceased was shot at by accused 2.
[67]
Mtuyedwa said, which accused 2 did not deny, accused 2 fired shots in
order to apprehend the
deceased suspected of stealing watermelons.
When he fired his first shot accused 2 and the deceased were close to
each other
at points 3b and 4b.  There was no justification to
shoot at the deceased at this close range more especially that he
acknowledged
that he knew what a firearm could do.  He directed
his shots at an unarmed person who was running away.
[68]
Mr Pieterse, for accused 2, urged this Court to consider that the
bridge where this incident
had occurred was very close to the
watermelon field which was not secured by fencing.  Evidence was
to the effect that the
watermelon field was separated from the travel
road by the canal.  Mr Pieterse conceded that the bridge was not
privately
owned but meant for public use.  The bridge allowed
access to the watermelon field and the nearby village.  Counsel
further
submitted the description of Dawie by accused 2 that he was
aggressive, and by accused 3 as hard core and by Mtuyedwa as having

shouted and assaulted the deceased at the bridge claiming that
Dawie’s attitude can be attributed to being under pressure
as a
result of the theft of his produce by people from the village.
Counsel argued that Dawie ended up employing two security
guards to
protect his property.  I disagree.  This type of attitude
is inexcusable and unjustifiable because he had lawful
remedies and
options to explore but opted to arm accused 2 and 3 with his wife’s
firearm and ammunition unlawfully.
[69]
Mr Pieterse contended that his client was not trained for the
security guard job.  He also
did not have any knowledge of a
firearm and was only 21 years old when he took up this dangerous
security job.  He lacked
the knowledge of the application of
minimal force and was, in fact, junior in age and date of assumption
of duty to accused 3 as
he only started in 2018 whereas accused 3 had
started in 2007.  Counsel submitted that arguably he had an
accessory duty to
accused 3.  Accused 2 maintained that he and
accused 3 patrolled the field together and did not operate
independently.
[70]
Mr Pieterse argued that the deceased and Aobakwe were watermelon
thieves but this submission,
in my view, was not borne out by the
facts.  What is before court is that when Aobakwe was
apprehended and the deceased shot
at, they were not in possession of
watermelons.  They were at a bridge and near the watermelon
field and were suspected of
being watermelon thieves.  Mtuyedwa
went as far as stating that the watermelons at the back of the van
were loaded by him
on that day which punches holes in the defence’s
averment that the watermelons loaded in the load box were those
retrieved
from the actions of Aobakwe and the deceased.  Aobakwe
explained the reason for being at the bridge as waiting for the
deceased’s
sister.
[71]
The State counsel, Mr Rosenburg, submitted that the accused be
convicted of murder, with the
form of intent as
dolus directus
.
Mr Pieterse, for accused 2, countered the submission by the state
contending that a proper conviction in respect of accused
2 would be
one of culpable homicide and not murder
dolus directus
or
dolus eventualis
.  Mr Pieterse’s submission is that
the only reasonable inference to be drawn is that the accused wanted
to catch the
thieves ‘red-handedly’ stealing watermelons
and to hand them over to the police.  Counsel contends that
accused
2’s intention was to apprehend the deceased and to get
him to the bakkie so that they can be taken to Dawie’s plot.

Accused 2 testified that the deceased refused and produced a knife,
turned around and fled.  I must dispose of the contention
that
the deceased produced a knife.  It was not put to any of the
witnesses, more particularly, Mtuyedwa.  It is improbable
for a
person confronted with a firearm to stop and produce a knife.
It is also incomprehensible how accused 2 would fire
the first shot
and even after realising that the deceased has vanished into the
bushes continuously and randomly just fire further
shots.
[72]
The State alleges common cause in as far as the offence of murder is
concerned.  Mr Pieterse
made the submissions that this Court
should reject the evidence of accused 3 in as far as the firearm is
concerned.  Counsel
argued that the firearm was there and
according to accused 2, accused 3 gave it to him to subdue the
deceased to board on to the
bakkie.  It is plain that accused 3
must have carried the firearm with the magazine carrying live rounds
in it, cocked it
and also removed its safety gauge because all that
accused 2 did was to pull the trigger, so the argument went.
When accused
2 returned from the shooting incident he handed the
firearm back to accused 3.
[73]
Mr Mmutloane submitted that there is absence of prior agreement as
one of the requirements in
the case of
Mgedezi
relied on by
the State.  He further submitted that accused 3 denies giving
accused 2 a firearm and challenged the evidence
of the State as to
when accused 3 had given accused 2 the firearm.  It is contended
on behalf of accused 3 that accused 3
did not share a common purpose
with accused 2 because had he ordered accused 2 to threaten the
deceased that cannot be common cause
with ordering him to kill the
deceased.  It is on that basis that Mr Mmutloane submitted that
the State has failed to prove
common purpose.  A submission was
further made to acquit accused 3 of all charges.
[74]
Nhlanhla J, writing for a unanimous court in
S
v Makhubela and Another
[5]
on
the application of the doctrine of common purpose pronounced the
following:
[35]
The operation of the doctrine of common purpose does not require each
participant to know or
foresee in detail the exact manner in which
the unlawful act and consequence will occur. The doctrine of common
purpose in our
law is clear.
[36]
In Mgedezi, the Supreme Court of Appeal stated:
'In the first place,
he must have been present at the scene where the violence was being
committed. Secondly, he must have been
aware of the assault on the
victims. Thirdly, he must have intended to make common cause with
those who were actually perpetrating
the assault. Fourthly, he must
have manifested his sharing of a common purpose with the perpetrators
of the assault by himself
performing some act of association with the
conduct of the others. Fifthly, the requisite mens  rea;…'
[37]
In Thebus, this court reiterated the principle of common purpose and
explained what the 'requisite
mens rea' entails if the prosecution
relies on this doctrine. The court stated:
'If the prosecution
relies on common purpose, it must prove beyond a reasonable doubt
that each accused had the requisite mens rea
concerning the unlawful
outcome at the time the offence was committed. That means that he or
she must have intended that criminal
result or must have foreseen the
possibility of the criminal result ensuing and nonetheless actively
associated himself or herself
reckless as to whether   the
result was to ensue.'
[38]
Finally, in Dewnath it was held:
'The most critical
requirement of active association is to curb too wide a liability.
Current jurisprudence, premised on a proper
application of S v
Mgedezi and Others, makes it clear that (i) there must be a close
proximity in fact between the conduct considered
to be active
association and the result; and (ii) such active association must be
significant and not a limited participation removed
from the actual
execution of the crime.'”
[75]
Putting the principles as espoused by the ConCourt in the case
in
casu,
accused 2 and 3 were present at the scene performing their
guarding services on the fateful day.  They were together with
Dawie
driving them around the premises and jointly gave chase to
Aobakwe and the deceased.  Accused 3 did not only hand the
firearm
to accused 2 but was also aware of the shooting of the
deceased.  There is no evidence that he was coerced to be and to
remain
at the watermelon field or in Dawie’s van at the time of
the shooting.  If accused 3 did not want to be involved in the

conundrum he should have enquired from Dawie and accused 2 what their
intentions were from the time they started pursuing Aobakwe
and the
deceased.  Or accused 3 should have made his intentions clear
before accused 2 had jumped out of the bakkie armed
with a firearm,
and distanced himself from Dawie and accused 2.  He did not do
so but remained at the scene with Dawie and
accused 2.  After
hearing gunshots, he did not question the action of accused 2,
neither did he flee or disassociate himself
from them in any way.
Accused 3, instead, misled the court by stating that at the time when
he heard the gunshots, accused
2 was not in possession of a firearm.
Accused 2 and 3 had an understanding with Dawie to participate in
doing everything
possible to prevent the theft and loss of Dawie’s
watermelons.
[76]
The submission by Mr Pieterse that accused 2 be found guilty of
culpable homicide cannot stand.
Equally so, the submission by
Mr Mmutloane that accused 3 must be acquitted on the murder count is
without merit and must fail.
I am satisfied that State has met
the requirements for a conviction on the basis of common purpose in
relation to the charge of
murder with the form of intent as
dolus
eventualis.
Count 2: Kidnapping
read with the provisions of
s 51(2)
of Act
[77]
Aobakwe is the complainant in Counts 2 and 3.  Aobakwe’s
evidence was that he was
pursued by both accused 2 and 3 who
eventually apprehended him.  He said during the chase accused 2
was armed with a firearm
but it was never used.  After his
apprehension he was assaulted by both accused before he was detained
at the back of Dawie’s
bakkie and placed under guard by accused
3.  Although the evidence of the accused was that the aim of
apprehending Aobakwe
was for purposes of having him arrested for
theft of watermelons, the objective facts do not support the claim.
[78]
There is no evidence whatsoever placed on record explaining why
Aobakwe was not taken directly
to a nearby police station for the law
to take its course.  He was, instead, taken to Dawie’s
residence where he was
locked up in a storeroom.  During the
assault his T-shirt was torn and his shoes went missing and he ended
up topless and
without shoes.  Despite that, he was made to lie
on the floor on his belly while his hands and feet were tied to his
back.
The photographs depict an inhumane picture that
completely negates the intention of planning to hand him over to the
police.
[79]
The objective facts also show that Aobakwe was locked in the
storeroom for a prolonged period
because it was still day time when
he was apprehended but when the members of the SAPS peeked inside the
storeroom it was too dark
for them to see inside the room.
After gaining access to the storeroom the LCRC member relied on the
lighting that he had
brought with for adequate illumination.
Dawie’s response as testified to by the SAPS members who
attended his residence
was that he acted surprised as if he was not
aware of what they were investigating.  He was even reluctant to
give them access
to the storeroom.  This conduct is not
supportive of people who were intending to hand over Aobakwe to the
police.  I
am not persuaded of any effort made to report the
incident of Aobakwe to the police.  Whereas the instruction to
apprehend
may have come from Dawie, the two accused are implicated
through reliable and credible evidence to have not only tied him with
wires but also locked the storeroom when they left.  Aobakwe
identified accused 2 and 3 in court as the people who had tied
him up
in the storeroom.  They both acquiesced with the kidnapping of
Aobakwe.  It was put to Aobakwe that because of
the injury to
his head he was dizzy and confused but he maintained the stance that
it was accused 2 and 3 who had locked him up.
[80]
Mr Pieterse, combined counts 2 and 3, that is kidnapping and assault
with intent to do grievous
bodily harm, in his submission that what
Aobakwe has succeeded to do was to pull a veil on the faces of the
police by playing victim
instead of transgressor.  Counsel
argued that Aobakwe has distorted the facts in his favour when in
actual fact Dawie would
have been the complainant with accused 2 and
3 as his witnesses in a theft charge.  Counsel urged this Court
to acquit the
accused in respect of counts 2 and 3.
[81]
Mr Mmutloane, for accused 3, also argued Counts 2 and 3 together.
Mr Mmutloane made the
submission that it was accused 3’s duty
as a security guard to guard the watermelon field and should he
apprehend watermelon
thieves it was his further duty to hand them
over to Dawie as his employer.  Whatever Dawie did with the
persons was beyond
his control.  It is contended on behalf of
accused 3 that the chasing and apprehension of thieves is not
unlawful.  Mr
Mmutloane argues that it was never a case for the
State that Aobakwe was apprehended to be assaulted and kidnapped.
But this
is exactly what the SCA and ConCourt are warning courts not
to do, that is, to evaluate the evidence in a piecemeal fashion.

This is what this submission does.
[82]
Mr Mmutloane contended that it is so that when you apprehend a person
you limit his movement
but the intention to apprehend was to hand him
over to the employer because he was committing an offence in his
watermelon field.
This submission lacks merit because when
Aobakwe was apprehended he was placed in the employer’s van in
the employer’s
presence.  The contention of handing over
to the employer who is present is absurd.  Accused 3 denies
having locked Aobakwe
in the storeroom and contends that it was Rasta
who did.  Accused 3 refutes the allegation that both him and
accused 2 went
with Aobakwe to Dawie’s plot to have him locked
up.  He maintained that accused 2 remained guarding the
watermelon field.
It is contended on behalf of accused 3 that
Aobakwe could have mistaken Rasta for accused 3 because of the
dreadlocks.  It
is further argued on accused 3’s behalf
that he should be given the benefit of the doubt in the offence of
kidnapping more
so because he was a single witness who contradicted
himself on material aspects.
[83]
In as far as the assault GBH charge is concerned, Mr Mmutloane
submitted that in the process
of apprehending thieves, assaults
happen.  Mr Mmutloane questioned how Aobakwe would have been
injured and not receive any
medical treatment.  Strangely, Mr
Pieterse made the same argument.  But the evidence of Aobakwe
supported by the SAPS
witnesses who attended Dawie’s plot was
that an ambulance was dispatched to attend to Aobakwe and he was
taken to Hartswater
Hospital where he was treated and discharged.
He reiterated the position of accused 2 and 3 that Aobakwe’s
injury to
the eye was caused by the canal wall and submitted that the
assault charge can also not stand against accused 3 and asked that he

be acquitted on that charge.
[84]
Aobakwe was a credible witness.  He only testified to what he
could see and did not fabricate
his story.  The argument made on
behalf of accused 3 that the accused’s responsibility was to
apprehend Aobakwe and
what happened thereafter was not his business
cannot stand.  He was a willing participant in the deprivation
of Aobakwe’s
movement and fully acquiesced to what was
happening.  I reject the version of accused 2 and 3 as not only
improbable but mainly
untruthful.  I accept the version of the
State that accused 2 and 3 fastened Aobakwe in the manner depicted on
the photographs
and thereafter locked the storeroom from the outside
using a chain and a padlock totally preventing him from exiting that
room.
[85]
It is clear to me that Aobakwe was unlawfully and intentionally
deprived of his freedom of movement
by Dawie, accused 2 and 3.
I am not persuaded that the conduct of the accused was to “arrest
him” in order to
hand him over to the police because had that
been the case he would not have been locked up in the storeroom and
in that condition.
The explanation by accused 3 is
incomprehensible that he should stand outside the storeroom where
Aobakwe was detained and not
lock it up but wait for Dawie to send
Rasta to lock it.  I do not accept the contention about Rasta
being at the scene and
find it not only lame but absurd.  The
denial by accused 2 and 3 of any involvement in the kidnapping of
Aobakwe is farfetched
and not borne out by any facts.  I am
satisfied that the State has succeeded in proving its case of
kidnapping against accused
2 and 3 beyond reasonable doubt.
Count
3: Assault with intent to do Grievous Bodily Harm
[86]
According to Aobakwe he was assaulted initially at the water canal by
both accused 2 and 3 with
bricks, pelting him with stones, kicking
him and punching him with clenched fists.  Thereafter he was
placed in Dawie’s
van in a lying position and guarded by
accused 3.  The State correctly submitted that the assault
happened separately and
independently of the kidnapping charge.
There is no overlap that may lead to an unfair duplication of
charges.  Accused
2 and 3 urged this Court to accept that
Aobakwe had bumped his head against a concrete wall of the canal and
sustained an injury
to his eye as a result thereof.  The
explanation by Aobakwe that he can swim militates against the
accused’s contention.
It is improbable that a person,
well knowing that he cannot swim would throw himself in the water
risking his own life.  He
would have, in any event, sustained
graver injuries than the ones he sustained.  Accused 2’s
testimony is similar to
Aobakwe’s that both him and accused 3
were at the canal and had helped Aobakwe out of the canal together.
However,
accused 3 presented a different version on this aspect
claiming that he was the only one with Aobakwe while accused 2 was on
the
other side of the field.  Accused 3’s version is a
fabrication when weighed against the totality of the evidence and

stands to be rejected as false.
[87]
Aobakwe’s testimony regarding the assault is consistent and
where he needed to make concessions
he did.  This, to me shows
reliability and credibility.  His evidence is in certain
respects corroborated by accused
2.  The contention by the
accused that the injury was caused by Aobakwe bumping against the
concrete wall is a fabrication
that is not only false but also
farfetched and stands to be rejected.  I accept the version that
Dawie was at all times assisted
by accused 2 and 3 and that accused 2
and 3 had carried out at the assault.
It follows therefore that
the version of the accused is rejected as not only being false and
improbable but also not reasonably
possibly true.  I am
satisfied that the State has proved its case of assault against
accused 2 and 3 beyond reasonable doubt.
Count 4:
Contravention of s 3(1) read with ss 1, 120(1) and 121 of Act
60 of 2000 and Count 5: Contravention of s 90 read
with ss 1, 120(1)
and 121 of Act 60 of 2000
[88]
Section 3(1)
of the
Firearms Control Act stipulates
:
General prohibition
in respect of firearms and muzzle loading firearms
“
(1)
No person may possess a firearm unless he or she holds for that
firearm-
(a)
a licence, permit or authorisation issued in terms of this Act; or
(b)
a licence, permit, authorisation or registration certificate
contemplated in item 1, 2, 3, 4, 4A or 5 of Schedule
1.
(2)
No person may possess a muzzle loading firearm unless he or she has
been issued with
the relevant competency certificate.”
[89]
Section 90 deals with prohibition of possession of ammunition and
stipulates:
“
No
person may possess any ammunition unless he or she-
(a)
holds a licence in respect of a firearm capable of discharging that
ammunition;
(b)
holds a permit to possess ammunition;
(c)
holds a dealer's licence, manufacturer's licence, gunsmith's licence,
import, export
or in-transit permit or transporter's permit issued in
terms of this Act; or
(d)
is otherwise authorised to do so.”
[90]
According to the State it is not in dispute that a firearm and
ammunition were found at accused
3’s residence.  The
defence admitted the ballistic report marked Exh H.  Aobakwe saw
accused 2 in possession of
the firearm for the first time when they
had chased him and before he had jumped into the canal.  But he
said accused 2 did
not use it.  Accused 2 testified that he was
neither licenced nor trained to handle firearms.  He however
reconciled
himself with the fact that operating a firearm may lead to
dire consequences as he has seen in movies.  He said the firearm

belonged to Dawie who in turn placed it in the custody of accused 3
for purposes of guarding the watermelons.  He admitted
using a
firearm to shoot the deceased.  He maintained that Accused 3 had
given it to him to threaten or intimidate the deceased
with it so
that he could board Dawie’s van.
[91]
Accused 3, on the other hand, denies seeing a firearm at the
watermelon field and further contended
that accused 2 did not have a
firearm on that day.  He also claimed that although he heard
shots being fired from a distance,
he does not know who had fired
them.  He said that, despite accused 2’s admission, to
having shot the deceased.
Accused 2 explained that after the
deceased had vanished into the bushes he returned the firearm to
accused 3.  Mtuyedwa was
a direct eye-witness whose evidence was
not only credible but reliable.  He was with the deceased when
Dawie’s bakkie
arrived with Aobakwe, accused 2 and 3. He stood
about 50 meters away when the shooting incident played out.  He
saw Aobakwe
at the back of Dawie’s bakkie under guard of
accused 3.  This corroborates Aobakwe’s version.
[92]
Sgt Pico arrested accused 2 and 3 on 04 January 2019.  He
explained their rights,
inter alia,
to legal representation
and to remain silent as appearing in the SAPS14A Notice of Rights
form.  Cst Mosalanyane and Brig Kheswa’s
evidence relates
to retrieving a firearm and ammunition at accused 3’s residence
and the circumstances which led to such
retrieval.  Tasked with
the responsibility to find the firearm, Mosalanyane booked the
accused out of the police cells and
warned them again of their
rights.  They elected to speak and participate without a lawyer
present.  The accused alleged
that they were assaulted by the
police in order to disclose the whereabouts of the firearm.  Cst
Mosalanyane was subjected
to rigorous cross-examination by the
defence but he indeed remained consistent.  I found him to be a
credible witness.
His evidence was corroborated on all material
aspects by Col Kheswa.  Col Kheswa also did not escape the
laborious cross-examination.
Despite his evidence having some
inconsistencies, they were not material and did not affect his
credibility.  Col Kheswa and
Cst Mosalanyane both testified that
no assault of accused 2 and 3 had taken place in their presence.
It therefore follows
that the allegation of assault by the accused
which could have induced them, more particularly accused 3, to
incriminate himself
by pointing out the exhibits to the police, is
not substantiated and stands to fail.
[93]
Mr Pieterse also argued Counts 4 and 5 together.  Counsel,
relying on s 22 of the Firearms
Act which stipulates:
“
Despite
anything to the contrary in this Act but subject to section 120 (5),
any person who is at least 21 years of age and the
holder of a
licence to possess a firearm issued in terms of this Act may allow
any other person to use that firearm while under
his or her immediate
supervision where it is safe to use the firearm and for a lawful
purpose.”
He
asked a rhetorical question:  if Dawie was entitled to be in
possession of his wife’s licensed firearm could he delegate

that possession to his workers?  The correct approach of
interpreting this section is as espoused by the Supreme Court of

Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[6]
where the SCA said:
“
[18]
… Interpretation is the process of attributing meaning to the
words used in a document, be it
legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision
or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence.  Whatever
the nature of the document,
consideration must be given to the language used in the light of the
ordinary rules of grammar and
syntax; the context in which the
provision appears; the apparent purpose to which it is directed and
the material known to those
responsible for its production.
Where more than one meaning is possible each possibility must be
weighed in the light of
all these factors.  The process is
objective, not subjective.  A sensible meaning is to be
preferred to one that leads
to insensible or unbusinesslike results
or undermines the apparent purpose of the document.  Judges must
be alert to, and
guard against, the temptation to substitute what
they regard as reasonable, sensible or businesslike for the words
actually used.
To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in
a contractual context it is to make a contract for
the parties other than the one they in fact made.  The
'inevitable point
of departure is the language of the provision
itself', read in context and having regard to the purpose of the
provision and the
background to the preparation and production of the
document.”
[94]
Assuming Dawie’s wife as the licensed firearm holder was at
least 21 years of age, she
may, as the license holder, allow any
other person to use her firearm.  She allowed her husband Dawie
to use it.  But
there is qualification under which circumstances
he may use her firearm:  (i) he must be under her immediate
supervision,
(ii) it must be safe for him to use it and
(iii) he must use it for a lawful purpose.  Pertinent in this
whole scenario
is that Dawie did not use it under her immediate
supervision, did not do so where it was safe to use it and did not
use it for
a lawful purpose.  Dawie himself was not a holder of
the impugned firearm and could not, in my view, have any
justification,
clearly not on the basis of s 22, to allow any further
persons to use the firearm.  Giving this section any other
meaning
would not be sensible and would undermine the purpose of the
Act.  What exacerbates matters is that at the time when accused

2 used the firearm handed to him by accused 3, to shoot at the
deceased, he was not under any immediate supervision by Dawie and
the
shooting was not for a lawful purpose.  Mr Pieterse’s
submission that it was lawful for Dawie to allow accused 2
and 3 the
use of this firearm has no merit and stands to fail.
[95]
Counsel further made the submission that accused 2 was in possession
of the firearm and ammunition
for only a few minutes when he used it
to shoot at the deceased.  According to counsel there is nothing
that connects accused
2 to accused 3’s bag, the ammunition
found in that bag as well as the firearm and ammunition retrieved at
accused 3’s
residence.  The question asked was whether
accused 2 was legally in possession of that firearm and ammunition
during those
few minutes.  Counsel submits that accused 2 was in
lawful possession of the firearm under the immediate supervision of
accused
3 and had used it in a safe environment and for a lawful
purpose.  Counsel further submitted that this Court must reject
the
evidence of accused 3 as he is trying to exculpate himself from
the charges.
[96]
In
S
v Mbuli
[7]
the Supreme Court of Appeal made these insightful remarks pertaining
to joint possession:
“
[71]
What is prohibited by both those sections is the existence of a state
of affairs (ie having possession
of an armament, or a firearm, as the
case may be) and a conviction will be competent only if that state of
affairs is shown to
exist. That state of affairs will exist
simultaneously in respect of more than one person if they have common
(or joint) possession
of the offending article. Their contravention
of the relevant section in those circumstances does not arise from an
application
of the principles applicable to common purpose (which is
concerned with liability for joint activity) but rather from an
application
of ordinary principles relating to joint possession.
Common purpose, and joint possession, both require that the parties
concerned
share a common state of mind but the nature of that state
of mind will differ in each case. Perhaps Olivier JA had in mind the
principles of joint possession, rather than the doctrine of common
purpose, when he said in S v Khambule
2001 (1) SACR 501
(SCA) at para
[10] that there is no reason in principle why a common intention to
possess firearms jointly could not be established
by inference, but I
do not agree with the further suggestion that a mere intention on the
part of the group to use the weapons
for the benefit of all of them
will suffice for a conviction.  In my respectful view, Marais J
set out the correct legal position
(apart from a misplaced reference
to common purpose) when he said the following in S v Nkosi
1998 (1)
SACR 284
(W) at 286h - i:
'The issues which
arise in deciding whether the group (and hence the appellant)
possessed the guns must be decided with reference
to the answer to
the question whether the State has established facts from which it
can properly be inferred by a Court that:
(a)
the group had the intention (animus) to exercise possession of the
guns through the actual detentor and
(b)
the actual detentors had the intention to hold the guns on behalf of
the group.
Only if both
requirements are fulfilled can there be joint possession involving
the group as a whole and the detentors, or common
purpose between the
members of the group to possess all the guns.'”
[97]
The State has established the following in its evidence.  Dawie’s
wife is the licenced
holder of the firearm.  She gave her
firearm to Dawie who in turn gave it to accused 3 for purposes of
guarding the watermelon
field.  In my view, both requirements
(a) and (b) have been met.
[98]
The evidence of the two accused had material contradictions and
improbabilities.  Accused
3, more particularly, was a poor
witness whose evidence comprised mainly denials and was misleading.
The evidence of accused
2, to some extent, was consistent with the
evidence of the state.  I accept accused 2’s explanation
that the firearm
was handed to accused 3 by Dawie for them to guard
the watermelon field, as probable.  More so because it was
registered in
his wife’s name.  The conduct of accused 3
distancing himself from any firearm, including that it was recovered
with
bullets from his residence, is untenable.  Even after
overwhelming evidence was placed before court that accused 2 had
fired
shots at the deceased with a firearm, accused 3 still wanted
this court to believe that accused 2 did not have a firearm and that

he does not know who had fired the shots.  It is significant
that they denied having fled after the commission of these crimes
and
were hiding from the police until their relatives commendably not
only alerted the police of their whereabouts but also handed
them
over to the police.  The version of accused 2 and 3 in counts 4
and 5 is rejected as not being reasonably possibly true.
I am
satisfied that the State has proved its case of unlawful possession
of a firearm as well as unlawful possession of ammunition
in counts 4
and 5 beyond reasonable doubt.
[99]
To sum up:  In as far as Counts 1 – 5 are concerned, I
reject the evidence of accused
2 in as far as it conflicts with the
evidence of the State and its probabilities. I further reject the
evidence of accused 3 in
its totality.  I find that the
accused’s version is not reasonably possibly true and is also
fabricated.  On a
conspectus of the evidence in this case I am
satisfied that the state has proved its case beyond reasonable doubt
and return the
following verdict against accused 2 and 3:
1.
Count 1:  Murder r/w
s 51
(1) of the
Criminal Law Amendment Act 105 of 1997
:  I find accused 2 and 3
guilty of murder in the furtherance of a common purpose with
dolus
eventualis
as the form of intent.
2.
Count 2:  I find accused 2 and 3
guilty of kidnapping Aobakwe Pholoholo.
3.
Count 3:  I find accused 2 and 3
guilty of assault with intent to do grievous bodily harm.
4.
Count 4:  I find accused 2 and 3
guilty of Contravention of
s3(1)
read with
ss 1
,
120
(1) and
121
of
Act 60 of 2000 (possession of an unlicensed firearm)
5.
Count 5:  I find accused 2 and 3
guilty of Contravention of s 90 read with ss 1, 120(1) and 121 of Act
60 of 2000 (possession
of unlicensed ammunition).
MAMOSEBO J
HIGH COURT, NORTHERN
CAPE DIVISION
KIMBERLEY
For
the State
Adv
J Rosenberg
Instructed
by:
The
Director Public Prosecutions
For Accused 1:
Adv. JJ Schreuder
(
Judicare)
Instructed by:
Justice Centre,
Kimberley
For accused 2:
Mr R Pieterse
(Judicare)
Instructed by:
Justice Centre,
Kimberley
For accused 3:
Mr D Mmutloane
(Judicare)
Instructed by:
Justice Centre,
Kimberley
[1]
1999
(1) SACR 447
(W) at 448f -g
[2]
2003
(1) SACR 134
(SCA) para 15
[3]
1990
(1) SACR 95
(A) at 98f - g
[4]
2003
(1) SACR 583
(SCA) at 593j – 594e
[5]
2017(2)
SACR 665 (CC) para 35, 36, 37 and 38
[6]
2012
(4) SA 593
(SCA) para 18
[7]
2003
(1) SACR 97
(SCA) para 71