S v Seyisi (CC27/2024) [2024] ZAECMKHC 123 (31 October 2024)

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[2024] ZAECMKHC 123
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S v Seyisi (CC27/2024) [2024] ZAECMKHC 123 (31 October 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION
– MAKHANDA]
CASE NO.: CC27/2024
In the matter
between:-
THE STATE
and
NOMSA CAROLINE
SEYISI

ACCUSED
JUDGMENT ON CONVICTION
NORMAN J:
[1]
The State arraigned the accused, Ms Seyisi, on three (3) charges, one
of murder, two
of attempted murder and three of robbery with
aggravating circumstances as defined in section 1(1)(b) of the
Criminal Procedure
Act 51 of 1977 (the CPA). Mr Engelbrecht
represented the State and Mr Stamper represented the accused.
[2]
The allegations in
Count 1: Murder
: are that on or about 25
August 2023 and at or near Mayfield Farm, Makhanda in the district of
Sarah Baartman, the accused acting
in furtherance of common purpose
or conspiracy, unlawfully and intentionally killed Mr Thembinkosi
Wambi (Thembinkosi), a 41-year-old
male person. In
Count 2:
Attempted
Murder:
That on the same day, same place,
the accused acting in the furtherance of common purpose or
conspiracy, unlawfully and intentionally
attempted to kill Ms Zukiswa
Frans (Zukiswa), an adult female person by shooting her with a
firearm.
Count 3: Robbery
that on the same date and place the
accused acting in the furtherance of a common purpose or conspiracy
took by means of force
and violence from the said Thembinkosi, a
Stylo cellular phone, his property or in his lawful possession.
[3]
The Director of Public Prosecutions (DPP) mentioned that there are
aggravating circumstances
as defined in section 1(1)(b) of the CPA
that were present in that the accused wielded firearms and grievous
bodily harm was inflicted.
In the event of a conviction the DPP
indicated that  in respect of count 1 , he would rely on the
provisions of section 51(1)
read with Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 ( the CLAA) which prescribes a
discretionary minimum
sentence of life imprisonment in that the
murder was committed by a group of persons acting in the execution of
or furtherance
of a common purpose and the murder was premeditated.
In respect of count 3, he would also rely on the provisions of
section 51(2)(a)
read with Part 2 of Schedule 2 of the CLAA
prescribing a discretionary minimum sentence of fifteen (15) years
imprisonment.
[4]
The accused pleaded not guilty in respect of all the charges. She
reserved all of
her rights and elected not to give any explanation.
There were, however, formal admissions made by the accused in terms
of section
220 of the CPA. Those are:
(a)
That the person upon whom the medical
post-mortem related was indeed the deceased Mr Thembinkosi Wambi.
(b)
The photographs and the recovery of
ballistic evidence was also admitted that those three fired cartridge
case and 1 fired bullet
from the crime scene at Mayfield farm were
correctly sealed and forwarded for testing to the ballistic section
of the forensic
science laboratory in Port Elizabeth.
(c)
It was also admitted that the findings of
W/O Yolandi Schoeman of the ballistic section of the forensic science
laboratory, Port
Elizabeth, a qualified ballistic expert correctly
determined that 2 of the 3 fired cartridge cases were 9mm calibre
cartridge cases
which were fired from the same firearm. She also
correctly determined that the third fired cartridge case was a 7.65m
calibre cartridge
case which was not fired from the same firearm that
fired the two 9mm calibre cartridge cases.
(d)
She also admitted that the photographs
contained in the photo album depict the crime scene at Mayfield Farm
and that the W/O Kondile
compiled the photo album. The photos and the
correctness thereof is admitted.
(e)
The admissions were confirmed by the
accused and were accordingly admitted into evidence.
The State’s case
Sergeant Sauli
[5]
The State led the evidence of four witnesses. The first witness was
Sgt Ludumo Sauli,
a member of the South African Police Services
stationed at the Joza police station. He works at the Charge Office:
Community Service
Centre.  He has been a policeman for 16 years.
On 25 August 2023 he was on duty. He received a call from the charge
office
at about 20h47 to go to house no. 12872, Extension 10. It was
reported to him that Zukiswa had called reporting to the police that

she and her boyfriend, Thembinkosi were shot at, at the Mayfield
farm. He did not know who Zukiswa was. Zukiswa did not tell them

whether her boyfriend was alive or not at the time. He went to the
house together with Constables Makebeni and Zwane. They found
Zukiswa
present at the house and she took them to the Mayfield farm.  She
was able to direct the police to the farm with ease.
Zukiswa was also
injured. She was complaining about her arm saying she had been shot
on her hand. They found Thembinkosi still
lying on the ground at the
Mayfield farm. He was lying facedown, bleeding from the head. He was
alive and breathing but he could
not speak.  Zukiswa was scared
and trembling. She was not intoxicated at all and he did not smell
any alcohol on her. There
were no streetlights in that area where
they found Thembinkosi. Zukiswa reported to them what happened at the
scene.
[6]
They searched around the scene and found three fired cartridges
together with one
projectile. The members of the LCRC were called to
the scene and they uplifted those cartridges. Both Zukiswa and
Thembinkosi were
taken by ambulance to the Settler’s hospital.
Sgt. Sauli remained on the scene. When he went to the hospital to
enquire about
their medical condition, he was informed that
Thembinkosi had passed away. Zukiswa could still speak but she was in
bed and receiving
medical attention.
[7]
Under cross – examination he confirmed that he took down a
statement from Zukiswa
at the same time as she was giving details
about the incident. He did not finish writing it as he had to rush to
hospital to assess
the condition of the victims. He completed it at
the police station and also submitted the SAP13. He was shown his
statement where
he had stated that upon arrival he found Thembinkosi
lying on his back facing the sky.  He conceded that Thembinkosi
was facing
upwards. He was asked about the state of sobriety of
Zukiswa that evening. He was adamant that according to his
observations, Zukiswa
was not intoxicated and he did not smell
alcohol on her.
[8]
The accused’s version was put to this witness that according to
her when she
went to fetch Zukiswa she was under the influence of
alcohol together with her boyfriend. The witness stated that he did
not observe
that. The evidence of this witness was not challenged
except for the issue that relates to Zukiswa’s state of
sobriety.
Zukiswa’s
evidence
[9]
The second witness was Zukiswa Frans. She is related to the accused,
they are cousins.
She went up to Grade 10 at school. She resided at
the accused’s home because the accused’s father, is her
uncle and
he paid for her schooling. They were a happy family.
Whenever the accused had clothes that did not fit her those would be
passed
on to Zukiswa. She stayed at her uncle’s place from 1994
until 1999.  Thereafter she went to live with her parents. She

never worked. During the relevant period she was residing with her
boyfriend Thembinkosi, at his parental home , together with
their 5
year old child , Thembinkosi’s aunt and her boyfriend.
[10]
On the day in question she was in bed having taken her medication for
her chronic illness around 19h00.
Thembinkosi, his aunt, her
boyfriend and the child were watching TV. A program “Scandal”
was about to play at 19h30.
They heard the accused shouting Zukiswa’s
name from the gate.  Thembinkosi went to open up for her because
the gate
was already locked. They entered the house. The accused
asked Thembinkosi and her to accompany her to a traditional healer,
Mr
Blackcat.
[11]
Zukiswa resisted and enquired why she wanted to be accompanied by her
because she was not well
as she had shortness of breath and was
sickly.  She also asked why she needed to be accompanied to
Black Cat because she had
been to see him on her own. She asked them
to help her. She enquired from her as to how she got to them from
George Street without
a vehicle. The accused told her that she came
with friends.  She said they would return very quickly. She was
wearing pajamas
as she was in bed already. She put on a jacket and
boots because it was cold. After they left the house she saw a red
car at the
corner of the second street from where they were. The car
was moving towards them. It stopped next to them. The accused said
they
must get into the vehicle as it was her friend’s vehicle.
[12]
There were two male persons inside the vehicle. It was a red vehicle
which looked like a Polo or Kia but
she could not make out the model
of the vehicle. The driver and the other person were occupying the
front seats.  Zukiswa
sat in the middle, with the accused
sitting next to her and Thembinkosi was sitting on the other side.
[13]
It was her first time to see the motor vehicle.  She was also
seeing the people in the vehicle
for the first time. When she got
into the car she greeted and introduced herself as Zukiswa and
introduced Thembinkosi. Both men
introduced themselves, the
passenger, as Siya and the driver as Ndumiso. The car drove to
Mayfield farm. She did not know the house
of the traditional healer
but only knew that he was staying at Nkanini Location.  No one
was giving directions to the driver
as the vehicle was proceeding to
Mayfield farm. When she boarded the car she observed that both men
had firearms on their waists.
[14]
As the vehicle was proceeding the accused asked the driver to stop
the vehicle because she wanted to urinate.
The driver stopped
the vehicle. The accused said to Zukiswa she must also get out of the
vehicle. Zukiswa said she did not
want to urinate. The accused pulled
her out of the vehicle.  The passenger, Siya, also got out of
the vehicle. He opened the
back door and pulled Thembinkosi out of
the vehicle, aggressively.  Thembinkosi complied. They were
instructed by Siya and
Ndumiso to lie down on the gravel road on
Mayfield farm. They were not too far apart from each other as they
were lying down. The
accused was present. They were ordered to place
their hands at the back of their heads. They were then shot at. She
could not see
who shot at them because they were facing down. She
could not remember how many shots were fired but it was more than
once. She
struggled to breathe. She was struck on her left hand and
that hand is no longer functioning. There were bullets lodged in it
and
they had to be removed in hospital. She also sustained injuries
on the side of her head where a bullet had grazed
her. The two males directed the accused to step on their backs
and feel if they were still alive. The accused did so. Zukiswa could

not tell whether she started with Thembinkosi or with her, as they
were lying face down. When the accused stepped on her she did
not
make any movement. After that the accused and the two males boarded
the vehicle, drove off and left them there. She crawled
and went to a
nearby house at extension 10.
[15]
She received help from that house because the police were called. She
corroborated the evidence
of Sgt. Sauli about what she told the
police on their arrival at that house, and the fact that she took
them to the crime scene.
She also confirmed that an
ambulance was summoned and they were taken to hospital. Police also
followed the ambulance
to hospital. She had a swelling on her head
and had to be operated on.  She was transferred to Livingstone
Hospital in Port
Elizabeth that same evening. Thembinkosi died at
Settlers Hospital.
[16]
She and Thembinkosi had a Stylo cellphone that was fitted with two
sim cards, one for Vodacom
and the other one for MTN. The phone was
utilized by both of them. When they left the house Thembinkosi was in
possession of the
phone. These two males took their cellphone from
them when they were made to lie down.  Thembinkosi had it on his
overall
jacket on the left hand side upper pocket. It was taken from
him by one of the males either Siya or Ndumiso. Before this phone was

taken from them they had received a call from the accused earlier in
the day around 17h00. She called them and told them that there
were
people from social development, they must go and wait for food
parcels. They did not go.
[17]
Some time, prior to the incident, the accused came to her home.  She
was sick at the time. She came
in an ambulance and asked for her
identity document. She was in the company of one Mr Buntu Manelisi
(Buntu). She gave it to her,
it was a temporary ID and she never got
it back from her. She stated that she did not know Buntu.  She
was asked whether she
knew a person by the name of Buntu Melani.  Her
response was that the person she knows is Buntu Manelisi, who also
works with
the accused at Guardmed. She denied that she is related to
Buntu whatsoever. She stated that Buntu got her ID or ID number from

the accused since she is the one who took it from her.  She
reiterated that on the day when accused came to fetch her ID she
was
in the company of Buntu. They were travelling together in the
ambulance when they arrived at her home in extension 6.
The
accused entered the house but Buntu remained in the ambulance.
[18]
The witness was cross-examined at length over a period of at least
two days. She was cross-examined
about a shooting incident that
happened at her house, prior to the Mayfield Farm shooting. She
stated that there was a lady whose
name was Unathi. She came to
Zukiswa’s house one evening. She was drunk and asked to spend
the night there. Zukiswa let Unathi
sleep on the couch. Zukiswa’s
house was just a one - roomed house. There was a bed in the same room
where Zukiswa and Thembinkosi
slept. They were awoken by gunshots.
Some unknown people came into the house and shot Unathi. She died
instantly. Unathi was not
related to her. She did not know what
became of that case.  However, she did make a statement to the
police. Thembinkosi also
made a statement to the police. It was put
to her that the accused would testify that when there was that
shooting at her house,
Zukiswa phoned the accused and told her that
Unathi had been shot. The accused told her to go to the police
station and report
the incident. The witness denied that she ever
called the accused about that incident.
[19]
Zukiswa was questioned about her state of sobriety on the day of the
Mayfield farm shooting. She was adamant
that she did not consume any
alcohol, only Thembinkosi did.  It was also put to her that
Buntu was her neighbour. She disputed
that and stated that Buntu is
not her neighbour because he lives on the other side of extension 6,
they are separated by a street.
It was suggested to her that
there were times that she would visit Buntu. She disputed this and
stated that she never even
had a conversation with Buntu, she would
only see him at a shop owned by foreign nationals. It was put to her
that if Buntu took
out insurance on her life, the accused had nothing
to do with it and had no knowledge of that. The witness disputed that
stating
that the accused and Buntu were always together in the
ambulance and that Buntu got her ID from the accused.
[20]
It was put to her that the accused would deny that this witness gave
her the ID book or card
but will state that she simply gave her an ID
number.  The witness was adamant that she gave the accused her
temporal ID document.
About the traditional healer Blackcat, it was
put to her that it was her, Zukiswa, who gave the accused’s
mobile number to
BlackCat. One day the accused received a call from
BlackCat who told her that he got her number from Zukiswa. The
accused told
him that she would contact him when she needed his
services. Later when Zukiswa went to the accused’s home she
confirmed
that she gave her number to Black Cat.
This
witness disputed that version and stated that she did not even know
Black Cat, instead it is the accused that had told her
that she had
been to see the traditional healer, Black Cat.
[21]
Her evidence was challenged mainly on two issues that were not
mentioned in her first statement, namely,
the fact that the accused
pulled her out of the vehicle and that she stepped on their backs to
feel whether they were alive or
not. She explained that the first
statement was taken when she was in hospital on the day of the
incident. She had told the police
everything. She was in distress.
The investigator came back the next day and she told the investigator
what happened. It
was put to her that the things that she mentioned
in the subsequent statements were a fabrication and they never
happened. The
witness disputed that contention and stated that
everything that she told the police was the truth.  She could
not recall
how many statements she made but accepted that those were
her statements.
Ms Cethu from Sanlam
[22]
The third witness for the State was Ms Nandi Thandiwe Cetu (Cetu).
She is employed by Sanlam
at the Makhanda branch as a Sales
Consultant. She sells insurance policies including life policies. She
knows the accused person
and had known her since childhood. They live
one street away from one another. She was aware that the accused was
employed as a
paramedic.  The accused told her that she was a
volunteer at Guardmed. She asked the accused to refer some of her
colleagues
to her offices. She essentially marketed the business to
her. During the month of July 2023 she met the accused during the
arts
festival where they had parked the Guardmed ambulance. She went
to the accused and again asked for referrals. The accused undertook

to contact her later.
[23]
On 21 July 2023, the accused phoned her and sent her a number of her
colleague via WhatsApp. That colleague
was Buntu Melani. The accused
gave her Buntu Melani number. Buntu is not somebody that she knew
personally. She then phoned Buntu,
introduced herself and informed
him that she got his number from the accused. Buntu indicated that he
needed to get a policy for
his two children. She then sent him a
document with benefits to choose from. She then asked Buntu to send
her a copy of his ID
and bank statements for a period of three
months.  Buntu sent the required documents to her.  She
uploaded the documents
on the application electronically.
[24]
Because they work with applications electronically she informed Buntu
that she would get an OTP
which will serve as his signature. Buntu
took out a funeral policy for his two children. Those policies for
the children were effective
from 21 July 2023, being the date of
signature.
[25]
On 24 July 2023 Buntu sent her a date of birth and the names of
Zukiswa Frans. He indicated that Zukiswa
was his cousin sister. He
wanted to know how much he would pay for her funeral policy. When she
received that information she was
at a funeral and indicated to him
that she would send the information on Monday.
[26]
On Monday, 26 July 2023, she sent Buntu a document with benefits to
choose from. Buntu chose the one for
R40 000 and the monthly
payment was R349. She processed that application because she already
had Buntu’s ID document
and bank statements, she simply put
those documents on the application. An OTP was sent to him and he
signed using it. He also
signed for a debit check. There was a
problem on the first occasion when the policy had to be approved.
She then requested
Buntu to sign again and that became
effective on 27 July 2023. The first premium was debited on 1
st
September 2023. The cover was effective on the date of signature
being 24 July 2023 which was the date of acceptance.  Buntu
had
chosen a funeral policy, where the insured died a natural death, the
policy would pay out R40 000. If it was an unnatural
death where
someone was murdered or died as a result of an accident then the
person would receive R120 000 calculated as follows:
R40 000x
3.
[27]
During September 2023 Buntu called her saying that he wanted to
cancel the policy because he
was not able to afford it. She then
referred him to head office for cancellation. He wanted to cancel the
policy of Zukiswa Frans.
She did not receive anything further
from him and does not know what happened to the policy.  She
stated that if someone
wanted to insure somebody, all that a person
needs is simply a name and a date of birth of the person. They also
do not require
the insured person’s consent. They do not verify
the names, surnames, date of birth and even the relationship with the
person
to be insured. Under cross-examination she stated that Buntu
was the only person that was referred to her by the accused. She
stated
that if a person says he is insuring a cousin, there are no
questions asked. She confirmed that when the accused referred Buntu

to her she did not give her any details, other than his number.
Raymond Clayton
Pieters
[28]
The next witness was Raymond Clayton Pieters. He is employed by
Guardmed and performs paramedic
services. She knows the accused as a
colleague.  He also knows Buntu Melani also a colleague. He was
their Supervisor and
his functions entailed plotting the roster for
the team. He stated that for a number of months Nomsa worked with
Melani. They worked
together as partners. They would be placed
together in the same ambulance. On 25 and 26 August 2023 there were
various sports events
that had to be guarded by Guardmed. On Friday
and Saturday, 25 and 26 August 2023, respectively, the accused was on
duty. Ordinarily,
they would go to the office, check the vehicle,
collect staff and take everything that they would need for that day.
On the 26
th
August 2023 the accused was deployed at St
Andrews upper field for a soccer event. The event started at 09h00
and he picked her
up before 09h00 from home and dropped her off at
St. Andrews. Her day ended at 5pm and he took her back home. She
reported nothing
to him. He observed nothing out of the ordinary.
Under cross-examination he stated that even if the accused was
distressed she
would not display that visibly to him.
Thereafter the State
closed its case.
Defence case
Ms Nomsa Seyisi
[29]
The accused testified. She resides at Makhanda. Before the arrest she
was employed at Guardmed.
On 25 August 2023 she was at work, working
7am to 7pm. She knocked off work. On arrival at home her phone rang.
When she answered
the person said he is Caster from Port Elizabeth.
At first, she could not recall who he was but the person explained to
her and
eventually she recalled who Caster was, a friend of her late
cousin, Lithemba Seyisi. Caster indicated that he wanted to see her

and she told him she was at home. He told her they were entering
Grahamstown and that they would stopby. He also told her that
he was
with the gents or the guys. Upon arrival, he rang the bell. She
looked through the blinds and saw a Polo sedan which was
metallic
blue. She saw a person that was looking through the car window. That
person alighted from the vehicle. She asked the person
to come closer
because she could not see him properly. She then recognized him. The
person told her that they were on their way
to East London and that
they were “wet”. They wanted somebody to assist them to
wash themselves. She indicated that
that was
tsotsi taal
. She
understood him to mean that they had done some things or they had
things in their possession and could not leave Grahamstown
with those
things. They told her that they heard there is somebody called Mr
Black, a healer. She told them that she does not know
Mr Black but
knows uMama uNondithini, a traditional healer. They asked her to take
them to Mama uNondithini’s house.
[30]
The person she was talking to the whole time was Caster. When she
entered the vehicle she found
that there was another person in the
car. She also identified the person as one of Lithemba’s
friends, named SVIG. She stated
that on some occasions when these
people visited visited Lithemba at her home, Zukiswa would be
present. They left and went towards
the direction of Extension 7. On
their way they enquired from her about the whereabouts of her cousin
who was talkative and used
to talk about traditional healers. She
understood them to be referring to Zukiswa.  Before they reached
the turnoff, next
to the indoor sports centre , Caster said fuel was
running out.  They asked whether they were at extension 7 and
she directed
them where to go. They asked where Nkanini was because
they heard that Black was staying there. She told them to turn left.
They
wanted to go to Black because their petrol was running out. They
asked whether Zukiswa knows where Black is as she is also resident
at
Nkanini. They then drove to Nkanini, to Zukiswa’s place. She
stated that Zukiswa knew Black because at some point Zukiswa
had
given her number to Black. One day her phone rang and it was this
Black who told her that he had been referred to her by Zukiswa.
He
indicated that if ever she needed a person for healing she must
contact him.  Her response was that she would revert to
him. And
then one day Zukiswa arrived at their home and confirmed that she had
actually given her number to Black.
[31]
They went to Zukiswa’s place but did not find her. A neighbour
directed them to Zukiswa’s
boyfriend house because she did not
know it. Upon arrival at Thembinkosi’s home, she shouted out
for Zukiswa and Thembinkosi
responded. He came out of the door and he
opened the gate for her. They both went inside the house. She found
that there was a
brazier that had been ignited. It was her first time
to go there. She told Thembinkosi that there were some guys who
needed to
be shown where Black resided. At that point Zukiswa was
coming out of the bedroom. She told Thembinkosi that those people
were
SVIJ and Caster. Zukiswa agreed that they should accompany them
and she put on a jacket and boots and they left. It was put to her

that Zukiswa had indicated that she simply said she had friends that
wanted to be shown the place. Her response was that she had
said they
were friends of Lithemba and not her friends. When they came out of
the house the car was not there because the street
is very narrow and
one would have to go around and turn in another street. They went out
and boarded the vehicle.
[32]
She sat behind the driver, Zukiswa in the middle and Thembinkosi on
the left hand side.  They
greeted the occupants. Zukiswa and
Thembinkosi were smelling of alcohol. After getting into the car
pleasantries were exchanged.
SVIG enquired from Zukiswa whether
Zukiswa still remembered him. Zukiswa did not remember him. After he
explained to her she appeared
to remember who he was. The car drove
and Zukiswa was busy chatting and they were laughing. The next thing
was that SVIG’s
phone rang. He said before they proceeded to
Black he had to fetch petrol money from extension 10. They were about
to pass extension
10 and she felt Zukiswa tapping her slightly, she
also did the same. Caster took the left turn and SVIG asked him if he
could hear
there was some noise coming from the wheels. Caster
enquired whether SVIG wanted him to stop. He agreed and the driver
stopped
the vehicle.
[33]
The accused asked Caster to open the door for her as she could not
open it from the inside. She
wanted to urinate. She got out and
urinated on the right hand side next to the right wheel of the
driver. The driver moved away.
SVIG got out. She urinated and heard a
gunshot. After urinating Caster was standing next to her and pointing
a firearm at her.
He demanded her phone. She heard shots again and
looked down. She heard a sound of a firearm and it was being cocked
near her.
She didn’t know whether the person was about to shoot
her or not. The person closed the door and they both got in. The
person
said these rubbish will stop being witnesses in cases they had
nothing to do with. He threatened her that if she spoke about what

happened she must know that they will come after her and her family.
They dropped her off next to Shoprite. She was very scared
and was
afraid to go to the police. She did not even look back after
alighting from the vehicle.
[34]
When she got home she could not sleep that night. The following
morning she woke up and went
to work. She went to look for Melisa to
tell her what had happened but found that Melissa had already left
for work. She then prepared
to go to work and left. She went to the
field where she was supposed to be stationed for the day.  She
did not mention the
incident to anyone at work. After work she went
home and slept. The following day, on Sunday, she woke up and went to
Thabisa and
told her what had happened. Thabisa was in shock and they
sat there thinking about going to the police. They eventually decided

to go on Monday.
[35]
Whilst on their way heading to the direction of the police station,
Thabisa received a call from
Nelisa who said the police were looking
for the accused. The policeman was  Mr Daweti. Thabisa told her
that they were on
their way to the police station. They proceeded to
the police station and boarded a taxi and alighted next to the police
station.
After alighting from the taxi, the same sedan vehicle
approached. The car windows were opened and the occupants were
looking at
them. They went inside the police station. She asked for
Mr Daweti. They waited for about an hour for him. Upon his arrival
she
asked Mr Daweti as to why she was being arrested. They said she
was in the company of the people who committed a murder. She told

them that she did not kill anybody. After she got into the cells she
decided to tell the police about the incident and she called
for Mr
Toto. She wanted to narrate to him what had happened. After she had
narrated the story, Mr Toto said that is exactly what
Zukiswa had
told them. Mr Toto did not write down anything that she said.
[36]
She confirmed that Buntu Melani and herself were colleagues. They
were not friends.  They
worked as partners from time to time.
She stated that one day she was in the company of Buntu and were
passing by Zukiswa’s
home going to Buntu’s home. Zukiswa
was coming out of the yard.  She went to them. They were in the
ambulance. The accused
told Zukiswa that she looked sick.  Zukiswa
confirmed that and said to the accused she needed to get insurance
for her because
if she were to die she will be buried by her. She did
not give her an ID document but her ID number. She also wanted to
know how
Frans was spelt from her. She is the person who accompanied
Zukiswa to Home Affairs in order for her to obtain a temporal ID
document.
She paid for it but she did not see it. She did not know
that Buntu had insured Zukiswa. She did not know whether she gave
Buntu
Zukiswa’s ID number. She confirmed that she gave Buntu’s
number to Ms Cetu because Buntu wanted insurance in relation
to
Lusanda.
[37]
She testified that when somebody was shot at Zukiswa’s home,
Zukiswa had called her at
night at about 10pm or 11pm in the evening.
There was loadshedding at the time. She reported that they were being
shot at and Unathi
had been shot. She told her to contact the police.
That was the end of the matter. She had nothing to do with social
development.
[38]
She confirmed that Zukiswa and Thembinkosi were made to lie next to
one another.  She denied that she
pulled Zukiswa out of the car.
She did not know how Thembinkosi was pulled out because according to
her she had already alighted
from the vehicle as she wanted to
urinate. She left Zukiswa and everyone else inside the vehicle. She
did not know whether anyone
of them was taken around the vehicle. She
stated that if that had happened she would have seen it because she
was urinating and
her eyes were opened. She testified that
Thembinkosi and Zukiswa were lying down on the passenger side of the
motor vehicle. She
disputed that Zukiswa asked a questions when she
wanted them to accompany her to go to Blackcat. She stated that
Zukiswa would
not have asked her about a car because she knew that
she owns a Jetta car.
[39]
Under cross-examination she confirmed that Zukiswa and Thembinkosi
were ordered to lie down and
she saw them lying down. It was put to
her that her counsel had referred to the two males as Caster and VG
and had put those names
to the state witnesses in cross-examination.
The accused stated that the person was SVIG. When asked why she did
not correct her
counsel when he was putting on numerous occasions to
the witnesses that it was VG, her response was that she did not pick
that
up because there was a lot of discussion. She confirmed that
Zukiswa and her were like sisters. She confirmed that they grew up
in
the same household. She further confirmed that there has never been
any bad blood between them.
[40]
She denied that she pulled Zukiswa out of the car or put her foot on
top of their backs. She stated that
as a paramedic she would not put
her foot on a person’s back to feel whether a person is alive
or not. She disputed that
she was the one who caused the vehicle to
stop by saying she wanted to urinate, instead it was SVIG who said he
heard some noise
coming from one of the tyres. She denied that she
was part of any murder that had occurred on that day or even an
attempt to kill
Zukiswa.
[41]
She agreed that the general import of the evidence of Zukiswa was to
incriminate her in a conspiracy.
However, she stated that she did not
know why would Zukiswa turn against her because they never had any
fight at all. She stated
that Caster and SVIG visited her cousin
multiple times but she could not count how many times. Lithemba, that
is her cousin, never
worked, she did not know what things they were
being done by them. She did not know the surnames of SVIG and Caster.
She
only knew them by those names. She said those people would
visit from time to time and Zukiswa would be there and she was
definitely
acquainted to them. She was asked why would Zukiswa lie
about knowing these people and she stated that she did not know why
she
would lie about that. It was put to her that on the probabilities
her version that Zukiswa knew the two males must be false. Her

response was that “I say they were acquaintances.” When
it was put to her that in the vehicle these people introduced

themselves to Zukiswa as “Ndumiso” and “Siya”
in her presence, inside the car, her response was that she
did not
know, she only knew them as SVIG and Caster. She confirmed that
introductions did take place in the car but she did not
know the
names Ndumiso and Siya.
[42]
She stated that SVIG turned and said “do you recall me
Zukiswa”. Initially Zukiswa
did not recognize him but she could
recollect as SVIG explained to her who he was. She then recollected
that the person’s
name was SVIG. The same thing happened with
Caster, Zukiswa also recalled him as Caster. According to her these
people never used
false names and she did not know why Zukiswa used
false names. It was put to her that she was using false names in
order to protect
the two people that had shot Thembinkosi and
Zukiswa. She disputed that because she said she had nothing to gain
by protecting
them.
[43]
She stated that she was never asked by the police about the case so
she kept quiet. The only questions that
were asked of her by Mr
Britz, the Investigating Officer, were when were they travelling to
Port Elizabeth, where she worked, her
cell number and her children.
She disputed that the car that they boarded was a red car, she
insisted that it was blue. She stated
that when people said they
needed to be washed her understanding was that maybe they had stolen
some clothes somewhere. She conceded
that she did think that they had
committed a crime when they said they were wet. She did not ask them
why they needed to be cleansed.
She went along with them because they
needed assistance. She did not know where Black stayed but agreed to
assist them. She denied
that she had made any plans with them.
Initially she said she knew of no relations between Buntu and Zukiswa
but later on she said
she never heard Buntu saying he was related to
Zukiswa and
visa versa
. She only knew that they were
neighbours. Later on, she said that as Xhosa people they have four
clan names. She then stated that
maybe Buntu is related to Zukiswa by
clan names from Zukiswa’s maternal side. She stated that
according to the clan name
that she shares with Zukiswa, they are not
related but she cannot agree whether Buntu and Zukiswa are not
related.
[44]
She stated that there was never a discussion between her and Buntu
about Zukiswa’s insurance. She
disputed that she gave Buntu
Zukiswa’s ID. She heard about Buntu having taken a life
insurance policy for Zukiswa in court
during this trial. She didn’t
know whether Zukiswa and Buntu were related. She did not know why the
two men would come all
the way to Makhanda to look for traditional
healers instead of looking for them in Gqeberha.
[45]
She stated that she had told Zukiswa and Thembinkosi that Lithemba’s
friends wanted to know where
Black stayed. She made it clear to them
that it was not her but the two friends who were looking for the
traditional healer. She
never mentioned to Zukiswa that the person
was ‘Blackcat’, she simply said the person was Black. She
disputed that
she had told Zukiswa that she is the one that was
looking for Black. She did not observe that Zukiswa was sick that
night as she
was wearing jeans and a polo neck top. She disputed that
Zukiswa had a shortness of breath that evening and she never
mentioned
that to her.  She disputed that she pleaded with them
to accompany her.
[46]
She agreed that she is the one that asked the two of them to
accompany her. She stated that no
one was giving directions because
as soon as they got into a vehicle SVIG’s phone rang and he
requested that they proceed
to extension 10. No one directed the
driver to extension 10. SVIG simply said here is extension 10 but did
not specifically direct
the driver. No one asked any questions. She
did not know why Zukiswa touched her hand but she touched her because
she could see
that they were now going past extension 10 and was
wondering as to where they were going. She was not suspicious but she
was simply
wondering.
[47]
She stated that the vehicle did not stop because she wanted to
urinate, it was because SVIG had said there
was something on the
wheel.  She got out and requested to pee only after the car had
stopped and when it was at a standstill.
She did not hear or see any
scuffle when Thembinkosi was being pulled out of the car by SVIG. She
did not see Zukiswa exiting from
the vehicle. She denied that she had
pulled Zukiswa out of the vehicle.
[48]
When asked whether she saw the firearms, she said she saw SVIG on the
other side as he was pointing
a firearm at Zukiswa and Thembinkosi.
He was visible to her. Caster had ordered her to give him her
cellphone and she heard a cocking
of a firearm. She did not see where
it came from because she was looking down. She was ordered to get
into the vehicle by Caster
and she complied. More shots were fired
while she was entering the vehicle. She thought it was SVIG that had
fired more shots because
Caster was next to her. She did not see the
firearms earlier she only saw them as the shots were being fired. She
did not see where
Caster got his firearm. She only saw it when he was
standing next to her. She stated that she did not see any firearms on
both
of them because she was seating behind the driver at the back.
She never looked at the bodies Caster and SVIG but she focused on

their faces. She did not see any firearms on them. She did not know
what happened outside when she was ordered to board the vehicle.
Her
head was facing downward the whole time inside the vehicle. She saw
people lying down and those that were lying down were being
shot at.
[49]
She stated that it was SVIG who said that these rubbish would stop
being witnesses in cases they
have no knowledge of. She did not know
what he meant by that. She did not know whether Zukiswa or
Thembinkosi were witnesses in
relation to the case that happened at
their home. She stated later on that it dawned on her that the whole
shooting had something
to do with the killing of Unathi and that
occurred to her after SVIG had uttered those words. She believed that
the two assailants
would eliminate anyone who was a witness as they
had threatened her and her family.
[50]
She understood that they were not going to live behind any witnesses.
She agreed that there were no intentions
to get to Blackcat that
night. She realized later on that she was used by the two assailants
and had used a ploy to get her into
a position where they would
finish off the two witnesses, Thembinkosi and Zukiswa. When asked a
question that there was no real
intention to meet up with Blackcat?
Her answer was that she did not know whether there was really no
genuine intention of doing
so or that this was the mission of the
assailants. After the shooting she stated that they did not look for
Black. She agreed that
Black was a ploy to get to the deceased and
Zukiswa. She did not know why the assailants left her alive. She
denied that she was
part of the commission of the offence from the
onset. They dropped her off at Shoprite because she resides behind
Shoprite. She
did not go to the police station although Shoprite was
next to the police station because she was afraid. She did not tell
anyone
about the incident until Sunday. She did not think of waking
up her sister who was sleeping and did not think of phoning the
police
anonymously to report the crime.
[51]
On Sunday she still feared the assailants but she decided that she
was going to go to the police.
She could not go and check on Zukiswa
and Thembinkosi because she feared that the assailants could spot her
vehicle. She did not
think of sending a colleague/paramedic to go and
check on them. When she was going to the police station she observed
the driver,
being Caster but did not recognize the other two
occupants because she was looking at the driver. She thought seeing
the Polo vehicle
at that point was by chance. She did not tell Mr
Daweti that she had just seen the motor vehicle but she spoke to Mr
Toto. She
never told Mr Toto that she had just seen the vehicle with
Caster in it because she was afraid. She stated that she did not tell

the police about the two assailants because she feared that they
might harm her family. She disputed that the plan was to get two

assassins from Gqeberha who would shoot and kill Zukiswa so that the
money could be split between her and Buntu. She denied that
she was a
central part to the plan. She denied that she took Zukiswa to
Mayfield farm for her to be shot at. It was put to her
that she kept
quiet for two days, not because she was scared but she wanted to wait
until the bodies were found so as to set their
plan in motion.
[52]
When they discovered that Zukiswa did not die that became the reason
Buntu wanted to cancel the
policy. She denied that.  It was put
to her that she was the connection between Zukiswa and Buntu. She was
also the only link
between the two males and Zukiswa. When it was put
to her that without her the two males would not have found Zukiswa,
her response
was that she would not know whether they would have
other plans. She denied that she was part of the common purpose with
those
two males to commit a crime. She stated that it was the first
time for her to see someone being shot at in her presence. She got
to
know Buntu in 2022. She did not know any connection between Buntu and
Zukiswa. Inside the vehicle it was dark but streetlights
were on and
they could see each other. She could not see any firearms on the
assailants because their waists were behind the seats.
There was
sufficient light inside the car. When she boarded a taxi to go to the
police she had managed to overcome her fear.
Constable Nosiphiwe
Makebeni
[53]
The accused called a defence witness Ms Nosiphiwe Makebeni. She is a
Constable placed at Joza
Police Station. She is one of the police
officers that attended to the scene of crime on 25 August 2023 at the
Mayfield Farm. She
testified that they were three in total and she
was the first one to arrive. She took the statement from Zukiswa at
the hospital.
They were communicating in IsiXhosa and she wrote the
statement in English. She confirmed that on the statement that
Zukiswa made,
she did not mention that the accused pulled her out of
the car. She stated that if Zukiswa had mentioned that the accused
pulled
her from the car, she would have written that down.  Zukiswa
only mentioned her boyfriend as the person who was pulled out
of the
vehicle. She did mention that it was the accused who went to them and
asked them to accompany her to a traditional healer.
She also
mentioned that they were cousins. She could not take a statement at
the scene because she had been injured and she wanted
to get medical
help for her first.
[54]
Under cross-examination she stated that when she met Zukiswa at the
house where she was calling
from for help, Zukiswa was scared saying
that the people might still be around. Zukiswa did accompany them to
the scene. She also
stated that the events left her traumatized.
Mr Mcebisi Mbunge
[55]
The next defence witness was Mr Mcebisi Nelson Mbunge. He stays at
No. 86 Nkanini Thembinkosi’s
paternal home. He testified that
his daughter was shot in 2022 in that house. She was just sitting,
having come back from church.
Her name was Anovuyo Wambi. She was
also killed at Thembinkosi’s home. He stated that the shooting
that happened at Zukiswa’s
house was the first one and was
followed by the shooting of his daughter and then Thembinkosi was the
third one to be shot dead.
No case was opened for the killing of his
daughter. The assailants are not known. At the time his daughter was
shot at Zukiswa
and Thembinkosi were also staying in that house. He
corroborated the evidence of Zukiswa that when Nomsa arrived she
called out
for her and Thembinkosi responded and opened up for her.
He stated that Nomsa asked Zukiswa and Thembinkosi to accompany her
to
go to Mr Mbekwa. It appears that Mr Mbekwa is the same person as
Blackcat. He disputed that Zukiswa questioned Nomsa for requesting

her to accompany her. The witness stated that Zukiswa simply agreed
and accompanied her. Nomsa told them that they were going to
return
quickly. He stated that when Nomsa arrived Zukiswa was in the
bedroom. She dressed herself in the room and came out.
[56]
Under cross-examination he disputed that Zukiswa was sick at the
time. In fact, he stated that
even to date, that is on the day he was
testifying, Zukiswa was not sickly. She was very well. When asked
about the fact that she
had been to hospital, his response was that
Zukiswa no longer stays with them at their home. He confirmed under
cross-examination
that Zukiswa was already lying in bed when the
accused arrived. He stated that the person who was looking for
Blackcat was the
accused and that she, herself, wanted to be
accompanied to Blackcat.  They went to report to Oom Ray that
Thembinkosi and
Zukiswa had not returned home. Later they heard from
the police about the incident. He made a statement to the police. The
police
questioned as to whether they knew who the person was who had
gone to fetch Thembinkosi and Zukiswa and they pointed out the
accused.
His statement was read out where he had stated that he asked
the accused how she came to the house and she said she came in a car.

His response was that he did not ask her that because he does not
even know the accused. He disputed the things written on his

statement such as “I told her the street is not wet why she did
she not park in front of the gate”. His response was
that “I
did not ask, I did not even know Nomsa”. He disputed that the
statement that was being read out was his statement.
He, however
identified and acknowledged the signature thereon as his signature.
He said he did not know the accused. He stated
that Thembinkosi was
going to be a witness in Anovuyo’s case but that case did not
proceed. He was never even called as a
witness in any of the cases.
Nobody knew who the killers were in Anovuyo’s case.  The
defense closed its case.
State’s legal
submissions
[57]
In argument, Mr Engelbrecht submitted that the question is whether
the accused person was a mere
innocent spectator or bystander or
whether she was actively involved as part and parcel of killing of
Thembinkosi and in the attempt
to kill Ms Frans. He submitted that Ms
Frans gave a version that had no inherent improbabilities. It is
supported by a number of
witnesses. He submitted that although she
was taken to task about certain omissions in her statements, she
never deviated from
her evidence. In this regard, he dealt with the
deviations by witnesses. He referred to the following cases
S
v Govender
[1]
, S v
Bruiners
[2]
and
S
v Mafaladiso en Andere
[3]
.
He submitted that the importance of these decisions is that not every
deviation from a witness police statement has a detrimental
effect on
the witness’s evidence. Many things that the court must
consider is that, first of all, these statements are never
taken in
perfect situations. The timing of the first statement should be
considered considering the situation that Zukiswa was
in at the time.
She had just experienced an ordeal. She was in hospital and she
was in pain when it was taken.
[58]
He submitted that the court cannot use a police statement to
supplement the person’s evidence
in court. The issues that were
omitted in the first statement were dealt with in the second one and
they are simply omissions not
contradictions. He asked the court to
consider those holistically and the import of those against all the
other evidence. He submitted
that the omissions in Zukiswa’s
evidence and the corroboration of her evidence will mean that those
omissions cannot have
a fatal effect on Zukiswa’s evidence. He
submitted that the court is not faced with direct contradictions. She
simply went
further from what she had stated earlier by putting the
evidence that the accused had pulled her out of the vehicle and the
setting
of her foot on their backs. He submitted that the
contradiction in Sgt. Sauli’s evidence that he found the
deceased lying
face up and in another statement saying he was facing
down that is of no moment because Thembinkosi did not die at the
scene. He
may have moved and he only died in hospital. He submitted
further that there was no dispute in relation to the medical evidence

where the wounds of Thembinkosi were. The court should find that all
the state witnesses’ evidence was reliable. He urged
the court
to take into account circumstantial evidence and relied on
S
v Reddy
[4]
and
asked the court to take into account the following aspects: that the
accused is a work colleague of Mr Buntu Melani.
[59]
It is the evidence of Ms Zukiswa Frans that it is the accused who
gave Melani Zukiswa’s
ID number and that Melani took out a
policy on her life.  That was done on the 25 July 2023, a month
before the event. Mr
Melani wanted to have a policy on Zukiswa
cancelled a month after the event. The accused had not indicated or
given an explanation
as to how Buntu Melani got the birth date of
Zukiswa. It was the accused who had put Buntu in contact with Ms
Ncethu for the policy.
After the incident, the accused went to work
and did not tell a soul about what happened. She made no attempts to
contact the police
and indicate that there were these two people that
had been shot. No report to the police until the Monday. He submitted
that he
relies on her conduct after the event of the shooting had
taken place. The court should consider the impact together with the
direct
evidence of her participation. The court must find that it has
been established beyond reasonable doubt that she was a party to
and
a prime mover in the events that led to the death of Thembinkosi. He
submitted that the mosaic of the evidence described is
overwhelming
against the accused.
[60]
He submitted that there is evidence that it is the accused who went
to fetch the victims and thus played
an active role in the commission
of the crime. She did not disassociate herself from the acts of the
two males. She actively associated
herself with their actions.
[61]
Mr Engelbrecht conceded that the robbery charge has not been proved
against the accused. He submitted that
the scope of foreseeability,
the taking of the cellphone whether that act was something foreseen
by the accused or whether it was
part and parcel of the plan, has not
been proved. He conceded that the scope of the common purpose in
relation to the robbery does
not go as far as to affect the accused.
[62]
He submitted that in so far as counts 1 and 2 are concerned, the
State has successfully proved its case
beyond reasonable doubt. All
the pieces of evidence point in one direction that the evidence of
the accused turned to corroborate
the evidence of Zukiswa. He
submitted that the evidence of the accused was riddled with
fabrications. The Polo passing her at the
police station and that the
Polo stopped because of the tyre noise. Those are fabrications and
must be rejected. The accused was
not there by chance but by design.
He submitted that if the court accepts the evidence of the State, the
court would find that
there was no duress at the crucial time before
everything happened. She fabricated it to try and exculpate herself.
She was the
reason the vehicle stopped. She is the reason the two
victims ended up on the Mayfield Farm. Her evidence is riddled with
improbabilities.
[63]
He submitted that if the court finds that she was part of the common
purpose, there would be
no basis to find that she was threatened. In
any event the threat was after the event. He submitted that if the
reason for shooting
the two victims was because they were witnesses,
the two assassins would not take a chance and leave a witness alive,
which was
her in this case. He urged the court to find you guilty as
charged in counts 1 and 2.
Defense’s legal
submissions
[64]
Mr Stamper submitted that the State has failed to prove its case
beyond reasonable doubt. He
disagreed that there was any direct
evidence. The State’s case is based on circumstantial evidence,
he argued. He submitted
that the State seeks to draw an inference
that the accused is the one that gave Buntu Zukiswa’s details
to enable him to
take out a life policy on Zukiswa . In this regard
he relied on
R
v Blom
[5]
.
He
submitted that, that would not be the only inference to be drawn
because we do not know how Buntu got the identity document of

Zukiswa. Unless it is found that there is no other probable way then
that inference could justifiably be drawn. He submitted that
if the
suggestion is that the accused pulled Zukiswa out of the vehicle for
her to be killed, that aspect is inferential. He submitted
that an
inference is sought to be drawn where there is no direct evidence. He
submitted that no common purpose was shown. He argued
that the
evidence of Zukiswa was so full of improbabilities that it stands to
be rejected. Zukiswa failed to answer questions directly,
according
to him. He submitted that Zukiswa did not know on which side of the
car they were caused to lie down. She did not know
whether she was
made to turn around the vehicle. That evidence, according to him is
inconsistent with the evidence of the accused.
He submitted that the
reason Zukiswa did not know these things is because they did not
happen. He submitted that those were crucial
improbabilities which
must lead to the rejection of Zukiswa’s evidence.
[65]
He urged the court to have regard to the two issues that Zukiswa had
forgotten which according
to him, were very crucial. Those should
cast doubt on her evidence. He urged the court to approach the
evidence of Zukiswa as that
of a single witness. He relied on
S
v Mokoena
[6]
before
her evidence can be relied on it must be credible in all material
respects and it must be satisfactory. He conceded that
the evidence
of the accused was not without its improbabilities. A finding of
guilty against the accused in this case cannot be
obtained on the
State’s case. He relied on
S
v Van Aswegen
[7]
the
proper test is that an accused is bound to be convicted if the
evidence establishes her guilt beyond reasonable doubt. If her

version is reasonably possibly true she must be acquitted. He
submitted that the court must account for all the evidence whether
it
is true or false. In this regard he relied on
S
v Chabalala
[8]
on
the decision of Heher AJA that:
“
[15]
The trial court’s approach to the case was, however, holistic
and in this it was undoubtedly right:
S v Van Aswegen
2001 (2) SACR
97
(SCA). 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.”
He submitted that the
evidence that was given at the scene should be looked at. The
accused’s evidence has not been seriously
challenged in many
respects.
[66]
He submitted that the court might not be convinced but the truth is
that the accused was in that
situation at that time and she gave
evidence that she had been threatened, that can never be rejected as
false. He submitted that
if the court finds that the evidence of her
pulling Zukiswa and stepping on them is to be rejected, the court
must accordingly
acquit her. He urged the court to acquit the accused
on counts 1 and 2.
[67]
He agreed with the State that there was no evidence to prove the
count of robbery and the court
should find the accused not guilty on
that count.
[68]
In reply, Mr Engelbrecht submitted that it was suggested that Zukiswa
added more things to incriminate
the accused. He submitted that for
there to be merit in that argument, there must be a reason for
Zukiswa to want to do that. If
it is not a mistake made, then there
must be a deliberate attempt to incriminate the accused. There is no
evidence in that regard.
Zukiswa and the accused grew up together.
They were like sisters. They have a relationship that has not
changed. On the fear aspect,
he submitted that, the alleged fear came
and went as it suited the accused. She only went to the police
station when she saw that
the police were closing in on her. She
never raised the alarm with anybody. Circumstantial evidence does not
change. The fact that
it was the accused who lured these witnesses
under false pretences does not change. The fact that she remained
silent throughout
does not change. He submitted that even if the
court were not to place any reliance on those aspects the situation
never changed.
Her complacency in the crimes has been proved beyond
reasonable doubt.
Evaluation
of the evidence
[69]
The
manner of evaluating the evidence was explained by Nugent J in
S
v Van der Meyden
[9]
:
‘
What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or to acquit) must account
for all the
evidence. Some of the evidence might be found to be false; someof it
might be found to be unreliable; and some of it
might be found to be
only possibly false or unreliable; but none of it may simply be
ignored.
’
This
dictum has been quoted with approval in several cases delivered by
the Supreme Court of Appeal
[10]
.
[70]
The general principle of the common law is that
credibility does not depend upon the number of witnesses.
Section 208
of the
Criminal Procedure Act provides
that an accused person may be
convicted on the single evidence of any competent and credible
witness. In
S
v Letsedi
[11]
,
it was held that where there is a measure of corroboration, even if
it is small, one is no longer dealing with a single witness.
In
evaluating the evidence of a single witness, a final evaluation can
rarely, if ever, be made without considering whether such
evidence is
consistent with the probabilities
[12]
.
[71]
The evidence of Sgt. Sauli was not challenged except the position in
which Thembinkosi was lying
when he found him at the scene. He
readily conceded that what was contained in his statement was correct
because he had not had
regard to it before he testified.  His
statement was made during the evening of the incident on 25 August
2023 and he testified
before this court more than a year later.
There was no challenge to the evidence of Zukiswa that they
were made to lie, face
down with their hands on their heads. The
accused admitted, amongst others, that the contents of the postmortem
report including
the findings as to the cause of death was admitted
as correct.  This witness observed that Thembinkosi was bleeding
from his
head.
A
medico – legal report was compiled by the chief Medical
Officer, Forensic pathology services, Dr Stuart Wayne Dwyer, on
28
August 2023, recorded that the death occurred on 25 August 2023. The
chief post- mortem findings made on the body were
‘
A
small circular wound on the right side of the the head, larger
irregular wound left side of head. Wound track through skull and

brain.”
The position of how
Thembinkosi was lying when the police arrived has no bearing on the
cause of death and on the injuries sustained
as admitted. Thembinkosi
was alive and breathing on his own when the police arrived, he died
at the hospital.  He may have
moved, as correctly submitted on
behalf of the State. Most importantly, as soon as that innocent
mistake was brought to the witness’s
attention, he corrected
it.
[72]
This witness corroborated the evidence of Zukiswa in the following
respects: She was not intoxicated on
the night in question. Zukiswa
took the police to the scene with no difficulty. She called for help
as soon as it was opportune
for her to do so, and as a result of her
actions Thembinkosi was found still breathing. Zukiswa told the
police what happened and
her narration of the events was reliable
because cartridges were found at the scene and one projectile.  This
was a person
who had been subjected to an ordeal and was seriously
injured. Thembinkosi was found lying at the scene having sustained a
wound
to his head described by the pathologist as “
Not
inconsistent with gunshot wound head
”. The photo album that
has been admitted depicts the road as a gravel road, where they were
shot at.
[73]
The evidence of this witness is corroborated by the evidence of the
accused as well in that:  The scene
of crime was admitted, the
cartridges that this witness picked up were admitted as having been
found at the scene, the accused
had admitted in evidence that the two
victims were lying down when they were shot at. That is how
Thembinkosi was found by him.
The fact that he made a mistake in
evidence about the position, whether he was facing the sky or lying
face down is of no moment.
I say so because it is common cause
between the parties that the deceased sustained gunshot wounds on his
head. I accordingly find
that Sergeant Sauli gave reliable and
credible evidence and I accordingly accept it.
[74]
The evidence of Zukiswa was corroborated by the accused in material
respects. Those are : That
it is the accused who went to them; she
mentioned that she wanted to be accompanied to Blackcat, she was in
the bedroom when the
accused arrived; the accused told Zukiswa that
the vehicle she came in belonged to her friends; she caused them to
board the vehicle;
they were caused to lie down and shot at with
firearms; the accused was present when they were shot at; Zukiswa and
Thembinkosi
were left lying on the road after being shot, the accused
together with the two males boarded the vehicle after the shooting
and
left them there; the accused did not assist them in anyway; she
is the person that asked for Zukiswa’s Identity document,
she
was a close colleague and work partner  to Buntu who took out an
insurance policy on Zukiswa’s life.
[75]
Her evidence differs from that of the accused mainly on the role the
accused allegedly played
at the crime scene. Did the accused pull
Zukiswa out of the car against her wishes? Did she step on their
backs to ascertain whether
they were alive or not?  These
questions lead to the examination of the statements made by Zukiswa
because the complaint is
that these two issues were a fabrication and
they never happened. Context is everything. It is so that in the
first statement dated
25 August 2023 there is no recordal of the
accused pulling Zukiswa out of the motor vehicle.  Zukiswa
stated in evidence that
the police officer never asked her any
questions she was just telling her what happened and she was writing
down.  This is
a person who had just been through the ordeal.
She was scared and shivering. She was traumatized and was injured and
in pain. She
was bound to forget one or two things.  The very
next day another statement was taken from her.  She mentioned
how the
vehicle stopped because the accused asked the driver to do so
because she wanted to urinate, and how she pulled Zukiswa out of the

vehicle. That was not the end. She went further and mentioned most of
the things mentioned in her previous statement. She mentioned
that
the accused was just looking at them not saying anything. On the
accused’s version she saw them lying down, being shot
at and
she did nothing.  The third statement was made on 07 September
2023. What is crucial about that statement is what is
stated in the
opening paragraphs:
“
This
is an additional statement from my previous statements.
On 2023.09.07 at about
12:30 I was assisted by W/O Britz and Sgt Daweti with private
arrangements during this period. We spoke about
the incident of the
night of the murder.
During my report to
them W/O Britz informed me that some of the information is not
mentioned in my previous statement and requested
an additional
statement regarding the new facts like whilst myself and Thembinkosi
(deceased) were lying on our stomach after the
they shot us one of
the black male who shot us ordered Nomsa Seyisi to put her foot on
our back to hear if we are still breathing.
Nomsa started to put her
foot on my back (lower back) and put it to Thembinkosi and she
(Nomsa) said they are dead. They all got
into the vehicle and left.”
[77]
This statement was admitted into evidence as
‘Exhibit 10’.  It is apparent therefrom that
Zukiswa
was talking about the incident when the investigators realized that
some of the things she mentioned were not recorded
in her previous
statements.  This statement was made 14 days after the first
one. It was not disputed that Zukiswa was shot
at and sustained
injuries on her head and on her left hand.  She was operated
on.  When these issues are viewed they
must be viewed together
with the evidence in its totality, taking into account the emotional
state in which the witness was when
the statements were taken by the
police.
[78]
In
S
v Govender and Others
[13]
Nepgen,
J discussed the issue extensively. He pointed out that it is
important that it should always be borne in mind “. .
.
that
police statements are, as a matter of common experience, frequently
not taken with the degree of care, accuracy and completeness
which is
desirable. .
.'. (
S
v Xaba
1983
(3) SA 717
(A) at 730B - C.)
[79]
Furthermore, in
S
v Bruiners
[14]
the purpose of a police statement was explained to be, to
obtain details of an offence so that a decision can be made whether

or not to institute a prosecution, and the statement of a witness is
not intended to be a precursor to that witness' evidence in
court.
Quite apart from that, however, there are other problems associated
with police statements. They are usually written in
the language of
the person who records them. Frequently the use of an interpreter is
required and, invariably, such interpreter
is also a policeman and
not a trained interpreter. The statement, according to my experience,
is also usually a summary of what
the policeman was told by the
witness and is expressed in language or in terms normally used by him
and not necessarily the witness.
I am of the view that the fact that
discrepancies occur between a witness' evidence and the contents of
that witness' police statement
is not unusual nor surprising.
Whenever there are contradictions between the police statement of a
witness and the evidence of
such witness, or where there is no
reference in a police statement to what can be considered to be an
important aspect of that
witness' testimony, the approach to be
adopted in regard thereto is as described in
S
v Mafaladiso en Andere
[15]
.
[80]
In
S v Mafaladiso
the Supreme Court of
Appeal gave directions on how one should approach self –
contradictions and contradictions between two
witnesses.  It
found that
in neither case is the aim to prove which of the
versions is correct, but to satisfy oneself that the witness could
err, either
because of a defective recollection or because of
dishonesty. The mere fact that it is evident that there are
self-contradictions
must be approached with caution by a court.
Firstly, it must be carefully determined what the witnesses actually
meant to say on
each occasion, in order to determine whether there is
an actual contradiction and what is the precise nature thereof. In
this regard
the adjudicator of fact must keep in mind that a previous
statement is not taken down by means of cross-examination, that there

may be language and cultural differences between the witness and the
person taking down the statement which can stand in the way
of what
precisely was meant, and that the person giving the statement is
seldom, if ever, asked by the police officer to explain
their
statement in detail. Secondly, it must be kept in mind that not every
error by a witness and not every contradiction or deviation
affects
the credibility of a witness. Non-material deviations are not
necessarily relevant. Thirdly, the contradictory versions
must be
considered and evaluated on a holistic basis. The circumstances under
which the versions were made, the proven reasons
for the
contradictions, the actual effect of the contradictions with regard
to the reliability and credibility of the witness,
the question
whether the witness was given a sufficient opportunity to explain the
contradictions - and the quality of the explanations
- and the
connection between the contradictions and the rest of the witness'
evidence, amongst other factors, to be taken into
consideration and
weighed up. Lastly, there is the final task of the trial Judge,
namely to weigh up the previous statement against
the viva voce
evidence, to consider all the evidence and to decide whether it is
reliable or not and to decide whether the truth
has been told,
despite any shortcomings. (At 593e - 594h.)
[81]
In casu, I have dealt with the dates and the
timing of the taking of the statements from Zukiswa. There
are no
contradictions in her statements. She gave a plausible explanation as
indicated above, why the two issues do not appear
in her first
statement. I am satisfied that in this case where certain things were
not mentioned it is because of how the statements
were taken. It is
apparent from the above quoted extract from one of her statements
that she narrated the events of that day but
the investigator
observed that not everything was captured in her statements.
Such an omission is clearly not of her own
doing but is as a result
of the approach adopted by those who listened and recorded the
events.  From the manner in which
Zukiswa gave her evidence I am
pursuaded that whatever was omitted by the police officers from her
statements was  dealt with
sufficiently in her oral evidence and
that  she told the truth  about what she conveyed when she
reported the crime and
in so doing , she was not
actuated
by dishonesty
.
Zukiswa dealt with all these issues in her
evidence -in - chief.  She was cross- examined at length and in
the end it became
clear that she had told the full story to the
police. She was truthful enough to state that she was not certain on
whom did the
accused step on first. That was the only correction she
made to the statement quoted above.  That is consistent with her
evidence
that she did not know who was shot at first.
[82]
It
is not necessary for the State to prove its case beyond
all
doubt
[16]
.
In
R v
Mlambo
[17]
,
the Appellate Court stated:
"In my opinion,
there is no obligation upon the Crown to close every avenue of escape
which may be said to be open to an accused.
It is sufficient for the
Crown to produce evidence by means of which such a high degree of
probability is raised that the ordinary
reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed
the crime charged. He
must, in other words, be morally certain of the guilt of the accused.
An accused's claim to the benefit of a doubt when it may be said
to exist must not be derived from speculation but must rest upon
a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not in conflict

with, or outweighed by, the proved facts of the case."
An
accused person does not have to prove anything.
[83]     I
find that Zukiswa gave reliable evidence. This is a person who looked
frail and sickly before this court.
Her evidence was supported by Mr
Mbunge on the most crucial aspect that the accused told Thembinkosi
and Zukiswa that she (the
accused) was the one who needed to be
accompanied to the traditional healer. She endured lengthy
cross-examination over a period
of at least 2 days. She was not
shaken at all under cross- examination. She did not contradict
herself. She was an impressive,
truthful and forthright witness whose
evidence concerning the accused was beyond reproach.  I
accordingly accept her evidence.
[84]
The evidence of Ms Cethu was an unbiased account of the events that
led to the taking out of an insurance
policy on the life of Zukiswa
by Buntu.  Her evidence is supported by the policy document that
was admitted into evidence.
I find her evidence to be objective
and reliable. I accordingly accept it.
[85]
The evidence of Mr Mbunge was tailor-made to suit the version of the
accused in certain respects. When he
realized that he was caught out
on Zukiswa being sick and in hospital during the trial he quickly
changed and stated that Zukiswa
no longer stays with them. This is a
person who was adamant that Zukiswa was not sick at all.
In
any event most of his evidence relates to what happened in the house
when the accused came to ask Zukiswa and Thembinkosi to
accompany
her. His evidence though paints a sad picture of random killings of
young women. Their deaths remain unresolved. There
are no inquests
held to enquire into the circumstances relating to the deaths of
Unathi and Anovuyo and others who may have died
in similar
circumstances. I am alive to the fact that this witness had a stutter
when he spoke and appeared to be hard of hearing.
That may have
contributed to my observation that he did not fare well under
cross-examination. As aforementioned his evidence was
limited to what
transpired inside the house after Thembinkosi had opened the gate for
the accused. I accordingly accept his evidence
only where it
corroborates that of Zukiswa.
[86]
The evidence of Sgt Makebeni was not
controversial.  I accordingly accept her evidence in relation
to
the statement she took from Zukiswa.  The same applies to the
evidence of Mr Pieters, it corroborated the evidence of Zukiswa
on
the relationship between Buntu and the accused.
[87]
The accused, on the other hand, was not an impressive witness.
She made up her evidence as questions
were being put to her. One of
the examples is that she stated that the police never asked her about
the incident whilst on her
warning statement she stated that she
needed a lawyer.  When she then realized that that was
presenting a problem for her
she stated that it was her family that
needed a lawyer and not her. She was the person who had told this
court that she told Mr
Toto everything. She could not explain how her
family would feature in a warning statement that relates only to her.
The versions
that she placed before court were irreconcilable.
[88]
On the one hand she gave the names of Caster and SVIG as the names of
the two males, when these males gave
Zukiswa different names she did
not explain why she kept quiet instead she simply responded that she
did not know those names.
She presented these two males as her
friends but later sought to distance herself from that by stating
that they were Lithemba’s
friends and not hers. She tried hard
to avoid the questions of how she could not have seen the firearms on
the two males. Her response
was that she focused on their faces. She
had a conversation with Caster outside the motor vehicle before
leaving with them. The
firearms were visible on their waists and
Zukiswa saw them. She made an effort to conceal the identity of her
co-perpetrators by
giving their false names which, by the way, she
never mentioned to Zukiswa and Thembinkosi when she went to fetch
them, she gave
a false colour of the vehicle and said it was metallic
blue, instead of red.  Zukiswa mentioned the colour of the
vehicle
in her very first statement to the police which was made the
same evening of the incident.   She created a falsehood
that Zukiswa knew these assailants very well and embellished that
falsehood when she gave evidence by stating that these two males

identified themselves to Zukiswa and explained to her who they were
until she remembered who they were.
[89]
Mr Stamper submitted that Buntu was not called. The version that was
put to Zukiswa and other witnesses
was that the accused was going to
call Buntu to state that he did not get the ID number of Zukiswa from
her. There was no explanation
why Buntu was not called. On the
accused’s version she corroborated the evidence of Zukiswa that
she was not related to Buntu.
Buntu was a work colleague and work
partner of the accused. That evidence is supported by their
supervisor Mr Pieters that for
a number of months they worked
together. The accused further supported Zukiswa’s evidence that
on the day when she went to
ask for her identity number, she was in
the company of Buntu. It is also the accused’s evidence that
she also asked for the
spelling of Frans. On the evidence as a whole,
she is the only person who is a link between Zukiswa and Buntu. That
finding is
not based on conjecture.  When the accused realized
that her earlier statement that Buntu and Zukiswa were not related
was
problematic for her, she quickly changed it as follows:
They were neighbours, Zukiswa used to visit Buntu, to maybe they are

related by clan names since Xhosa people have four clan names and
lastly that she did not know whether they were related or not.
[90]
This is a person who stated that she was not aware that Buntu had
insured Zukiswa.  The
version of the accused in relation to this
issue is improbable and stands to be rejected.  The version of
the State, on the
other hand, is more probable because it is the
accused that gave Buntu’s contact details to Ms Cethu. A few
days later Buntu
took out a policy on Zukiswa and described her as
her first cousin. It is common cause that Zukiswa and the accused are
cousins.
Two weeks before the Mayfield farm shooting, Unathi
was murdered at Zukiswa’s home. Two weeks after the Mayfield
farm shooting
Buntu Melani wanted to cancel the policy.  There
can only be one inference to be drawn from these facts and that is
that the
attack on Zukiswa and Thembinkosi was related to the life
policy.  Zukiswa herself had told this court that she agreed
with
her family that the accused would take out a funeral policy to
bury her in the event of her death.  It follows that Buntu and

the accused as close colleagues were going to benefit from her death.
[91]
The issue about a life policy on the life of Zukiswa favours a
finding that given all the circumstances
under which the names and
surname of Zukiswa ended up being used by a co-worker, a partner at
work of the accused can only be through
the accused herself. Her
version in this regard vacillated as demonstrated above. The
inference that it is the accused that gave
the ID numbers or ID of
Zukiswa to Buntu is justifiable given the fact that it is the
accused’s evidence that when she went
to ask for Zukiswa’s
identity number she was in company of Buntu. Given those facts there
is only one person who would have
linked Zukiswa to Buntu and that is
the accused.
[92]
I disagree with Mr Stamper that there is no direct evidence against
the accused.  The accused
is the person who lured Zukiswa and
Thembinkosi out of their home in what turned out to be a falsehood.
She conceded that there
was no real intent to go to Black Cat. It is
so that some of the evidence is circumstantial. However, on the
evidence it is the
accused who caused Zukiswa and Thembinkosi to
board the vehicle of the co- perpetrators by telling them that it was
her friends’
car.  She was the reason the car stopped on
the road that was next to a cemetery at night. She participated by
pulling Zukiswa
out of the vehicle.  By causing the vehicle to
stop since she said she wanted to urinate she enabled one of her
co–perpetrators
to pull out of the vehicle, Thembinkosi also.
She was present when the victims were caused to lie down and were
shot at.
She placed her foot on their backs to check whether they
were alive.  That is not a conduct of the bystander but a prime
mover
and an involved participant.  I find that given her
actions and the versions that she gave, the accused gave false
evidence
with the intention to mislead this court.
[93]
I find that taking all the evidence into account
including circumstantial evidence there was a common purpose
between
the accused and the assassins. The identity of the two males was
concealed by the accused. She knew those people well.
It is
unthinkable that Zukiswa would know who the culprits were and give
wrong names. The accused, on the other hand, would have
reason to
hide the identity of the culprits. In
S
v Govender & Another
[18]
the
court stated that the appellant in that case foresaw that the person
would be killed and intended that to happen without disassociating

himself.
[94]
The requirements for active association in common
purpose were outlined in
S
v Mgedezi and Others
[19]
,
by the Supreme Court of Appeal as follows:
“
The
accused must have:
(a)
been present at the scene where the violence was committed;
(b)
been aware of the assault on the victim by somebody else;
(c
) intended to make common purpose with the person perpetrating the
assault;
(d)
manifested his sharing of a
common purpose by himself performing an act of association with the
conduct of the perpetrator; and
(e)
have the requisite mens rea. Dolus eventualis is
sufficient: the accused must have foreseen the possibility that
the
acts of the perpetrator may result in the death of the victim and
reconciled himself with that eventuality.”
[95]
The State proved all these requirements in the present case.
There was no direct evidence
of prior conspiracy between the accused
and the two perpetrators. However, the accused is the person that
lured the deceased Thembinkosi
and Zukiswa, into the vehicle of the
assailants who were known only to her; she directed them to get into
the vehicle. When they
entered the vehicle there was no mention of
directions to the house of the traditional healer, Mr Black or Black
Cat.  She
is the one who caused the vehicle to stop at the
cemetery because she said she wanted to urinate. As she alighted from
the vehicle
she pulled Zukiswa out even though she told her that she
did not want to urinate. She was present and witnessed the actions of
the assailants, only known to her, when they caused Thembinkosi and
Zukiswa to lie down and when they were shot at. She did nothing
to
disassociate herself from that act.  She participated actively
by pulling Zukiswa out of the vehicle and by stepping on
their backs
to assess whether they were dead or alive.  She failed to report
the crime to the police for two days.
[96]
In
S v
Mzwempi
[20]
,
at paragraph 20 to 21, Alkema J, stated:
“
[20]
Whilst I have no problem with the logic of the above
argument, the missing link is the absence of any evidence
that the
appellant was a party to such planning or agreement. As I will show
later in this judgment, a prior agreement to commit
a crime may
invoke the imputation of conduct committed by one of the parties to
the agreement which falls within their common design,
to all the
other contracting parties. Subject to proof of the other definitional
elements of the crime such as unlawfulness and culpa,
criminal
liability may in these circumstances be established. The test, and
requirements, however, of criminal liability under
the common purpose
doctrine in the absence of proof of a prior agreement, as I hope to
demonstrate, is very different and more
restrictive. It is therefore
essential that before convicting under the common purpose doctrine on
the strength of a prior agreement,
the Court must be satisfied beyond
reasonable doubt that such a prior agreement was proved, and that the
accused was a party thereto.
[21]
Our Courts are regularly faced with evidence of,
say, a pre-planned robbery or burglary. It is trite that
a prior
agreement may not necessarily be express but may be inferred from
surrounding circumstances. The facts constituting the
surrounding
circumstances from which the inferences are sought to be drawn must
nevertheless be proved beyond reasonable doubt.
And in this case
there are no facts proved from which an implied prior agreement
involving the appellant may be inferred. It is
common cause that his
shotgun was licensed and that he regularly used it for hunting
purposes. The inference that he spontaneously
joined the attacking
force whilst on a hunting venture, or that he simply joined the
attacking force without having been a party
to any prior agreement to
do so cannot be reasonably excluded.”
[97]
The conduct of the two assailants is imputed to her even if only two
of the perpetrators pulled
the trigger. The State succeeded in
proving that. The accused acted in common purpose with the two
assailants whose actions caused
the death of the deceased and the
attempted murder of Zukiswa. These are the positive acts on the part
of the accused:
1.
she lured the two victims to the assailants
under false pretenses that she wanted to be taken to a traditional
healer, Mr Blackcat;
2.
she caused them to enter the vehicle with
the assailants by telling them that those assailants were her
friends;
3.
she caused the vehicle to stop at the
cemetery, Mayfield Farm because she said she wanted to urinate;
4.
after the vehicle had stopped she
instructed Zukiswa to alight. When she resisted that she did not have
the urge to urinate, the
accused pulled her out of the vehicle;
5.
because of her actions the vehicle stopped
and thus enabled the pulling out of the vehicle of both the deceased
and Zukiswa;
6.
the victims were caused to lie down next to
one another. The accused was present and saw this when it happened;
7.
she was present when Thembinkosi and
Zukiswa were being shot at whilst lying on the ground;
8.
she, on being ordered by one of the
assailants, placed her foot on their backs to ascertain whether they
were alive or not;
9.
she, together with the assailants left the
shot and injured victims, believing that they were dead, boarded the
vehicle and drove
off.
10.
she enabled Buntu to take out a policy on
Zukiswa by providing him with Zukiswa’s ID or ID number and her
full names.
11.
she facilitated the taking out of the
policy on Zukiswa’s life by being a link between Buntu and Ms
Cethu.
[98]
The accused concealed the identity of the two
assailants deliberately. She did not report the incident for a period
of two days.
She only went to the police after she heard that the
police were looking for her at her home. I find that the accused had
the necessary
intention to have the deceased and Zukiswa shot and
killed. Fortunately, Zukiswa survived. She remained with the
assailants all
the way from her home until the crime was committed.
She participated before the commission of the crime by luring Zukiswa
and
Thembinkosi to the assailants. She was a party to the common
purpose at the time of the commission of the offence and thereafter

in that she never reported the incident to anyone. She had her cousin
lying there with her boyfriend and as a paramedic she did
nothing to
ensure that their lives were saved or at least they received medical
attention. She, together with the assailants left
because they all
believed that they were dead as she and her co-perpetrators had
intended.
[99]
On the accused’s version, the threat to her by the two
assailants started after the shooting
of the deceased and Zukiswa.
From the time she received the call from Caster, them getting into
the vehicle right up to the time
shots were fired at the two victims
there was no threat to her. Even if one accepts her
evidence,
one can only come to one conclusion that, at that point the crime to
which they had formed common purpose with each other’s
actions
had been achieved. Save that Zukiswa did not die from the injuries
sustained by her. She contended that she was afraid
to go to report
the crime to the police because of the threat that the assailants
made to her that they would find her and her
family. She also stated
that she saw the vehicle when she alighted from a taxi next to the
police station and saw the driver looking
at her.  She continued
to go into the police station. This can only mean one thing, that
that there was never a threat in
the first place. Initially she had
said she saw three males in the car but later she stated that she
only saw Caster who was a
driver because she was looking at him. This
evidence is untruthful because at that point, the accused had heard
that the police
were at her home and were looking for her. She had no
intention of going to the police to report the crime.
[100]
The
accused stated that the two assailants stated that the two victims
would stop being witnesses in cases they knew nothing about.
In
the two cases where members of Thembinkosi’s family were
murdered there were no arrests. The father of Anovuyo stated
that he
did not know who the assailants were.  Zukiswa had stated that
they did not know who the assailants were who shot
and killed Unathi
who was lying on the sofa in her house.  The accused was an eye
witness to the murder  of Thembinkosi
and attempted murder of
Zukiswa.  These assailants knew where she lived but they decided
to let her go when they killed someone
in a case where the assailants
were unknown.?  That is highly improbable especially looking at
the surrounding circumstances
after the crime was committed in her
presence.  Thembinkosi was murdered in cold blood, the co-
perpetrators had only one
intention to kill the victims.  She
went into the police station after she had allegedly seen Caster
looking at her.
She overcame that fear that day.  The
reason for the attack on Zukiswa and Thembinkosi could not have been
about them being
witnesses because on the accused’s version, he
was allowed to go by Caster and Siya although she was an eyewitness
to the
shooting of Thembinkosi and Zukiswa. It is common cause that
when she went to the police station the police were looking for her.

Her version that she went in order to tell the police what had
happened is highly improbable.   The version she presented

in this regard is false.
[101]   Her
evidence that she gave the full story to Mr Toto about the events of
that evening but later on stated that
Mr Toto did not write any of
that is not consistent with what is stated in her warning statement
that she needed a lawyer. When
questioned about this fact her
evidence changed that it was her family that wanted to get her a
lawyer.  Why would the police
detain someone who wanted to
assist in solving a crime?  There is one probable explanation
that when she went to the police
she knew that the net was closing in
and decided to hand herself over hence she was detained the very same
day. There was accordingly
never a time where the accused
disassociated herself from the actions perpetrated by the two
assailants when they shot at the victims.
[102]
Both the accused and the main state witness, Zukiswa, are related by
blood. They are cousins.  They grew
up together with the
accused’s parents having accommodated Zukiswa in their home and
paid for her schooling. The accused
shared her clothes that no longer
fit her with Zukiswa.  There is no bad blood at all between
them.  They kept in contact
even after Zukiswa moved out of the
accused’s home to live with her parents.
[103]
Having weighed all the evidence I am satisfied that the accused gave
unreliable and false evidence with the intention
of misleading the
court. Although she corroborated the evidence of Zukiswa in many
respects, when confronted with Zukiswa’s
evidence she was
determined to dispute everything she said just to cast some doubt on
her evidence. What that strategy did was
to backfire under cross-
examination in that she ended up giving long, unhelpful answers in
trying to exculpate herself.
[104]
In
Govender
v The State
[21]
,
the Supreme Court of Appeal at paragraphs 12 stated:
“
[12]
There was no evidence of a prior agreement between Accused 1 and the
appellant to murder the deceased. However,
a finding that a person
acted together with another in a common purpose is not dependent upon
proof of a prior conspiracy. Such
a finding may be inferred from the
conduct of the participants. The State was therefore required to
prove that the appellant had
actively associated himself with the
execution of the common purpose. The concept of active association is
wider than that of agreement,
since it is seldom possible to prove a
prior agreement. Consequently, it is easier to draw an inference that
a participant associated
himself with the perpetrator.”
(footnotes omitted)
[105]
Her conduct evinced planning and that she foresaw the use of firearms
on the victims could lead to the death of
the deceased and that of
Zukiswa. Save that Zukiswa survived. In
S
v Nkwenja
[22]
the
court found that the appellant’s conduct evidenced planning, a
division of roles and common approval of the use of violence
on the
bodies of the occupants of the car in order to overcome possible
resistance was sufficient for the court to convict. The
court found
that it was reasonably foreseeable that the use of violence for that
purpose in those circumstances could possibly
result in death. The
division of roles in this case is very clear.  I refer again in
this regard to the positive acts of the
accused outlined above. I am
satisfied that the state proved its case beyond reasonable doubt. It
follows that the version of the
accused is not only improbable, it is
unreliable and plainly false. I accordingly reject it.
[106]
The first form is
prior
agreement which will be established where the perpetrators previously
agreed to commit an offence. The court in
S
v Molimi
[23]
found that: ‘
The
evidence shows that the first appellant initiated and then planned
the robbery in collaboration with the second appellant and
accused
1.’ This is a clear indication that an agreement between the
parties was reached that they want to commit robbery
and that they
acted in concert to commit this crime as founded by the court after
evidence was led.
The court in
S
v Mzwempi
[24]
found
that
‘prior agreement may not necessarily be express[ed] but may be
inferred from surrounding circumstances.’
[107]   The
second form is active association.
In
Namane
and Another v S
[25]
the
court held that each of them is responsible for the acts committed by
the others, either foreseeing the possibility that the
others might
perform an act in order to further their common purpose, and ‘
was
indifferent to such acts and their consequences
’.
The court indicated that the other party foresaw the possibility that
the one party might commit a crime and he who did
not do the actual
offence, reconciled himself with that possibility, making him as
liable as the one who committed the offence.
[108]
In
Nube
v S
[26]
,
the Supreme Court of Appeal dismissed the appellant’s
contention that he dissociated himself from the planned robbery.
In
dismissing the contention, the court held that ‘the day of the
heist; and his unexplained failure to disclose sufficient
information
pertaining to the planned heist which would have allowed Grootboom
[the police officer] to foil it.’ The Supreme
Court of Appeal
indicated that to effectively withdraw it might require one to
divulge information to the police in order to stop
the planned
unlawful act. In
S
v Musingadi and Others
[27]
,
the Supreme Court of Appeal held that a sufficient dissociation would
depend on, inter alia,  the circumstances; manner and
extent of
involvement; how far the crime had progressed; the timing and manner
of disengagement; and in some instances, the preventative
measures
the person took to prevent the completion of the crime.
[109]
In
Mawala
v S
[28]
,
the court held that common purpose is a ‘legal construct’
to assist the State in prosecution where evidence
is insufficient to
link offenders to one another and to the crime. It is evident that
the principle of common purpose is not just
a tool, but an effective
mechanism created to serve justice. Without it the State would have
been in many instances clueless as
to the true identity of the one
who committed the act. The common purpose principle makes it easier
to not just punish the true
actor but also his co-conspirators who
had the intention to commit such crimes that caused the unlawful
result.
[29]
[110]
In
S v
Thebus
[30]
,  the facts were briefly that a group of protesting residents
in Ocean View, Cape Town, gathered and approached the houses
of
several reputed drug dealers in the area, including the house of one
Grant Cronje. They allegedly caused damage to the property
of Cronje
before moving on.  The protestors drove through the area in a
motorcade of about five to six vehicles. As the motorcade
approached
a road intersection Cronje opened fire on the group. In response,
some members of the group alighted from their vehicles
and returned
fire. In the resulting crossfire, a seven-year-old girl, Crystal
Abrahams, was fatally shot and two others, Riaan
van Rooyen and
Lester September, were wounded. The two appellants were arrested on
suspicion of having been part of the group involved
in the shooting
incident.  The State led evidence that placed both appellants in
the vicinity of the shooting.  One witness
testified that he had
seen the first appellant standing near a vehicle holding a pick –
handle, while the second appellant
was retrieving spent cartridges
discharged from the firearms of the other members of the group.
The appellants raised alibi
defences. Their alibi defence was
rejected by the trial court.  The trial court concluded that
both appellants were present
at the scene of the shooting. Applying
the doctrine of common purpose the trial court found both appellants
guilty of one count
of murder and two counts of attempted murder.
[111]
The Supreme Court of Appeal dismissed the appeal on the conviction.
The appellants approached the Constitutional
Court and mounted a
challenge to the doctrine of common purposes, namely, that it
unjustifiably limits the appellant’s rights
to dignity,
freedom, security of the person and a fair trial including the right
to be presumed innocent.  They contended
that both the trial
court and the Supreme Court of Appeal failed to develop the doctrine
of common purpose in accordance with section
39 (2) of the
Constitution. In dealing with the constitutional challenge the
Constitutional Court stated, amongst others,
“
[22] After S v
Mgedezi there remains no doubt that where the prosecution relies on
common purpose as a basis for criminal liability
in a consequence
crime such as murder, a causal connection between the conduct of each
participant in the crime and the unlawful
consequence caused by one
or more in the group, is not a requirement. Rules of criminal
liability similar or comparable to common
purpose are found in many
common law jurisdictions, including England, Canada, Australia,
Scotland and the USA. In all these legal
systems, a causal nexus is
not a pre- requisite for criminal liability. In civil legal systems,
such as France and Germany there
appear to be no rules, which, in
substance, approximate our rule of common purpose.”
[112]
The Constitutional Court found that the doctrine of common purpose
did not relate to a reverse onus or presumption
which relieved the
prosecution of any part of the burden. The doctrine of common purpose
set a norm that passed constitutional
scrutiny. The doctrine neither
placed an onus upon the accused, nor did it presume her or his
guilt.  It dismissed both appeals
of the first and second
appellants.
[113]
If the prosecution relies on common purpose, it must prove beyond a
reasonable doubt that the accused had
the requisite
mens
rea
concerning
the unlawful outcome at the time the offence was committed. That
means that she must have intended that criminal result
or must have
foreseen the possibility of the criminal result or must have foreseen
the possibility of the criminal result ensuing
and nonetheless
actively associated herself, reckless as to whether the result was to
ensue
[31]
.
[114]
I also find that the concession made by the State in relation to the
charge of robbery in Count 3 was correctly
made.
[114]
In the result I make the following Order:
Count
1 : Murder of Thembinkosi Wambi. I find the accused GUILTY.
Count
2 : Attempted Murder of Zukiswa Frans: I find the accused GUILTY
Count
3 : Robbery : I find the accused NOT GUILTY.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the STATE         :
ADV
ENGELBRECHT
Instructed by :
Director of Public Prosecutions
For
the DEFENCE  :
ADV STAMPER
Instructed by :
Legal Aid Board SA
Matter heard on:
09 October 2024; 10 October 2024; 11 October 2024; 14 October 2024;

15 October 2024; 16 October 2024; 17 October 2024 & 18 October
2024
Judgment
on conviction delivered on       : 31
October 2024
[1]
S
v Govender 2006 (1) SACR 322 (EC),
[2]
S
v Bruiners 1998 (2) SACR 432.
[3]
S
v Mafaladiso en Andere 2003 (1) SACR 583 (SCA).
[4]
S
v Reddy 1996 (2) SACR  1 (SCA).
[5]
R v Blom
1939 AD 188.
[6]
S v Mokoena
1956 (3) SACR 81
at page 85.
[7]
S v Van Aswegen 2001 (2) SACR 97 (SCA).
[8]
S v Chabalala
2003 (1) SACR 134
(SCA) para 15.
[9]
S v Van der Meyden
1999 (1) SACR 447
(W) at 450a-b;
1999 (2) SA 79
at 82D-E.
[10]
See for example, S v Van Aswegen;
[2001] ZASCA 61
;
2001 (2) SACR 97
(SCA) para 8; S v Trainor;
[2002] ZASCA 125
;
2003 (1) SACR 3
5 (SCA)
para 8; S v Gentle;
[2005] ZASCA 26
;
2005 (1) SACR 420
(SCA) para
27, Mulaudzi v The State (768/2015)
[2016] ZASCA 70
(20 May 2016)
para 10
[11]
S v Letsedi 1963 (2) SA 471 (A) 473.
[12]
S v Teixeira
1980 (3) SA 755
(A) at 761
[13]
S
v Govender and Others 2006 (1) SACR 322 (E).
[14]
S
v Bruiners en 'n Ander
1998 (2) SACR 432
(SE) at 437h
[15]
S
v Mafaladiso en Andere
2003 (1) SACR 583
(SCA) at 593e - 594h.
[16]
S v Pallo and others
1999 (2) SACR 558
(SCA), Olivier JA at para
[10] at 562 followed the approach that was taken in R v Mlambo
1957
(4) SA 727
(A) at 738A-C.
[17]
R v Mlambo
1957 (4) SA 727
(A) at 738A-C.
[18]
S
v Govender & Another 2023 (2) SACR 137 (SCA).
[19]
S v Mgedezi and Others (415/1987)
[1988] ZASCA 135
;
[1989] 2 All SA
13
(A) (30 September 1988).
[20]
S v Mzwempi v S[20] (2011 (2) SACR 237 (ECM)) [2011] ZAECMHC 5;
284/04 (28 April 2011).
[21]
Govender
v The State (221/2022)
[2023] ZASCA 60
(3 May 2023), at paragraphs
13
.
[22]
S
v Nkwenja
1985 (2) SA 560
at 562A para C – D.
[23]
S
v Molimi
and
Another
[2006] ZASCA 43
;
2006
(2) SACR 8
(SCA) at para 34.
[24]
S
v Mzwempi
[24]2011
(2) SACR 237 (ECM) held at para 21.
[25]
Namane and Another v S (A196/2014)
[2016] ZAFSHC 224
(15 December
2016).
[26]
Nube
v S
(SCA)
(unreported case no 091/15, 30-9-2015) (Bosielo JA (Pillay and
Dambuza JJA, Van der Merwe and Govern AJJA concurring))
at para 23.
[27]
S
v Musingadi and Others
2005
(1) SACR 395 (SCA)
[28]
Mawala
v S
(KZP)
(unreported case no AR267/16, 12-10-2018) (Pillay J) at para 19.
[29]
Andrew Jeffrey Swarts LLB (Unisa) is an aspirant
prosecutor at the National Prosecuting Authority in Upington.This

article was first published in De Rebus in 2023 (Nov) DR 18.
[30]
S v Thebus
2003 (6) SA 474
CC at para 22. In that paragraph the
Constitutional Court referred to , inter alia, the following
authorities: S v Petersen
1989 (3) SA 420
(A); S v Yelani
1989 (2)
SA 43
(A); S v Jama and Others
1989 (3) SA 427
(A); Magmoed v Janse
van Rensburg n 19 above; S v Motaung and Others
[1990] ZASCA 75
;
1990 (4) SA 485
(A);
S v Khumalo en Andere
[1991] ZASCA 70
;
1991 (4) SA 310
(A); S v Singo
[1992] ZASCA 219
;
1993 (2) SA 765
(A). See Magmoed v Janse van Rensburg n 19 at 789G. In R v Powell
and Another; R v English
[1997] UKHL 45
;
[1997] 4 All E.R 545
HL, the House of Lords
held that the doctrine of joint enterprise liability still applies
in English Law.
[31]
S
v Thebus, supra, para G-H (page 532).