SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: CC 81/2020
In the matter between
THE STATE
AND
NDUMISO LUT SHETU Accused 1
ASHWIN KENNEDY Accused 2
BONGANI MVAMVEKI Accused 3
MALIBONGWE WITBOOI Accused 4
_____________________________________________________________________
JUDGMENT deliver on 13 March 2025
______________________________________________________________________
THULARE J
[1] The accused pleaded not guilty to two counts of murder where minimum sentences
were applicable, two counts of robbery with aggravating circumstances where minimum
sentences were applicable, unlawful possession of firearms and unlawful posse ssion of
ammunition. The accused made no plea explanation but made formal admissions which
will be dealt with later in the judgment. The charges against the accused arise from a
fatal shooting of two law enforcement officers, inside their marked vehicle at Sweet
Home Farms in Samora Machel , on the afternoon of 4 September 2019. The State did
not have direct evidence of eyewitnesses implicating the accused in the shooting. The
State relied on circumstantial eviden ce on the murder charges.
[2] The accused admitted that on 4 September 2019 two law enforcement vehicles were
posted to guard a construction site at Sweet Homes, Samora Machel next to
Vukuzenzele. The two vehicles had two officers in each. Koli and Guleni were in one
whilst Nieuwenhuys and Nyang iwe were in another. The officers were guarding the site
and protecting the workers doing duty for Usher Construction. Nieuwenhuys and
Nyang iwe went for lunch at 13H00. They came back after about 30 minutes. A few
minutes just after they reported that they were back from lunch, Koli heard gunshots. He
saw construction workers running away from the direction where Nieuwenhuys and
Nyang iwe were parked. He and Guleni drove to the area and found that their two
colleagues had been shot. Nyang iwe was ly ing next to the vehicle and Koli saw that
Nyang iwe’s firearm was missing. Nieuwenhuys was still inside the vehicle. Koli did not
see who shot or whether the person or person(s) were on foot or driving a vehicle as he
and Guleni were on the other side of th e construction site at the time of the shooting.
[3] The accused admitted that Jan Nieuwenhuys was the deceased in count 1 and that
Simtembile Nyangiwe was the deceased in count 2 in the indictment and that the two
officers died as a result of multiple gu nshot wounds to the body which were sustained in
the scene to which Koli referred. The accused admitted that Dr Kirk examined the
bodies of the deceased. From Nieuwenhuys, Dr Kirk recovered bullets from the left side
of his upper back, the right anterior a bdominal wall, the left axilla and the left upper arm.
From Nyangiwe Dr Kirk recovered a bullet from the brain and one from the mouth.
[2] The accused admitted that Warrant Officer Van Meyeren attended the s cene on 4
September 2019 at 15:15 where he took photographs and also prepared a sketch plan
and marked all relevant points thereon. The photographs included the Nissan NP300
(the vehicle) which was the vehicle used by the deceased and wherein they were shot.
They also included several cartridges collected from the ground next to the vehicle , from
the floor at the left front seat under the floor mat . From the left front seat in a credit card
booklet inside the vehicle , a bullet and a bullet jacket collected from under the engine of
the vehicle and a bullet collected from under the right front seat on the floor of the
vehicle. He also used an electronic camera to record the scene and recorded a virtual
tour of the scene. The next day Van Meyeren attended again to the vehicle again for
further forensic investigation. He also collected further exhibits, to wit, a bullet which he
collected from the ground next to the vehicle, another bullet from inside the left front
door of the vehicle and a cartridge case from the base of the left front wiper of the
vehicle . The exhibits were properly packed, marked and sealed and sent for further
forensic investigation.
[3] The accused admitted that Warrant Officer Fish was a forensic ballistic examiner
employed by the State and that on 25 September 2019 she received (1) a 9mm
Parrabellum calibre Norinco model NP17 semi -automatic pistol with serial number 4[...]
on the frame, 6[...] on the barrel and the number erased on the slide, with a magazine,
(2) a 9mm Parabellum calibre G lock model 19 semi -automatic pistol with serial number
E[...] with a magazine and 15 9mm calibre cartridges, (3) a 9mm Parrabellum calibre
Glock model 19 semi -automatic pistol with serial number F[...] with 10 9mm Parabellum
calibre cartridges (4) a pistol magazine with 11 9mm Parabellum calibre cartidges (5) a
9mm Parabellum calibre Glock model 19 semi -automatic pistol with serial number
erased on the frame, slide and barrel; a pistol magazine ; 13 9mm Parrabellum calibre
cartidges. He found th e cartridges to be manufactured and designed to be fired by a
centre -fire firearm and each consisted of a cartridge case, primer and bullet. He found
the pistols functioning normally with no obvious defects , and that they were designed to
discharge centre -fire ammunition. He could not determine the serial number on the slide
of the Norinco . He determined the serial number on the barrel and slide of the Glock
with erased serial numbers as H[...] .
[4] The State led the evidence of Captain Bothman who was a forensic analyst in the
employ of the State . He examined and compared the individual and class
characteristics markings transferred to cartridge cases by firearm components during
the firing process. He found 21 cartridges which were collected from the scen e which
were fired from the 9mm Parabellum calibre Glock model 19 semi -automatic pistol with
the serial number erased , which was allegedly recovered from the scene of the arrest.
He found that five other cartridges collected from the scene were fired from the same
firearm , but it was not the Norinco, the Glock E[...], the Glock F[...] or Glock with the
erased serial number. In other words, it was a firearm which was not one of those
recovered from the scene of the arrest or in possess ion of the deceased be fore their
attack . As regards an examination of the bullets and bullet jackets , he found that four of
them were fired from the same firearm which was also not one of the four . It could not
be determined if five of the bullets found on the scene were fired or were not fired from
the same firearm. It could not be determined if these five bullets were fired or not fired
from the Glock E[...], Glock F[...] and the Glock with the e rased serial numbers but they
were not fired from the Norinco. The four bullets which were found to be fired from the
same firearm were not fired from the same firearm as the other five bullets. Four other
bullets were found to be unsuitable for microscopic examination. Bothman concluded
that the bullet that was found in Nieuwenhuys upper arm (PA6004142788 which he
marked 255361/19 3A) and the one found in Nyangiwe’s mouth (PA6004142794 which
he marked 25536119 3F) (para 16.1 read with 16.2 of report) were fired from the same
firearm , and it was the firearm that could not be linked to those found . The bullet s found
in Nyangiwe’s brain (para 10 of report) and those found in Nieuwenhuys back and axilla
(para 16 .3 of his report) could not be determined whether it was fired or not fired from
the same firearm . The bullet found in Nieuwenhuys ’ abdom inal wall was unsuitable for
microscopic comparison .
[5] Captain Both man had attended to the scene of the shooting for purposes of crime
scene examination, reconstruction and scene photography as well as terminal ballistics.
He had observed the Nissan double cab pick -up parked on an open field and observed
the multiple cone s representing exhibits as collected by Warrant Officer Van Meyeren .
He had observed the damage consistent with the appearance of bullet damage to the
vehicle. The next day he had also attended to the vehicle which was then at the Stikland
Vehicle Safeguar ding Section of the SAPS. He had observed damage on the outside
and in the inside of the vehicle. His conclusion was that the bullet entrance hole in the
front cowl panel on the right side and the bullet entrance hole in the bonnet on the right
side were c aused by two bullets fired from the front of the vehicle towards the rear of
the vehicle. The bullet entrance hole through the centre of the front windscreen was
caused by one bullet fired from the front of the vehicle towards the rear, causing
damage of two holes with the appearance of bullet holes towards the right of the rear
passenger seat. The entrance hole in the centre of the bonnet and the one in the
bumper on the left side were caused by bullets fired from the front of the vehicle
towards the rear of the vehicle. The outward bulge in the front left passenger door and
the bullet hole in the front passenger door were damages caused by one bullet fired
from the right of the vehic le towards the left side of the vehicle . The shattered left rear
passenger window , the holes on the driver’s seat , the hole on the driver’s door and the
hole in the front left passenger headrest were damages caused by shots fired from the
rear left of the vehicle towards the driver’s seat and left front passenger seat. The bullet
exit hole in the roof on the driver’s side was damage caused by one bullet fired from the
rear left of the vehicle towards the front right of the vehicle .
[6] On the morning of the incident , Christopher Ranwana and issued the law
enforcement officer , Nyangiwe with a Black Glock F[...] and 30 rounds of 9mm
Parrabellum rounds of ammunition. Nieuwenhuys had been issued with the Black Glock
with serial number E[...] with 30 rounds of 9mm Parrabellum rounds of ammunition by
his commander . The two firearms could not be found when the law enforcement
agencies arrived on the scene where the two law enforcement officers were killed .
Lieutenant Colonel Naude, the Section Head of the Anti -Gang Unit, Western Cape was
alerted to the shooting of two law enforcement officers at around 13:40 and went to the
scene. He saw the two officers, dressed in uniform, being attended to by medical
personnel. The officers were airlifted for medical attention . He saw the vehicle which
was shot multiple times. It was reported that the officers’ firearms had been taken by
their attackers . He handed the scene to Van Meyeren.
[7] Warrant Officer Nguma has 21 years of experien ce in the SAPS and was the
Commander of the Crime Prevention Unit at Samora Machel SAPS. He was on duty on
the day and was alerted to and attended to the scene of the shooting at around 14H15 -
14H30. He had just left the scene for about five minutes, to drive around to see if they
could not see the suspects , when he received a call from his informer of many years
who usually provided reliable information . It was an unregistered informer. The
information provided by the informer related to that shooting and Nguma arranged to
meet the informer. About 10 minutes after the call, they met. The informer told Nguma
about the suspects who shot at the law enforcement officers , where the suspects were
at the time and that they were armed and that if there was no immediate reaction the
suspects may leave the place. Without wasting time, Nguma arranged with his team
and the sol diers, who were at the time supporting the police in the area and held a quick
briefing at Samora Machel SAPS about his information and the need to urgently attend
to a place . The information was that the suspects were in a shack in a squatter camp.
There were no street names and addresses so it was necessary for the informer to point
out the place which the informer agreed accompany them and do . About 10 police
officers and 18 so ldiers drove to the place which was at Ramaphosa Squatter Camp.
The police contingent comprised of was members of Nguma’s team and other members
from the Nyanga Clust er.
[8] Nguma did not first apply for a search warrant as he believed that with the
information at his disposal, he would have been able to secure one but the information
he had required immediate action. The informer pointed out the shack and the police
and the soldiers walked to the shack. The soldiers surrounded the shack to secure it,
whilst the police approached the door. His team led the operation , and he was in
charge. He was ahead of others when they approached the shack. He was followed by
Sergeant Dubula, who was followed by Constable Hawu, behind him was Constable
Ngedle and Constable Ngomani followed. The police had their firearms drawn and
tactically approached the shack. It was necessary to have an element of surprise as the
suspects were allegedly armed. As a result, Nguma did not knock but kicked the door
open and the police swiftly went into the shack.
[9] Of the five police officers wh o entered the shack, only Dubula, who is deceased, did
not testify. The version of the police is that after Nguma kicked the door open, they all
went inside the shack following each other in the order that they approached the shack.
Inside the shack they f ound three men standing. It was a small shack, one room with
little furniture. Nguma saw legs protruding from under a bed and he and Dubula
approached the bed . The other colleagues attended to the three standing men. Nguma
lifted the bed and there were two men hiding under the bed. Nguma helped one suspect
stand up, whilst Dubula also helped the other suspect who was under the bed to stand
up. Nguma searched the man that he helped up and found one black Glock firearm
with 15 live rounds of a mmunition . It was tucked in his waistline on the stomach. Nguma
felt that the firearm was still hot. He asked for a license and the suspect could not
produce one. He arrested the suspect. The suspect said it was not his firearm. It was
accused number 4. He arrested the accused , handcuffed him and detained him. He
handed in the firearm as an exhibit. According to the evidence of both Nguma and
Asavela Mathe, who was the officer to whom the exhibits were recorded, this was Glock
with serial number E[...]. In other words, this was the firearm which had been issued to
Nieuwenhuys and went missing when he was shot dead earlier .
[10] It was common practic e in the police that when you were in the company of
colleagues whilst searching a suspect, you shouted out what you found on the person
you were searching, which was unlawful on the face of it. Nguma heard when his
colleagues reported also finding firearms on some of the suspects that they were
searching and saw what was found . Nguma heard when Dubula shouted out that he
also found a firearm on the person that Dubula was searching. Nguma and the other s
saw when Dubula arrested accused 1 for unlawful possession of a firearm. It was also a
black Glock and had 10 live rounds of ammunition . According to the evidence of Nguma
and Mathe, this was the Glock with serial number F[...]. In other words, this was the
firearm that had been issued to Nyangiwe that day, and which went missing when he
was shot dead. Hawu was in the shack when one of the suspects who were standing in
the shack tried to run through the corrugated iron sheet . Hawu grabbed him and felt
something around his wa istline. He searched him and found a firearm . It was accused
3. According to Hawu and Mathe, this was the Norinco pistol which had an empty
magazine with its serial numbers filed off. Ngedle also went for one of the suspects who
were standing in the sha ck who was wearing blue jeans with a blue work suit top.
Underneath the work suit in front tucked into the jeans Ngedle found a firearm and
ammunition . It was a black Glock with serial numbers filed off , and in the magazine, he
found 11 rounds of ammunition. The suspect was Sinelizwi Lujalajala. This was the
firearm which Bothman linked to 21 cart ridges that were collected on the scene. It was a
firearm that was used in the shooting in which Nieuwenhuys and Nyangiwe were killed.
Ngomane also approached one of the men who were standing in the shack. She
searched him and in the back pocket of his trouser found one magazine with 13 live
ammunitions inside. It was accused 2. According to the police, all the suspects resisted
arrest and wrestled . The po lice had to use the necessary force to arrest the accused. All
the accuse d were handcuffed by the officers respectively and taken outside the shack.
The police had to use force to subdue the resistance of the accused, when they were
taken to where the police van was parked. They drove to Samora Machel SAPS .
Accused 4 was arrested at 16H00 by Nguma at Ramaphosa. Nguma completed SAPS
14A when he detained accused 4 . The fire arms were booked in as exhibits and were
received by Mathe.
[11] The State also called Lujalajala as a witness. His testimony was that he was having
a bath at midday on the day of the incident . He resided in the same yard as accused 4 ,
whose shack was not far from his as the shacks were closely packed. He saw accused
1 and another person, Shane walking past his sha ck towards accused 4’s shack. He
knew accused 1 as a person who frequently visited the yard coming to accused 4. He
heard when they said they wanted guns from accused 4 . He heard the discussion
between Shane , accused 1 and 4. He heard when Shane and accuse d 1 borrowed
firearms from 4 firearms. He heard their explanation to accused 4 that they wanted to go
and take the guns from the law enforcement officers as the law enforcement officers
were still new . They referred to the law enforcement officer as ‘new coloured guys ’. He
heard that Shane and accused 1 planned to rob the se new coloured guys of their
firearms . Shane, accused 1 and 4 all went into accused 4’s shack and spent a few
minutes inside. When Shane and accused 1 came out and went past his shack on their
way from accused 4, he saw that accused 2 was with them. He saw when Shane,
accused 1 and 2, left the yard . He was taking a bath as part of his pr eparation to take
an afternoon train to Epping where he was going to look for casual work as it was during
holidays as he was a student at Northlink College .
[12] He did not take the train as he ran late and returned to his shack just after 15H00.
He then went to Isaac’s shack, which is the shack where he was arrested together with
the accused , for a drink . He found the four accused inside the shack and Isaac was not
there. The four were playing , each , with a firearm in their hand s. Amongst others they
were removing the magazines from the firearms and re -inserting the magazines again
and cocking the firearms . Three of the firearms were the same and the fourth was
different. He saw a Coke and asked to pour for himself. He asked where Isaac was .
Accused 4 told him that they had sent Isaac to buy food for them. He finished his drink
and put his glass back and was about to leave. The soldiers knocked on the door . He
opened the door. Malibongwe closed t he door. A ll the other accused jumped , tried to
take cover in the house and tried to hide the guns . Others hid under the bed . He was
the only one who did not have a firearm on him. The soldiers kicked the door open and
entered the shack. The police were behind the soldiers. The soldiers asked where
Shane was . The soldiers started assaulting everyone that they found in the shack . The
police came in and everyone in the shack was arr ested . He disputed that he was found
in possession of a firearm and denied any involvement in the shooting of the law
enforcement officers. They were amongst others dipped in water during the assault and
were thereafter taken to the police station. At the police station he saw the picture
hanging on the wall , with the name “Shane” written on the photo. He realized that this
was the person the police were looking for, and it was the person he had seen with
accused 1 earlie r that day. He told the police about it and that he knew the person but
did not know the person’s name. He identified th e person on the picture as Shane , to
the police . He sustained serious injuries including broken ribs on the left and was
hospitalized. He was charged with the accused . He was interviewed by the investigating
officer and told the investigating officer everything. He was granted bail . The charges
against him were withdrawn before the matter came to the High Court.
[13] The accused testified in their defence and did not call any witnesses. Accused 1’s
testimnoy was that he lived in Sigalo . On the day of the incident he was with his family
which was the mother of his child and his young child . His younger brother was in
Primary School. It was after school because his younger brother was back, when he left
Sigalo by taxi to Ramaphosa to collect a phone from accused 2 at accused 4’s shack.
He found accused 4’s girlfriend at Ramaphosa in accused 4s shack and was told that
accused 4 was in Isaac’s shack which was in the same yard close by . He went there
and found Lujalaj ala, accused 2 and 4 there drinking brandy and coke . He asked for his
phone , and accused 4 went home and r eturned with his phone. Accused 4 retur ned with
accused 3 to Isaac’s shack. He received his phone, checked that it was right and put it
in his pocket. He poured himself cooldrink and drank. They continued drinking. He
heard a noise from outside . The door was open, and soldiers came inside. The soldier
in front instructed them to lie down . The soldiers assaulted them. The soldiers asked
where Shane was . They were taken outside the shack and made to lie down and the
assault continued. Ac cused 4 fa inted. The soldiers poured some liquid on accused 4
and he came by. The soldiers came inside the shack, not the police. He saw the police
when they were outside the shack . He was never searched. They were then taken to
the gravel road and put in a puddle o f water. He did not know who Shane was and was
never with Shane. He never asked for firearms. He came there for the first time at the
time leading to his arrest . It was the first time, that day, that he met Lujalajala. He
assisted with putting accused 4 and Lujalajala in the police van as they were injured. He
heard from the soldiers, when they were already in the van, that they were accused of
killing some police officers. He denied that when Lujalajala arrived in the shack he was
having a gun and playing with it. He saw the guns for the first time at the police station .
Gun residue was searched from them at the police station. Accused 2 and Lujalaljala
were taken by ambulance to hospital whilst he, accused 3 and 4 were taken into the
cells firs t at Samora Machel and later at Nyanga. He denied committing any offences.
[14] Accused 1’s testimony differed from the version that was put to the State witnesses
on his behalf . The version of the accused, which was put to State witnesses, must be
accepted as the case as he instructed his legal representative to put forward. According
to his testimony he saw the police for the first time when he was taken out of the shack
by the s oldiers. In cross -examination of the police , accused 1’s version was that the
police went into the shack first. According to the version put to state witnesses it was the
police who asked the occupants of the shack where Shane was and it was the police
who instructed the occupants of the shack to lie down inside the shack. It was his
version at the time that it was whilst they were lying down, that the soldiers only then
came in to the shack and started assaulting the people found in the shack. In the version
put to the witnesses, it was during the assault outside the shack , that all the accused
and Lujal ajala heard some voices coming from the shack that guns were found from the
shack. His ve rsion was further that after they were searched for residue and had their
fingerprints taken at the police station, they were once again taken outside the police
station and were assaulted again.
[15] Accused 2 ’s testimony was that he was home in Phillip i East early on the day of the
incident. He had with him a phone which he had fixed , which he had to take to accused
4. He took a taxi to Ramaphosa at around 15H00 . When he knocked at accused
4’shack the girlfriend opened the door and was advised that accused 4 was still asleep.
He wanted to leave but the girlfriend advised him that he may wake up at any time. He
waited and decided to have a smoke . He then went to Isaac’s shack. Lujalajala opened
the door for him . Isaac was there. Isaac left to fetch so meone. The other accused then
arrived. No t long thereafter he heard a noise outside , and the soldiers entered the
shack. They were pulled outside and assaulted outside. He was hit with a firearm on his
head and sustained an injury. He can’t remember if the police were at any time in the
shack . He did not know Shane and was not in that yard earlier that day . He never went
with Shane to accused 4’s shack. They were taken t o Samora Machel SAPS and
thereafter he and Lujalajala were taken to hospital. A Doctor worked on him for an hour
or two and put stitches on him. He did not remember if he was handcuffed that day and
prior to that incident he was not someone who easily forg ot. Whilst in his testimony
accused 2 said he c ould not remember if the police were at any time in the shack, his
version during cross -examination was that it was the police who entered the shack , it
was the police who instructed everyone in th e shack to go outside, it was the police who
searched the shack whilst they were outside . It was the police who after a while told the
accused outside that they, being the police, found the firearms inside the shack. He then
told the police that he was not in possess ion of the firearm and he did not know where
the firearm came from. It was then that he was assaulted by the soldiers . They were
then arrested and taken to the police station. Whilst in his testimony he said that he took
a taxi to Ramaphosa, in the version put to Ngedle accused 2 had walked to Ramaphosa
from his home, and it took him 10 minutes. When he arrived at accused 4’s shack, both
accused 4 and accused 4’s girlfriend were there. He went with accused 4 to Isaac’s
shack . The police searched the accused both inside the shack before they were taken
out, and also when outside the shack .
[16] Accused 3 testified that he was with his girlfriend earlier that day. The girlfriend
passed away in 2022. When he woke up at around 14H00 the girlfriend had g one out to
buy food. He went to Ramaphosa to borrow money from her cousin, accused 4’s
girlfriend. He wanted the money as he did not want to be wholly dependent on his
girlfriend who provided for most of the necessaries. The walk from Oliver Tambo to
Ramap hosa took about 20 minutes. There were no taxis between the two places.
Accused 4 answered the door when he arrived and when he asked for his cousin
accused 4 told him that she was sleeping. Accused 4 had been listening to music and
drinking. He joined accused 4 and they sat and drank for about 15 -20 minutes. He and
accused 4 went out to smoke. He saw an open shack with pe ople inside, and accused 4
led the way and they went to that shack. They found accused 1, 2 and Lujalajala inside
the shack . He knew Lujalajala from seeing him when visiting his cousin. I t was the first
time he saw accused 1 . He knew accused 2 from Acacia. There was cooldrink on the
table when he and accused 4 arrived. Before the police arrived, Isaac went outside to
answer the phone.
[17] After a few minutes he heard footsteps and some noise outside. He went to open
the door and saw policemen and soldiers. They were wearing bulletproof vests. The
police pushed the door to open it further and asked for Shane. The police told him to lift
his hands and look towards the wall. He was then searched by the police. The soldiers
entered the sh ack. The police found two phones on hi m, one for making calls and one
for making music. He also had a packet of cigarettes He was dragged outside by the
police and the soldiers helped the police . He was assaulted and was asked where
Shane was . He was dragg ed by the soldiers to a puddle of water and made to lie face
down in the water. The soldiers assaulted him with rifles. It was during the assault that
he heard the police sating that they found firearms. That voice came from the shack
where they were removed from. He saw the police lifting a black firearm. It was then
that the question changed from where Shane was, to why they killed policemen. He only
saw two b lack f irearms when they were being assaulted, and not before , as the police
came out of the shack carrying firearms on a number of occasions. They were further
assaulted by the soldiers near the army vehicle. Accused 4 was also placed in the
puddle of wate r in the same way . Accused 4 was further assaulted and lost
consciousness . Accused 4 was carried by his co -accused into the van. Lujalajala was
also badly assaulted and had sustained serious injuries. They were then taken to
Samora Machel SAPS. There accused 2 and Lujalajala were taken to hospital. Although
accused 3 and 4 were taken to hospital, only Lujalajala was admitted to hospital.
Accu sed 2,3 and 4 were returned to the police station. He saw the firearm allegedly
found on him at Samora Machel SAPS. The firearms that he saw at the scene of the
arrest were all black, and the one he saw at the police station which was allegedly found
on hi m was silver. He knew nothing about the robbery or murder, and he just happened
to be in the shack when the police arrived.
[18] Accused 4 testified that he resided with his girlfriend , Babalwa, who was a cousin of
accused 3, in his shack. Lujalajala was his neighbour. He and Lujalajala used to do
things together. The previous night he had been drinking with Lujalajala and others. On
the day of the incident, he woke up around 13H00 -13H30 . He was woken by Babalwa
and accused 3 was already inside the dining room of the shack. He disputed that he
drank with accused 3 in his shack. He wanted an extension from Isaac and that was the
reason he walked with accused 3 to Isaac’s shack. Isaac was not there when they
arrived. He found accused 1, 2, Lujalajala and one Sipho inside the shack. They drank
inside Isaac’s shack. Sipho left them in the shack. He heard a noise from the
community , and some other noise. He opened the door. There were soldiers at the door.
A soldier pointed at him with a firearm , pushed him and struck twice across the face with
an object he could not identify . He fell. He did not know who else entered the shack as
he pas sed out . He did not know what happened thereafter. He heard from his co -
accused that he was carried to the van . He did not know who took him to hospital. He
denied being involved in the shooting of the police officers or being found in possession
of a forearm. The version put to the witnesses was that they were fabricating evidence
to falsely implicate him. In that version, he did not pass out but was dizzy and
disorient ed. In that version, he was not searched, and no firearm, magazine or
ammunition was found on him . He was carried to the van and taken to Samora Machel
SAPS . He only regained consciousness after he was taken to hospital.
[19] It is now necessary to step back and consider the mosaic .1 The proper test is that
an accused is bound to be convicted if the evidence establishes his guilt beyond
reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. The process of reasoning which is
appropriate to the application of that test in any case will depend on the nature of the
evidence which the court has before it. What must be borne in mind, however, is that
the conclusion which is reached must account for all the evidence. Some of the
1 Shilakwe v The State (614/10) [2011] ZASCA 104 (1 June 2011) ; S v Hadebe 1998 (1) SACR 422 at
426g -h.
evidence might be found to be false; some of 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.2
[20] The evidence of Koli and Naude established that Nieuwenhuys and Nyangiwe were
fatally shot and robbed of their firearms between 13H30 and 13H40 on 4 September
2019 at a construction site next to Vukuzenzele in Sweet Home Farms , Samora Machel,
where they were guar ding construc tion workers and the construction site. The evidence
of Koli, Van Wyk and Ranwana established that these were law enforcement officers
and identified the firearms which were issued to the two officers , to wit the F[...] to
Nieuwenhuys and F[...]2 to Nyangiwe, each with 30 rounds of 9mm Parrabellum
ammunition. The evidence of Dr Kirk established that the cause of death of the two
officers wer e multiple gun shot wounds. The evidence of Fish and Bo thman established
that the two firearms which had been issued to the two officers, as well as the other two
firearms that Nguma handed to Mathe, a Norinco and a Glock with erased serial
numbers , were semi -automatic firearms. They were self-loading , but not capable of
discharging more than one shot with a single depression of the trigger and were
manufactured and designed to discha rge centre -fire ammunition. Bothman’s evidence
established that the Glock pistol with an erased serial number was used to shoot and
discharged cartridges at the scene where the two officers were shot at. The evidence
also established that the ammunition handed to Mathe were live ro unds of centre -fire
ammunition. The evid ence also established that of the four firearms handed to Mat he,
two were those which had been issued to the deceased officers.
[21] Nguma received a tip -off of the whereabouts of the suspects involved in the
shooting of the two law enforcement officers from an informer who was prepared to go
and point out the shack where the suspects were , at around 14H30. By around 15H00
Nguma had assembled members of his team with whom he later entered the shack, to
wit Dubula, Ngedle, Hawu and Ngomani together with o ther police members from the
Nyanga Cluster as well as soldiers who were at the time supporting the police in the
2 S v Van der Meyde n 1999 (1) SACR 447 (W) at 449J -450B .
area and had a briefing with them at Samora Machel SAPS . Approximately 30 minutes
later the police and the soldiers arrived at the shack at Ramaphosa. This was about 5
minutes of briefing time and getting into the vehicles and the driving distance of about
20 minutes between Samora Machel SAPS and the shack at Ramaphosa . I find that the
police and soldiers arrived at the shack at approximately 15H30. Besides Nguma who
recorded the time of arrest as 16H00, the other police officers who were with him had
their statements, as regards specifically the time of arrest poorly recorded. I find that t he
accused were arrested by the police in the shack where Isaac lived in Ramaphosa at
about 16H00 on 4 September 2019. Within approximately 1 H50 minutes of the shooting
of the two law enforcem ent officers, the police arrived at the shack where the two
firearms that were issued to the two police officers were recovered. All 4 accused did
not dispute that the police shouted out that they had found the firearms in the shack that
afternoon . It is p recisely where the firearms were found , and when the police shouted
about the findings of the firearms, that were in dispute. Accused 3 confirmed that he
saw three of the four firearms that the police alleged ly found in the shack . According to
him he saw the two black firearms when he was already outside the shack and a silver
one at the police station.
[22] Lujalajala implicated Shane , accused 1, 4 and by implication accused 2 in the
planning of the armed robbery of the law enforcement officers . From the evidence of
Ngedle, Shane was a notorious figure for alleged serious and violent criminal activities
in the area. It is p ossible that when the police were inside the shack, one of them may
have asked who or where was Shane, from the accused. I can take it no further than
that because the information from Lujalajala about the role of Shane came after, and not
before the police entered the shack. There was a serious physical tussle between the
police and those who were arrested in the shack. The accused did not dispute that they
had resisted arrest. They were accused of killing law enforcement officers and the police
found firearms on them in the shack. Although we should hold our police officers to
higher standards tha n lay people , they remain human and have emotions . South
Africans expect those who are accused of killing , especially the killing of those
responsible for policing or those raising their arms against the police , and who resist
when being arrested, to be subdued and restrained. The police are duty bound to act to
compel observance of and compliance with their instructions and the law. The police
execute the rule of law and represent the authority of the State . The message to those
who involve themselves in criminal activities , especially serio us violent crime, must
always be clear and consistent . Through physical violent resistance to an arrest , the
accused acquiesced to the risk of injury. I am unable to conclude that the injuries
sustained by the accused and Lujalajala at the time of the arrest points to a conspiracy ,
by the police, to falsely implicate them.
[23] The evidence did not support a police conspiracy against the accused. On the
contrary, the evidence point ed to the success of reliable information passed by a
member of the public to the police, upon which the police swiftly acted. I find that in the
shack Dubula found the firearm which had been issued to Nyangiwe , and live
ammunition, on accused 1. Ngomane found a magazine with live rounds of ammunition
on accused 2. This must be approached against the background of Luja lajala that when
the occupants of the shack realized that it was the police who were entering the shack ,
the tried to get rid of the firearms on them. Hawu found the Norinco with a filed off serial
number as well as live ammunition on accused 3. There was no dir ect link between the
Norinco and the scene. However, one bears in mind that some of the bullets were not
determinable, and some were unsuitable for microscopic examination. This does not
mean that the Norinco was scientifically excluded from involvement in the shooting of
the two officers. Nguma found the firearm which had been issued to Nieuwenhuys with
live rounds of ammunition on accused 4. Ngedle found the Glock, with serial numbers
filed off and rounds of ammunition on Lujalajala. I accept the evidence of Lujalajala that
earlier that day , which according to his statement made six days after the incident, on
10 September 2019, was at around 13H00, Shane and accused 1 had approached
accused 4, and that he heard the two asking accused 4 to borrow them firearms. I also
accept that he saw the three of them enter accused 4’s shack , where ac cused 2 was at
the time . I also accept his evidence that he saw Shane, accused 1 and 2 leave accused
4’s shack and the yard together. I am not persuade d that Lujalajala was truthful in his
own role and that of accused 3 and 4 when, and also after Shane, accused 1 and 2 left
the yard.
[24] The evidence of Lujalajala, and that of all four accused, was that all five of them
arrived at Isaac’s shack shortly before the police arrived. None of them was in that
shack between 13H30 and 13H40 . All of them indicate the time that they had been in
the shack to a period that was sufficient to drink one glass , before the police arrived .
Although they individually attribute d themselves to drinking Coke, their evidence in
whole show ed that they drank Coke and some alcoholic beverages at the time. The
evidence of Lujalajala, in part, is supported by that of the police, that there were four
firearms in that shack, which the occupants of the shack had on them . Lujalajala’s
evidence was that the four accused had the firearms found by the police, in the shack
before the police arrived . The evidence of Lujalajala is accepted in part and not in
whole. T o the extent that it contradicts that of the police, Lujalajala’s evidence is
rejected . I am not persuaded that the evidence of the police implicating the accused and
Lujalajala was false or mistaken.3
[25] The evidence of the accused that they were not searched in the shack is false.
Police officers are generally well trained to deal with life threatening situations . The
police who attended to the shack approached the shack well informed that the
occupants thereof were armed and were allegedly involved in the shooting of law
enforcement officers and had robbed those officers of their firearms. I accept the version
of the police t hat even their approach to the shack was what they termed a ‘tactical
approach’, which required al ertness and the highest consciousness to safety and an
element of surprise . It is highly improbable that they would not have searched the
accused. The version of the accused changed as it suited them. When the police
testified the accused agreed with the police that it was the police who first entered the
shack and arrested the accused and took them outside the shack. Opportunistically,
when they testified the accused version changed that it was the soldiers who entered
the shack first and assaulted the accused first before the police came in. The version of
3 S v Sithole and Others 1999 (1) SACR 585 (W) at 590g to 591c.
the accused , which implied a false conspiracy by the police to falsely implicate them, is
not only highl y improbable, but was also beyond reasonable doubt false. There is no
reasonable possibility that the accused version may be true.4 To the extent that the
accused case stands in contradistinction to that of the State, it is rejected.
[26] The firearms robbed of the deceased were found on accused 1 and 4 in the shack .
The f irearm used in the shooting where the officers were shot and robbed was found on
Lujalajala, who was present in the shack together with accused 1 and 4 . There was
more than one firearm used in the shooting where the officers were shot. Accused 3
was found with a Norinco whose serial number had been filed off, and live rounds of
ammunition in the shack . Accused 4 was found with a magazine and live rounds.
Accused 1, 2 and 4 had been implicated by Lujalajala in the preparation and planning of
the robbery of the law enforcement officers. The accused were found in the shack
pointed out by an informer as where those who shot at the two law enforcement officers
were hiding. The information provided to the police by the informer proved reliable
because a firearm used in the shooting and the two firearms robbed of the officers were
found in that shack soon after the shooting .5 All the proved facts exclude any
reasonable inference save the inference that the accused are guilty of the two counts of
murder, unlawful possession of firearm s and unlawful possession of ammunition.6 There
exists no reasonable doubt that the accused committed the crimes charged .7
[27] I find that the State had proved its case against all 4 accused beyond reasonable
doubt . For these reasons :
(a) Count 1, the murder of Jan Nieuwenhuys read with the provisions of section
51(1) of the Criminal Law Amendment Act, 1997, all four accused are found
guilty.
4 S v V 2000 (1) SACR 453 (A) at para 3.
5 Mothwa v S 2016 (2) SACR 489 (SCA) para 8 to 10.
6 R v Blom 1939 AD 188.
7 R v Malombo 1957 (4) SA 727 (A) at 738A -C.
(b) Count 2, the murder of Simtembile Nyangiwe read with the provisions of
section 51(1) of the Criminal Law Amendment Act, 1997 , all fo ur accused are
found guilty.
(c) Count 3, Robbery with aggravating circumstances , all four accused are found
guilty
(d) Count 4, Robbery with aggravating circumstances, all four accused are found
guilty.
(e) Count 5 , Unlawful possession of firearm s, all four accused found guilty.
(f) Count 6, Unlawful possession of ammunition, all four accused found guilty.
_________________________
DM THULARE
JUDGE OF THE HIGH COURT