SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: CC 21/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: Yes
DATE : 16 May 2025
SIGNATURE
In the matter between:
THE STATE
and
ZAHEERA BOOMGAARD Accused
___________________________________________________________ ________
JUDGMENT
_____________________________________________________________ ______
(The matter was heard in open court and Judgment was delivered on 16 May 2025
in open court)
Before: HOLLAND -MUTER J:
[1] The mat ter was previously part heard before Maumela J who for personal
reasons withdrew from the matte r before it was finalised . After various
postponements the matter ended before this court and the trail commenced from 24
February 2025 de novo .
[2] The accused, Zaheera Boorgaard, an adult female aged 62 , was arraigned on the
following charges :
(i) T hree (3) counts of murder, namely that of Harkand Jamnandas
Nathvani , the first deceased; Lynette Josephine Mustapha , the second
deceased and John Robertse Naisby , the third deceased ;
(ii) Two (2) counts of robbery with aggravating circumstances as envisaged by
section 1 of The Criminal Procedure Act 51 of 1977 (“CPA”) and read with
section 51(2) of the Criminal Law Amendment Act 105 of 1977 against the
first and second deceased ;
(iii) 46 C ounts of theft from the first deceased Harkand Jamnandas Nathvani;
(iv) Two (2) C ounts of theft from the second dece ased Lynette Josephine
Mustapha ;
(v) One (1) count of fraud regarding presenting ce rtain documents purporting
to be the will and testament of Marlene Henrietta Mustapha to Alexander
Roger Glover (“Glover”) representing First National Bank (FNB) , wrongfully
and with the intention to defraud Glover and /or FNB, and to the prejudice or
potential prejudice of the family members of the late Marlene Henrietta
Mustapha and /or beneficiaries of the late Marlene Henrietta Mustapha,
misrepresented to Glover that she was the sole beneficiary of the estate of the
late Marlene Henriet ta Mustapha knowing that the representation was
fraudulent; and
(vi) O ne (1) count of theft of a collection of antique coins b elonging to Jan
Ronald Mackenzi e, the third deceased . This count, count 56, was withdrawn
at the beginning of the proceedings.
[3] The charges of robbery of first decease d and the second deceased are alleged to
be with aggravating circumstances as envisaged by section 1 of Act 51 of 1977 and
with section 51(2) of act 105 of Act 51 of 1977.
[4] The accused was represented by counse l who indicated that the accused was
aware of the provisions of section 51 of Act 105 of 1997 regarding the applicability of
certain minimum sentences applicable on the counts of murder and robbery with
aggravating circumstances.
[5] The accused pleaded n ot guilty to all th e charges and elected to tender a written
plea explanation in terms of section 115 of the CPA and made certain formal
admissions in terms of section 220 of the CPA. Exhibit “A”.
[6] The gist of the accused’s pleas is that she denied all charges but admitted that on
counts 3 to 49 that she made use of the first deceased Harkand Nathvani’s bank
card by withdrawing cash and purchasing goods as referred to in column 4 of
schedule A of the indictment. Her defence was that she had the deceased’s consent
to use the bank cards . The argument on behalf of the accused that the State did not
lead evidence regarding counts 45 to 49 is ill conceived. The accused in her plea
admitted using the ban k card for all the transactions in counts 3 to 49. Paragraph 6.1
of the plea clearly states that she admits using the bank card for all the transactions
in counts 3 to 49. This is a very ingenious argument now.
[7] The accused further pleaded that on count s 52 and 53 she had to consent of the
second deceased Lynette Mustapha to use the bank cards to withdraw the cash as
set out in column 4 of schedule B to the indictment.
[8] The accused denied that she mislead Glover at all with regard to the will and
testament of the late Marlene Mustapha or made any misrepresentation towards
Clover in any way.
[9] The accused denied any involvement regarding count 55 with regard to the
alleged killing of John Ronald Naisby or stealing any collection of antique coins fro m
Jan Ronald MacKenzie in count 56.
[10] Various exhibits, ranging from Exhibit A to Exhibit PP 1 -2 were handed in as set
out in Annexure “A” to the judgment.
EVIDENCE FOR THE STATE:
[11] The state called 22 witnesses while the accused was the only wit ness on behalf
of her own defence.
WITNESSES CALLED ON BEHALF OF THE STATE :
[12] Debbie Lee Barachievy : She discovered the charged body of Nathvani on 11
March 2020 at 387 Plantation Road . This is near the residence of the accused. Her
evidence was not challenged at all on behalf of the accused.
[13] Thulare Sello Jiyane: He is a police sergeant who visited the scene where the
first deceased was found. He discovered imprints, which resembled tyre imprints, on
the ground near where the body of the f irst deceased was discovered. He further
noticed marks on the ground which resembled dragging marks between the imprints
and the place where the body was found. These dragging marks were from where
the tyre imprints were to where the body was found. His ev idence was not
challenged by the defence .
[14] Mafa Elias Dlamini : He is a police sergeant who attended to the scene where
the body of deceased one was found. He was alone on the scene and noticed a blue
and white rope around the neck of the deceased’s ch arged body. He called the
official photographer who also attended the first scene. No identification of the body
was done on the scene. His evidence was not challenged by the defence .
[15] Christina Magdalena Uys ; She resides in the same residential complex where
the accused resides. She is the neighbour of the accused at V[...] B[...] . The accused
told that she that she worked from home in the medical field and normally at night
and requested Uys to keep her dog from barking at night. I t was during the Covid
pandemic that Uys first saw a male visitor at accused’s apartment. She saw this man
several times walking in the complex’s garden and although she was never
introduced to the man, she greeted him when outside in the garden and also
apologised to him for the dog’s barking. She saw him sitting on a bench outside the
unit and once lying on a couch in the unit.
[16] She could not determine his nationality but he had a darker complexion with a
darkish skin and was convinced that he was no t a South Africa.
[17] She was later approached by the police with two photo s of a man and was
requested whether she knew the person in the p hoto. She could not identify his
identity but the person in the photo s was the visitor to the accused’ unit. Mr Moeng
consented that the photos be handed in as evidence.
[18] She recalls that the last time she saw the visitor was towards the middle of
February 2020. She was adamant that the person stayed for between 2 to 3 weeks
at the accused’s unit.
[19] The accused did not mention the visitor’s name to Uys but said he was f rom
abroad and that that she took him to the airport later. Uys never saw the man again.
[20] The accused had a motor vehicle which she parked directly in front of her unit.
The unit is on the ground floor and the walkway borders onto the pave parking are a.
[21] Uys recalls that one night late she heard the sound of water being washed
outside and when going outside she saw the accused pouring water onto the
walkway and parking area and was sweeping it away. The accused then left the
complex with her vehic le and on return reversed parked it in front of the accused’s
unit. The accused left again in the motor after 23h00 and only returned after
midnight. Uys was almost sure this was on the last day she saw the visitor earlier at
the accused’s unit.
[22] At some stage later when talking to the accused, the accused talked about her
friends Lynette and Marlene. She often mentioned that Lynette did not allow her to
visit Marlene. Uys once met Lynette when she visited the accused but did not hear
what Lynette ’s surname was.
[23] The accused later mentioned that her family did not want her to see her mother
but that she made some food for the funeral of her mother later.
[24] When Uys talked to the accused after the funeral, the accused mentioned that
she was worried about Lynette. She went to Lynette’s house only to return later
informing Uys that Lynette was murdered. She entered Lynette’s house and found
the police inside marking off the area. There was blood all over the house against
the walls inside.
[25] She informed Uys that a suspect was arrested and held at the Jeppe police
cells. She went to visit the suspect. The suspect told her what happened and that
Lynette had a sharp object in her hand as he approached her. He tried to take away
the sharp obj ect but in the process the sharp object entered Lynette’s head. The
accused demonstrated to Uys what the suspect demonstrated to her. This was some
weeks after Lynette’s death. The accused felt sorry for the suspect and informed Uys
that she was going to h elp the suspect with mone y she was to receive from Lynette’ s
will as it was self defence.
[26] The accused informed Uys that she was the sole beneficiary to Lynette’s estate
and that she was going to First National Bank daily to have the will finalised. She
explained that since Marlene died and the brother was also deceased, with the death
of Lynette she now became the sole beneficiary to the last will of Lynette. The
accused showed Uys a document purporting to be the last will of Lynette on 7
October 202 0 in the accused’s unit and that the accused was arrested two days later
on 9 October 2020.
[27] Uys saw the police arresting the accused and later when visiting her in the cells,
the accused told her that Lynette’s body was found near Soshanguve.
[28] Uys was cross -examined quite in detail on behalf of the accused but did not alter
her version. It was put to her that the accused never told her how Lynette was
murdered or about the blood on the walls in Lynette’s house. Uys remained adamant
that this was what the accused told her. The accused denied throwing water out of
her unit or that the accused showed her the wills on Lynette. Uys responded and
said she is quite a nosey person and that the accused did inform her as testified. It
will become clear la ter that Uys’s version is corroborated by late evidence and
indirectly by the accused when contradicting herself during cross examination.
[30] Nyasha Mpofu : She is the laundry lady at V[...] B[...] . She testified that the first
deceased, as identified on the photos shown to her by the police, brought his laundry
to be done on 3 March 2020. She was sure this person was the visitor at unit 3[...]
belonging to the accused. She never saw the person after he fetched his laundry on
3 March 2020. Her version was a ccepted on behalf of the accused.
[31] Zaheeda Om randeen: She was a resident at V[...] B[...] Unit 3[...] A r Barcelona
during February 2020. The accused carried his luggage and he stayed at the
accused unit. She saw him on several occasions later and knew he was a visitor
from abroad. There was a geyser issue but this was discussed. Mrm Moeng had no
questions to her during cross examination.
[32] Mirka Glyptis : She was the next door neighbour for over 20 years of the second
deceased and resided at 5[...] 6th Avenue in Highlands North. The deceased resided
with her brother and sister, but after the death of Marlene (the sister) , the deceased
resided alone.
[33] The bulk of her evidence do es not unravel the plot, however, taking her version
of what the gardener, Christopher told her about the phone calls he received and the
visits by the accused at the deceased Lynette’s house, it sways the probabilities in
favour of the state case. The only issue the accused had with her during cross
examination was that she denies informing Glyptis that she was the executor to
Lynette’s will. It was not denied that the accused on at least two occasions after the
death of Lynette came to Lynette’s house by vehicle and that Christopher had the
keys to the house with the call to feed the do gs and the parrot of the deceased .
[34] David Donald Claassen : He is the head of the legal department of SANRAL.
His duty is inter alia to gather information from the overhead gantries on the national
roads where the overhead electronic toll cameras were installed. According to him
the movement of all vehicles on these roads are photo graphed and in his capacity as
employee of D Electronic Collection (Pty) Ltd he has access to this information.
[35] He described the recorded movements of the blue Kia with registration H[...] on
the 10th and 11th of March 2020 and on 8 August 2020. He testified about the
movements of the ve hicle as set out in his report ( exhibit “O” and “P” ). The accused
did not cross examine him at all. Her counsel now argue s that the evidence obtained
from the electronic trackin g device in the vehicle as unconstitutionally obtain ed is
without any merit. It is a manufactory installed device and no directive from a judge
was necessary to receive the information. The argument of unconstitutionality was
never raised during the trial. He should have warned the State of this beforehand
and lay a basis therefore.
[36] Genevieve Antoon : She is the hal f-sister of the second deceased. She
explained the family composition. She was notified of Lynette’s death a few days
after the incident. H e brother Joseph, residing in Australia, requested her to
investigate what happened and this led her to the Norwood police where she after
receiving the telephone number of Captain van den Berg ( investigating officer).
[37] She never met the accused and the accused was not at Lynette’s funeral. She
found several boxes in Lynette’s house and handed all important documents found
the Van den Berg. She took control of Lynette’s estate but found no joy from FNB
because she was bit a beneficiary to Lynette’s es tate. She, after a discussion with
her brother in Australia, contacted Van den Berg about the weirdness of the accused
being a beneficiary and not her of her brother. She found one of the will’s in Lynette’s
house and handed it to Van den Berg. Her evidenc e was never challenged at all.
[38] Captain Francois Kruger : He is a police officer at De Deur police and attended
a crime scen e at Plot 77, Bronkhorstfontein on 8 August 2020. He was shown a
smouldering body next to the road. The body was tied with material and the upper
body was charged. It is not denied that this was the body of a female which was later
identified to be Lynette.
[39] On 11 August 2020 h e was called to the ar ea close to where the body of Lynette
was found and two bags of documents were found. The cash register slips and other
documents which were found were handed to Sergeant Nkomo. The distance
between the places where the body was found and where the documen ts were found
is via road about 3 km apart.
[40] He scrutinised some of the cash slips and it portrayed that the transactions took
place at the Pick and Pay store in Norwood. On inspection at Pick and Pay he was
shown camera footage when the transactions took place and it was clear tha t a
woman made the purchases at the store. The woman was not known to him.
[41] After making several calls and vis its to places, it eventually le d him to the
address at 5[...] 11th street in Highlands North. It was the house of Tony Mustapha
who was the brother of the deceased Lynette. There was no one at the house but a
coloured man who took them to a house in 6th avenue. This house was also empty
but he left a note on the gate.
[42] He received a call from the Norwood police the following day informing him of a
missing person’s report. Upon investigation the name of the missing person was that
of Lynette Mustapha. He visited the address in 6th Avenue the next day to find police
presence at the house.
[43] There was also a dark coloured Kia and his colleague Captain Jordaan got out
of the vehicle and started talking to a person in the drive way. He went into the
house and found it full of item s and boxes but he never saw any blood on the walls
or in the house. He handed the investigation to Sergeant Masuku from De Deur
Police.
[44] His evidence was not challenged at all by the defence.
[45] Gert Johannes Jordaan : He is a captain in the police at De Deur police station.
He confirmed the version of Kruger on visiting the Pi ck and Pay store in Norwood.
He travelled with Kruger when Kruger went to the house in 6th Avenue where he on
arrival saw the da rk blue car. The person behind the steering wheel later transpired
to be the accused.
[46] He questioned her and she said the deceased accompanied her to church at
times. While on the scene, the accused left and he remained there for over an hour.
He is sure that when he arrived the accused was in her vehicle and while there, she
did not enter the house as it was cordoned off for police investigation. He saw no
blood in the house during his investigation. His evidence was left unchallenged by
the defence.
[47] Roger Alexander Glover : He is an attorney and represents the deceased
estate section of FNB. His firm was appointed by FN B to assist with the deceased
estate of the Mustapah sisters. He was supplied with several documents purporting
to be wills by the Mustapha sisters. He is a conveya ncer and there were at least fo ur
immovable properties in the estate of Lynette.
[48] There were certain uncomfortable issues because of the numerous wills for the
deceased at hand. He had a look at the wills before his meeting with the accused
and other parties on 5 October 2020. It was very strange that there were at least two
wills signed on the same day on 26 June 2020 which contained similar terms.
[49] On closer investigation he found discrepancies regarding the signatures,
mistakes with the same identity number in the same document and the FNB bar
code used for FNB generated wi lls the same on different wills but portraying dates
for the bar codes not yet in use.
[50] He found it strange that in exhibit U -3 dated 25 June 2020 the entire estate was
left to the accused but later on 26 June 2020 in exhibit U -4 the entire estate is left to
Joseph, the brother of Lynette. The bar codes used were the same although it was
on two different wills.
[51]During the interview he had with the accused she described how Lynette was
murdered but she denied this during cross examination. The cour t will deal with other
challenging aspects on the wills below during her evidence. The cross examination
did not cause any concern for the version of the prosecution at all.
[52] The accused described to Glover and Ramsunder how Lynette’s head was
smashe d and that her body was tied up. She also described the gold watch Lynette
had and that there was an amount of R 130 000-00 in Lynette’s house. It will be clear
below that the accused did not have entrance to the house and the police never told
her this.
[53] This aspect will be discussed below when evaluation the two version before
court when dealing with circumstantial evidence and the balance of proof. Glover
made a good impression and there is no reason why he should mislead the c ourt. H e
has nothing to gain from the matter.
[54] Kevindren Govender: He is the arresting officer from the police. He is stationed
at the Forensic Science Laboratory in Pretoria in the victim Identity Centre. He
became involved during 2020 when a missing person report was lodged.
[55] He initially went to Newc astle in KZN but no trace of the person was found. He
received information that one of the missing person’s banking cards was still used in
the Johannesburg vicinity.
[56] His investigation resulted in receiving close circuit images of a female using the
bank card. Her identity was not established but they viewed the registration number
of the vehicle used by the female. The police traced the location of the owner thereof
to reside at the V[...] B[...] complex and they kept an outlook for the vehicle.
[57] He followed the vehicle leaving the complex to the nearby Builders Warehouse
Store in Florida Glen and waited outside for her to complete her shopping. As she
left the store he confronted her but she used her own bank card in the store. He
searched her vehicle and discovered certain documents in the vehicle. She
explained it was from her work and she had to make copies thereof.
[58] She could not explain the will and title deed documents found in her car and he
requested her that they go to her unit to enable him to conduct a search. She did not
object and allowed him to search but he could not find the missing bank card of the
missing person.
[59] When asked about t he purchases made for the person she said he was sickly
and could not do his own shopping. She said she has the per son’s consent to use
the bank cards but it was unconvincing. Her explanation caused some suspicion
because she gave different versions. This caused him to arrest her and he gave her
the required warning given to arrestees. She gave him two different identities and
took her to the Moot police station in Pretoria. After questioning her she was
released.
[60] He kept the will and title deed and s eized further copies of will and testaments
found in her unit. The signatures on these documents were unconvincing and found
one will where the signature portion of a witness was cut out and missing. She
explained that she had the will of Tony Mustapha to have it certified by the police .
[61] She made a first statement to Colonel Viljoen but was released shortly
thereafter. He visually inspected the CCTV footage at the entrance and exit gate at
the complex and a further search for the bank card and letter of authority led to
nothing. He could however see on the footage that the accused was the driver of her
vehicle that left the complex late night on 10 March 2020 and could see at least two,
other persons in the vehicle. He could only identity her on the fo otage.
[62] She was arrested for a second time on 9 October 2020 and made a second
statement to Colonel Viljoen. The contents and value of the two statements will be
discussed below and counsel on her behalf consented to the two statements were
submitted as evidence by consent.
[63] Cross examination by counsel did not heel much and th e evidence of Govender
was not discredited at all.
[64] Maloti Agnes Ndlovu : She is one the alleged signatories to the wills found in
possession of the accused. She denies signing thereof and is very adamant that she
never met the accused. She does not know the V[...] B[...] complex and did not work
there. She did not know the de ceased Marlene Mustapha and denied that she
signed any of the wills. Her evidence was not challenged at all.
[65] Peter Albertus Erasmus : He was the manager at V[...] B[...] at the time when
all transpired. He explained how entrance to the complex takes place. He explained
that during peak hours it is possible for people to enter without being captured on
CCTV. His evidence does not have any significant impact on the issue.
[66] Christian Delport : He is the electronic expert witness who down loaded data
from the electronic devices received from the investigating officer. His expertise was
not challenged by the defence when he stated to testify. He was approached by
Captain van den Berg to analyse certain information received from the police
officers.
[67] Delport discussed his report and explained the interpretation of the information.
He was clear that the accused’s Wifi was connected to the phone he received from
the police. This was the phone of the first deceased and it w as used on the premises
of the accused’s unit in V[...] B[...] . The last connection was on 8 October 2020, the
day before her second arrest. As an observation it i s mentioned that the first
deceased was killed during March 2020 and makes sense to infer that the accused
made use of this phone long after the deceased was dead.
[68] There was email correspondence from FNB to the phone of Mustapha also after
the death of the second deceased. It is clear that the phone devices were used after
the death of the deceased and the only reasonable inference is that the accused was
using the phones. The police found the phones in her unit during a raid. She denied
that the ph ones were found in her unit.
[69] The cross examination of Delport did not unsettle him. He was quite sure that
the phones were connected to the Wifi of the accused until 10 October 2020. This
was long after the death of both deceased.
[70] John Khataki Mathebe: He is a sergeant in the police who seized the pair of
sneakers and black refuse ba g booked in the SAP 13 register. He seized these items
in the unit of the accused. He was not part of the search party and he only compiled
a photo album on the day of the search.
[71] The sneakers were found under a coffee table in the lounge of the unit and
sealed in an official bag. The seal numbers are not disputed by the accused. Van
den Berg seized other items in the unit and he only photographed these items. The
two items he seized were handed to Warrant Officer Engelbrecht from forensic who
took the sealed items to the laboratory in Pretoria.
[72] His evidence was not disputed by the defence.
[73] Hendric k Dederick Francois Engelbrecht: He is the officer who received the
sealed sneakers from Mathebe and delivered it to the biologi cal unit of the police in
Pretor ia. These items where received in the SAP 13 regi ster and sent it for analysis.
The defence did not challenge his evidence.
[74] Samuel Dumisani Mbembe : He is the photographer who took photos of the
deceased and received the DNA samples for analysis thereof. H e was the courier of
the samples taken and his evidence was not disputed by the defence.
[75] Captain Werner van den Berg : He was a warrant officer at the time of the
alleged murder. He is the investigating off icer since 19 August 2020 after the death
of Lynette. He visited the crime scene where the charged body of Lynette was found
during August 2020. He made inquiries at the local police station and enquired about
the death of the first deceased which was repo rted some months earlier. He visited
the places where the two bodies were found which were some 3 km apart. During his
investigation he became aware of the statement made by accused on 19 May 2020
to Colonel Viljoen.
[76] He learned from this state ment that the accused stated that she d ropped the first
deceased at the Hyatt Hotel a nd when he visited the hotel it was still in Covid 19 lock
down and travelling was still forbidden.
[77] He obtained the existing witness statements and the travelling o f the accused’s
vehicle as captured by the gantries on the high way and the seized documents he
received from Govender, including the wills Govender seized in the vehicle of the
accused and the cut out will of Tony Mustapha raised certain suspicion about t he
accused. The cut out signature was discovered by Antoon and handed to the police.
It matched the cut out space of the will. He also took over a page which looked like a
practice sheet of the cut out signature. This was discovered in the unit of the
accu sed.
[78] He also received the statement by Glover and his uneasiness with the wills
presented by the accused led him to request the accused if he could assist her. He
traced the alleged signatories to the wills and established that the signatories were
falsified. He obtained a handwriting expert to verify the signatories. Both signatories
denied signing the wills.
[79] The one witness was the brother of the accused one Prem Basdeo. He passed
on later. The affidavit by Basdeo was accepted as evidence wit h the consent of the
accused. After the documents were verified by Colonel Molowa at the police’s
disputed documents office , he obtained a warrant of arrest for the accused and a
further search warrant for her unit. These warrants were executed in the morn ing of
9 October 2020 at the unit of the accused.
[80] He gave the accused a copy of the warrant and had her sign therefore. The
accused had no objection to the search of her unit. He explained her rights and
continued with the search. He seized several items listed on exhibit ‘KK” and the
accused was detained at the Garsfontein police station on Pretoria.
[81] The motor vehicle of the accused was taken to Garsfontein where tyre imprints
of the vehicle were obtained. The tyre imprints wer e tested by Col onel Esp ach at the
Forensic Laboratory. It later transpired that the tyre imprints test result was similar to
the imprints found near the charged body of the first deceased. The accused
accepted the report by Espach and it was received as evidence.
[82] Van den Berg testified about the documents and other items found in the unit of
accused. The items were listed. He informed her of the intended search and handed
her a copy o f the search warrant. He was very specific that a number of cell phones
were found in the unit he was also certain of the wills found in the unit. The cut out
portion of Toney’s will was handed to him by Antoon who found it in Lynette’s house.
Again the ac cused tried to shift the blame on her brother Prem for driving the vehicle
that day. Prem denies this in his affidavit.
[83] Several other documents such as the yellow booklet with addresses were found
in her unit. It contains telephone numbers and other information of the deceased and
other persons. A death notice of Tony Mustapha was also found in the unit. After
interviewing Glover, Van den Berg was certain that the accused made the false
representations to Glover regarding the wills to persuade him to finalise the wills.
[84] Although counsel cross examined him extensively, it had no impact on the value
of his evidence. He testified how he collected all the reports from the role players
and proceeded to compile the docket.
[85] Dr Ra mbau: He is the doctor employed by the police at the biological section of
the police in Pretoria. He did a comparison of blood samples of the second deceased
and samples found on the sneakers of the accused. His finding is in exhibit “ Y”. The
blood found on the outside of the one sneaker met the results of the test sample he
also found from the police to be match each other. The test sample was from the
body of Lynette. His evidence was not challenged.
[86] Peter White, the expert who analysed the tracker movem ent of the vehicle of
the accused and the cell phone data received from Captain van den Berg. White was
previously employed by the police but now owns his own business as a forensic
case analyst. He is a specialist in crime scene management, bloodstain pat tern
interpretation, failure analysis , cell phone analysis, money flow and other fraudulent
related topics and data analysis. Counsel for the accused indicated that the expertise
of White is not in dispute.
[87] The essence of White’s evidence was with re gard to the traveling of the accused
vehicle during the time when Lynette disappeared and her body was found. He
plotted the movement of the vehicle to the location of the place where the body was
found and where the bag with blooded towels were found. This justifies the inference
that the vehicle was in the vicinity where the body and bloody towels were found
[88] The tracking was done by the signals from the device in her vehicle to the
overhead gantries operated by SANRAL on the highway. The data was co llected
after activating the different network towers in the area. The report covers cell phone
calls between Lynette and the gardener Chidima on 8 August 2020.
[89] The route travelled by the accused’s vehicle and tracked by the network clearly
show tha t as in image 5 on p 21 of the report that the vehicle travelled past the
location where Lynette’s body was found and making a u -turn shortly thereafter. The
vehicle then travelled back towards the main road before turning off towards the
location where th e bag with bloody towels was found.
[90] This is clear from image 6 of the report. Image 4 gives an overall view of the
area from V[...] B[...] to where Lynette’s body and the tow els were found. The images
give a clear view of where the vehicle travell ed on 8 and 9 August 2020, the date of
the death of Lynette. The only response on behalf of the accused was that her
brother drove her vehicle on that day. The evidence of White stands uncontested.
[91] The importance of this averment by the accused that her brother used her
vehicle that day will be clear from the second statement the accused made to
Colonel Viljoen after her second arrest on 9 October 2020.
[92] The prosecutor requested that an affidavit made by the brother of the accused
(Prem Emanual Basdeo ) be handed in as evidence. The defence conceded thereto
and the affidavit was received as evidence by consent. The affidavit was marked
exhibit “OO”. The contents of the affidavit is a mere denial by Basdeo of any
knowledge of the two d eceased Harkand Nathvani and Lynette Mustapha. He does
not mention using the vehicle of the accused. The affidavit is evidence to the
detriment of the accused.
[93] The prosecutor applied that the evidence by two witnesses in the previous
hearing before M aumela J be admitted as evidence. The transcripts thereof were
handed in after counsel for the accused consented thereto. The first is the evidence
by Christopher Chidima, the erstwhile gardener of Lynette who is somewhere in
Malawi at present and the seco nd is Yvette Ramsunder, the erstwhile employee at
FNB who attended the meeting between the accused and Glover on the wills she
submitted to FNB.
[94] These transcripts are exhibits “ PP-1” and “PP2”. Chidima testified that after
Lynette’s death when atten ding to the house, the accused came and demanded the
keys for the house. He refused and she became angry and said that “ if you are
playing games, you will disappear”. He also testified that the following week different
Indian people came threatening him no t to stand in the matter”. These I ndian people
(four males) were looking for the keys of Lynette’s house but he said the keys are
with the police.
[95] Ramsunder testified that she was in the meeting with the accused and Glover
and the meeting was about the different wills and the caution of Glover about the bar
codes used and the signatures which caused Glover’s caution. Glover was
concerned about certain discrep ancies and irregularities with the different wills. She
testified how the barcodes allocated to each will drafted by FNB works and that
these wills were not drafted by FNB. The accused did not dispute her version during
the previous meeting.
EVIDENCE OF THE ACCUSED:
[96] She was the only witness for the defence. H er evidence can be divided into
three separate ‘chapters’; namely evidence regarding (i) Harkand Jamnandas
Nathvani, (ii) Lynette Mustapha, and (iii) John Robbertse Naisby .
NATHVANI:
[97] She met Nathvani early in February 2020 after he contacted her via Whatsapp.
She met him at the Park Station in Johannesburg where he arrived by bus from
Newcastle. He had two suit cases with him and she took him to her unit. They had
lunch later and he stayed at her place for the night. She took him to the Hyatt Hotel
but dropped him near the hotel in Oxford Street. She stated that the deceased was
not ‘a decent’ person and a ‘womanizer’. This was in the third week of February
2020. It remains strange that she despite her view of the deceased continued to use
his bank card to help him and to allow him in her unit and on the premises using her
Wifi.
[98] She was adamant that he stayed only one night in her unit but her neighbours
testified to the con trary. She then stated that he visited her place often and
wandered in the gardens and the pool, but he did not overnight there. It was not
denied that his cell phone was locked onto her Wifi. The undisputed electronic
evidence confirmed this.
[99] He rem ained at the hotel and while there, requested her to purchase groceries
on his behalf and gave her his one bank card to use. According to her the deceased
would Whatsapp her with his list and she would buy it. His driver then collected it
from her later. She continued using his bank card. Comments on this will follow
below.
[100] He remained in Johannesburg until approximately 5 March 2020 when she
took him to the bus station from where he went back to Newcastle. This is contrary
what Uys testified. Uys’s version was that the accused informed her that she took the
deceased to the airport from where he departed. She only heard of his death on 9
October 2020 when she was arrested.
[101] Before he departed to Newcastle, he left his hat and sunglasses in her unit and
requested her to bring it to him. She went to Oxford Street where she parked some
three vehicles from the white Mercedes Benz in which he apparently was. The driver
of the Benz came to her, took the hat and sunglasses and before she could greet
him, the car sped off. This is in conflict with her sending off of the deceased at the
airport what she told Uys.
[102] He made these Whatsapp requests for groceries on about seven to eight
occasions and the groceries were fetched by the driver. The decease d never fetched
it himself. The list annexed to the indictment sets out the purchases made in counts
3 to 49. It will be discussed below.
[103] She denied having any relationship with him and denies making any purchases
with his bank card after he left and after her first arrest. She admitted making the
purchases in counts 3 to 44 , but denies making the purchases in counts 45 to 49.
The indictment however r efers to purchases made from 12 March 2020 (one day
after the death of the deceased) until 8 June 2020. It also remains unclear why she
accepted the second hand dishwasher he purchased for her althoug h she described
him as a womaniz er. This will be dealt w ith below when evaluating the evidence.
[104] The documents seized by Govender according to her included the written
authorization by the deceased regarding her use of his bank card. That document
never came to light during the trial.
[105] The water is sue referred to by Uys was because of a geyser failure. The issue
of a geyser problem was mentioned by Omaradeen. The accused testified that she
in the late hours of the night went to get hold of a plumber who attended to the fault.
After he was finished, he slept in her vehicle until the next morning when she took
him back to where she found him. She took him back to Rissik and Eloff streets in
Johannesburg. This is in the centre of Johannesburg. The plumber did not want her
to drive late at night and he s lept in her vehicle.
[106] The purchases she made regarding counts 3 to 49 were all after the death of
the deceased. She tried to distinguish between counts 3 - 44 and 45 to 49. Her
explanation in this regard is not convincing at all .
[107] She explained that she had to find a plumber in the late hours of night to fix the
geyser problem. The plumber fixed the leak but slept overnight in her car because he
did not want her to drive pate night.
[108] She denied killing the deceased or robbed him and aver that the deceased was
a big person she would not overpower.
[109] S he could however not give any answer regar ding the photos of the
deceased’s bank card were taken after his death when she used it.
LYNETTE M USTAPHA:
[110] The accused said they were fri ends for approximately 15 years before
Lynette’s death.
[111] She last saw Lynette on 5 August 2020 when Lynette requested her to
withdraw R 2000 -00 at the ATM because Lynette did not want to draw money to
prevent herself from unnecessary spen ding. This withd rawal pertains to the charge
in count 52.
[112] T hey had a pre -arranged date for the evening of 8 August 2020 to dine
together and then the accused would hand the R 2 000-00 to Lynette. This is the
date when Lynette was br utally killed. She avers that she wanted to donate ice -
cream to the Orphanage after Marlene’s death. There was no communication
between her and Lynette between 8 and 11 August 2020 and she was not aware
that Lynette died on 8 August 2020.
[113] She on ly became aware of Lynette’s death on 13 August 2020 when she went
to Lynette’s house and to be there when the police arrived. She said that Captain
Jordaan showed her the scene of the crime and photos of Lynette’ s body on his cell
phone. Jordaan denied th is.
[114] Regarding count 54 she testified that Christopher (gardener) gave her two
envelopes there which contained wills. Christopher denied this. This happened at the
gate of Lynette’s house some two weeks after the death of Lynette.
[115] She denied any knowledge of Indian men threatening Christopher for the keys
to Lynette’s house. She also denied telling Mirka Glyptis that she was the executor of
Lynette’s will. She said she handed two wills to Ramsunder at FNB and confirmed
that a meeting was hel d with Ramsunder and Glover at FNB regarding the different
wills.
[116] She said her knowledge of the body of Lynette and the murder was because
Jordaan showed her pictures of the scene. She denied that she made any mention
of blood in the house because she was not allowed into the house and that only
Christopher was allowed inside by the police. The police denied this.
[117] She denied that she mentioned to Uys that there was a suspect in custody at
the Jeppe police station or that she visited h im. She admitted that her blue sneakers
were seized by the police but she assumed the blood of Lynette may have been
when she, Lynette and Marlene were cutting out some abscesses.
[118] She said that she drove her vehicle to Southgate on 8 August 2020 and did not
take that route again. S he did not tender any contradicting expert evidence to
counter the evidence of the State. When arriving back home, her brother Prem was
there and he took her vehicle to deliver food to their other brother, Robert. Robert
was a tramp and she took care of him for food. She said that on 11 March 2020 she
alone drove her vehicle and that she had no one driving her vehicle.
[119] Prem (her brother) was in financial difficulties defending himself in court on a
murder charge ear lier in Durban and did from time to time pressured her for money.
[120] She said she received the wills in an envelope from Christopher but he denied
that in the previous hearing. She had no idea that the wills she handed to
Ramsunder were fraudulent doc uments. She also said she did not know Agnes
Ndlovu who allegedly signed the wills as witness.
[121] Her evidence regarding the number of wills found in her unit and how it came
there was unconvincing.
JOHN ROBERTSE NAISBY;
[122] She testified that she met him at the airport from Cape Town during 2012 and
he arrived on a one way ticket. He was going to Rustenburg and she does not know
what happened to him.
THE SECOND INTERVIEW STATEMENT BY THE ACCUSED:
[123] The accused mad e a voluntary statement to Colonel Viljoen after her second
arrest on 9 October 2020. He also interviewed her after her first arrest during May
2020. The interviews are dealt with from her interaction with Naisby to Nathvani and
lastly Lynette Mustapha. I deal only with the relevant portions of the interview here.
NAISBY:
[124] She introductory first dealt with her early days and family problems which is not
applicable to this matter. The first interest in this matter is her version about what
transpired between her and Naisby during 2012 when she met him. He came from
Cape Town on route later to Ruste nburg. There were some interaction between
them but the only issue of note is that when he was about to go to Rustenberg that
she left him at the Walkerville Spar. She did not see him thereafter and he
disappeared without any trace . It is known that his fa mily in Cape Town later
obtained a Presumption of D eath Order in the Cape Town High Court.
NATHVANI:
[125] She explained how she met Nathvani and at first took him around to places.
She assisted him by buying the groceries he ordered via Whatsapp and gav e him
access to her Wifi.
[126] The important part is when her brother Prem became involced. She stated that
Prem was in financial difficulties and asked her to give Harri (how she referred to the
deceased) to him. She continued how they pretended that they want to dine and for
Harri to get to know Prem that Harri drive with Prem and she would follow. After
some distance she just drove off without following Prem and Harri.
[127] This was the last time she saw Harri and when she asked Prem about Harri he
answered that she does not need to know anything. The first time she became
aware that Harri was m urdered was when the police came to her and arrested her
during May 2020. This was on pages 20 to 22 of the second statement.
[128] She thereafter mad e certain remarks regarding Harri’s cell phones and other
issues with his bank card.
LYNETTE MUSTAPHA:
[129] She continued on pages 24 to 27 about Lynette and it is clear from this
statement that she knew much more than what she at first stated. She concludes
that Prem must have killed Lynette as well.
[130]The statement is far removed from her version in chief examination and almost
closes all escape doors.
EVALUATION:
[131] There is no direct evidence of the killing of the two deceased pers ons in counts
1 and 50. There are however an overwhelming amount of circumstantial evidence to
consider. It is tri te that a court may convict on circumstantial evidence if the evidence
is as in R v De Blom 1939 AD 188 at 202 -203 that the cardinal rules of logic
which cannot be ignored when it came to reasoning by inference. (1) The
inference sou ght to be drawn must be consiste nt with all the proved facts. If it
is not, then the inference cannot be drawn. (2) The proved facts should be
such that they exclude every reasonable inference, save for the one sought to
be drawn. If they do not exclude other reasonable inferenc es, then there must
be a doubt whether the inference sought to be drawn is correct.
[132] When considering circumstantial evidence the court is mindful of the approach
in S v Reddy 1996(2) SACR 1 (A) at p 8 that “ In assessing circumstantial
evidence one needs to be careful not to approach such evidence upon a piece -
meal basis and to subject each individual piece of evidence to a consideration
of whether if excludes the reasonable possibility that the explanation gi ven by
the accused is true. The evidence needs to be considered in its totality. It is
only then that one can apply the oft -quoted dictum in R v Blom 1939 AD 188 at
202-3, where reference is made to two cardinal rules of logic which cannot be
ignored.”
[133] The court also has to be mindful of the burden to proof. On criminal matters the
burden is beyond reasonable doubt. In S v Va n der Meyden 1999 (1) SACR 447
(W) at 448 it was held that: The onus to proof in a criminal case is discharged by
the State i f the evidence establishes the guilt of the accused beyond
reasonable doubt. The corollary is that the accused is entitled to be a cquitted
if it is reasonably possible that he might be innocent. These are not separate
and independent tests, but the express ion of the same test when viewed from
opposite perspectives. In order to convict, the evidence must establish the
guilt of the accused beyond reasonable doubt, which will be so only if there is
at the same time no reasonable possibility that an accused exp lanation which
has been put forward might be true. The two are inseparable, each being the
logic corollary of the other.
[134] Where there are a plethora of factual disputes between the State and the
Defence, the correct approach in evaluating such evidence was stated in
Stellenbosch Farmers Winery Group Ltd v Martell et Cie and Others 2003 (1)
SA p 11 SCA at p 14: The technique ge nerally employed by courts in resolving
disputes of this nature may conveniently be summarised as follows; To come
to a conclusion on the disputed issues the court must make findings on (a) the
credibility of the various factual witnesses and (b) their rel iability and (c) the
probabilities.
[135] It is clear from the evidence that there are two mutual destructive versions
before the court; one by the accused and the second by all the witnesses testifying
on behalf of the State. The dictum in Stellenbosc h Farmers Winery supra applies.
[136] The version of the accused is to a large extent a mere denial of what the other
witnesses said. This poses the question of whose version is the truth, that of the
witnesses or of the accused?
[137] There are further the unopposed evidence by a number of the witnesses not
denied by the accused. Some of the undisputed facts are :
* firstly the admissions made on behalf of the accused regarding the vehicle
tracking of her vehicle placing it on the sce ne where the body of Lynette a nd
the bloody towels were found;
*the fraudulent wills foun d in her possession;
*the proof that Nathvani was at her place on several occasions seen by her
neighbours and his use of her Wifi during his visits to her place;
*the purchases she made with his bank card although somewhat ‘disputed’ by
her later in the argument presented to court by counsel;
*her version and demonstrati on to Glover and Uys of how Lynette was
murdered;
*the alleged blood stained walls in Lynette’s house although she avers that
she was not in the house but that Kruger showed her pictures of Lynette’s
body and the inside of the hous e on his cell phone;
*her insistence with FNB to finalise the wills although during cross
examination she said that she told Lynette that she would not make use of her
right as beneficiary of the property in the wills;
* the report by Claassen on the inf ormation receiv ed via the high way gantries
on the routes travelled by the vehicle of the accused;
* the report on the comparison of the tyre imprint found on the scene where
Nathvani’s body was found and the matching thereof with her vehicle’s tyre
imprin ts by the expert later;
*the report that the blood stain found on her sneakers in her place matched
that of the blood sample taken from Lynette’s deceased body - although the
accused tendered a very improbable explanation therefore;
*the tyre imprints and other dragging marks from the tyre imprints to where
the body of Nathvani’s body was found was not disputed. The reasonable
inference from this fact is that the deceased’s body was dragged from the
vehicle to where the body was left. The tyre imprints matching that of the
accused’s vehicle together with the dragging marks justify the inference that
the body was taken from the vehicle and dumped next to the road. This is
rather damning for the case of the accused.
[138] Taking into ac count the probabilities there can be no other result as to find that
what the accused testified was highly improbable when compared with the version of
all the witnesses for the State. In S v Singh 1975 (1) SA 227 (N) at 228G it was held
that a court needs to access all the probabilities before accepting and/or rejecting a
version. In this matter I am satisfied that the version by the accused is so improbable
that it can be rejected.
[139] The accused further consented that the transcript of the evidence by two
witnesses who testified in the initial trial before Maumela J, namely that of the
gardener Christopher Mapopa Bentery Chidima and Yvette Ramsunder be admitted
as hearsay evidence un der the provisions of section 3(1) of the Law of Evidence
Amendment Act 45 of 1988 be admitted. The witness Chidima is somewhere in
Malawi and Ramsunder has emigrated to Nieu Zealand and are not available to
repeat their respective evidence. Mr Moeng consented to this request by the
prosecutor with the consent of the accused.
[140]The transcribed version from the two witnesses in the initial trial is admitted as
evidence in this matter. There was a similar request to admit an affidavit by Mr
Bandeo, the brother of the accused, as evidence. This witness is decease d and after
considering both parties’ argum ents, the affi davit is admitted as evidence . The
provisions of section 3(1) was discussed in S v Ramavhale 1996 (1) SACR 639 (A)
and in this matter the evidence of Chidima and Ramsunder is admitted in terms of
the interest of justice and as result of the consent thereto on behalf of the accused.
The affidavit of Bandeo is admitted in terms of section 3(1) of the Law of Evidence
Amendment Act 45 0f 1988.
[141] Mr Moeng further also consented thereto that the two interview statements
taken by Colonel Ettiene Viljoen from Organised Crime whilst interviewing the
accused on 19 May 2020 at Moot Police Station in Pretoria and on 9 October 2020
at Garsfontein Police Station to be received as evidence without calling Viljoen to
testify. These statements were also formally admitted as evidence.
[142] The accused was extensively cross examined and found it very difficult to stick
to her original version and pleaded version. She at one sta ge said that she was tired
during the afternoon session but this was never raised during cross examination. I
have referred to her contradiction of her plea regarding her admissions on counts 45
to 49.
[143] There is also no explanation why she continued to use the bank card if on her
own knowledge the deceased has lef t for Newcastle on 8 March 2020 when she took
him to the bus station. He was therefore in no need of groceries or other purchases
from inter alia Builders Warehouse to be made on his behalf. Ironically the
purchases made with his consent only began after he left (on her one version) by
bus but contradicted by her second statement to Viljoen, was dead. The purchases
began on 12 March 2020 while the deceased has either left on 8 March 2020 or was
killed by Prem on 8 March 2020. This contradiction by the accused alone is fatal to
her version .
[144] If the version of the accused is compare d with what the police (Kruger) said
about the crime scene at Lynette’s house it is clear that the version of the accused is
a fabrication. Kruger never showed her pictures or discussed the scene with her.
She further fabricated the alleged arrest of a suspect on Nathvani’s death because
there was no such arrest. The blood found or her sneakers indicate d that Lynette
was bleeding in her presence but her explanation is highly improbable.
[145] The “roundabout’ she made on the different copies of the wills found in her
possession and the fraudu lent signatures there upon is further indicative that her
version is highly improbable and when compared with the version of the State, it
should be rejected. It is clear from the page found in her unit was that of someone
practising the signature of the w itnesses on the will.
[146] It is further highly improbable that a person would drive to an unknown area in
Johannesburg and low and behold get hold of a plumber in the late hours of the
night. The accused did not explain this improbability and why she di d not contact the
manager of V[...] B[...] to assist in an emergency. This is with respect a fabrication to
as the proverb states “ to cut your coat according to your cloth”. The accused
adjusted her version and actions to suit the facts available.
[147] Regarding the charges of robbery with aggravating circumstances the court is
satisfied on the evidence presented that the assailants of the two deceased Harkand
Jamnandas Nathvani and Lynette Mustapha used brutal force to take possession of
the bank cards and other items as listed in the indictment.
CONCLUSION:
[148]The court is not inclined to accept the version of the accused when compared
with the totality of the evidence tendered by the State. The court has no hesitation to
reject her version as false and find in favour of the State. The court is also satisfied
that on the evidence before court it is clear that the killing of the two deceased by the
accused was planned and pre -meditated.
ORDER:
The accused is found guilty on the follo wing charges:
Count 1: Guilty as charged of the pre-meditated murder of Harkand Jamna ndas
Nathvani ;
Count 2: Guilty as charged of robbery of the bank cards and cellular phone of
Harkand Jamnasdas Nathvani, the robbery executed with aggravating
circumstan ces;
Counts 3 to 49: Guilty as charged of theft of the mon ey and withdrawal of cash of
Harkand Jamnandas Nathvani as listed in the indictment;
Count 50: Guilty as charged of the murder of Lynette Josephine Mustapha;
Count 51 : Guilty as charged of the robbery of the Nedbank bank card an d cellular
phone . The robbery executed with aggravating circumstances;
Count 52 to 53 : Guilty as charged of withdrawing and stealing the cash as indicated
in the indictment;
Count 54: Guilty as charged of fraud by purporting to Alexander Roger Glover that
the documents presented to him purporting to be the will and testament of Marlene
Mustapha and Lynette Mustapha were the original wills while the accused knew that
the documents were fraudulent and was not the true wills of the deceased.
Count 55: Not guilty
Count 56: Withdrawn by State when trial commenced.
SENTENCE:
Sentence will be imposed after the parties have addressed the court on mitigating
and aggravating circumstances on a date determined by the court after hearing the
representatives of the parties.
Signed at Pretoria on 16 May 2025 .
_____________________________
HOLLAND -MUTER J
Judge of the Pretoria High Court
16 May 2025
Appearances:
State: Adv A Wilsenach
Adv K Germishuiz en
Defence: Adv S Moeng
Days in court: (Merits)
February 2025:
24, 25, 26, 27, 28 ( 5 DAYS)
March 2025:
3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 20, 25, 26 ( 15 Days)
May 2025:
9, 16. (2 days)