IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA
CASE NO : CC33 /2024
In the matter between:
THE STATE
and
THEMBA CALYSTERS NKOSI FIRST ACCUSED
SIYABONGA BONGANI MASEKO SECOND ACCUSED
JUDGMENT
Moleleki AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/ NO
30 June 2025 ____ ________________________
DATE SIGNATURE
2
[1] Mr Themba Calysters Nkosi and Mr Siyabonga Bongani Maseko have been
arraigned for trial on an indictment containing charges of robbery of the late
Mr Muzafalo Kamyuka (the deceased) and/or his wife Ms Nokuthula Nancy Kamyuka
(the deceased’ s wife) of their cell phones and motor vehicle, with aggravating
circumstances (Count 1); kidnapping of the deceased and his wife (Count 2); the
murder of the deceased (Count 3); attempted murder of the deceased’s wife (Count
4); unlawful possession of a fi rearm/ airgun/ deactivated firearm/ muzzle loading
firearm/ imitation firearm, with intent to commit an offence, in contravention of
section 120(10)(b) of the Firearms Control Act 60 of 2000 (Count 5), alternatively,
unlawful joint possession of a firearm of an unknown make, model and calibr e; as well
as unlawful joint possession of ammunition , in contravention of section 90 of Act 60 of
2000 (Count 6).
[2] The State alleges that the robbery was committed with aggravating
circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977 and
that the robbery and murder counts are read with the provisions of section 51 and
51(2) of the Criminal Law Amendment Act 105 of 1997 , respectively . The State alleges
further that all offences were committed by the accused in the execution of a purpose
or design common to both. The State , therefore , relies on the doctrine of common
purpose.
[3] Both the accused were legally represented throughout the proceedings. They
pleaded not guilty and elected not to furnish plea explanations, as they are entitled to
do.
[4] The offences were committed on 22 February 2022. Little progress, if any, was
made in the investigations until the investigating officer, Sergeant Lukhele, received a
preliminary report to the effect that one of the cell phone numbers inserted in the
deceased’s cell phone belonged to a “Maseko”. However, this was not enough to give
meaningful leads into the investigations of the matter. Further to that, Sergeant
Lukhele received information from a police informant regarding the identity of one of
the persons involved.
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[5] This information led Sergeant Lukhele to seek and obtain subpoenas in terms
of section 205 of the Criminal Procedure Act , requiring the cell phone data of calls and
messages exchanged using specific numbers , as well as the numbers to or from which
each call/message was made. These records covered the period from 7 February to
29 July 2022. The cell phone numbers of the deceased and his wife were also
furnished. Once obtained, the cell phone data was analysed by Captain Thabelo
Rambuda , who is attached to the Priority Crime Management Centre, Directorate for
Priority Crime Investigations (DPCI). The cell phone data provided by the relevant
Network Provider revealed the approximate geographical location of the cell phones
at issue. As a result, a picture wa s painted of the use of the cell phones on the days
preceding the incident, the day of the incident and after the incident.
[6] On 20 July 2022, five months after the incident, Sergeant Lukhele coordinated
with his colleagues, based on the information receive d from the informant, to provide
him with backup for the arrest of Accused 1. The arrest of Accused 1 led to the arrest
of Accused 2.
[7] During the trial, the State sought to introduce into evidence a written statement
that had allegedly been made by Accused 1 to Sergeant Ruben Nkosi on 20 July 2022.
A separate hearing (a trial -within -a trial) was therefore held to first determine whether
the foundational requirements for the admission of an extra -curial statement were
satisfied before the statement cou ld be used as evidential material.
[8] Both Counsel for the State and for Accused 1 classified the statement as an
admission. It is important to point out that a court is not bound by the view of the parties
as to the classification of a statement.
[9] When I gave my ruling at the conclusion of the trial -within -a-trial, I indicated that
the reasons for the ruling would be given when the judgment in the main trial is given.
Those reasons had been prepared before the ruling was made. I now proceed to give
those reasons in the paragraphs that follow , and t hereafter return to the main trial from
paragraph 28.
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[10] Mr Kekana, on behalf of Accused 1 submitted that Accused 1 does not dispute
the entire statement, save for the fact that part of the content was disputed. The
admissibility of the statement was objected to on the grounds that he was compelled
to make the disputed content of the statement; that his constitutional rights were not
explained to him ; and that he was assaulted by the police officers prior to makin g the
statement.
[11] I ruled that the statement was admissible in evidence against its maker, that is,
Accused 1.
Onus
[12] The onus of proving both facts and conclusions relevant to an enquiry into the
admissibility of evidence rests on the State and must be d ischarged beyond
reasonable doubt .1
[13] The state led the evidence of the following witnesses: Sergeant Ruben Ernest
Nkosi, Sergeant Bheki Sayitsheni Khoza, Sergeant Sibusiso Derrick Lukhele, Captain
Caiphus Musa Mpapane and Constable Ntokozo Richard Masuku.
[14] As stated, the statement was classified as an admission , which the court agrees
with. Therefore, the statement that had allegedly been made by Accused 1 may not
be admitted unless proven to have been made freely and voluntarily. The statement
must also , in terms of the provisions of section 35 of the Constitution , be excluded if it
was obtained in a manner that violates any right in the Bill of Rights, and if its
admission would render the trial unfair or be detrimental to the administration of justice.
[15] The incident forming the subject matter of the charges against the accused
occurred on 22 February 2022 , at or near Elukwatini in the district of Eerstehoek at
about 19h30. It is common cause that Accused 1 was arrested as a suspect at
eManzana (Badplaas) on 20 July 2022 by Sergeant Lukhele. In essence, the evidence
of the State is that Sergeant Lukhele received information from an informant around
1 S v Zuma and Others 1995 (2) SA 642 (CC).
5
08h30 on the morning of 20 July 2022, about the whereabouts of Accused 1. The
informati on was to the effect that Accused 1 was at the Country King store. Sergeant
Lukhele had been given the description of Accused 1 and of the clothing he was
wearing. Sergeant Lukhele sought backup from his colleagues for the arrest of
Accused 1. Sergeant Luk hele and some of his colleagues approached Accused 1
inside Country King store. He introduced himself to Accused 1, informed him of his
rights and that he was investigating a case of kidnapping, robbery and murder and
that Accused 1 was a suspect therein. Thereafter , he asked Accused 1 if he had any
knowledge of a Samsung Galaxy Note 5 cell phone , which is one of the articles taken
during the commission of the offences.
[16] In response , Accused 1 stated that he has knowledge of the cell phone as he
picked it up at a hiking spot in Badplaas. Accused 1 was, however, unable to respond
when asked where the cell phone was. Sergeant Lukhele requested the accused to
take the police to his house in search of the cell phone. Upon their arrival, they
requested Accused 1 for permission to search his house. Accused 1 gave them
permission. During the search , Sergeant Lukhele found the Samsung Galaxy Note 5
on the pedestal in the accused ’s bedroom. At this point, Sergeant Lukhele once again
informed Accused 1 of his rights a nd that he was placing him under arrest for
kidnapping, robbery and murder. He informed him of his right to remain silent and the
right to legal assistance. Sergeant Lukhele further asked Accused 1 if he had in his
possession any other article which is lin ked to the case. His response was that there
is a vehicle battery which he gave to his girlfriend , and that he put it in his girlfriend ’s
motor vehicle , which was at Masoyi village. Accused 1 went on to inform the police
officers that he obtained both the cell phone and the vehicle battery from Accused 2.
[17] Accused 1 took the police officers to Tjakastad , where Accused 2 was arrested
after his constitutional rights were explained to him. It was put to the State witnesses
that before taking Accused 1 to Elukwatini Police Station , he was taken to Badplaas
Police Station where he was assaulted by Sergeant Lukhele and other police officers.
These assertions were denied by all the witnesses.
[18] It is common cause that Sergeant Lukhele detained both accused at Elukwatini
Police Station as suspects. Further , Sergeant Lukhele furnished both accused with
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copies of SAP 14A forms , which are exhibits “H1” and “H2” respectively, that notified
them of the reason for their detention and of the section 35 constitutional rights of
detained and arrested persons. It is not in dispute that Sergeant Lukhele read the
rights to the accused in IsiSwati and that they confirmed that they understood what
had been read to them.
[19] As stated, the statement in question was obtained from Accused 1 by Sergeant
Ruben Nkosi. Sergeant Ruben Nkosi testified that he was present when both accused
were arrested. Upon their arrival at Elukwatini Police Station , Accused 1 was
interviewed by Captain Mpapane , who requested Sergeant Ruben Nkosi to obtain a
statement from Accused 1 as it had transpired during the interview that Accused 1
may become a witness for the State. Sergeant Ruben Nkosi stated that he fetched
Accused 1 from the cells into his office. He explained to Accused 1 that the reason for
approaching him was to obtain a statement from him. He further explained that
Accused 1 was not obliged to make a statement , and that should he elect to make a
statement , it may be us ed against him in a court of law. What Sergeant Ruben Nkosi
could not recall is whether he explained the right to legal representation to Accused 1.
Subsequent thereto, Accused 1 confirmed that he was willing to make a statement.
According to Sergeant Rube n Nkosi , it appeared that Accused 1 sought to exonerate
himself by making the statement.
[20] Accused 1 elected not to testify as he is entitled to do. It is his fundamental right
to remain silent. It does not, however, mean there are no consequences to exercising
the right to remain silent. If evidence has been presented that calls for an answer a nd
an accused choose to remain silent in the face of such evidence, a court may conclude
that the evidence so presented is enough, in the absence of an explanation by an
accused that he made the statement. The absence of evidence to the contrary is
relevan t in the evaluation of evidence relied on by the State for a conviction in a
criminal case. Once a prima facie case is made demanding answers from the accused,
disputes by mere cross -examination cannot suffice , unless it is repeated as evidence
under oath and tested through cross -examination .2
2 S v Boesak 2001 (1) SA 912 (CC) at p 914 para A -D.
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Evaluation
[21] The totality of the evidence , including the version put to the witnesses , was
considered. The state witnesses were impressive in their testimony during the tr ial
within the trial. Their evidence was coherent and satisfactory in all material respects.
They drew a full picture of what transpired and corroborated each other. Cross -
examination did not diminish the wealth of their credibility as witnesses, nor did it cast
doubt on the reliability of their account of the events.
Assault
[22] Insofar as the assault is concerned, Accused 1 made vague propositions of the
alleged assault on him by the police officers. It was not asserted to any of the State
witnesses whethe r he had sustained any injuries as a result of the alleged assault. It
is improbable that Accused 1 could have been assaulted by several police officers at
two different locations and not sustain injuries. No report was made to the police
officers in the p olice cells. The accused appeared before a Magistrate two days after
the alleged assault. No report was made to the Magistrate during the first two
appearances. It is common cause that from his first appearance, he was legally
represented. Yet, not even hi s legal representative raised the issue. The issue was
raised for the first time during his bail application. The fact that no such report was
made supports the State’s version that he had not been assaulted.
[23] The police officers implicated by accused 1 a s having assaulted and tortured
him vehemently denied in their evidence that any of them maltreated the accused. The
State presented a strong case on the issue of whether the statement was made freely
and voluntarily and without undue influence.
[24] The evid ence of the state called for an answer. It is trite that an arrested person
has the right to remain silent at different stages , and he may not be compelled to make
an admission that could be used in evidence against him. He may also elect to remain
silent at a trial stage. However, the fact that an accused has no obligation to testify
does not mean there are no consequences attach ing to a decision to remain silent. If
there is evidence calling for an answer, and an accused person chooses to remain
8
silent in the face of such evidence and fails to produce evidence to rebut such
evidence , he is at risk.
[25] Consequently, in the absence o f rebuttal, the evidence of the State proved the
requirements stipulated in section 219A of the Criminal Procedure Act for the
admission in evidence of the statement that had allegedly been made by Accused 1.
It is found that the statement had not been obt ained in an unconstitutional manner
notwithstanding the fact that Sergeant Ruben Nkosi was not certain whether he
explained the rights to legal representation or not. Evidence of Sergeant Ruben Nkosi
was approached with caution as he was a single witness i n respect of the taking of the
statement. I have no reservations in finding that he was impressive as a witness. He
was honest enough not to insist that he explained the rights to legal representation to
Accused 1 .
Conclusion
[26] On the totality of the evidence , the State discharged the onus of proving beyond
reasonable doubt the requirements for the admission in evidence of the statement
which had been made by Accused 1, that it had not been obtained in an
unconstitutional manner. Consequently, the disp uted statement of Accused 1 is
admitted as an extra -curial admission against him only.
[27] The court having admitted the statement, its contents were read into the record
and it was marked Exhibit “J”.
The Main Trial
[28] I now return to the main trial. Both the accused made certain admissions in
terms of section 220 of the Criminal Procedure Act , inter alia , relating to: the identity
of the deceased; the date and cause of his death; that he sustained no further injuries
after the incident; and the correctnes s of the findings of the postmortem examination
conducted on the body of the deceased by Dr. Mojapelo (Exhibit “A”, “A1” and “A2”);
the postmortem photographs Exhibit “B” . Additionally, the photographs of the three
scenes of the incident, the surrounding areas, the home of the victims, the area where
9
the deceased was shot at, the d eceased’ s motor vehicle, the photo album of the cell
phone of the deceased, the section 212 and sketch plan thereof, as compiled by
Warrant Officer Sipho Daniel Shongwe (Exhibit “C”, “C1” AND “C2”) . As well as the
correctness of the ballistic tests and the findings in respect thereof exhibits (Exhibit
“D”, “D1” and “D2”); Cellular Phone Data Analyst Report (Exhibit “E”); Identification
Parade Form, chain evidence thereof and the p hoto album (“F”); and applications in
terms of section 205 of the Criminal Procedure Act (Exhibit “K”).
[29] The State, in the main trial , led the evidence of 14 Witnesses. They are Ms
Fikile Elizabeth Fakude, Ms Nokuthula Nancy Kamyuka; Captain Thabelo Rambuda;
Doctor Moleka Vincent Mojapelo; Warrant Officer Sydney Vusi Motha; Captain Abel
Patrick Nkosi; Constable Eddie Derrick Mathebula; Sergeant Philisiwe Patri cia Nkosi;
Captain Sarah Baratang Mokwana; Captain David Vusi Nkosi; Warrant Officer
Pontsho Jeff Nkadimeng; Warrant Officer Sipho Daniel Shongwe and Sergeant
Sibusiso Derrick Lukhele.
[30] Ms Nokuthula Nancy Kamyuka, who is the wife of the deceased , testified that
when she and the deceased, together with their five -year-old daughter , arrived home
at around 20h00 on 22 February 2022, she alighted from the vehicle to go unlock the
house. She suddenly heard a gunshot , and three men emerged from the corners of
the house. The one man approached her at the door, whilst the other two approached
the driver’ s side of the motor vehicle where the deceased was seated. The two men,
one of whom was wearing a face mask, assaulted the deceased and placed him in the
backseat of the motor vehicle where their daughter was sleeping. There was an
electric light that was illuminating the veranda of the house. She was, as a result, able
to see the man who had approached her. She identified this man to be Accused 2.
Accused 2 dragged her to the backseat of the motor vehicle as well.
[31] At the backseat, she was seated in the middle with her daughter seated on her
lap. They travelled for about 5 minutes t hrough an area called Crossings. During t his
time, she was able to see the faces of two of the assailants as there was illumination
from the streetlights around Crossings. She identified Accused 1 as a front seat
passenger and Accused 2 as the driver . The third assailant was sitting with them in
the backseat, and his face was covered with a mask ; hence , she could not identify
10
him. The assailants drove with them to a secluded place towards the direction of
Badplaas. They were robbed of their belongings, including the deceased’ s two cell
phones and the motor vehicle. Thereafter, they were ordered to leave.
[32] When they left, the deceased’s wife was carrying the daughter and running,
with the deceased following behind her. There was a gunshot , and soon thereafter ,
she tripped over a fence wh ich she could not see because it was dark. When she fell
to the ground , her daughter slipped out of her hands. She stood up and searched for
her daughter. Having found the daughter, she searched for the deceased. She found
the deceased lying face down on t he fence. She touched him , but he was not
responsive. When the assailants robbed them of their belongings, she was able to
hide her cell phone. She therefore used the cell phone torch to check on the deceased.
She discovered that he was bleeding. She sough t assistance telephonically. Her family
members and colleagues arrived together with the police officers and the paramedics.
The deceased was declared dead upon arrival at the hospital.
[33] When she was visited by the police officers at her home to obtain her statement,
the deceased’s wife informed the investigating officer, Sergeant Lukhele , that she
would be able to identify the two assailants whose faces were not covered. According
to the deceased’s wife, corroborated by Sergeant Lukhele, she gave the descr iption
of the two men, even though this was after her statement had already been written
down and signed.
Evidence relating to the finding of the Exhibits
[34] The sum of the evidence of the State is that, acting on information that he had
received, the inve stigating officer, Sergeant Lukhele , requested police backup in order
to arrest a suspect in the case he was investigating, that is, Accused 1. Accused 1
was approached by the police officers inside a store known as Country King. Sergeant
Lukhele introduced himself to Accused 1 and informed him of the case he was
investigating. He informed Accused 1 of his rights and asked Accused 1 if h e had
knowledge of the whereabouts of a Samsung Galaxy Note 5 , which was robbed from
the deceased. Accused 1 admitted that he knew about the cell phone but that he had
picked it up at a hiking spot, somewhere in Badplaas. However, when asked about the
11
wher eabouts of the cell phone , he proffered no response. It was on this basis that the
police officers sought to go to Accused 1 ’s place of residence. He went with the police
officers to his home in Manzana (Badplaas) at their request. Upon their arrival, the
police officers requested to search the house and Accused 1 gave them permission to
do so. Sergeant Lukhele retrieved the deceased’s cell phone (Samsung Galaxy Note
5) from the pedestal in the accused’s bedroom. He was placed under arrest , and his
constitu tional rights explained.
[35] Sergeant Lukhele questioned Accused 1 once again as to where he got the
deceased’s cell phone from. This time around, Accused 1 stated that the cell phone
was given to him by Accused 2. He was asked whether there were any further articles
in his possession linked to the case. In response , Accused 1 mentioned a vehicle
battery. At this point , Sergeant Lukhele and Captain Abel Nkosi probed him about the
battery and its whereabouts. Accused 1 informed them that he put the battery in his
girlfriend’s motor vehicle , which was at Masoyi village. Accused 1 took the police to
Accused 2’ s place. Accused 2 was placed under arrest after his rights were explained
to him.
[36] Investigations followed up on the vehicle battery. Ms Fikile Fakude, Accused 1’s
girlfriend , was contacted. She confirmed that there was a red Sabat battery inside her
vehicle, which was with the mechanic at the time. During her testimony, Ms Fakude
stated that she was in a romantic relationship with Accused 1. However, the
relationship ended , but she was not sure of the date on which it ended. During the
subsistence of their relationship, she was residing with Accused 1 at his place. When
she moved back to her home at Mhata village, Hazyview, after the relationship ended,
she left her motor vehicle, a Mercedes -Benz, at Accused 1’ s premises. According to
Ms Fakude, her motor vehicle had mechanical problems. Two weeks after she left
Accused 1’ s place, she hired a tow truck to tow the vehicle to a mechanic in
Bushbuckridge. She did not notice whether the battery was in the vehicle as she never
checked. On 21 July 2022, a day after the arrest of the accused, she was contacted
by the police officers regarding the battery. Arrangements were made , and she handed
the battery over to t he police officers.
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Cellphone Data
[37] Captain Thabelo Rambuda, a data analyst attached to the DPCI, commonly
known as The Hawks, was requested by Sergeant Lukhele, the investigating officer ,
to analy se cell phone data relating to this case. Sergeant Lukhele supplied Captain
Rambuda with the cell phone data that he was to analy se.
[38] Captain Rambuda classified the three different points of the crime as crime
scenes 1, 2 and 3 , respectively. Crime scene 1 being the home of the victims where
they were acc osted by the assailants, crime scene 2 being the area where the
deceased was shot , and crime scene 3 being where the deceased’s motor vehicle was
abandoned.
[39] He also used the Global Positioning System (GPS) to establish the GPS
coordinates of the crime scenes. The data also showed that Accused 1 and 2 inserted
their respective SIM cards into the deceased’ s cell phones at different times.
[40] On 22 February 2022, at approximately 18h10 , the accused’ s cell phone
activated the Immelmesdal tower. Shortly before the incident, the cell phones of both
accused activated the same tower at approximately 19h30, which is the tower closer
to the home of the victims. In the early hours of the morning after the incident, their
cell phones activated the Immelmesdal to wer, which is the tower closer to where the
deceased’s motor vehicle was abandoned. At 21h15, t he deceased’ s cell phone
activated the tower at Elukwatini, which is closer to where he was shot. At 21h37, it
activated the tower at Nelshoogte .
The Defence Case
[41] Both the accused pleaded alibi as their defen ce. Accused 1 testified that he
was at home in Badplaas on the day of the incident. It was his son’s birthday , and they
had a celebration. As a result, he never left his place. Accused 2 , on the other hand ,
testified that he travelled to Barberton. Upon his return , he went to his girlfriend’ s place.
He spent the night there and left in the early hours of the morning. The accused denied
that they were in each other’s company on that day. The version of Accused 1
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regarding his description by the deceased’s wife was that he does not have a sharp
nose , nor is he taller than Accused 2. Although both accused confirm that they were
informed on 20 July 2022 that an identification parade was going to be held on 2 2 July
2022, they maintained that when warrant officer Motha arrived in the morning, he did
not explain anything to them , and they were not even aware what the proce dure of the
identification parade was. According to the accused, the deceased’s wife was gu ided
by the police officers to point them out.
[42] That concluded the evidence led.
Onus
[43] The State bears the onus to prove its case beyond reasonable doubt. The court
in S v Van Der Meyden3 stated the following regarding the onus of proof:
“The onus of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable doubt. The
corollary is that he is entitled to be acquitted if it is reasonably possible that
he might be innocent .”
Evaluation
[44] The evidence relied upon by the State to prove that the accused were the
perpetrators of the crime is both direct and circumstantial. It may be convenient to start
off by emphasi sing that circumstantial evidence is no less cogent than direct evidence.
On the contrary, it may be the more convincing form of evidence. Circumstantial , as
opposed to direct evidence , is evidence of the surrounding facts from which a court
may, within certain parameters , infer the guilt of the accused person in respect of the
offence charged to him .
[45] When dealing with evidence and the inferences to be drawn, all the evidence
must be examined. A court must not look at the evidence implicating the accused in
3 S v Van Der Meyden 1999 (2) SA 79 (W) at 80H ; see also R v Difford 1937 AD 370 at 373
and 383 .
14
isolation to determine whether there is proof beyond reasonable doubt, nor shou ld it
look at the exculpatory evidence in isolation in order to determine whether it is
reasonably possible that it might be true. The correct approach is to consider all
evidence in the light of the case .4
[46] The court in R v Blom5 laid out two rules of log ic to be followed: (a) the inference
sought to be drawn must be consistent with all the proven facts; and (b) the proven
facts must be such that they exclude every other reasonable inference. If they do not
exclude other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.
[47] The body of evidence that implicated the accused is the following: their sim -
cards were inserted in the deceased’s cell phones at different times after the incident;
the Samsung Galaxy N ote 5 belonging to the deceased was found in the possession
of Accused 1 upon his arrest; Accused 2 admitted under oath that he was in
possession of both cell phones belonging to the deceased at some point after the
incident; the motor vehicle battery that was stolen from the deceased’s motor vehicle
was found in the motor vehicle of Accused 1’ s ex-girlfriend after Accused 1 had
informed the police officers of its whereabouts; and both accused were positively
identified by the deceased’s wife at the identification parade.
Identification Parade
[48] It is settled that identification by a witness is to be approached with caution.
This is due to the fallibility of human observation. Identification depends on a variety
of factors such as, lighting, eyesight , visibility, proximity and prior knowledge of the
suspect by the witness. This list is not exhaustive. It is for this reason that evidence of
this nature must be scrutinised closely .6
[49] The deceased’s wife was not only an identification witness but also a single
witness in relation to the incident. Even though the evidence of identification and of a
4 R v Hlongwane 1959 (3) SA 337 (A) at 341A.
5 R v Blom 1939 AD 188 at 202 and 203 .
6 S v Mthethwa 1972 (3) SA 766 (A) at 768A -B.
15
single witness should be approached with caution, the exercise of caution should not
displace the exercise of common sense. The submission by the accused ’s legal
representatives , that the deceased’s wife did not have enough opportunity to observe
the assailants, is not borne out by the facts. She was approached by Accused 2 whilst
she was attempting to unlock the door at her house. The electric light at the ver anda
of the house was illuminating. Their encounter at this stage may have taken
approximately 2 to 3 minutes. Accused 2 dragged her to the motor vehicle. Both
Accused 1 and 2 occupied the front seat passenger and driver seats of the motor
vehicle , respectively . She was seated in the middle, in the backseat of the motor
vehicle. From where she was sitting, she could see the side profiles of their respective
faces.
[50] It was a 5 -minute drive f rom their house to Crossings. Although all the
streetlights at crossings may not have been working, there was no suggestion that the
lighting was poor. The deceased’s wife observed the two, with the assistance of the
lighting at Crossings , as they were driving past, for approximately 2 to 3 minutes. From
there, th ey undertook a 20 -minute drive to a point where the motor vehicle came to a
stop. Throughout this travel, she was only relying on the lighting provided by the
vehicle radio. According to the deceased’s wife, the radio was in the form of a screen.
This may suggest that it could give some form of illumination. Accused 2 would often
look back and ask her what she was staring at. The evidence of the deceased’s wife
on this aspect was not challenged in cross -examination, and it therefore confirms her
version tha t she was staring, which prompted Accused 2 to even confront her.
[51] All of this cannot be said to have happened in a short period of time. Her
observation can, therefore, not be described as a fleeting glance. She paid attention
to detail and was able to tell that Accused 2 had more weight than when he was in
court. This i s borne out by the photographs that were taken during the identification
parade. There is further objective evidence, as shall be shown below, that strengthens
the identification evidence and dispels any risk of mistake.
[52] It was contended on behalf of both accused that there was an issue relating to
the exercise of the rights of the accused during the identification parade. The issues
were that the accused were not informed of their rights to legal representation;
16
photographs of the accused were taken by th e police officers , probably to show them
to the witness so that she knows who to point out; the witness was in the office of the
investigating officer prior to the identification parade and Accused 2 was taken to the
same office so that he could be seen by the witness ; Accused 2 was made to dress
differently to the others who were in the line -up with him; and that the witness was
shown who to point out by the officer in charge of the parade.
[53] There were 16 participants , including both accused, who constitu ted the line -
up. Six of the participants were wearing head coverings , and some, including
Accused 2, were wearing short pants. The officer in charge, Warrant Officer Motha ,
gave a full picture of how the identification parade unfolded. The police officers who
assisted him testified about their roles during the parade. The only discrepancy was
with regard to the evidence of Constable Mathebula , who was adamant that the
witnes s was alone in the waiting room prior to the identification. However, Captain
David Vusi Nkosi confirmed that his role was to keep guard of the witness prior to the
witness going into the identification room. I am of the view that this discrepancy is not
material to render the evidence of the State unreliable. This discrepancy may be
attributed to failure of memory, regard being had that the witnesses testified about 32
months after the incident.
[54] The deceased’s wife was able to identify both accused, approximately 5 months
after the incident. She was adamant from the very first interview with Sergeant Lukhele
that she would be able to identify the assailants. Although it was not reduced to writing,
her testimony that she gave the description of the assailants was corroborated by
Sergeant Lukhele. The discrepancy in her description of Accused 1 was that he was
taller than the other two assailants. It turned out during my observation in court that
Accused 2 was taller than Accused 1 by inches. It cannot, however, be said that she
did not have enough opportunity to observe the assailants. Furthermore, the fact that
the description of the assailants does not reflect in her statement to the police or that
Accused 2 is in fact a few inches taller than Accused 1, does not detract from the fact
that she subsequently identified the accused. It is difficult to see how these aspects
could even have affected the credibility and reliability of her evidence.
17
[55] In S v Mpilo7 the court, in dealing with criticism of identificatory evidence, said
the following:
“The appellant’s counsel criticised the identificatory evidence because the witnesses
had not mentioned the features … Now I know that points of this kind are often raised
in criminal trials, but I am not much impressed by them. It is not often that a face
presents itself with one, let alone two or more, remarkable features. Nevertheless,
human beings are highly adept at recognising faces and voices. A constella tion of
multiple minor variations in standard facial features combine s to make up a facial
appearance , which in its own way , is as unique as a fingerprint. The laborious process
followed by Identikit artists in teasing out from a witness the facial feature s of a
perpetrator shows that people can readily match a face to a perpetrator without being
able to verbalise a description .”
[56] The evidence shows that the deceased’s wife was able to pick both accused
without any hesitation, though emotional, during the i dentification parade. The images
of the accused had clearly been imprinted on her mind.
[57] The deceased’s wife impressed the court as a person whose evidence may be
believed. She was a credible witness , and there were no intrinsic improbabilities in her
evidence. Her evidence was corroborated by other State witnesses and by the
objective evidence in the form of cell phone data.
[58] Section 37(1)(b) of the Criminal Procedure Act stipulates that those identi fied
to participate in the identification parade cannot refuse to do so. The provision further
empowers any police official to make an arrested person available or cause such
person to be made available for identification in such condition, position or app arel as
the police official may determine.
[59] Warrant Officer Motha testified that he informed the accused of the procedures
and gave them permission to swap positions if they so wished. It was Accused 1 who
requested to change positions. Following their id entification, none of them noted any
dissatisfaction with the way the parade was conducted. The accused contended that
7 S v Mpilo 2021 (1) SACR 661 (WCC) par 23.
18
had they been informed of their right to legal representation, they would have preferred
their respective legal representatives to have b een present.
[60] The evidence of Warrant Officer Motha is supported by the contents of the
identification form, SAP329 , that the accused did not register any dissatisfaction with
the way the identification parade was conducted. Where a request was made by
Accused 1 to change positions, the photographs serve as corroboration as well. In
response to the issue of legal representation, Warrant Officer Motha referred to the
identification form , which merely requires him , as the officer in charge , to ask the
accus ed if they have legal representatives. The accused told him they did not have
legal representatives and confirmed that the identification parade could proceed.
[61] The empowering provision on identification parades is clear on the powers it
confers to the officer in charge of the identification parade. The court in S v Tshuma8
stated the following regarding the role of legal representatives at identification
parades.
“A legal representative present at a parade can enjoy no greater rights than those of
the accused, his client. He cannot advise him not to participate, nor can he proffer
advice as to the position the accused might take in the line -up, nor offer advice as to
the clothing that he should wear, unless permitted to do so by the police officer in
charge. He may, if present, obviously make suggestions to the police as to the conduct
of the parade but these can legitimately be ignored. At best, he can advise the accused
to remain silent or not draw attention to himself but this at a properly conducted parade
will be achieved by the policeman in charge of the parade .”
[62] The rules that have been developed for use in the conduct of identification
parades are intended to ensure fairness and should not be regarded to be rigid
requirements. They are there to serve as guidelines. Non -compliance thereof, will not
necessarily aff ect the admissibility of the parade, but would, at most , affect the weight
to be attached to the parade and the weight to be attached to the identification of the
witness.
8 S v Tshuma [2022] ZAGPJHC 543 para 94 .
19
[63] I am satisfied that the identification parade was properly constituted and
conduct ed. The procedure followed was noted in the identification form. When taking
the evidence relating to the identification parade into consideration, the procedural
aspects of the identification of the accused were reliable and credible. Consequently,
the su ggestion that the witness was assisted or guided as to who to point out and that
had the legal representatives been present , the parade would have turned out
differently, is rejected as having no basis and is therefore false.
The Physical Exhibits Recove red
[64] Although there is direct evidence linking the accused to the offences, there is
additional evidence that strengthens this direct evidence, which is circumstantial. The
various items belonging to the deceased , which were linked to the accused play a
revealing role and tell a story of their own.
[65] Accused 1 was found in possession of one of the cell phones belonging to the
deceased on the day of his arrest, a Samsung Galaxy Note 5. Accused 2 , on the other
hand , was linked by cell phone data , which revealed that he had inserted his SIM card
into the deceased’s Samsung Z Flip from 1 March 2022, which is about a week after
the incident. Further to that, Accused 2 admitted during his testimony that he indeed
had both cell phones but that they were given to him by Accused 1 and another person.
[66] The undisputed evidence against both accused is , therefore , that: they have
known each other for several years; they would communicate with each other and
would regularly meet; and they were in possession of the deceased’ s cell phones at
different times after the incident and had inserted their respective SIM cards therein.
It is also undisputed that the cell phones were taken from the deceased at the time of
the robbery and murder of the deceased. Furthermore, the battery that was removed
from the deceased’s vehicle was found in the vehicle of the ex -girlfriend of Accused 1.
This evidence is of a serious incri minating nature against both the accused.
20
Cell Phone Data
[67] The data obtained from the cell phone numbers of both accused is highly
relevant. The data is informative considering that the accused claimed that they were
not in each other’s company on the day of the incident. The suggestion is that them
being pointed out by the deceased’s wife at the identification parade is a mistake. The
cell phone data shows that prior to the incident , at approximately 18h10, the cell
phones of both accused were activated by the same tower, Immelmesdal tower. This
is just about an hour before the incident. The two cell phones activated the same tower
once again at approximately 19h30, which is the Elukwatini tower. This is the tower in
the vicinity of the home of the deceased. At around the same time, the cell phone of
the deceased’s wife activated the same tower. In the early hours of the morning , at
approximately 03h25/ 03h28 , both accused’s numbers activated the same tower,
which is the tower closer to where the deceased’s motor vehicle was abandoned.
Clearly, the cell phone data reveals that the cell phone numbers of the accused were
activated through cell phone towers at the times and places which are relevant to the
issues b efore me. There is no plausible reason proffered in the evidence save to insist
that they were not together at the relevant times and places.
[68] The evidence from the cell phone data analyst is that when a cell phone is
turned on, it logs on to the nearest tower . The case sought to be made out by the State
against the accused is based on the cell phone data concerning their movement and
location relative to the time and place of the crime scenes.
[69] Having regard to the cell phone records and the towers activa ted, the accused
are placed in the same vicinity prior to the commission of the offence and at crime
scene 3, where the deceased’ s motor vehicle was abandoned. It would appear from
the data that the accused had to make contact prior to the commission of the offences.
In the absence of a plausible explanation consistent with innocence, the picture that
comes up from the cell phone data is that the accused contacted each other just over
an hour before the incident. In the early hours of the morning, they we re together
where the deceased’s vehicle was abandoned.
21
[70] Captain Rambuda, the data analyst, was an excellent witness. He analy sed the
data and produced several diagrams illustrating cell phone traffic between the
accused ’s cell phone numbers and the tower s which the said numbers activated.
[71] The court in S v Sauls and Others9 made it clear that the exercise of caution
must not be allowed to displace the exercise of common sense. In applying common
sense and logic to the evidence, the cell phone data justifies, as the only reasonable
inference that, when the accused’ s cell phones activated the same tower at Elukwatini
at around the same time as the cell phone of the deceased’s wife, they were there for
the commission of the crime.
[72] It cannot be disput ed that both accused are placed in the geographical location
of the house of the deceased, where they were initially kidnapped. The inference
sought to be drawn , that the accused and their companion approached the deceased’ s
family, kidnapped, robbed them of their valuables and fired shots at them, thus killing
the deceased, is consistent with the proven facts.
[73] What remains to be established is whether this inference excludes other
reasonable inferences that can be drawn.
Alibi
[74] The alibi defence of both accused must be considered by the court within the
totality of the evidence. Holmes AJA in R v Hlongwane10 said: “The correct approach
is to consider the alibi in the light of the totality of the evidence in the case, and the
Court’s impres sions of the witnesses”. If , on all the evidence, there is a reasonable
possibility that this alibi evidence is true , it means that there is the same possibility that
he has not committed the crime .11 The court must apply its mind not only to the merits
and demerits of the state witnesses and defence witnesses, but also to the
probabilities of the case .12
9 S v Sauls and Others 1981 (3) SA 172 (A) at 180 E-G.
10 R v Hlongwane 1959 (3) SA 337 (A) at 341A ; see also S v Khumalo 1991 (4) SA 310 (A) at 327.
11 R v Biya 1952 (4) SA 514 (A) at 521 .
12 S v Singh 1975 (1) SA 227 (N).
22
[75] The accused were not impressive as witnesses. Their evidence was marred by
inconsistencies and imp robabilities. They adjusted their respective versions as the trial
proceeded. The evidence of the accused did not exclude the possibility of their
involvement in the commission of the offences.
[76] Regarding the alibi raised by the accused, the only reasonab le inference that
can be drawn is that they conspired to mislead the court. They did so in order to
discredit the deceased’s wife and other witnesses. Although the accused maintain that
the witnesses were falsely implicating them, no reasons were advanced as to why they
would do that. The State’ s evidence is sufficiently strong to prove that the accused
perpetrated the offences. I, therefore , reject the accused’s alibi defence.
Accused as Witnesses
[77] Both accused were unimpressive as witnesses. They contradicted each other
in material respects. The contradictions extended to issues such as the nature of their
relationship with each other and whether Accused 1 knew where Accused 2 stayed.
As the case pr oceeded, they started distancing themselves from each other, to the
extent of implicating each other.
[78] The accused do not dispute that they were in possession of the cell phones at
different times after the incident. Their evidence on how they came to be in possession
thereof is at odds with the probabilities. As this drama played itself out in court, they
were blaming one another for their respective possession of the cell phones. The
contents of the statement made by Accused 1 are telling. I find it impr obable that the
police officers would have found Accused 2’ s place of residence unless they were
taken there by Accused 1. Had the police known of Accused 2, as Accused 1 would
like this court to believe, they would have arrested him long before Accused 1. In his
evidence, Accused 2 confirmed that Accused 1 knows his place of residence and
Accused 1 knows Accused 2’ s father. Similarly, I find it improbable that the police
would have known of the whereabouts of the vehicle battery unless they were given
that information by Accused 1. I therefore find that the statement obtained from
Accused 1 by Sergeant Ruben Nkosi was made by Accused 1 and it has probative
value as it supports the reasoning by inference that Accused 1 is the one who informed
23
the police offi cers about the battery and to whom it was given (his ex -girlfriend) . It has
already been determined that there was no violation of the right s of Accused 1 when
the statement was obtained from him .
Recent Possession
[79] The doctrine of recent possession permits the court to make an inference that
the possessor of the property had knowledge that the property was obtained in the
commission of an offence , and in certain instances was also a party to the initial
offence. The court in Mothwa v The State stated the following :
“The court must be satisfied that (a) the accused was found in possession of the
property; (b) the item was recently stolen. When considering whether to draw such an
inference, the court must have regard to factors such as the length of time that passed
between the possession and the actual offence, the rareness of the property, the
readiness wi th which the property can or is likely to pass to another person. … It is not
for the accused to rebut an inference of guilt by providing an explanation. All that the
law requires is that having being found in possession of property that has been recently
stolen, he gives the court a reasonable explanation for such possession. ”13
[80] The accused were in possession of the cell phones belonging to the deceased.
It was confirmed through the data analysis report that Accused 2 was in possession
of the Samsung Galaxy Z Flip approximately a week after the deceased was
murdered. Accused 2 confirmed this under oath and admitted that he was in
possession of the Samsung Note 5 as well. Accused 1 was not only in possession of
the Galaxy Note 5 but of the battery belonging to the deceased as well.
[81] Even though items such as cell phones and a vehicle battery are easily and
readily traded, the link between the accused’ s possession thereof and the incident is
too strong to sustain the conclusion that they were party to the initial offence. The
possibility that the accused could have innocently received and possessed the cell
phones is very slim, if not non -existent. Considering the time lapse together with the
rest of the evidence , it is difficult to imagine any other circumstance under which the
13 Mothwa v The State [2015] ZASCA 143 par as 8 and 10 .
24
cell phones could have been innocently acquired. Had there been any such
circumstance, the accused could have disclosed it to the police officers. Even when
they were giving evidence, they were unable to explain how they came to be in
possession of the items . The probabilities are therefore that the stolen items had not
yet passed out of the hands of the original perpetrators.
Common Purpose
[82] It must be determined whether the accused had common purpose to rob and
murder. It is trite that the basis of common purpose can be by way of prior agreement ,
which may be express or implied. It may also be by association between the co -
perpetrators. It is not necessary to show that the participation of the co -perpetrators
was causally connected to the consequent crimes. It is enough for the State to prove
that one of the group members caused the consequent crime. However, the intention
of each of the co -perpetrators must be determined independently wi thout reference to
the mental state of the other participants .14 The State would therefore have to prove
beyond a reasonable doubt that each of the participants intended the criminal result
or fores aw the possibility of the result ensuing and nonetheless actively associated
himself or herself , reckless as to whether the result was to ensue .15
[83] The evidence before court shows that there was planning. Despite that the
accused had been in regular communication days before the incident, they
communicated shortly before the incident. The deceased was assaulted, and he and
his family were kidnapped, taken to a secluded area where they were robbed of their
belongings and were told to leave. Whilst they were a few meters away , two shots
were fired , and one bullet struck the deceased, leading to his death. All the assailants
were present when all these events unfolded. The deceased’s wife testified that all
three assailants were armed wi th firearms.
[84] Both accused shared with another who is not before court the purpose of
kidnapping and robbing the deceased and his family of their valuables. They were all
14 Sithole and Another v S [2017] ZAGPPHC 169 para 24; see also S v Le Roux and Others 2010 (2)
SACR 11 (SCA) para 17 .
15 S v Thebus and Another 2003 (2) SACR 319 (CC) para 49 .
25
in possession of firearms. They must have envisaged the use of potentially deadly
force. They reconciled themselves to the consequences of such use. Clearly, they
participated in the planning and the execution thereof. Their active participation is
clear, and their active association never stopped. None of them disassociated
themselves fr om the attack on the deceased and his family. The only reasonable
inference is that each of the accused foresaw the possibility of the deceased being
killed. They each had the necessary mens rea to sustain a conviction for murder.
[85] In this case , the required form of mens rea is dolus eventualis. In S v Mgedezi ,16
approved in S v Thebus ,17 the legal limits of dolus eventualis are stated as follows: “...
he must have intended them to be killed, or he must have foreseen the possibility of
their being killed and performed his own act of association with recklessness as to
whether or not death was to ensue. ”
[86] It is not always easy to determine what any accused subjectively foresaw;
accordingly, subjective foresight can be determined by way of inferential reasoning .18
Attempted murder (Count 4)
[87] It was submitted on behalf of the accused that there was no attempt to kill the
deceased’ s wife , on the basis that she did not see the direction from where the bullet
that killed her husband came or was aimed at. It was further submitted that the two
gunshots that were fired could not have been aimed at the deceased and the
deceased’ s wife, because the deceased ’s moto r vehicle was eventually found with
gunshot damage as depicted in Exhibit “B ”, photo number 14 and 15. The suggestion
is that the one bullet hit the vehicle , and the other struck the deceased. I agree with
the State’s submission that the accused’ s speculative assertion is in complete
disregard of the evidence by the deceased’ s wife, that the first gunshot was fired whilst
they were at the first crime scene, which is at her place of residence . That was before
they were taken to the second crime scen e, where the two gunshots, one of which
killed the deceased, were eventually fired. Therefore, it cannot be said that one of the
16 S v Mgedezi 1989 (1) SA 687 (A).
17 Thebus at fn 15 above para 20.
18 S v Dougherty 2003 (4) SA 229 (W).
26
two gunshots that were fired at the second crime scene is the one that damaged the
deceased’s vehicle.
[88] The unchallenged eviden ce of the State is that the deceased, with his wife
carrying their daughter , was running towards the same direction when the g unshots
were fired. The gunshots were aimed towards their direction and could therefore have
come into contact with either of them. In the court’s view , the assailant who fired shots
was aware that there were t wo people running in the direction from which shots were
fired, hence he fired shots ther eat. Therefore, he should reasonably have foreseen
that any one of them could be struck by a bullet , and he reconciled himself with that
possibility. The principle of dolus eventualis is applicable.
[89] Although no firearms linked to the shooting were found, cartridge cases and
projectiles were collected from the scene. The post -mortem report also confirmed that
the deceased died of a gunshot wound. There is no doubt that the deceased was killed
by a bull et and that the attempt on his wife ’s life was a result of the shots which were
fired from a firearm . Cartridge cases were forwarded to the ballistic laboratory for
examination, and it was established that the cartridges were of a 9MM Parabellum,
and they were fired from a firearm.
[90] In terms of section 1 of the Criminal Procedure Act, aggravating circumstances
are defined for the purposes of robbery as:
90.1 The wielding of a firearm or any other dangerous weapon;
90.2 The infliction of grievous bodily harm; or
90.3 A threat to inflict grievous bodily harm
[91] The definition of “aggravating circumstances” is relevant to the sentence that
may be imposed and not whether the robbery took place. Aggravating circumstances
are facts that objectively exist.19 In this case, the objective fact is that the deceased
and his wife were threatened and had shots fired at them. In light of all the
circumstances, these threats were closely connected to the taking of cell phones and
19 Minister of Justice and Constitutional Development and Another v Masing ili 2014 (1) BCLR 101 ( CC)
para 12 .
27
the motor vehicle. In the court’s view , this constitutes aggravating circumstances within
the meaning of Section 1 of the Criminal Procedure Act .
[92] The murder falls under the ambit of section 51(1) of the Criminal Law
Amendment Act as it was committed by a group of people acting in the execution or
furtherance of a common purpose.
Kidnapping
[93] Insofar as the count of kidnapping is concerned, I am of the view that the
deprivation of liberty of the deceased and his wife was predicated on a con tinuous
intent in pursuance of one criminal transaction to rob , which led to murder. In this
instance, justice would demand that the count of kidnapping be dealt with as one with
the robbery and murder to ensure a substantially fair trial.
Firearms and Ammunition
[94] Count 5 relates to the contravention of section 120(10)(b) of the Firearms
Control Act. In the alternative, unlawful joint possession of a firearm of an unknown
make, model and calibr e.
[95] Section 120(10)(b) forbids the possession of firearms wit h the intention to
commit an offence or to use the firearm to resist arrest or prevent the arrest of another
person. It was submitted on behalf of the State that the section creates a totally
different offence and that its elements differ from those of joi nt possession. Further, it
was submitted that the circumstantial evidence presented by the state has established
the facts upon which the court should draw only one inference, which is that the
accused possessed firearms with the intention to commit offences.
[96] I am, however, of the view that the possession of firearms is an integral element
of all the charges. Therefore, to convict the accused of the contravention of section
120(10)(b) would amount to a duplication of convictions.
28
[97] In so far as the a lternative to count 5 , unlawful joint possession of firearm as
well as count 6, unlawful joint possession of ammunition are concerned, the State
presented no evidence from which it can be inferred as the only reasonable inference
that the accused intended to possess the firearm and ammunition jointly with their
companion, nor can it be inferred that the one who is not before court intended to hold
a firearm and ammunition on their behalf. It must be considered that possession of
firearms played a role in respect of the count of robbery , which essentially means that
the robbery was with the use of firearms. It follows therefore that the accused have to
be acquitted on count 5 and its altern ative as well as count 6.
Conclusion
[98] The only reasonable inference that can be drawn is that the accused acted in
common purpose, murdered the deceased, robbed him and his wife of their valuables
as contemplated in section 1 of the Criminal Procedure Act and attempted to kill the
deceased’s wife.
[99] When looking into the totality of the case, there is so much that gives credence
to the evidence of the State. The reliability of the identifying witness, the legitimacy of
the identification parade , the cell phone data , as well as the evidence of the police
officers .
Verdict
[100] Accordingly, the following order is made:
1 Accused 1 and 2 are found guilty of:
1.1 Count 1 , robbery with aggravating circumstances as contemplated in section 1
of the Criminal Procedure Act 51 of 1977 , read with the provisions of section 51(2) of
the Criminal Law Amendment Act 105 of 1997.
1.2 Count 3 , the murder of Mr Muzafalo Kamyuka , read with the provisions of
section 51(1) of the Criminal Law Amendment Act 105 of 1997.
1.3 Count 4, attempted murder of Ms Nokuthula Nancy Kamyuka .
2 Both accused are acquitted in respect of count 2, count 5 and the alternative
count thereof, as well as count 6.
29
________________________
M R MOLELEKI
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION , MBOMBELA
Appearances
For the First Accused : Adv. Maesela V Kekana
Instructed by: Legal Aid, Mbombela
Third Floor, High Court Building
MaeselaK@legal -aid.co.za
For the Second Accused: Adv. P C Naude
Instructed by: AN Ngcangca
Office 109 18A First Floor
Caltex Building
Bell Street, Nelspruit
For the State : Adv MSIBI
Instructed by: NDPP
4th Floor, High Court Building
Office of the DPP, Mbombela
Judgment delivered on: 30 June 2025