SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
NORTH EASTERN CIRCUIT, MTUNZINI
CASE NO: CCD28/2024
In the matter between:
THE STATE
and
SIPHAMANDLA GUMEDE
Coram: MOSSOP J
Heard: 26, 27 February 2026, 2, 3, 5, 6, 9, 10, 11, 12, 16 March 2026
Delivered: 17 March 2026
ORDER
The following order is granted:
1. On count 1, being the murder of Mr Edwin Zungu, the accused is found
guilty.
2. On count two, being the murder of Mr Simo Luthuli, the accused is found
guilty.
2
3. On count three, being the common assault of Mr Siphamandla Ngema, the
accused is found guilty.
4. On count four, being the murder of Mr Bongani Mhlongo, the accused is
found guilty.
JUDGMENT
MOSSOP J:
Introduction
[1] The accused , Mr Siphamandla Gumede (the accused) , faces four counts,
three of which are murder counts and one of which is a count of common assault. He
pleaded not guilty to all of the counts and offered no plea explanation when he was
called upon to plead.
[2] The first two counts of murder and the count of common assault allegedly
occurred sometime ago , on 16 December 2018, and involve the allegation that the
accused murdered a Mr Edwin Zungu (Mr Zungu) and a Mr Simo Luthuli (Mr Simo
Luthuli) and assaulted a Mr Siphamandla Ngema (Mr Ngema) . The third cou nt of
murder occurred more recently, on 9 February 2024, when the State alleges that the
accused murdered a Mr Bongani Mhlong o (Mr Mhlongo) at the Mafunda High
School, in the district of Eshowe.
[3] The two older murder counts were presented in terms of s 51(2) of the
Criminal Law Amendment Act (the Act), which provides for a minimum sentence of
15 years’ imprisonment for a first offender upon conviction, whilst the m ore recent
count of murder was presented in terms of s 51(1) of the Act, which demands a
minimum sentence of life imprisonment upon conviction.
[4] These nuances, together with the concept of competent verdic ts, were
explained to the acc used before he was called upon to plead, and he indicated that
he understood what had been explained to him.
3
[5] I do not propose considering the evidence called at the trial in the sequence
in which witnesses were called to testify, which was somewhat haphazard, but I shall
rather consider the evidence adduced in respect of each count irrespective of when it
was called, commencing with the oldest offences first.
Evidence for the State
Counts 1, 2 and 3: Being two counts of murder and a count of common assault
allegedly committed on 16 December 2018
The evidence of Mr Mndeni Simiso Bethwana (Mr Bethwana)
[6] Mr Bethwana is a qualified quantity surveyor and is acquainted with the
accused, having grown up with him in the same area, namely Ngununu, which is in
the vicinity of Entumeni, near Eshowe, in Zululand.
[7] On 15 December 2018, Mr Bethwana was in the company of the accused at
a local homestead known as the Luthuli homestead (the Luthuli homestead) , which
is also in the Entumeni area just mentioned and, more specifically, at the Machanca
area. This is not the homestead of one of the murder victims, Mr Simo Luthuli, but is
the homestead of another Mr Luthuli. To avoid any potential confusion, I shall refer to
the deceased Mr Luthuli as ‘Mr Simo Luthuli ’ throughout this judgment and to the
place where he resided as ‘Mr Simo Luthuli’s house.’
[8] The accused and Mr Bethwana were at the Luthuli homestead to celebrate
the 21 st birthday of a daughter of the Luthuli homestead. A fter an afternoon of
festivities, at around 19h00, all the guests still in attendance were asked to leave the
celebrations as Mr Luthuli, their host at the Luthuli homestead , wished to bring the
celebrations to an end and retire for the night.
[9] Mr Bethwana, the accused and a group of other men accordingly left the 21st
birthday celebration and then proceeded to Mr Simo Luthuli’s house, which was very
near to the Luthuli homestead. While I have chosen to refer to this place as Mr Simo
Luthuli’s house, it appears that it did not actually belong to him and that he was
Luthuli’s house, it appears that it did not actually belong to him and that he was
merely in occupation of it to guard it.
4
[10] One of the group who proceeded t o Mr Simo Luthuli’s house from the 21 st
birthday celebration was a man by the name of ‘ Geja’. Geja is a friend of the
accused. The name ‘Geja’ is a nickname , and his real name is Njabulo Nene, but I
shall continue to refer to him as ‘Geja .’1 Mr Simo Luthuli had extended an invitation
to Geja, the accused and Mr Bethwana to come over to his house and have a few
drinks after the conclusion of the 21 st birthday celebrations. More than these three
men, however, proceeded to Mr Simo Luthuli’s house from the 21st celebration.
[11] Upon arrival at Mr Simo Luthuli’s house, the group of men sat in the living
room, drinking beer. Mr Bethwana, however, stated that he did not drink anything
there, although he admitted that he had consumed four to five quarts of beer at the
21st birthday celebration. Present at Mr Simo Luthuli’s house when Mr Bethwana and
his companions arrived were Mr Simo Luthuli, and both previously mentioned men,
Mr Zungu and Mr Ngema.
[12] According to Mr Bethwana, at some stage during the evening , the accused
requested Mr Ngema to go and purchase some cigarettes for him and gave him R10
to do this. Mr Ngema at first declined to do so and , consequently, the accused
slapped him once with an open hand across his face. Mr Simo Luthuli begged Mr
Ngema to go to Mr Ngema’s grandmother’s place, which appeared to function also
as a tuck shop, and purchase the cigarettes. Mr Ngema relented and left the house
to do as he was asked.
[13] According to Mr Bethwana, t he accused then rose, took out a revolver
handgun from the front of his jacket, and told Mr Simo Luthuli to load one bullet into
the rotating cylinder of the weapon. The bullet had originally been in the accused’s
shoe but had been transferred from there by him to the surface of the sofa upon
which he sat and was then offered to Mr Simo Luthuli by the accused. Mr Simo
Luthuli did not initially take the round of ammunition but commenced apologizing to
Luthuli did not initially take the round of ammunition but commenced apologizing to
the accused. Mr Bethwana testified that he did not understand why he did so. The
accused then took a stick and struck Mr Simo Luthuli a blow with it to the head,
causing a bleeding wound. The accused again told Mr Simo Luthuli to load the bullet
1 The English translation of the isiZulu word ‘geja’ is ‘plow’.
5
into the revolver and he now did as he was told. The revolver was never given to Mr
Simo Luthuli but was held by the accused who merely tilted it to allow the round of
ammunition to be placed in the cylinder by Mr Simo Luthuli. That having been done,
the accused then shot Mr Simo Luthuli in the head, for no apparent reason.
[14] Mr Bethwana, shocked, sprang to his feet, and fled the house, running,
followed by a man called ‘Menzi.’ After a short while, they stopped running and
paused for a moment . Whilst standing there, the accused, Geja and a cousin of Mr
Bethwana, Mr Siphamandla Nkosi, ran up to them. The accused asked Mr Bethwana
why he had run away and said that because Mr Bethwana and Menzi had chosen to
run away, they would have to bear the cost of a clean sing ceremony that the
accused would now have to undergo because of their conduct.
[15] At Mr Bethwana’s suggestion, they agreed to all go home. At the gate to Mr
Bethwana’s homestead, the accused allegedly told him to keep quiet about what he
had just witnessed and was told that if he did not do so, the accused would kill all Mr
Bethwana’s relatives and leave him alive, on his own.
[16] Later the same morning, during the daylight hours, Mr Bethwana received a
fare to transport some people locally using a family owned motor vehicle that was
hired out from time to time . He also received a telephone call from Geja, who asked
how he had slept the previous night and said that he should go that day to a certain
place in the Ngununu area that had a distinctive tree where he would find him and
the accused.
[17] Having delivered his fare paying passengers to their destination , Mr
Bethwana, indeed, found the accused and Geja at the tree, with two other men.
What had occurred in the early hours of the morning of that day was discussed and
Mr Bethwana then learned that a second person had also been shot and killed. The
second person shot was said to be Mr Zungu. The accused insisted that Mr
second person shot was said to be Mr Zungu. The accused insisted that Mr
Bethwana had to cough up the money for a cleansing ceremony for himself. An
amount of R1 500 was apparently needed, which the accused said was to be paid by
Mr Bethwana and Menzi equally.
6
[18] A few days later, Mr Bethwana and Menzi went to another local ceremony
and there they met the accused and Geja. Geja asked for the cleansing money. Mr
Bethwana said that he had only R120 on him and paid it over. Menzi said that he
had R500 at home.
[19] It appears that Mr Bethwana had no further contact with the accused until
approximately six years later, i n 2024, when the accused telephoned him. The
accused had wanted to know from Mr Bethwana if he had spoken to the South
African Police Service (SAPS) about what had occurred in 2018 . Mr Bethwana lied ,
and said that he had not , when, in truth, he had been contacted by the SAPS and
had made a full disclosure to the investigating officer about what had occurred. The
accused warned him that if he did speak to the SAPS, he would deal with Mr
Bethwana.
[20] Mr Bethwana gave his evidence, as he finally revealed, whilst he was a
participant in a witness protection scheme . He explained that he was in that scheme
as a direct result of the threats made against him by the accused.
[21] Mr Bethwana could offer no insight into why the accused had killed Mr Simo
Luthuli.
[22] Under cross -examination, Mr Mkhwanazi, who appeared for the acc used
throughout the trial, denied virtually the entirety of the evidence of Mr Bethwana. The
accused, whilst admitting that he had been at Mr Simo Luthuli’s house, denied
sending Mr Ngema to purchase cigarettes, denied assaulting him, denied shooting
Mr Simo Luthuli, and denied shooting Mr Zungu.
[23] As to how the death of Mr Simo Luthuli came about, the accused advanced
the version through Mr Mkhwanazi, that whilst the men were sitting drinking alcohol
in the living room of Mr Simo Luthuli’s house, an unknown male (the stranger)
entered the house and the room and, without saying anything, shot Mr Simo Luthuli
in the head. As a consequence, everyone in the room had fled from the house.
7
[24] The accused denied demanding cleansing money from Mr Bethwana and
denied contacting him telephonically in 2024. Mr Bethwana, tellingly, replied to this
latter assertion by saying that the reason why he was in a witness protection scheme
was primarily because of th e telep hone call that had been made to him by the
accused in 2024. Mr Bethwana was asked to estimate when that call had been made
and said that he thought that it had been in November 2024. It was then put that the
accused had already been arrested by then and was in custody and had no access
to a cellular telephone.
[25] And still the denials from the accused did not end. The accused denied
possessing a firearm. And he denied forcing Mr Simo Luthuli to load it with a bullet.
The evidence of Mr Siphamandla Ngema (Mr Ngema)
[26] Mr Ngema , already mentioned in this judgment, was the person who had
been dispatched to purchase cigarettes for the accused in the early hours of 16
December 2018, and who had allegedly been slapped by the accused when he
initially declined to do so. He testified that he knew the accused from the general
area and had known him for about two years prior to the events at Mr Simo Luthuli’s
house.
[27] Mr Ngema stated that Mr Simo Luthuli was his uncle. In the early hours of
the morning of 16 December 2018, he was with his uncle at a house that his uncle
was guarding. He had been with his uncle since about 18h00 on the evening of 15
December 2024. They had been drinking alcohol . At some stage that evening, a
group of men arrived at Mr Simo Luthuli’s house, which group included the accused
and Geja. Upon arrival, some of the men had carried sticks and had commenced
prodding and poking the occupants of the house in an aggressive fashion with those
sticks. When the accused had tried to poke Mr Ngema, Geja had told him to stop
doing so, saying that ‘the boy had nothing to do with this.’
[28] The accused had then demanded money from Mr Simo Luthuli in order that
[28] The accused had then demanded money from Mr Simo Luthuli in order that
Mr Ngema might be sent to purchase cigarettes for him. Mr Ngema was reluctant to
do this given the lateness of the hour, it being around 01h00. The accused slapped
him in the face and told him to do as he said and go and buy the cigarettes. Mr
8
Ngema left to do so but was told by the person that sold the cigarettes, who was, in
fact, his grandmother, that it was far too late for such a sale to be entertained , that
he was too drunk, and that she was sleeping. He returned to the dwelling to
announce what had happened and was again slapped in the face by the accused
and was told to go and get the cigarettes.
[29] Chastened, Mr Ngema left Mr Simo Luthuli’s house and now resolved to go
to another place in his quest to acquire cigarettes. He chose to go to a place that he
referred to as ‘Khulekhane’s homestead’. As he moved on his way there, he heard a
gunshot. He, in fact, heard two gunshots in quick succession to each other .
Hastening on to Khulekhane’s homestead , he discovered that Khulekhane was not
there, but Khulekhane soon arrived home and told Mr Ngema that his uncles had
been seriously injured at Mr Simo Luthuli’s house.
[30] They then both proceeded back to Mr Simo Luthuli’s house and upon arrival
there found that Mr Simo Luthuli and Mr Zungu had both been shot. Mr Simo Luthuli
was still alive and tried to speak but could not. Mr Ngema was later told that he had
died at the hospital.
[31] Mr Ngema indicated, fairly, that he had not seen anyone with a firearm at the
house, and that he did not know who had fired the two shots that he had heard on
his way to Khulekhane’s homestead.
[32] Under cross-examination, it was again denied on behalf of the accused that
Mr Ngema had been sent to purchase cigarettes or that he had been slapped by the
accused.
The evidence of Sergeant Khethukuthula Gift Zikhali (Sgt Zikhali)
[33] Sgt Zi khali is a crime scene expert employed by the SAPS at the Local
Criminal Records Centre at Richards Bay in Zululand . At 03h30 on 16 December
2018 he was called out to attend a crime scene . The crime scene was at a private
house in the Machanca area. On his arrival at the scene, he found a deceased black
house in the Machanca area. On his arrival at the scene, he found a deceased black
male lying on his back in a corner of the living room of a house. He took photographs
of the scene and of the deceased male that he found inside the house and looked
9
for, but could not find, any exhibits. The body of the deceased person in the house
bore signs of having been shot.
[34] Sgt Zikhali ascertained that there was a second person at the house who
had also been shot. He learned that upon the arrival of the first responding members
of the SAPS at the scene, the second victim was found to be still alive and had been
rushed to a local clinic to receive medical treatment. The second victim, however, did
not survive and Sgt Zikhali later took photographs of his lifeless body at the
mortuary. These photographs were added to an album of photographs of the house
and the other deceased person and were handed in as an exhibit.
[35] That concluded the State’s evidence on the first three counts.
Count 4: Being a count of murder allegedly committed on 9 February 2024
The evidence of Ms W[...] Z[...] M[...] (Ms M[...])
[36] Ms M[...] was a grade 12 student at Mafunda Secondary School on 9
February 2024. The security guard employed at that school was the previously
mentioned Mr Mhlongo and she testified that he was killed on that date in her
presence.
[37] A meeting for parents of scholars who attended the Mafunda Secondary
School was being held at the school during the day of 9 February 2024 . It so
transpired that there was also an interruption in the supply of water to the school that
day. It appeared that this was no t an uncommon occurrence, for t he scholars knew
that Mr Mhlongo usually kept containers of water in his guard house at the entrance
gate to the school premises specifically for such days when the water supply was
disrupted. At around 12h00, on that day, Ms M[...] testified that she had gone down
to Mr Mhlongo’s guard house with a friend to get some water from him. She found
him seated under a tree a distance from the guard house with other scholars. She
went to him and requested some water from him, and he fetched it from his guard
house and poured some for Ms M[...] and her friend.
10
[38] Just then, a white motor vehicle drove into the school grounds through the
gate near the guard house. Ms M[...] thought it may have been a parent arriving late
for the meeting . It was driven towards the tree where Mr Mhlongo and the scholars
were. Mr Mhlongo got up and walked over to it. A gunshot was then heard and the
scholars under the tree, including Ms M[...] and her friend, ran in terror in the
direction of the gate through which the motor vehicle had just entered. Ms M[...]
looked at the motor vehicle and saw that the driver’s window was slightly down so
that she was able to see the driver, who wore a blue garment on his upper body. She
saw the face of the driver and stated that it was the accused.
[39] Ms M[...] was at the rear of the group of fleeing scholars and as she looked
back, she came to the realization that Mr Mhlongo had been shot. The front doors of
the motor vehicle were open and the person who had fired the first shot , who was
the driver of the motor vehicle, had alighted from the motor vehicle and continued
thereafter to shoot at Mr Mhlongo as he lay on the ground. Ms M[...] repeated that
the lone gunman was the accused.
[40] The fleeing scholars exited the school grounds and Ms M[...] saw the white
motor vehicle also leave the school grounds and proceed to a local shop called
‘Mbongolwane.’ Ms M[...] was unable to state how many shots had been fired in all
but stated that many had been fired. While s he confirmed that there was a single
gunman, she further estimated that there may have been up to three or four people
in the motor vehicle. Shown a photograph of a motor vehicle in a photograph album
handed in previously as an exhibit, she confirmed that what was depicted in the
photograph was the motor vehicle that she had seen in the school grounds. The
motor vehicle that she identified was a white Toyota Etios.
[41] Finally, Ms M[...] confirmed that she had attended an identification parade
[41] Finally, Ms M[...] confirmed that she had attended an identification parade
and that she had pointed out the accused on that parade.
[42] Mr Mkhwanazi cross-examined Ms M[...] and denied that the accused had
ever driven the motor vehicle that had entered the school grounds or that he had
shot Mr Mhlongo. Ms M[...] remained resolute that the driver, and gunman, was the
same person and was the accused. Asked to explain why she had identified the
11
accused as being the driver, she explained that he was dark complexioned and wore
a cap and that because of what had occurred before her very eyes, she had not
forgotten his face and would never forget his face. She later appeared to contradict
herself and said that the accused was light complexioned. Asked to explain this, she
said that he was not really dark or light complexioned. But she was sure that it was
the accused that she had seen.
[43] As regards her identification of the accused at the identification parade, Mr
Mkhwanazi pointed out to her that the accused was the only person on the parade
wearing a blue top, something that the witness mentioned the gunman had been
wearing when Mr Mhlongo was shot. Ms M[...] agreed with this. It was then explained
to her by Mr Mkhwanazi that the accused believed that the members of the SAPS
had taken his photograph when he was arrested and that Ms M[...] had been shown
these photographs before she had attended the identification parade. She stated
emphatically that she had not been shown any photographs of the accused.
The evidence of Mr Mfanafuthi Mzimela (Mr Mzimela)
[44] Mr Mzimela was a father of a child attending Mafunda Secondary School
and had gone to the school on 9 February 2024 for a parents’ meeting. At some
stage during the meeting, he felt the need to smoke a cigarette and he went out to
Mr Mhlongo’s guard house to do so. He estimated that this was at around 12h00.
[45] He stood smoking a cigarette , facing away from the school premises, and
saw a white Toyota Etios motor vehicle being driven into the school grounds from the
road outside the school . Less than a minute later he heard a gunshot and saw Mr
Mhlongo fall to the ground. Mr Mzimela took cover behind the guard house, and in
doing so, dropped his cigarette. He heard several more gunshots before he saw the
motor vehicle being driven away.
[46] Mr Mzimela was unable to see the gunman because of his position behind
[46] Mr Mzimela was unable to see the gunman because of his position behind
the guard house nor was he able to tell if there were any other occupants of the
motor vehicle.
The evidence of Sergeant Joel Masango (Sgt Masango)
12
[47] Sgt Masango is, like Sgt Zikhali, a member of the S APS attached to the
Local Criminal Records Centre in Richards Bay, Zululand, where he also serves as
an expert crime scene investigator. On 9 February 2024, he was summoned to a
crime scene. The scene was at a school near Mbongolwane in Zululand, where a
security guard stationed at the school had been murdered.
[48] Upon his arrival at the scene, Sgt Masango, indeed, found the body of a
deceased black male, who appeared to have been shot a number of times. The
deceased was found lying face down on the ground and, upon closer examination,
was ascertained to have suffered multiple gunshot wounds to the head, back, chest
and arm.
[49] Sgt Masango took a number of photographs of the scene and of the body of
Mr Mhlongo and prepared a photograph album, which was handed in as an exhibit.
He also recovered a number of exhibits at the scene, including two spent bullet
heads, eight spent 9mm firearm cartridges and a partially smoked cigarette. All of the
exhibits were identified, numbered, bagged in exhibit bags that were then sealed and
photographed at the scene, and then handed in to the SAP 13 register of the
Mbongolwane police station. The cartridges and bullet heads were later sent by
courier to a laboratory for ballistic analysis, and the partially smoked cigarette was
sent to a laboratory that specialise d in biological examinations . Sgt Masango was
not aware of the results of any of the tests that he had ordered.
The evidence of Constable Sandile Hlabisa (Cst Hlabisa)
[50] Cst Hlabisa testified that on 9 February 2024 he had been at court and was
on his way back to his police station at Mbongolwane in a marked SAPS motor
vehicle when he had received a message of a suspicious motor vehicle being driven
on the road that he would be taking to return to the police station . He was warned to
be on the alert for a white Toyota Etios motor vehicle, and he soon spotted such a
be on the alert for a white Toyota Etios motor vehicle, and he soon spotted such a
motor vehicle travelling in the opposite direction to the direction in which he was
travelling.
[51] There were, in fact, two motor vehicles that appeared to be travelling
together, in convoy. Leading the Toyota Etios was a gold Toyota Tazz motor vehicle.
13
Both motor vehicles were being driven swiftly and Cst Hlabisa did a U -turn and
followed them. After a while, the Toyota Tazz turned off the road at a junction, but
Cst Hlabisa continued to follow the Toyota Etios . He was in the company of a
colleague, and he drove his motor vehicle very close behind the Toyota Etios and in
so doing he was able to read its registration mark, which he reported to his
superiors. He also recorded the registration mark in his statement. In so doing, he
made an elementary error and incorrectly transposed one number for another.2
[52] Cst Hlabisa observed that there were three people in the Toyota Etios, two
of whom were seated on the right hand side of the back seat . He ultimately lost sight
of the Toyota Etios and that ended his involvement in the matter. He did indicate,
however, that he had been informed that the occupants of the Toyota Etios had been
involved in a shooting at Mafunda Secondary School near Mbongolwane, which he
estimated was about 40 kilometres from where he had first observed the Toyota
Etios.
[53] Mr Mkhwanazi, after taking instructions from the accused, said that the
accused would deny that the Toyota Etios was speeding and when the court asked,
with some incredulity, whether by insisting on this correction , the accused admitted
that he had been in the Toyota Etios , it was confirmed that this was , indeed, the
case. It was further put to Cst Hlabisa that the Toyota Etios had not been stopped by
the SAPS but had been stopped by its driver, who at this stage was not named,
because the driver had insufficient money to be able to proceed through the
approaching Mandeni Toll Plaza.
[54] It was also put to Cst Hlabisa that there were only two people in the Toyota
Etios, which was denied, and it was further asserted that the accused and the other
occupant of the Toyota Etios were on their way to Durban, having first visited the
accused's homestead and then having visited the other unnamed occupant of the
accused's homestead and then having visited the other unnamed occupant of the
Toyota Etios’s homestead.
The further evidence of Sergeant Zikhali
2 The registration number of the Toyota Etios, as revealed in the photograph album handed in, was
ND 259 650. Cst Hlabisa recorded it as being ND 269 650.
14
[55] Save for one portion of his evidence, all the evidence of Sgt Zikhali was
given during a single visit to the witness box. His evidence covered all the offences
in respect of which the accused wa s charged, from the earliest in 2018 to the latest
in 2024. His evidence has been dissected into separate stanzas of evidence for the
purposes of this judgment so that his evidence on a particular count is dealt with
together with the other evidence relating to that particular count.
[56] On 9 February 2024, at 15h30, Sgt Zikhali was called to the scene of a crime
near the town of Mandeni, which is just over 90 kilometres north of the city of
Durban. The crime scene was located on a bridge over the N2 in the vicinity of the
Mandeni Toll Plaza, which was below the bridge. Two men had been arrested there.
[57] At the scene, Sgt Zikhali found members of the SAPS and was informed that
two persons had been stopped and arrested in a motor vehicle . H e was shown a
white Toyota Etios motor vehicle and was requested to take photographs of it. He did
so and prepared a photographic album which was also received as an exhibit. It was
these photographs of the Toyota Etios that were shown to Ms M[...] when she later
testified.
[58] The two arrested suspects had been separated from each other according to
Sgt Zikhali and each of them had been placed in different motor vehicles. Sgt Zikhali
had with him gunshot residue test kits and he was requested to test both the
suspects for the presence of gunshot residue on their hands , which he did. He
thereafter took the completed gunshot residue test kits to the Mandeni police station,
where they were placed in the SAP 13 register, and were later sent off to the
Forensic Science Laboratory for analysis. There was also a quantity of clothing at
the scene of the arrest of the two suspects and Sgt Zikhali took photographs of that
clothing as well. The clothing was also put in to an exhibit bag and accompanied the
clothing as well. The clothing was also put in to an exhibit bag and accompanied the
gunshot residue kits to the laboratory for some form of analysis, the precise nature of
which was never described.3
3 No test results were ever handed in with regards to the clothing and it appears that the clothing was
never received by the Forensic Science Laboratory for analysis.
15
[59] This was still not the end of Sgt Zikhali’s involvement in events. Two days
later, on 11 February 2024 , at about noon , he was called to attend an identification
parade that was to be conducted at the Sundumbili police station. Two witnesses
had been invited to consider certain men standing on the identification parade and
Sgt Zikhali was required to photograph proceedings at the identification parade that
was to be held.
[60] According to Sgt Zikhali, b oth witnesses made a positive identification of a
person on the parade . In both instances , the person identified by the witnesses was
the accused. Sgt Zikhali took photographs of all the men standing on parade as well
the accused after each of the witnesses had identified him.
[61] Under cross examination from Mr Mkhwanazi, it was suggested to Sgt
Zikhali that he had, in fact, taken a photograph of the accused at the crime scene on
the bridge near the Mandeni Toll Plaza when the accused had initially been arrested.
The witness vehemently denied this and said that it most definitely was not his job to
photograph accused persons. It was then put to him that other members of the
SAPS had taken photographs of the accused with their cellular telephones at that
crime scene. Sgt Zikhali said that he bore no knowledge of that. It was also
suggested to Sgt Zikhali that at the identification parade, the accused was the only
person not wearing shoes. Sgt Zikhali acknowledged this to be an accurate
observation.
The evidence of Lieutenant Colonel Ilse Kitching (Lt Col Kitching)
[62] Lt Col Kitching is stationed at Vryheid, KwaZulu-Natal where she is attached
to the Zululand Crime Intelligence Division. She described herself as being a crime
analyst and a profiler of entities. On 24 April 2024, s he was requested to analyze
certain data. The data related to an offence that had occurred on 9 February 2024
and was provided to her on compact discs.
and was provided to her on compact discs.
[63] Lt Col Kitching was requested to analyze data pertaining to three cellular
telephone numbers, namely 0[...], 0[...] and 0[...]. She indicated that she personally
had no idea to whom those cellular telephone numbers belonged. She was
16
requested to ascertain whether those three numbers could be linked to each other by
being in the same geographical area at the same time on 8 and 9 February 2024.
[64] For reasons that will be mentioned later, I do not intend discussing her
evidence at all and I have not taken it into account when arriving at my judgment in
the matter.
The evidence of Mr Thabang Victor Matsoso (Mr Matsoso)
[65] Mr Matsoso is employed by Tracker as a compliance coordinator. In his
evidence, he indicated that he had been requested to consider certain data
pertaining to a Toyota Etios motor vehicle that had been fitted with a Tracker
telematics device. A Ms Bongiwe Msomi owned that motor vehicle.
[66] He explained that the system employed by Tracker is a GSM (Global Service
for Mobile Communication) based system. All positions recorded by the system are
determined by using GPS (Global Positioning System), which has a measurement
accuracy of up to five metres , which means that the device being tracked, in this
instance a Tracker telematics device, is within 5 meters of its true location.
[67] The Tracker records that Mr Matsoso consulted indicated that the Toyota
Etios mentioned above had been at the Mafunda Secondary School at 12h04 on 9
February 2024. He was able to determine this by taking the GPS reading recorded
by the Tracker device ,4 which recorded the time of the day and the position of the
Toyota Etios using longitude and latitude co-ordinates and inputting those co-
ordinates into Google Maps. It was then possible, using those co-ordinates, to call up
a photograph of the physical surroundings of the Toyota Etios at those precise co-
ordinates. The photograph brought up with the co-ordinates mentioned in footnote 4
below revealed that the Toyota Etios was at the Mafunda Secondary School. Copies
of the photographs depicting this were handed in as an exhibit.
4 The GPS reading was Latitude: -28.93132; Longitude: 31.19817.
17
[68] Mr Matsoso testified that t he motor vehicle had moved slowly up to 12h04
and had then come to a stop for approximatel y 14 seconds before moving off and
later being driven at a speed considerably over the permitted speed limit.
The further evidence of Sergeant Zikhali
[69] It was earlier mentioned that all the evidence given by Sgt Zikhal i had been
given in one visit to the witness box, save for one occasion. The evidence dealt with
now was given on a separate occasion and on another day subsequent to his initial
testimony.
[70] Sgt Zikhali was recalled by the State to give evidence on the outcome of the
gunshot residue test s that he had performed on the two people under arrest on the
afternoon of 9 February 2024. In making its application to recall him, the State
explained that it did not have the results when he first testified. Mr Mkhwanazi
indicated that he, too, did not have a copy of those results when Sgt Zikhali initially
testified. It therefore seemed to me that the test results, despite the date of their
commissioning by a commissioner of oaths, had not been to hand when Sgt Zikhali
had initially testified, and I accordingly granted leave for him to be recalled on this
issue.
[71] Sgt Zikhali had three documents in his possession when he entered the
witness box for a second time. The first tw o documents recorded the details of the
two men whose hands he had tested for the presence of gunshot residue . One of
them was the accused. Both hands of both arrested men were tested. The document
in respect of the accused had printed on it the unique bar code number of
13S1F556TF. The third document that Sgt Zikhali had in his possession was an
affidavit from an expert stationed at the Forensic Science Laboratory , namely a
Warrant Officer Maluleke, which reported on the results of the two gunshot residue
tests performed by Sgt Zikhali on the two men tested by him . The expert who
tests performed by Sgt Zikhali on the two men tested by him . The expert who
conducted the test determined that the test results that had the unique serial number
13S1F556RIGHT and 3S1F556LEFT tested positive for characteristic gunshot
residue.
18
[72] The serial number mentioned above was th e one that related to the test
performed on the accused. The other gunshot residue test performed on the other
man returned a negative result.
[73] Under cross -examination, Mr Mkhwanazi asked Sgt Zikhali if gunshot
residue could have got onto the accused’s hands if a firearm had been fired in the
motor vehicle in which he was sitting, the unspoken inference being that the accused
would not in this situation be the person firing the firearm. The answer received was
that it could happen but that all the windows of the motor vehicle would have to be
closed. As it later transpired, this was simply a hypothetical proposition, for it was not
the accused’s version that he had ever been in the Toyota Etios when a shot had
been fired from inside that motor vehicle. It will, in any event, be recalled that Ms
M[...] had testified earlier that the driver’s window was lowered, allowing her to
observe the driver’s upper body and face.
[74] A different proposition was then put to Sgt Zikhali by Mr Mkhwanazi: if a gun
had been fired from inside a motor vehicle by another person, not the accused, and
the accused was not then in the motor vehicle but had later got into the m otor
vehicle, could he get gunshot residue precipitate on his hands? Sgt Zikhali did not
directly answer the question initially , and his first response was that if this was the
case, then everyone in the motor vehicle would have gunshot residue on their hands
and it was already known that the test performed on the other arrested person had
been negative. Asked the question again, Sgt Zikhali said that he could not answer it
because there were too many variables but emphasized that gunshot residue would
not hang in the air for a long period of time.
The evidence of Sergeant Simphiwe Ndlovu (Sgt Ndlovu)
[75] Sgt Ndlovu is the investigating officer of the murder of Mr Mhlongo, being
count 4 to the indictment . He was not the investigating officer of the offences
count 4 to the indictment . He was not the investigating officer of the offences
identified in counts 1, 2 and 3 relating to the multiple murders and the count of
common assault. Those offences were investigated by the Eshowe SAPS, but the
investigating officer had been murdered and Sgt Ndlovu was given the completed
investigation once it had been finalized.
19
[76] Sgt Ndlovu explained that the overall investigation of the matter , and the
presentation of witnesses to court , had been bedeviled by the persistent threats
made to witnesses by the accused and by persons associated with him. A witness
on counts 1, 2 and 3 had refused to testify because of threats made to him . Other
witnesses avoided Sgt Ndlovu when he sought to ensure that they would come to
court and testify, and some witnesses said outright that they were too afraid to testify
and refused to give evidence . One witness, Mr Bethwana, was placed in a witness
protection scheme because of threats made aga inst him by the accused . Another
female witness had gone into , and had then voluntarily exited, a witness protection
programme, and would now not testify . The accused’s uncle had allegedly
threatened another witness to say nothing. A co-accused was dead, shot in the head
in Durban by unknown men.
[77] Sgt Ndlovu testified that a n attempt had also been made to bribe him to
withdraw his opposition to the accused being admitted into bail. At a meeting in
Durban, he had been handed an envelope by unknown men but had turned down
the bribe and had handed back the envelope, unopened.
[78] As regards the Toyota Etios, he testified that it bel onged to a lady whose
boyfriend had bought it and who had registered it in her name. The motor vehicle
was used as an Uber motor vehicle and had been driven by Mr Mzwandile Dludla
(Mr Dludla) , who had been employed by the owner of the motor vehicle for that
purpose. Mr Dludla was the unnamed person in the Toyota Etios when the accused
was arrested, and he had also been arrested and his hands had been tested for
gunshot residue but had tested negative. He was now dead, a victim of an unsolved
murder.
[79] Under cross -examination, Mr Mkhwanazi put it to Sgt Ndlovu that the
persons that attempted to bribe him might have been the accused’s enemies who
persons that attempted to bribe him might have been the accused’s enemies who
wanted to get him out of custody so that they could conclusively deal with him. Sgt
Ndlovu had no knowledge of this rather imaginative possibility. It was then suggested
to Sgt Zikhali that photographs of the accused being arrested , depicting both him
and the motor vehicle in which he had been travelling, had been placed on the social
media platform known as Facebook. Asked by the court for particularity as to who
20
had allegedly made such a post, Mr Mkhwanazi stated that it had been posted by an
entity known as ‘IPSS Security.’ Sgt Ndlovu indicated that IPSS Security was headed
up by a former head of de tectives of the SAPS and had assisted the SAPS in the
apprehension of the accused with their cameras, situated on ro ads upon which the
Toyota Etios had been driven being consulted. In the event, no evidence was ever
led on this aspect by the defence.
[80] It was denied on behalf of the accused that he had committed any crime or
that he had fired a firearm.
Section 220 admissions
[81] The State and the defence co -operated with each other to produce a
document in which certain admissions made by the accused were recorded. This
was of some assistance in shortening the duration of the trial. The admissions
related primarily to the postmortem examinations that were performed on the three
persons alleged to have been murdered by the accused. The accused admitted that
none of the three bodies of the three dead men suffered any injuries after their
deaths and before the postmortems were performed upon them.
[82] The now admitted postmortem results indicated that:
(a) The deceased on count 1, Mr Zungu, had died from two gunshot wounds,
one to the head and one to the left shoulder;
(b) The deceased on count 2, Mr Simo Luthuli, had died from a gunshot wound
to the head causing extreme intra-cranial projectile damage; and
(c) The deceased on count 4, Mr Mhlongo, had died from multiple gunshot
injuries to the head, chest, and abdomen with intra -cranial, intra-thoracic and intra -
abdominal projectile damage.
[83] In addition to these admissions regarding the postmortem examinations , a
ballistics report was admitted by the defence pertaining to the murder of Mr Mhlongo
on 9 February 2024. The report was, however, of no real evidential value because
no firearm had been recovered in relation to that crime. Its only possible value was
no firearm had been recovered in relation to that crime. Its only possible value was
that it found that all the spent cartridges found at the scene had been fired from the
same firearm.
21
[84] Finally, the accused admitted that the Toyota Etios motor vehicle was owned
by a person called M A Msomi and had been used as an Uber motor vehicle and had
been in the possession of the now deceased Mr Dludla on 9 February 2024.
[85] The postmortem reports of each of the three dead men were attached to the
document recording the s 220 admissions. Significantly, t he reports relating to Mr
Simo Luthuli and Mr Zungu indicated that bullets had been removed from each of
their bodies and had been handed to a representative of the SAPS in each instance.
The State case
[86] The State then closed its case.
Evidence for the defence
The evidence of the accused
[87] The accused initially wanted to call a witness to testify before he testified. He
wished to call Geja. Geja, is presently an awaiting trial prisoner being held at the
Newcastle prison , which is situated approximately 300 kilometres from this circuit
court sitting in Mtunzini. The State had apparently intended calling Geja as a witness
in its case and he had consequently been delivered from Newcastle prison to this
court for this purpose. However, Ms Ntsele advised me that upon his arrival at this
court, he had refused to testify for the State, and he had subsequently been returned
to the Newcastle prison. Given the wishes of the accused, steps were taken to have
Geja again delivered to this court to give evidence, this time for the defence.
[88] After some discussion and prevarication , t he accused decided to testify
before he called his witness, and he accordingly took to the witness box.
[89] As regards the first three counts mentioned in the indictment, t he accused
denied all imputations of criminal conduct on his part. He testified that he had been
in Eshowe on 16 December 2018 when he had met Geja and, having met him, he
then met his sister , Ms Londiwe Gumede , near the taxi rank . As Christmas was
approaching, he gave his sister R1 500 t o purchase groceries. He and Geja
22
remained near the taxi rank, drinking alcohol. Having arrived in Eshowe at between
10h00 and 11h00, the two of them remained drinking near the rank until about 19h00
on 16 December 2018.
[90] When the court pointed out to the accused that the date could not be correct
because Mr Zungu and Mr Simo Luthuli were already dead at 19h00 on 16
December 2018, having been killed during the early hours of the morning of that day,
the accused changed the date from 16 December 2018 to 15 December 2018.
[91] The accused went on to explain that from Eshowe , he and Geja went to
Entumeni to join in a 21 st birthday celebration. Geja had received a telephone call
from one Phe Luthuli advising him that there was a function at the Luthuli
homestead, and Geja was invited to drop by and join in the celebrations and to bring
the accused with him . They proceeded to the Luthuli homestead and on the way
there they passed Mr Simo Luthuli’s house . Geja had spoken to Mr Simo Luthuli
briefly at the house, but the accused did not and had remained standing on the road.
[92] The accused had no idea what time they had arrived at the 21st celebration
because, so he said, he had consumed a quantity of alcohol and estimated that by
that stage, he had already drunk 5 to 6 quarts of beer. There was singing and
traditional dancing going on at the celebration and they joined in and drank more
alcohol until their host called a halt to proceedings and chased them all away.
[93] A group of them then went to Mr Simo Luthuli’s house because he had
alcohol there. He did not personally know Mr Simo Luthuli, but upon arrival at the
house, everyone sat down and drank more alcohol. People kept moving around and
flowing in and out of the house . The accused explained that at a certain point , the
stranger walked into the house and fired a shot at Mr Simo Luthuli, and everyone ran
out of the house.
[94] The accused denied sending Mr Ngema to purchase cigarettes for him whilst
[94] The accused denied sending Mr Ngema to purchase cigarettes for him whilst
at Mr Simo Luthuli’s house and denied that he had slapped him. He also had not
shot Mr Simo Luthuli in the head , as described by Mr Bethwana , and he, like Mr
Bethwana, had not even known that a second man had also been shot and killed at
23
that time but he had only discovered this fact the following day . He had also never
demanded money from Mr Bethwana to pay for a cleansing ceremony and if he had
required money for that purpose, he would have paid for it himself as he was working
and was earning money. Any person who said that he had shot Mr Simo Luthuli was
lying. He had , indeed, met Mr Bethwana the next day , but not under a tree at
Ngununu as described by Mr Bethwana, but at Qwabe’s store, where they had
discussed the events of earlier that morning. It was only then that he discovered a
second man had been shot and killed. He had also not telephoned Mr Bethwana in
2024 and he had not threatened him if he spoke to the SAPS.
[95] As regards the events of 9 February 2024, the accused said that he knew
nothing of what had occurred at the Mafunda Secondary School. He had been in
Durban on 8 February 2024 when he had been contacted by Mr Dludla on the social
media platform WhatsApp, who had informed him that he was proceeding to Eshowe
that day. He was due to return to Durban the very same day, and Mr Dludla offered
to give him a lift, which offer the accused accepted. In the end, they did not return
the same day. Or, in fact, at all, given that they were both arrested the next day.
[96] The accused stated that he had never been to Mafunda Secondary School
but he said that he had been transported in a Toyota Etios motor vehicle that Mr
Dludla had been driving. He indicated that when they arrived in Eshowe , it had been
agreed that Mr Dludla would take him to his family homestead in the Ngununu area.
It was by then late at night and after travelling a substantial distance towards his
family homestead, Mr Dludla said t hat they had insufficient petrol in the tank and so
they returned to Eshowe, put in some petrol, and then returned to the Ngununu area
where Mr Dludla dropped the accused off and then went on his way.
[97] The next morning, the accused said that he had met up with Mr Dludla for
[97] The next morning, the accused said that he had met up with Mr Dludla for
the return trip to Durban. When he arrived at the motor vehicle, h e had moved some
clothing from its front passenger seat. En route to the toll road to Durban, Mr Dludla
had visited his family homestead. The accused remained in the motor vehicle while
Mr Dludla went inside. On his return, Mr Dludla drove the motor vehicle to wards the
toll road. He had previously passed through toll roads using an e -tag affixed to the
Toyota Etios but, somehow, Mr Dludla had determined that there was no credit
available on the e -tag. How he had determined this was not explained. Mr Dludla
24
consequently stopped the motor vehicle and then reversed it and parked it so that he
could telephone the owner of the motor vehicle and ask him to top up the funds in
the e-tag account. Whilst so stationary, a private security company had arrived and
security officials had ordered the accused and Mr Dludla out of the motor vehicle.
[98] The accused confirmed that he had been identified at an identity parade. He
could give no explanation for how his hands had gunshot reside on them.
[99] The accused was cross -examined by Ms Ntsele, who appeared for the
State. I deal firstly with the cross-examination that related to counts 1, 2 and 3.
[100] Ms Ntsele attempted to gain some understanding of when the accused had
done certain things. He was asked when he had gone to Mr Simo Luthuli’s house
and Ms Ntsele received the response that it was already late. Asked when the
stranger had entered the house to shoot Mr Simo Luthuli, the accused replied that it
was the very same night. None of this was helpful nor , I suspect, was it intended to
be helpful.
[101] It was suggested to the accused that he knew from the moment of his arrest
that he had not killed Mr Simo Luthuli and that the stranger was responsible for his
death. Yet the accused never raised the presence of the stranger with anyone . The
accused agreed that he had never told anyone else of the presence of the stranger
in the room, except the people that he was on the road with immediately after the
shooting. That, of course, had not been put to Mr Bethwana who had been on the
road with the accused. As to why he had told no -one else, he said that he had not
met anyone else on the road on the night after the shooting. He confirmed that he
had also not told the SAPS about the stranger, even after he had been arrested. He
explained that he was shocked by what had occurred.
[102] Asked by the court why he had not immediately alerted the SAPS to what
[102] Asked by the court why he had not immediately alerted the SAPS to what
had occurred at Mr Simo Luthuli’s house, the accused said that the deceased man’s
family was there and that he was drunk. It was pointed out that the next day he
would have been sober and yet he had still not reported what he knew to the SAPS.
The accused indicated that he did not think that he needed to report what he knew.
25
[103] Ms Ntsele repeated that from the moment of his arrest until the
commencement of the trial before this court, the accused had never mentioned the
stranger who had allegedly shot Mr Simo Luthuli. The accused agreed with this
proposition. The accused tried to extricate himself from th e consequence of h is
answer by sta ting that he had told the SAPS that he knew nothing of these
shootings. The court pointed out that this was not a n accurate answer: he did know
something about the sho otings. He knew that someone else had shot Mr Simo
Luthuli but had not disclosed this essential information to the SAPS . The accused’s
response was that he did not think of telling the SAPS anything and thought that he
would disclose this information when at court. He had now done that. Pressed further
on this issue, the accused now indicated that no -one had asked him about the
stranger.
[104] The accused continued to deny that Mr Bethwana had been honest in his
evidence but could not explain why he would falsely attempt to accuse him of these
crimes. He also denied threatening Mr Bethwana. Asked why he had not disputed Mr
Bethwana’s evidence that he had met the accused later in the day of the shooting
under a tree, when the accused asserted that they had met at Qwabe’s store, the
accused said that Mr Bethwana was lying, and others would come and say that they
had met at the store. In the event, no witness es came to dispute Mr Bethwana’s
evidence regarding the meeting or to confirm the accused’s version.
[105] Asked by Ms Ntsele whether he had gone to Mr Simo Luthuli’s funeral, the
accused said that he had not. He was asked why he had not done so, given how Mr
Simo Luth uli had died and given his admitted presence at the moment of his
shooting. The accused said that he did not see the need to attend. He then said that
given that it was December and the festive season and that there were many
functions in the area, he had been in a perpetual state of drunkenness. Then he said
functions in the area, he had been in a perpetual state of drunkenness. Then he said
that he did not know when the funeral was to have been held. Under questioning
from the court, he admitted that if he had wanted to find out when the funeral was, he
could easily have found out.
26
[106] As regards the shooting of Mr Simo Luthuli, the court sought clarity from the
accused on the mechanics of the shooting to which the accused was allegedly a
witness. He was asked where he was in the room when the stranger came in. He
could not remember. He was shown photographs of chairs and sofas in the room
and was asked on which he had been seated at the critical moment. He could not
remember. He was asked where Geja had been in the room and responded that he
could not remember. He was asked whether he was seated next to Geja but said
that he could not remember. He agreed that he had run out of the door of the house
and was asked where the stranger was when he did this. Besides saying that the
stranger had taken a few steps into the room, he could not say where he was.
[107] Turning to the shooting on 9 February 2024, being count 4, the first fact
elicited under cross-examination by Ms Ntsele was that despite Mr Dludla operating
the Toyota Etios as an Uber motor vehicle, there was no discussion of the accused
being charged by him for the return trip from Durban to Eshowe (and even beyond
Eshowe, to his family homestead). In a throw-away question, it was suggested to the
accused by Ms Ntsele that he had paid for the trip in alcohol because the accused
had said that he had bought some alcohol for the trip and that he and Mr Dludla had
drunk of it as Mr Dludla drove towards Eshowe. Amazingly, the accused initially said
that he did not know that it was against the law to drink alcohol while driving a motor
vehicle. He eventually retreated from this scarcely believable statement and
conceded that he knew that it was wrong to drink and drive.
[108] The accused stated to Ms Ntsele that to get to his family homestead from
Eshowe was a drive of ‘less than an hour’ and part of the road there was tarred, and
part was gravel. He was not, on his version, ever required to even pay for this part of
the trip, which had to be allegedly undertaken twice because of an initial want of
the trip, which had to be allegedly undertaken twice because of an initial want of
petrol in the Toyota Etios.
[109] The accused indicated that he and Mr Dludla had left Durban on 8 February
2024 at around 13h00 or 14h00. This is probably the only instance in the accused’s
evidence relating to count 4 of him mentioning a definite time (even though in this
instance it was a range of possible times). It was a recurrent theme in his evidence
that he was unwilling to commit himself to any time when asked when an event that
27
he had mentioned had occurred. His standard response to questions as to what time
an event occurred was to state that he had not taken note of the time. As he gave his
evidence, the court noted that he wore a large wristwatch on his left arm. He stated
that he had not had it on 8 or 9 February 2024 and therefore he could not have
consulted it on issues of time. He was, however, forced t o admit that he always had
a cellular telephone with him that measured and displayed the time, but he fobbed
this off by saying that he had never looked at it to determine the time.
[110] Asked why Mr Dludla had not simply taken him to his home before returning
to Eshowe to purchase petrol , the answer given was that it was dark. Asked where
Mr Dludla was going to stay after he had finally dropped him off at the accused ’s
family homestead given the admitted lateness of the hour , the accused said that he
did not know, had never asked Mr Dludla where he was going to stay and did not
offer his benefactor a bed at his family homestead. Asked what time he had been
dropped at his family homestead, his answer was ‘at night.’
[111] Attempting to lecture Ms Ntsele on the geography of Eshowe and its
surrounding areas, stating that she obviously was not familiar with it, he was put in
his place by Ms Ntsele’s firm rebuke that he should desist from lecturing her on this
topic because she had been born and bred in Eshowe.
[112] Asked what time he had met up with Mr Dludla on 9 February 2024, the
accused said that it was ‘during the day’. Asked what time it had been arranged for
him and Mr Dludla to meet , he said there had been no time agreed upon. He
mentioned that he had to walk from his family homestead to the point where he was
to be picked up by Mr Dludla . Asked what time he had left home to walk to the
meeting place, he said it was ‘in the morning .’ Asked why he remembered this, he
said it was because he saw the sun.
said it was because he saw the sun.
[113] The accused indicated that w hen he had eventually met Mr Dludla , the
intention had been to drive back to Durban. However, en route to that destination, Mr
Dludla had stopped at his family homestead at Mandeni. Under cross-examination
from Ms Ntsele, the accused indicated that after they had arrived at the homestead ,
he and Mr Dludla had gone inside, and he had met Mr Dludla’s mother. S he had
28
prepared a meal for them, which was largely comprised of meat, which he had
eaten. Having finished eating, h e had returned to the Toyota Etios and awaited the
arrival of Mr Dludla.
[114] Ms Ntsele asked the accused how long he and Mr Dludla had been at the
latter’s family homestead. The first answer was about an hour. Asked if it could have
been less than half an hour, the accused said that he was not sure. It was then put to
him that the data provided by Tracker indicated that the Toyota Etios had its ignition
switched off at 13h20 on 9 February 2024 a nd the ignition was switched on again at
13h32 on that day . If this was when they were at Mr Dludla’s homestead , then they
had only been stationary for 12 minutes. The accused agreed. The proposition was
then put to him by Ms Ntsele that the meal had then been prepared , and eaten ,
within 12 minutes. The accused again agreed, saying that he had eaten beef which
appeared to have been prepared for an earlier function.
[115] From the Dludla homestead, the accused indicated that they had headed for
the Mandeni Toll Plaza. It now emerged for the first time that the Toyota Etios had
been driven up to the payment booth at the toll plaza but that there were insufficient
funds standing to the credit of the e -tag affixed to the Toyota Etios to allow it to pass
through. Mr Dludla had therefore reversed the motor vehicle away from the toll plaza
and parked it on the side of the road to phone the owner of the motor vehicle and
request him to top up the e-tag account when he and Mr Dludla were apprehended.
[116] The accused was prepared to admit that Mbongolwane, where the Mafunda
Secondary School is located , lies north of Mandeni and is not on the route to
Durban. He was then asked why, if they were travelling south to Durban, they had in
fact gone north to Mbongolwane , as recorded in Tracker’s data. The accused said
that he could not dispute Tracker’s information , but that he had not been in the
that he could not dispute Tracker’s information , but that he had not been in the
Toyota Etios when it had gone to Mbongolwane. It was pointed out that , according to
Tracker, the motor vehicle had been in the Mbongolwane area from 08h39 that
morning until 12h16 that afternoon. The accused’s only re sponse was that he had
not been in the motor vehicle and had not gone to Mbongolwane. He was confronted
with his earlier answer that he had got into the motor vehicle in the morning and
29
therefore had to have been in Mbongolwane given the data recorded by Tracker but
he just repeated his answer that he had not gone to Mbongolwane.
[117] Turning to consider the evidence of Ms M[...], Ms Ntsele asked how she
could have known that he was travelling in a white Toyota Etios motor vehicle if she
had not seen him at the Mafunda Secondary School. The a ccused indicated that he
could not explain that, and he had been ‘surprised’ by her evidence. He could give
no explanation either for the gunshot residue later determined to have been on his
hands.
[118] Pursuant to the accused’s earlier request, Geja was fetched from Newcastle
prison and he was present at the Mtunzini High Court on the morning of 12 March
2026. He apparently arranged for his legal representative to also be present.
Discussions then occurred between his legal representative and Mr Mkhwanazi for
the accused, and after the lapse of several hours, it finally emerged that Geja did not
want to give evidence for the accused. He was consequently delivered back to the
Newcastle prison for a second, and final, time.
[119] Mr Mkhwanazi accordingly closed the case for the accused without calling
any witnesses other than the accused.
Argument
[120] I heard argument on Monday, 16 March 2026. Ms Ntsele submitted that the
guilt of the accused had be en established on all four counts. I asked her to address
me on the murder described in count 1. I specifically mentioned that there was no
evidence led that the same firearm had occasioned the death of both Mr Zungu and
Mr Simo Luthuli. She agreed with that and explained that the investigating officer on
counts 1, 2 and 3 had retrieved the bullet that had been extracted from the body of
Mr Zungu at his postmortem examination from the doctor who had removed it and
the bullet that had been removed from the body of Mr Simo Luthuli and was on his
way to the Forensic Science Laboratory in Durban with th e two extracted bullets
way to the Forensic Science Laboratory in Durban with th e two extracted bullets
when he had been murdered and the two bullets had gone missing.
30
[121] Ms Ntsele submitted that the only reasonable inference was that the
accused, who was the only person known to have a firearm in t he room at Mr Simo
Luthuli’s house, was responsible for the death of the two men in the absence of a
satisfactory explanation from the accused.
[122] As regards the murder described in count 4, Ms Ntsele indicated that the
accused had been with Mr Dludla at all material times and that this fact had been
established by the evidence of Lt Col Kitching. I asked whether this was, indeed, the
evidence of this witness, for she said that she did not know who owned each of the
cellular telephone numbers that she was called upon to analyze. Ms Ntsele said that
Mr Mkhwanazi had made an admission during his cross -examination of Lt Col
Kitching that one of the numbers, namely 0[...], was the accused’s number. My notes
indicated that Mr Mkhwanazi had asked no questions of Lt Col Kitching. Eventually,
Ms Ntsele conceded that this was the case and did not require the record to be
consulted on this issue.
[123] Ms Ntsele went on to argue that the presence of gunshot residue on the
hands of the accused was a damning fact that could not be innocently explained by
him. As regards the identity parade, I inquired why the documentation that is
normally prepared that records the preparations for, and the conduct of, an identity
parade was not handed up in this matter. Ms Ntsele indicated that it was never in
dispute that the accused had been identified by tw o persons, one of whom was Ms
M[...]. This was subsequently, if somewhat reluctantly, confirmed by Mr Mkhwanazi.
[124] Mr Mkhwanazi in his argument submitted that, to the contrary, the State had
not proved its case against the accused beyond reasonable doubt. He argued that
there was no evidence implicating the accused on count 1. On count 2, he submitted
that the accused’s version could be reasonably possibly true. It will be remembered
that the accused’s version could be reasonably possibly true. It will be remembered
that the accused’s evidence on this count involved the stranger who had shot Mr
Simo Luthuli. As regards count 3, I was urged to disbelieve the evidence of Mr
Ngema, for undisclosed reasons, and that I should find the accused’s denial that he
had slapped Mr Ngema might be reasonably possibl y true. Finally, on count 4 , Mr
Mkhwanazi drew attention to Ms M[...]’s uncertainty on whether the gunman had
had a dark or light complexion. He also focused on the colour of the jacket that the
31
accused wore on the identity parade . The accused’s evidence was, however, that
when he was taken into custody, he had worn no shirt as he had taken off the white
vest that he had been wearing and had used it to w ipe blood from his head and it
had been left at the scene.5
[125] Mr Mkhwanazi argued that the identity parade had been unfair because the
accused had been wearing a shirt which was the same colour (blue) as the shirt
described by Ms M[...] as being worn by the gunman and because he had no shoes
on. I asked what the prejudice was occasioned by the accused not wearing shoes,
but Mr Mkhwanazi could not think of any, other than it made the accused appear
different. As regards the blue shirt, Ms M[...] did say that the gunman had worn a
shirt of that colour , but the accused’s version was that he had worn a white vest at
the moment of his arrest . He had also said that he had been shirtless when he was
arrested. The c ourt p ointed out that i f he wore a blue shirt on the identification
parade, it was accordingly through his own choice and not something that had been
forced upon him. The person in charge of the identity parade could not have known
what colour shirt the accused had allegedly worn two days before the identity parade
was held.
[126] Mr Mkhwanazi urged me to find the accused not guilty on all co unts on the
basis that his version could be reasonably possibly true.
Analysis
[127] I indicated earlier in this judgment that I had rejected the evidence of Lt Col
Kitching and that I would pay no heed to it in arriving at my judgment. The reason for
this decision is relatively simple. Lt Col Kitching indicated that she had been asked to
ascertain if she could group three cellular telephone numbers together
geographically by analyzing data generated from cellular telephone towers scattered
throughout the province of KwaZulu -Natal. She testified that she had no idea to
whom the cellular telephone numbers belonged. I was told from the bar by Ms Ntsele
whom the cellular telephone numbers belonged. I was told from the bar by Ms Ntsele
during Lt Col Kitching’s evidence that one of the three cell ular telephone numbers
mentioned by Lt Col Kitching belonged to the accused and the other two belonged ,
5 The white vest features in some of the photographs taken at the scene of the accused’s arrest . No
blood stains can be discerned on it.
32
to his companion, Mr Dludla. There was, however, no evidence whatsoever led
before me that this was the case.
[128] The State called no evidence from the cellular network provider to establish
who owned the cellular telephone numbers to which reference had been made. Lt
Col Kitching, as she herself acknowledged, did not know to whom those numbers
belonged. When he testified, the accused was never asked what his cellular handset
number was. There was no admission in the s 220 admissions regarding the cellular
telephone numbers. Ms Ntsele argued that Mr Mkhwanazi had admitted when cross-
examining Lt Col Kitching that one of the numbers belonged to the accused. The
difficulty with that submission was that Mr Mkhwanazi had not cross-examined Lt Col
Kitching. While it may be so that the three numbers tracked by Lt Col Kitching are,
indeed, those that belong ed to the accused and to Mr Dludla, Ms Ntsele’s assertion
from the bar that this is the case is not evidence of th ose facts. The evidence of Lt
Col Kitching must accordingly be rejected and ignored.
[129] It is so that not many witnesses have been called to testify in this trial despite
its duration. From what has been stated by Ms Ntsele, there were many witnesses ,
all things being equal, that notionally could have been called by the State to testify
but I heard evidence that many of th ose witnesses declined to testify out of fear for
their personal safety. That explains why in respect of most of the charges there is but
a single witness called in an attempt to establish the guilt of the accused. It follows
that the cautionary rule pertaining to the evidence of single witnesses is in play.
[130] Section 208 of the C riminal Procedure Act 51 of 1977 provides that an
accused may be convicted of any offence on the single evidence of any competent
witness. It is generally understood that for the evidence of a single witness to be
acceptable, that evidence should be clear and satisfactory in all material respects,6
acceptable, that evidence should be clear and satisfactory in all material respects,6
and it goes without saying that the witness should, in addition, be credible.
6 R v Mokoena 1932 OPD 79 at page 80 (this judgment dealt with a section of an act that preceded s
208.)
33
[131] In Rugnanan v S,7 the Supreme Court of Appeal observed that the
cautionary rule:
‘… does not require that the evidence of a single witness must be free of all conceivable
criticism. The requirement is merely that it should be substantially satisfactory in relation to
material aspects or be corroborated.’
[132] In S v Webber,8 the Appellate Division provided some guidelines to the way
in which the evidence of a single witness should be approached when it stated the
following:
‘A conviction is possible on the evidence of a single witness. Such witness must be credible,
and the evidence should be approached with caution. Due consideration should be given to
factors which affirm, and factors which detract from the credibility of the witness. The
probative value of the evidence of a single witness should also not be equated with that of
several witnesses.’
[133] There is, however, no universally defined threshold which if met, or
exceeded, automatically determines whe n a single witness’s evidence will be
acceptable. This was confirmed in S v Sauls and Others ,9 where the Appellate
Division observed that:
‘There is no rule of thumb test or formula to apply when it comes to a consideration of the
credibility of a single witness. The trial judge will weigh his evidence, will consider its merits
and demerits and having done so, will decide whether it is trustworthy and whether despite
the fact that there are shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told’.
[134] I consider now the evidence adduced on each of the counts, but I do not
commence immediately with count 1 , but with count 2 . It appears to me that before
count 1 can be considered, it is necessary to first consider count 2.
[135] The evidence adduced on count 2, being the murder of Mr Simo Luthuli , is
the evidence of a single witness, namely Mr Bethwana. While Mr Ngema had been
the evidence of a single witness, namely Mr Bethwana. While Mr Ngema had been
at the house where the murder was committed, on his version he had been sent out
to purchase cigarettes for the accused shortly before the critical moment and did not
7 Rugnanan v S [2020] ZASCA 166 para 23.
8 S v Webber 1971 (3) SA 574 (A).
9 S v Sauls and Others 1991 (3) SA 172 (A).
34
observe what thereafter occurred within the house. The cautionary rule just
mentioned therefore applies to the evidence of Mr Bethwana.
[136] Mr Bethwana gave an understandable version of events that occurred in the
early hours of 16 December 2018. His evidence provided a clear and detailed
explanation of how Mr Simo Luthuli was killed. It include d ancillary details that led up
to the shooting, including the transfer of the bullet from the accused’s shoe , and the
interaction between the accused and Mr Simo Luthuli shortly before he died in which
a head wound was inflicted upon Mr Simo Luthuli . The explanation offered by Mr
Bethwana was rich in detail and that detail helped to provide meaning to the events
that were said to have occurred. His evidence had a flow to it that explained each
small event that took its place in the complete picture of a murder.
[137] The only thing that Mr Bethwana could not explain was why the accused had
shot Mr Simo Luthuli. That, however, is not something that he could be expected to
explain, for there was , on the face of it, no discernible reason for the shooting that
arose from his narrative. That, however, does not mean that there was no reason for
the shooting, merely that Mr Bethwana did not know it and that nothing that he saw
suggested a reason.
[138] I observed Mr Bethwana closely during his time in the witness box. He was
undoubtedly nervous in giving his evidence , for his hands ceaselessly trembled as
he testified. This was clearly observable when he was asked to handle photograph
albums and other documents when in the witness box. But this outward
manifestation of his inner nervousness did not intrude into the quality of the evidence
that he gave. He spoke well, was confident in his version, and gave his evidence free
from contradictions. In short, Mr B ethwana was generally an impressive witness,
who inspired confidence in the accuracy of what he stated. His evidence was
who inspired confidence in the accuracy of what he stated. His evidence was
confirmed, in part, by the evidence of Mr Ngema, who supported his version that he,
Mr Ngema, had been sent to purchase cigarettes for the accused.
[139] A noticeable feature of Mr Bethwana’s evidence was th e fact that he was
only prepared to give evidence about what he had personally seen. Two men were
murdered in the early hours of 16 December 2018, but Mr Bethwana testified only
35
about one of th ose murders. Had he been dishonest, or if he had held a grudge
against the accused that drove him to falsely implicate him in events, he could have
quite easily mentioned that he also saw the accused shoot Mr Zungu. He did not do
so.
[140] Mr Bethwana is an educated man, being a qualified quantity surveyor as
already mentioned . He is also a person who has been absorbed into a witness
protection programme because of the threats made against him by the accused. As
Ms Ntsele submitted, the threats had commenced immediately after Mr Simo Luthuli
had been murdered and recommenced in November 2024. The accused has denied
making any threats against him, stating that he was already in custody when he was
alleged to have telephoned Mr Bethwana. I attach no weight to this subm ission
because it is a matter of some notoriety that generally those in custody still have
relatively easy access to cellular telephones. I simply cannot imagine that a person
such as Mr Bethwana would give up the comfort and ease of his life for the rigidity
and forced anonymity of a witness protection programme for no tangible reason.
That reason was the threatening conduct of the accused towards himself.
[141] I must therefore accept that threats had been made against Mr Bethwana by
the accused that necessitated him being placed in a witness protection scheme. That
being the case, then the question that must be asked is why the accused would have
made such threats given his version of events that exonerated himself and placed
the blame for the shooting on the stranger. This version could not have warranted a
threat being made to the physical well -being of Mr Bethwana. The only sensible
reason for the threat could be some conduct attributable to the accused that the
accused did not want Mr Bethwana to mention to the authorities.
[142] The accused’s contrary version of the event described by Mr Bethwana can
only be described as being improbable in the extreme . According to him, the
only be described as being improbable in the extreme . According to him, the
stranger slipped into the room in the house where a large number of men were
gathered drinking alcohol. Before anyone c ould say or do anything, the stranger, for
no apparent reason, shot Mr Simo Luthuli in the head and had then allowed all those
who had witnessed this callous murder at close range to leave the room , potentially
36
to raise the alarm that could have led to his apprehension . It seems to me to be an
entirely fanciful and contrived explanation.
[143] What occurred in the early hours of 16 December 2018 was a profoundly
shocking event . It cannot but have disturbed every person who observed it and it
cried out for a report to be immediately made to the SAPS , both for help in
apprehending the gunman and for medical assistance for the unfortunate men who
had been shot. The accused showed no inclination to help in any way. There was no
report of his version of events to the SAPS nor was there an y request for medical
assistance. Notwithstanding that he was clearly a witness to a cold blooded murder,
the accused said that he saw no need to report his observations to the SAPS
because Mr Simo Luthuli’s family members were present at the scene . This
explanation beggars belief. One human being seeing the suffering of another would
ordinarily try to alleviate that suffering , if possible. The accused , however, was not
prepared to do anything to help his fellow man or, if that was not possible, to ensure
that the true killer, the stranger, faced justice.
[144] The likelihood of the accused’s version being reasonably possibly true is
further weakened, in my view, by the fact that not only did he not report what he had
seen to the SAPS, but he did not mention what he had allegedly observed to another
living soul for a period of over eight years. He first mentioned the alleged
involvement of the stranger during the course of this trial. When Mr Bethwana was
informed of the accused’s version when testifying, he indicated that he did not see
things that way. In that I am not surprised, for the version of the accused is incapable
of being accepted.
[145] Explaining again why he had not reported what he saw to the SAPS , or
anyone else, the accused indicated that he had not done so because he had
resolved to tell his version to this court. Why would anyone, who had unquestionable
resolved to tell his version to this court. Why would anyone, who had unquestionable
proof that another person had committed the very offence for which he had been
wrongly charged, choose to remain in custody for several years until the occurrence
of his trial, when he could have told the SAPS of his observations and his innocence
could potentially have been established without the necessity of a trial? This is one
of those instances where the proposition just has to be stated to be rejected. In my
view, the accused’s version is a fabricated one and has been conceived of by him
37
during his period awaiting trial in a n attempt to avoid the inevitable consequences of
his unlawful conduct.
[146] Ironically, but for a few issues, Mr Bethwana’s version and the version of the
accused are not dissimilar. They both agreed that they had been at the 21 st birthday
celebration at the Luthuli homestead, where they drank alcohol. They both agreed
that they were told to leave the celebration when the host wanted to go to bed. They
both agreed that they went on to Mr Simo Luthuli’s house , where they continued to
drink alcohol. The only differences that ar ose between their respective versions
related to the assault of Mr Ngema and the shooting of Mr Simo Luthuli . Thus the
accused’s criticism that Mr Bethwana had continuously lied cannot be accepted.
[147] It seems to me that i n an attempt to portray himself as being free of any
blame, the accused has simply attempted to align his evidence with Mr Bethwana’s
evidence. When Mr Bethwana stated in his evidence that he heard only one shot
fired, the accused adopted that version as well. When Mr Bethwana said that he had
run from Mr Simo Luthuli’s house, the accused said that was what he had done.
When Mr Bethwana said that he did not know of the murder of Mr Zungu until later
that day, the accused also adopted that position.
[148] On a general conspectus of the evidence , I find the evidence of Mr
Bethwana to be entirely accep table and satisfactory in all material respects, and I
reject the accused’s explanation of those same events. There was, accordingly, no
stranger who entered Mr Simo Luthuli’s house in order to slay him and Mr Zungu.
[149] Which brings me to count 1. There are no witnesses to how Mr Zungu was
murdered and the State relies upon circumstantial evidence and inferential reasoning
to establish the guilt of the accused.
[150] It is trite that in cases in which there is no direct evidence and where
circumstantial evidence must be relied upon , the courts are enjoined to follow the
circumstantial evidence must be relied upon , the courts are enjoined to follow the
judgment and reasoning articulated in R v Blom. 10 That case sets out the two
10 R v Blom 1939 AD 188 at 202.
38
‘cardinal rules of logic’ relating to inferential reasoning in cases based on
circumstantial evidence as follows:
‘(1) The inference sought to be drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable inference from
them save the one sought to be drawn. If they do not exclude other reasonable inferences,
then there must be a doubt whether the inference sought to be drawn is correct.’
[151] As was stated in Mahlalela v S:11
‘… circumstantial evidence provides a basis from which the fact in dispute can be inferred.
The salient question to be answered is whether the appellant was guilty of the crimes
committed beyond reasonable doubt. All circumstantial evidence depends ultimately upon
facts which are proved by direct evidence.’
[152] To determine whether an accused person's version is reasonably possibly
true, the Supreme Court of Appeal in S v Trainor,12stated that:
‘A conspectus of all the evidence is required. Evidence that is reliable should be weighed
alongside such evidence as may be found to be false. Independently verifiable evidence, if
any, should be weighed to see if it supports any of the evidence tendered. In considering
whether evidence is reliable, the quality of that evidence must be of necessity,
be evaluated, as must corroborative evidence, if any. Evidence of course, must be evaluated
against the onus of any particular issue or in respect of the case in its entirety.’
[153] While the overriding principle is that the guilt of the accused must be
established by the State beyond reasonable doubt, the necessary corollary is that the
accused is entitled to be acquitted if there is a reasonable possibility that an innocent
explanation which he has proffered might be true.13
[154] The State has presented some evidence on count 1. It has placed Mr Zungu
at Mr Simo Luthuli’s house. It has, furthermore, led evidence that the accused was
at Mr Simo Luthuli’s house. It has, furthermore, led evidence that the accused was
also there. It has also led evidence that the accused was armed with a revolver. It
has led evidence that the accused shot Mr Simo Luthuli in the head. And throu gh the
evidence of Mr Ngema, it has led evidence that a second shot was rapidly fired after
11 Mahlalela v S [2016] ZASCA 181 para 16.
12 S v Trainor 2003 (1) SACR 35 (SCA) at 9.
13 S v Sithole 1999 (1) SACR 585 (W).
39
the first shot. I have already found that the witnesses called by the State who gave
that evidence were reliable witnesses whose evidence may be accepted. That
evidence called for a response from the accused. The response was a denial of the
State’s case and the advancing of the version involving the stranger that has
remained undisclosed for the last eight years.
[155] There has been no evidence at all of any other person possessing a firearm
in Mr Simo Luthuli’s house. There is , furthermore, no acceptable likelihood of there
being another gunman in the house after the rejection of the accused’s version of the
stranger actually being the murderer . The spent ammunition used to kill both men
and which was extracted from their bodies after their respective deaths may have
indicated that both were shot with the same firearm. I was , however, advised of the
terrible events that led to the unavailability of that evidence , being the m urder of the
erstwhile investigating officer while en route to the Forensic Science Laboratory to
deliver to it the two bullets removed from the bodies of the dead men. I regretfully did
not hear evidence on this issue, simply an address from the State advocate. I am,
consequently, not entitled to draw any inference from this tragic event.
[156] Mr Mkhwanazi submitted that the accused’s version was reasonably possibly
true and that he should be acquitted on count 1. There is no alternative version of
the accused. He claims not to know how Mr Zungu died, or even that he had died,
only discovering this later the same day. I do not accept that to be a true expression
of the state of the accused’s knowledge but is, rather, an unacceptable mimicking of
Mr Bethwana’s evidence.
[157] The accused has not given an innocent explanation that permits it to be
accepted as being reasonably possibly true. Given the finding that the accused was
armed and that the second shot was fired in close succession to the first shot, and in
armed and that the second shot was fired in close succession to the first shot, and in
the absence of an innocent explanation from the accused, I must find that the only
inference to be drawn from the established facts is that the accused was the person
who shot Mr Zungu. I am fortified in this conclusion by the fact that it explains the
accused’s apathy in reporting what he knew of the shooting to the SAPS. He had no
interest in communicating with the SAPS as he was the gunman.
40
[158] As regards count three, Mr Ngema testified that the accused had slapped
him twice in the face. The indictment alleged that he had been slapped but once. Mr
Ngema was clearly not at the house when the murders occurred , for he saw neither
of the two shootings , only hearing two shots . Had he been intent on falsely
incriminating the accused he , too, could easily have said that he had been present
and had seen the accused carry out the shootings . But, like Mr Bethwana, he was
not prepared to testify about things that he had not seen.
[159] I can discern no reason to disbelieve Mr Ngema , for the fact that he was
slapped at least once was confirmed by the evidence of Mr Bethwana, who I have
already found to be a reliable witness. On the other hand, the accused simply denied
the act of slapping and the additional allegation that he had twice demanded that Mr
Ngema leave the ho use and purchase cigarettes for him . The demand for the
purchase of cigarettes, however, explains Mr Ngema’s absence from the house and
why he saw none of the shootings. Absent that request, he would have been inside
the house and a witness to all that occurred. His evidence accordingly has the ring of
truth to it, and I accordingly accept it in preference to the accused’s denials . I am
therefore satisfied that the accused’s guilt on this count has also been established.
[160] I turn now to consider count 4.
[161] Whilst identification was not an issue in the first three counts, as the accused
admitted his presence at Mr Simo Luthuli’s house, identification was an issue in
count 4, being the murder in February 2024 of Mr Mhlongo. The accused has
consistently denied that he was ever at the Mafunda Secondary School, y et he was
identified by Ms M[...] as being the person who had committed the murder that she
witnessed.
[162] When it comes to issues of identification, the Appellate Division stated the
following in S v Mehlape:14
following in S v Mehlape:14
‘It has been stressed more than once that in a case involving the identification of a particular
person in relation to a certain happening, a court should be satisfied not only that the
identifying witness is honest, but also that his evidence is reliable in the sense that he had a
14 S v Mehlape 1963 (2) SA 29 (A) (Mehlape).
41
proper opportunity in the circumstances of the case to carry out such observation as would
be reasonably required to ensure a correct identification.’15
[163] The court went on to state that:
‘The nature of the opportunity of observation which may be required to confer on an
identification in any particular case the stamp of reliability, depends upon a great variety of
factors or combination of factors; for instance the period of observation, or the proximity of
the persons, or the visibility, or the state of the light, or the angle of the observation, or prior
opportunity or opportunities of observation or the details of any such prior observation or the
absence or the presence of noticeable physical or facial features, marks or peculiarities, or
the clothing or other articles such as glasses, crutches or bag, etc, connected with the
person observed, and so on may have to be investigated in order to satisfy a court in any
particular case that an identification is reliable and trustworthy as distinct from being merely
bona fide and honest.’.16
[164] In Mehlape, Williamson JA further cautioned that:
‘The often patent honesty, sincerity and conviction of an identifying witness remains,
however, ever a snare to the judicial officer who does not constantly remind himself of the
necessity of dissipating any danger of error in such evidence.’17
[165] While two witnesses gave evidence on the events that occurred at the
Mafunda Secondary School, namely Ms M[...] and Mr Mzimela, only Ms M[...]
testified about the identity of the person who shot Mr Mhlongo. Her evidence must
accordingly also be cautiously approached as a single witness on the issue of
identity. There is, however, significant corroboration of her evidence.
[166] Ms M[...] testified that there had been a meeting attended by parents of
scholars at the school on 9 February 2024. Her evidence on this point was
corroborated by the evidence of Mr Mzimela, who was the parent of a scholar
corroborated by the evidence of Mr Mzimela, who was the parent of a scholar
attending that school and who had also attended th e meeting at the school. Ms M[...]
had been in the company of Mr Mhlongo moments before he died. She was
therefore in close proximity to the events that unexpectedly unfolded. She mentioned
15 Ibid at 32A-B.
16 Ibid at 32C-D.
17 Ibid at 32F.
42
that it was noon and the events that she claimed to have witnessed occurred before
her in broad daylight.
[167] Ms M[...] testified that she had observed the Toyota Etios drive into the
school grounds, shortly after noon. Her evidence in this regard was confirmed by the
data presented by Tracker, which showed that the Toyota Etios was at the Mafunda
Secondary School at 12h04. Mr Mzimela also observed th e arrival of that motor
vehicle at the school at around 12h00 and thereby confirmed Ms M[...]’s evidence.
Ms M[...] indicated that the driver’s window of the motor vehicle was partially down
which permitted her to identify the driver, who was the accused. However, on this
issue, there is no corroboration.
[168] Ms M[...] described the accused as being the person who had shot Mr
Mhlongo multiple times. There is evidence that tends to corroborate her evidence on
these issues as well . Firstly, the postmortem examination of Mr Mhlongo’s body
confirmed the presence of multiple gunshot wounds to it . He had wounds to the
head, chest, and abdomen. Secondly, there was also physical evidence found at the
scene, in the form of two fired bullet heads and eight spent cartridges , which
confirmed Ms M[...]’s evidence of multiple shots being fired by the gunman . And that
evidence also confirmed that there had only been one gunman , because all the
cartridges had been fired by the same weapon , as Ms M[...] had testified. Thirdly,
she described the accused as being the gunman and immediately after he was
arrested a short while later , the accused’s hands were tested for the presence of
gunshot residue and such tests ultimately returned a positive result.
[169] Ms M[...] was a slim, young lady whose slight figure belied her strength as a
witness. She, too, was confident in the giving of her evidence and she was sure in
what she said. She spoke loudly and clearly and displayed no fear when testifying .
She was certain about what she claimed to have seen and was able to describe her
She was certain about what she claimed to have seen and was able to describe her
observations articulately. She was never in any difficulty when cross -examined and
confidently rebutted suggestions that she was mistaken in her evidence. After careful
consideration, I accordingly do not discern the presence of the snare referred to by
Williamson JA in Mehlape in her evidence.
43
[170] There are also several other indications that her evidence is reliable. How
could she have known that the accused was an occupant of a white Toyota Etios
motor vehicle if she had not observed this herself ? It is not in dispute that the
accused was in such a motor vehicle , for the accused has admitted this fact . The
accused could not explain how Ms M[...] could have known this and said that her
evidence had ‘surprised’ him. The second indication was the presence of gunshot
residue on the accused’s hands. The third indication was that Ms M[...] identified the
accused two days after the shooting at an identity parade. Despite the random points
raised by the defence, I am satisfied that the re was no dispute that the accused had
been properly identified at the identification parade. And, finally, there was the
evidence of Mr Mzimela which , while it did not identify the gunman and thereby
corroborate Ms M[...]’s evidence further, it confirmed the sequence of events
described by Ms M[...].
[171] In rebuttal of Ms M[...]’s evidence is the accused’s version, which is simply
that he was not at the Mafunda Secondary School. Could that be reasonably
possibly true?
[172] Whilst on the face of it this is a simple defence, the accused had great
difficulty in explaining where he, in fact, was when it was alleged that he had been at
the Mafunda Secondary School. The accused’s evidence on this point is difficult to
understand because of his previously mentioned pointed refusal to commit himself to
any point in time. Thus, on 9 February 2024 all that is known from the accused’s
version is that he allegedly left his family homestead in the morning of that day. On
his version, once he got into the Toyota Etios, the motor vehicle was driven towards
Mr Dludla’s homestead and thereafter towards the Mandeni Toll Plaza. The difficulty
with this is that Tracker ha d the Toyota Etios in the area of Mbongolwane from
08h39 that morning until 12h16 , which is the very area in which the Mafunda
08h39 that morning until 12h16 , which is the very area in which the Mafunda
Secondary School is located and which span of time covers the very time at which
the murder of Mr Mhlongo occurred. If the accused was in the motor vehicle in the
morning, which is what he appears to say then , contrary to what he has stated, he
had to have been in Mbongolwane and, more particularly, at the Mafunda Secondary
School in Mbongolwane.
44
[173] The accused’s version is , furthermore, not a consistent one. In his evidence
in chief, he indicated that he had waited in the Toyota Etios while Mr Dludla went into
his family homestead. His cross -examination was interrupted overnight and the next
day it resumed . He initially indicated that he and Mr Dludla had been at the latter’s
home for about an hour. He later appeared to abandon that estimate when he
accepted that the Toyota Etios had only been stationary for 12 minutes. He then
contradicted himself over what he had done at Mr Dludla’s homestead and simply
appeared to have forgotten what he had said the day before. This is because he now
stated that he had, indeed, gone into Mr Dludla’s homestead , met Mr Dludla’s
mother and had consumed a meal that she had prepared for them. The meal was
comprised primarily of meat.
[174] The court pointed out that he had previously said that he had remained in
the motor vehicle when Mr Dludla had gone into his homestead. There had been no
mention of him also going in, let alone eating a meal there. Asked about this
difference by the court, the accused blamed his counsel for his two different
versions. The explanation that he advanced was tortuous in its logic. It was that his
counsel had not asked him what he had done when at the Dludla homestead and
had not asked him if he had gone into the Dludla homestead. When it was pointed
out that the accused himself had provided the version of what he had done at the
homestead, namely that he had not gone into the homestead and had, instead,
remained in the Toyota Etios, the accused still laid the blame for the contradiction at
the feet of his counsel.
[175] The accused’s unreliability as a witness again manifested itself when he
narrated the events surrounding his arrest. He claimed never to have been the driver
of the Toyota Etios, claiming to not even know how to drive a motor vehicle. As it will
be recalled, o ne of his complaints about the identification parade that was later
be recalled, o ne of his complaints about the identification parade that was later
conducted was that he was the only one on the parade who was barefoot. Asked by
Ms Ntsele what had happened to his shoes, he had said that they had been left at
the scene of his arrest. Coincidentally, the court remembered that there was a
photograph of a sandal at the place where the accused was arrested. 18 It was
18 Exhibit ‘D’, photographs 14 and 17.
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depicted as being directly next to the driver’s door of the Toyota Etios, on the surface
of the road. The accused was asked to explain how it had come to be there if he had
been a passenger on the other side of the motor vehicle. He could not explain it s
position satisfactorily. His version provided no scope for him ever being on the right
hand side of the motor vehicle. He then suggested that the motor vehicle was not
shown in the photograph at the place where he and Mr Dludla had been
apprehended and it had been moved to another position where the photograph had
been taken. If that were so, the court pointed out that the SAPS would also have had
to move the sandal. The accused was asked why they would have done that. The
accused did not know the answer to that.
[176] It would not be inaccurate to state that the accused displayed an air of
studied indifference throughout the period that he gave evidence on count 4 . He
claimed to have no interest in why Mr Dludla was proceeding to Eshowe in the first
place on 8 February 2024, he was not concerned where Mr Dludla was going to stay
on the evening of 8 February 2024, and he had never asked him the next morning
where he had stayed when he eventually met up with him. None of this appears
likely. Mr Dludla was a friend of his and it was in the spirit of friendship that the
accused was offered a lift to Eshowe by Mr Dludla in the first place, on the accused’s
own version. It appears improbable that the accused would not be concerned about
any of these matters.
[177] Overall, t he accused was a n appalling witness. He could not answer a
question directly but had to recite an answer embellished with details that he had not
been asked. Indeed, that was the defining characteristic of his evidence under cross-
examination: he chose not to answer the question that was put to him but preferred
to answer a question that he wanted to answer but which he had not been asked. On
to answer a question that he wanted to answer but which he had not been asked. On
countless occasions he was asked by the court whether he had been asked the
question in respect of which he had provided an answer. On each occasion , without
fail, he acknowledged that he had not been asked th e question that he answered ,
and apologized. Yet, he did not change his ways and continued to provide answers
for questions that he had not been asked.
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[178] The accused can only be described as a deceitful and cunning witness. As
mentioned, he had a strategy of not permitting himself to be confined to a specific
time. Simple questions as to time were met with unhelpful answers such as , for
example, that an event happened during the day or during the night. That, of course,
was readily obvious: greater particularity was obviously being sought of when in that
phase of the day or night the event had occurred. This happened more than a few
times and accordingly can only have been part of a strategy decided upon by the
accused. Th e advantage of this approach, so the accused must have believed, is
that it gave him the ability to make adjustments to his version when required to do
so, which he would not have been able to do if he was confined to a specific time. He
was quite prepared to mislead the court by asserting that the lack of a watch
prevented him from being certain about what time an event occurred. Ms Ntsele got
the accused to admit that he had always had his cellular telephone handset with him
which would have permitted him to know the time. Faced with this undeniable truth,
the accused had no option but to admit it but to state, insouciantly, that he never
looked at the handset to discern the time.
[179] When compared with the candor of the State witnesses called on count 4 ,
the accused’s demeanor was unimpressive and his evidence is clearly false and
contrived. He is simply an unbelievable witness who was quite prepared to lie when
it benefitted himself. When he ha d no explanation, he simply denie d the facts with
which he was confronted . A classic example of this may be discerned in the way in
which he dealt with the gunshot residue found to be on his hands after his arrest. He
could not dispute the objective fact of the presence of the gunshot residue, so he
simply denied that he had discharged a firearm. Attempts were made through
questions put to Sgt Zikhali to suggest that the gunshot residue could have come to
questions put to Sgt Zikhali to suggest that the gunshot residue could have come to
be on the accused’s hands without him ever having fired a firearm. But the accused’s
evidence on count 4 never included the firing of a firearm by anyone. None of the
propositions put to Sgt Zikhali appeared likely, nor were they supported by any
evidence presented by the defence and therefore remained nothing more than
unsubstantiated speculation . Given the accused’s unwillingness to clarify exactly
where he was and when he was there, no weight can be attached to any of the
speculative questions put to Sgt Zikhali. Questions do not amount to evidence.
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[180] It follows from this analysis that I can only speak of the accused as a
witness in the most unfavorable terms and the answer to the question that I posed is
that it is not reasonably possible that the accused was not at the Mafunda Secondary
School on 9 February 2024.
[181] I consequently do not accept the accused’s evidence where it does not
conform with the evidence of the State witnesses. I do not accept the version
advanced by the accused that the stranger shot Mr Simo Luthuli, and by implication,
Mr Zungu, nor do I accept his denial that he did not slap Mr Ngema. I reject the
accused’s version that he was never at the Mafunda Secondary School and that he
was not the person who gunned down Mr Mhlongo . It follows that I accept the
evidence of the State witnesses who contradicted the evidence of the accused.
[182] The State has accordingly established the guilt of the accused beyond a
reasonable doubt on counts 1, 2, 3 and 4.
Conclusion
[183] I accordingly come to the following findings:
(a) On count 1, being the murder of Mr Edwin Zungu, the accused is found
guilty.
(b) On count two, being the murder of Mr Simo Luthuli, the accused is found
guilty.
(c) On count three, being the common assault of Mr Siphamandla Ngema, the
accused is found guilty.
(d) On count four, being the murder of Mr Bongani Mhlongo, the accused is
found guilty.
_____________________________
MOSSOP J
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APPEARANCES
Counsel for the State: Ms T Ntsele
Instructed by: Office of the Director of Public
Prosecutions
Pietermaritzburg
Counsel for the accused: Mr D C Mkhwanazi
Instructed by: Legal Aid South Africa
Empangeni Local Office