About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
You are here:
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 433
|
Noteup
|
LawCite
S v Dladla and Others (SS053/2024) [2026] ZAGPJHC 433 (21 April 2026)
Download original files
PDF format
RTF format
FLYNOTES:
CRIMINAL
–
Murder
–
Kidnapping
and torture
–
Accused
abducted deceased on two occasions, detained and subjected to
severe assault and torture to compel repayment of alleged
debt –
Extorted funds channelled through accounts of co accused –
Court held directing mind acted with common
purpose, death
foreseeable and reconciled to possibility, establishing dolus
eventualis for murder – Co accused
convicted of money
laundering for handling proceeds of crime – Convictions
entered accordingly – Prevention and
Combating of Torture of
Persons Act
13
of
2013,
s
4(1)(a).
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case Number: SS053/2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In the matter between:
THE STATE
v
DLADLA,
BUSISIWE
Accused 1
DLADLA,
SINETHEMBA TONBRIGHT
Accused 2
DLADLA,
CEBISE
OLPHA
Accused 3
Coram:
YACOOB J
Heard:
28 July
2025 – 09 September 2025, 25 September 2025
Delivered:
21 January
2026, revised 21 April 2026
JUDGMENT
YACOOB, J:
INTRODUCTION
[1]
It is
common cause that, on 9 September 2022, Mr Mzwandile Konki was taken
to the home of accused number one, Ms Busisiwe Dladla,
and tortured,
while his friends and relatives were asked to pay money to relieve
him from the ordeal he was undergoing. It is also
common cause that
he died as a result of his injuries. It is common cause that what
happened was the result of a money-lending
transaction between Mr
Konki and Ms Dladla. That these issues are common cause arises from a
combination of the admissions in terms
of s220 of the Criminal
Procedure Act (“CPA”)
[1]
and the evidence.
[2]
The three accused persons are Ms Busisiwe Dladla,
accused number one, her daughter, Ms Sinethemba Dladla, accused
number two, and
Ms Cebisile Dladla, accused number three, who is Ms
Busisiwe Dladla’s sister. For convenience and to avoid
confusion, I refer
to accused number one as Ms Dladla, accused number
two as Sinethemba, and accused number three as Cebisile.
[3]
The three Dladlas were each charged as follows:
a.
Two counts of kidnapping;
b.
Contravention
of s 4(1)(a), read with ss 2 and 3 of the Prevention of and Combating
of Torture of Persons Act (“PCTA”),
[2]
(count 3);
c.
Murder
read with s 51 of the Criminal Law Amendment Act,
[3]
(count 4);
d.
Extortion read with the provisions of s 51(2) of
the Criminal Law Amendment Act (count 5 and 6), and
e.
Contravention
of s 4(b)(i)/(ii) (money-laundering) read with ss 1, 7A and 8(1) of
the Prevention of Organized Crime Act (“POCA”)
[4]
(count
7).
The State relied on
common purpose among the three accused.
[4]
The three accused pleaded not guilty to all
charges. At the close of the State case, an application for discharge
was brought on
behalf of accused numbers two and three only. The
application was dismissed as far as Sinethemba was concerned. The
application
succeeded for Cebisile on counts one to six, and she
remains only to answer the charge of money-laundering encapsulated in
count
7.
[5]
The State called 9 witnesses to prove the charges:
a.
Ms Nocawe Nkonki;
b.
Mr Steven Buti Bakers;
c.
Ms Siyasanga Tyhalithi;
d.
Ms Shebu November;
e.
Ms Julia Moretlwe;
f.
Mr Zakariah Mokone;
g.
Mr Percival Louw;
h.
Dr Monzambe, and
i.
Sergeant Modupe
[6]
The Defence called six witnesses:
a.
Ms Busisiwe Dladla;
b.
Ms Sinethemba Dladla;
c.
Mr S Ndaba;
d.
Mr Raheen Matola;
e.
Mr Njabulo Mvelase, and
f.
Ms Fanny Hendricks.
[7]
The Court called for further evidence regarding a
certain issue, arising from the version of accused number one, and
this was presented
on affidavit.
THE STATE’S
EVIDENCE
[8]
Ms Nkonki is the sister of the deceased. She
testified that her brother called her on 09 Sept 2022 around
lunchtime to ask her to
help him pay a debt. She testified that he
told her he was owing people and that they were injuring him. She
ignored the request
at first, but he called again and begged her to
help. She could hear he was in pain. He had called her from a number
later established
to be that of Ms Dladla.
[9]
At some point later in the afternoon Ms Dladla
called her and asked her why she would not pay and Ms Nkonki asked
her why she doesn’t
stop torturing her brother and take his car
instead. Ms Nkonki called Mr Konki’s partner Ms Tyhalithi and
she confirmed that
the couple owed money to Ms Dladla. Ms Tyhalithi
also told her about a previous event, where Mr Konki had been taken
away to obtain
payment and Ms Nkonki asked her why the couple had not
told her.
[10]
At some point, around 15h00, she called the number
to say “please wait with the torturing” since she is
sending the
money. She was told by the person who answered that “the
other people” were not there so he could not answer her
request.
Eventually, after 17:00, she paid R9 700, which is the
amount Ms Dladla had told her to pay.
[11]
Ms Nkonki testified that she paid in order to try
and save her brother’s life. Ms Dladla sent her a picture of a
Capitec Bank
card to give her the details of an account into which to
pay. The card was for Sinethemba’s account. After
the
payment was made she asked Ms Dladla to drop her brother off with
her, but Ms Dladla did not do so.
[12]
Eventually Ms Nkonki heard from Ms Tyhalithi that
they were going to hospital. Later she heard her brother was dead. Ms
Nkonki had
children with her, so they were only going to see him in
the morning at the hospital.
[13]
Ms Nkonki further testified that Ms Dladla told
her if they go to complain to the police, the police know Ms Dladla,
implying that
she would be protected, and that if they try and open a
case, ‘they’ know where the family live and will finish
them
off. According to Ms Nkonki, Ms Dladla told her this when she
called Ms Dladla to tell her of Mr Konki’s demise.
[14]
The second state witness, Mr Bakers, was a scholar
transporter at Sharonlea school, as was Mr Konki. He did not see what
happened
on the day that his colleague was kidnapped and tortured but
testified about the contents of the video footage outside the school,
which was also admitted as evidence. He had been asleep in his
vehicle outside the school and woke up to find that Mr Konki’s
car was still there, but Mr Konki was not and was late for his
transport duties. Mr Bakers telephoned Mr Konki and someone else,
a
male person, answered and told him that Mr Konki was at Vosloorus. Mr
Bakers testified that on the video footage he saw Mr Konki
being
taken from his vehicle by four men, that there was some kind of
scuffle, and that it was evident that Mr Konki did not want
to go. It
is common cause that Ms Dladla was present in front of the school at
the time, and that the men who went and fetched
Mr Konki from his
vehicle were with Ms Dladla. Mr Bakers was a little confused about
which vehicle was parked where but it was
not material because in any
event he did not personally see Mr Konki being taken. His evidence
was not of material assistance to
the court, save to the extent that
he telephoned Mr Konki and another man answered, and said Mr Konki
was in Vosloorus.
[15]
Ms Tyhalithi, Mr Konki’s partner, testified
that she knew Ms Dladla, and they (she and Mr Konki) had borrowed
money from her
twice. The first time, in March 2022, they had
borrowed R5 000 and the second time, in April 2022, R10 000. The
first time they
paid back R7 500 at the end of the same month in
which they had borrowed the R5 000. The second amount they could
not pay
back the full amount plus interest (total R15 000) in the
required time, so they attempted to agree to pay by instalment. This
was the source of the problem which resulted in Mr Konki’s
death. When they attempted to negotiate with Ms Dladla, they were
told that the amount to be paid back attracted further interest and
was now R30 000 because the money was now in their hands and
not Ms
Dladla’s, and was not earning anything for her. They were
desperate and agreed to this, on the basis that they would
pay back
R5 000 per month.
[16]
They had paid a total of R17 000 by August but in
September Ms Dladla said she wanted the full balance and was not
happy with being
paid back in bits and pieces. According to Ms
Tyhalithi, Ms Dladla conveyed this to them on 5 September, and on the
same day four
men kidnapped Mr Konki and drove around with him all
day. They took him from Bavitana complex where, according to Ms
Tyhalithi,
Ms Dladla’s “other brother” resides and
Mr Konki was dropping off schoolchildren. The men were threatening Mr
Konki and demanding money. According to Ms Tyhalithi, Mr Konki
described the four men as Ms Dladla’s brothers, also it is
unclear whether this meant brothers in the sense of blood relations
or associates.
[17]
The three of them (Ms Tyhalithi, Mr Konki and Ms
Dladla) agreed that the money would be paid on 9 September. On the
afternoon of
9 September, Ms Dladla called Ms Tyhalithi from Mr
Konki’s phone and said she was with him and wants the money and
would
only release him when the money was paid. Ms Tyhalithi said she
could hear Mr Konki being tortured and Ms Dladla asked her if she
could hear that and whether she wanted him to die. Ms Dladla called
Ms Tyhalithi repeatedly to ask for the money and say that they
will
continue torturing Mr Konki if the money was not paid.
[18]
Ms Tyhalithi asked friends and family for help.
Their traditional healer, to whom she referred as “Shegu”
but it is
common cause is Ms Shebu November, who also testified, gave
R10 000 – she had already been called by Mr Konki himself. Ms
Tyhalithi knew that Ms Nkonki gave R9 700, and it is only after that
that they released him. Ms Tyhalithi said that the R10 000
was
paid by Ms November into Mr Konki’s account – he had had
his bank card with him so that the money could be withdrawn.
Ms
Nkonki had paid into Ms Dladla’s child’s account. She
knew about Ms Nkonki’s payment because they had been
in touch
with each other during that day.
[19]
When Mr Konki was released, he arrived home around
19h00 in the evening, he was brought home by a security guard from
the school
because he was in pain and could not drive. The guard
brought Mr Konki in Mr Konki’s car. Ms Tyhalithi was outside
when they
arrived because she heard the vehicle drawing up. Mr Konki
disembarked from the front passenger seat.
[20]
Mr Konki told Ms Tyhalithi that he had been
tortured. He described having had plastic put over his head, his
hands tied, and water
poured over him. Mr Konki also complained of
pains in his stomach. He told Ms Tyhalithi that four men came to the
school in a white
Avanza, they had guns, and Ms Dladla was also there
in her own Mercedes Benz. The men forced him to go with their
firearms. They
were the same men who had taken him on 5 September.
While he was telling her all this, Ms Dladla called and threatened
that if
they went to the police, she knows where they live and she
will kill them all.
[21]
Since Mr Konki was complaining about pain, Ms
Tyhalithi took him to the hospital, where he later died.
[22]
Ms Tyhalithi said that the money was borrowed to
fix the car used to transport schoolsren. It was put to Ms Tyhalithi
that the money
borrowed was R15 000 not R10 000 but Ms Tyhalithi was
very clear about the amounts and how they were calculated. It was
also put
to her that the money was borrowed because her mother passed
away and she had to go to the Eastern Cape, but Ms Tyhalithi said
that her mother died in 2018. Apart from this, the bulk of Ms
Tyhalithi’s evidence is common cause – the disputes are
whether Mr Konki was kidnapped on 5 September, and whether Ms Dladla
participated in the events of 9 September voluntarily or under
compulsion.
[23]
It was put to Ms Tyhalithi that she was told by Ms
Dladla that the money belongs to a person called Nathi and she denied
this. Ms
Tyhalithi said that when they wanted to borrow a large
amount (the R10 000), Ms Dladla said she would have to speak to
“Thami”,
but never mentioned anyone called “Nathi”.
It is not disputed that Thami is Ms Dladla’s life partner. When
they
borrowed the R10 000 they had to go to fetch it the day after
the day on which they made the request, because it was a large
amount.
Ms Dladla provided it to them in cash and they went and
fetched it at her residential complex. It was put to Ms Tyhalithi
that
after the R10 000 cash was collected, a further R5 000 was
transferred into her account. She denied that.
[24]
It was also put to Ms Tyhalithi that she asked Ms
Dladla to sell a vehicle to pay off the money and that that did not
work. She
denied that this happened. It was also put to her that the
person called Nathi was pressuring Ms Dladla to get back his money.
Ms Tyhalithi denied knowing anything about this, or that Ms Dladla
mentioned it. It was submitted to the court that Ms Dladla’s
bank account would be produced to show both the transfer of the R5
000 to Ms Tyhalithi and that the amounts Ms Tyhalithi said had
been
paid back were not paid. The accounts were eventually produced by the
State and did not fully support Ms Dladla’s version.
[25]
The fourth state witness, Ms Shebu November, was
the traditional healer who assisted Mr Konki by depositing R10 000
into his account.
She testified that he called her, told her he was
being assaulted, and asked her to pay. During the call he screamed
and hung up
the phone. He was speaking frantically or urgently –
fast and loud. He told her to deposit the money into his account. He
told her he needed R10 000 and she sent a friend to deposit the
money. She deposited R9400 and R600. She would not have deposited
the
money if Mr Konki had not been being assaulted.
[26]
Ms Moretlwe was the next witness. She is a
sergeant in the South African Police Services. She testified as to
what Ms Tyhalithi
told her when she arrived at the hospital after
receiving a report of murder. Ms Tyhalithi told her that Ms Dladla
was the person
who had taken Mr Konki and tortured him. They went to
Ms Dladla’s address and did not find her, but she later came to
the
police station, at which point she was arrested. She did not give
any substantive statement and did not mention the person Nathi
or any
other people who might have been responsible. Nor did she say that
she had been forced to participate in what happened.
[27]
Mr Mokone, who testified next, was the security
officer at Sharonlea school on the evening of 9 September. He
testified that while
he was on his way to report for duty, he saw Mr
Konki walking around the corner of Cypress and Mahogany streets about
70 metres
from the school. Mr Konki was having difficulty walking and
Mr Mokone gave him a lift to his car. Mr Konki told him he had been
abducted and assaulted. Mr Mokone took Mr Konki home in Mr Konki’s
vehicle. The only cross-examination directed to Mr Mokone
was to
clarify which seat Mr Konki was sitting in. The response was that he
was in the first row behind the driver (the vehicle
was a
people-carrier with multiple rows of seats).
[28]
Mr Louw from Capitec Bank was the next witness. He
testified about various types of bank accounts and transactions that
Capitec
provides, and about the patterns they look out for that raise
a suspicion of money-laundering. He also testified about the specific
contents of Capitec bank statements admitted into evidence.
[29]
Mr Louw confirmed on Sinethemba’s bank
statement the receipt of R9 700 on 09 September and then that
R500 was sent out
as a “cashsend”, a way of sending money
that does not identify the recipient. R9 200 was transferred to
Cebisile. From
Cebisile’s account an amount of R10 000 was then
paid to a person with a reference of Tshauki. An account from Capitec
which
received the money was identified as Mr Themba Chauke, from
where an amount of R3 000 and R7 000 was again moved out. Mr Louw
confirmed
the receipt of the R10 000 from Ms November on Mr Konki’s
account, and showed various transfers, withdrawals, “cash
send”
and spend amounting to R9760 thereafter. It is not disputed that the
transactions amounting to that much was taken
from Mr Konki’s
account towards the alleged debt owing. Of the money which left Mr
Konki’s account, an amount of R3000
was transferred to a Crosby
Zikalala. There was no evidence of any payment to a person called
Unathi or Nathi Buthelezi, who Ms
Dladla alleges is the “owner
of the money” that was lent.
[30]
Mr Louw testified that as a forensic investigator
they are asked to look out for money behaviour that may be an
indication of money
laundering. This included “layering”,
which is moving funds through different transactions to obscure their
origin.
Mr Lebea, who appeared for the three accused persons,
criticised the evidence about indications of money laundering as
simply common
sense and not specialised expert evidence. There is no
merit in that criticism as sometimes expertise involves the
application
of common sense together with experience and specific
knowledge. Mr Louw conceded that the kinds of money movement that
forensic
investigators look out for are only indications which then
would require further investigation, and that money laundering is not
the only conclusion to be drawn from the existence of that kind of
money behaviour, although it is a possible one.
[31]
After Mr Louw’s testimony, Mr Lebea
criticised the state for not assisting Ms Dladla to produce her own
bank statements, but,
at the same time, declined to provide Ms
Dladla’s bank details to allow this to happen. At this point he
also requested that
footage be obtained from Bavitana complex, from
where Mr Konki was allegedly taken on 5 September, and from the
school at night
on Mr Konki’s return.
[32]
The next state witness was Dr Monzambe who treated
the deceased when he was taken to the hospital. He had no independent
memory
of that night, but had to testify with reference to the notes
made in the patient file. His evidence was simply regarding the
injuries
recorded and the treatment, and the events at the hospital
leading up to Mr Konki’s death. It was evident that the death
was a result of the injuries.
[33]
The last state witness was the investigating
officer, Sergeant Modupe. She testified that the first time Ms Dladla
was arrested
the matter was not placed on the roll because the
prosecutor was of the view that more investigation was needed and
complained
that the evidence was hearsay. Her commanding officer told
her that he had taken Ms Dladla’s cellphone from her in the
cells.
Sgt Modupe went to Ms Dladla’s home to get the pin
number or password from her, which she gave. She opened the phone
with
the password and looked at the photos on the phone, looking for
photos of the assault. She found them in the recycle bin, where
they
would be if they had been deleted. These are the photos which it is
common cause are Mr Konki at the time of the assault.
Sgt Modupe then
restored the photos (transferred them out of the recycle bin into the
photo gallery). She took the phone to Brixton
so that the information
could be downloaded.
[34]
Sgt Modupe also looked at the WhatsApp messages on
the phone, and found that photos had been sent to a person identified
on the
phone as Cne, who it is common cause is Sinethemba. Sgt Modupe
testified regarding the content of WhatsApp messages found on the
phone, particularly those between Ms Dladla and her daughter,
Sinethemba. There was also a voice note which was not put before
the
court because, according to Sgt Modupe, it was not retrievable. There
was a discussion between the two after Ms Dladla sent
Sinethemba
pictures of Mr Konki being beaten.
[35]
There is a dispute about the meaning of those
messages which are in isiZulu. However, at the time of Ms Modupe’s
evidence
there was no dispute with the interpretation, and Ms Dladla
clearly understood English and could have raised an objection. Mr
Lebea
objected to some interpretation but at the same time asserted
that he could not be specific because he does not speak isiZulu. The
court had to get in the interpreter’s supervisor to listen to
the recording and check, and the interpretation was confirmed.
In the
context and the timing, I am satisfied that it was correct.
[36]
After the pictures of Mr Konki appeared in the
WhatsApp conversation, there is a sticker of a person laughing, then
a message saying
“Shubile” which means something along
the lines of “hectic” or “it’s happening”
or “it’s
going down”. Obviously interpretation is a
question of context and is not always an exact science. This message
was from
Ms Dladla. Sinethemba responded with an exclamation and by
saying they beat him up and Ms Dladla responded with a laughing
sticker
and that he “shit himself” or defecated, which is
the interpretation by the court interpreter of the word “boshelile”.
Sinethemba, responded to her mother’s messages with laughing
emojis.
[37]
Sgt Modupe then described obtaining the footage
from the school and taking it to the relevant office to make a photo
album. She
was unable to obtain the footage of the evening when Mr
Konki had been dropped off. She had not originally obtained it
because
the evidence given to her had been that Mr Konki was not
dropped off at the school itself. She had also obtained footage from
Ms
Dladla’s residential complex, Northgate Heights, which
showed the convoy of the Avanza and Mercedes Benz arriving at the
complex and leaving in the evening.
[38]
Sgt Modupe testified that Ms Dladla never
mentioned Mr Nathi Buthelezi at any point, nor did either of the
other accused. She testified
that after Mr Buthelezi was mentioned
during the hearing, she was provided with a picture of an identity
book of a person called
Dalokwakhe Nkosinathi Buthelezi. She had
approached the Department of Home Affairs to verify whether the
person is deceased as
was suggested but they had requested the
original identity document. Apparently there were concerns about the
authenticity of the
copy. At this point the court made it clear that
a witness from home affairs was required to verify to the court why
an identity
number could not be checked on their system without the
original document.
[39]
Sgt Modupe testified that, after receiving the
details of Mr Buthelezi, she searched for bank accounts using his
identity number.
Bank statements obtained from ABSA demonstrated that
the person only had a savings account with less than R1000 in it
during the
relevant year, 2022. ABSA had no indication that the
person was deceased.
[40]
Sgt Modupe then testified that she had obtained Ms
Dladla’s bank account statements using Ms Dladla’s
identity number.
It is unclear why that had not been done earlier.
However, since Ms Dladla herself had requested, through her counsel,
that her
statements be obtained, there could be no difficulty
admitting them. The statements for 2022 demonstrated a turnover of
over R1
million. There were no payments or cashsends to any person
who could be identified as Mr Buthelezi. There was, however, a R5 000
payment to Mr Konki in April 2022.
[41]
Sgt Modupe then testified regarding the contents
of Ms Dladla’s telephone, which were put up on a slideshow in
the court.
There were pictures of Mr Konki being tortured, as well as
a picture of a cashsend by Sinethemba on 9 September. On 11 August
2022
there is a screenshot of a message to a number belonging to Mr
Konki saying “Kusiza Ungekhowana”, translated as “Morning
will come and you won’t be there”, as well as a number of
other intimidatory messages.
[42]
There was a payment notification of R7 000,
as testified by Ms Tyhalithi, dated 5 September 2022. In addition,
there were various
pictures of Capitec bank cards, including that of
Sinethemba and a Mr QP Zondi.
[43]
Sgt Modupe also led evidence of the video footage
at Sharonlea school, which shows a group of men going to Mr Konki’s
vehicle,
a discussion or dispute, and him going with them to their
vehicle. No firearms are visible in the footage. Ms Dladla is in the
picture, but she did not approach Mr Konki’s vehicle. There was
also footage of Ms Dladla’s complex. The owner of the
Avanza
was traced through the registration number, as Mr MP Lukhele, who Sgt
Modupe was unable to find.
[44]
In cross-examination Mr Lebea suggested that there
had been inadequate investigation and that Sgt Modupe had concocted
evidence
to incriminate Ms Dladla. None of these suggestions had any
basis, nor were they credible. Sgt Modupe stood up well to
cross-examination
and I am satisfied with her evidence. No
investigation can ever be perfect, whether from the point of view of
the prosecution or
of the defence.
[45]
Sgt Modupe testified that she attempted to get the
footage from Bavitana complex of the first kidnapping, but there was
none. She
repeated what she recollected was in the voice note from
Sinethemba to Ms Dladla. It was put to her that Sinethemba would deny
she said that.
[46]
Regarding the payment of the R7 000, it was put to
Sgt Modupe that Ms Dladla would testify that Ms Tyhalithi sent it on
the day
that they were consulting with a lawyer, to show that the
lawyer gave them money. However, this is not the version that was put
to Ms Tyhalithi. Ms Tyhalithi was told that Ms Dladla denied ever
receiving the R7 000.
[47]
Sgt Modupe was asked what she did to find the four
men, and responded that she could not tell who they are and Ms Dladla
did not
tell her who they are when asked. If she had any more
information, she would have been able to do more to find them.
THE DEFENCE’S
EVIDENCE
[48]
After the section 174 application, Ms Dladla
testified in her own defence. According to her she sells things, such
as perfume and
second-hand cars, sews things, such as curtains, and
lends money for a living. She identified Nathi Buthelezi as her
business partner.
[49]
Ms Dladla testified that she lent Mr Konki R1 200
in December 2021, and then R15 000 in March 2022. First R10 000 on a
Wednesday
and then R5 000 on a Sunday. When asked how she got the
money for lending out, first she said she started with small amounts
and
the amounts grew as she got more profits. Then she testified that
she started by doing a stokvel for a year, and began to lend money
from the proceeds of the stokvel. She testified that all the money
lent to Mr Konki came from the stokvel.
[50]
According to Ms Dladla, Mr Konki owed her R15 000
plus interest, being R22 500 but only paid R5 000. She said he told
her she would
be paid back from insurance from the death of Ms
Tyhalithi’s mother. She said she told him she had to ask her
business partner,
who was Nathi. She said that Nathi asked her a
number of questions before agreeing to lend the money and that Nathi
brought her
the money. It was Nathi’s money. This again was
inconsistent with her previous testimony that it was stokvel money.
[51]
Ms Dladla initially said that Mr Konki borrowed
money from her, then that Ms Tyhalithi came to her with a story about
her mother
passing on. She also said after Mr Konki paid R5000 of the
R7500 interest she supplemented it with her own R2500. She then said
that Mr Konki told her his lawyer would lend him R50 000 to pay all
his debts. She then received a letter that was hand delivered
setting
out the proposed payment plan, which she did not agree to. She
telephoned Mr Konki but only got hold of Ms Tyhalithi who
told her
that she did not know about the proposed plan and had also received a
letter. This was not put to Ms Tyhalithi.
[52]
Ms Dladla sent a picture of the letter to Mr
Buthelezi who said that Mr Konki was crazy and asked for Mr Konki’s
number. She
telephoned Ms Tyhalithi and told her Mr Buthelezi was not
agreeing to the payment plan, and wanted to speak to her. Ms
Tyhalithi
agreed to her number being given to him. Ms Tyhalithi then
called her and said Mr Buthelezi had called. None of this was put to
Ms Tyhalithi. Ms Dladla later took Mr Konki to a police station to
say this man owes me money and the police told her they don’t
deal with money lending. On being asked whether Mr Buthelezi would be
called, Ms Dladla testified that Mr Buthelezi died in 2024.
[53]
Regarding what happened on 5 September 2022, Ms
Dladla responded with a convoluted narrative that Mr Buthelezi
arrived at her place
with some men and she went with him and his
cohorts (they in their car and she in hers) to a car wash at Bel Air.
Mr Buthelezi’s
friend arrived with Mr Konki. Mr Buthelezi’s
“friend” had fetched Mr Konki. She denied that it was a
kidnapping.
Mr Konki came voluntarily to Bel Air.
[54]
Ms Dladla testified that Mr Konki asked her the
day before the second kidnapping (that would have been 8 September
2022) to speak
to her “brother” meaning Mr Buthelezi. She
said also that Ms Tyhalithi told her the lawyer was depositing the
money
the next day, 9 September. Mr Buthelezi would not listen and
insisted he would come the next day. He then came the next day with
his people to Ms Dladla’s home.
[55]
According to Ms Dladla she had no control over the
events of the day. She was afraid and had to just let Mr Buthelezi
and his people
do what they did. She was afraid she would be harmed
otherwise. However, according to her the men did not have guns. It is
difficult
to understand why she was so afraid and why Mr Konki went
with them when he had work to do, if they were not armed.
[56]
Ms Dladla said that she shared pictures of Mr
Konki with her daughter to let her know what was happening in case
things went badly
and then her daughter could report it to the
police. She said that she was laughing in the WhatsApp messages
because she is a person
who laughs when she is afraid.
[57]
Later, she said that Ms Nkonki told her on the
day, 9 September, that Ms Tyhalithi’s mother had passed away
long ago. This,
too, was not put either to Ms Tyhalithi or Ms Nkonki.
It was only put to Ms Tyhalithi that the money was in fact for her
mother’s
funeral. According to Ms Dladla Mr Buthelezi spoke to
Ms Nkonki when she called. This was never put to Ms Nkonki.
[58]
Ms Dladla testified also that she could not give
her own bank account number because she had not had the app on her
phone she had
on the day and her husband had taken her card to
KwaZulu-Natal. There was no explanation why she could not get the
number from
him, in the same way as she then obtained Sinethemba’s
number from her, which she later did. According to her that was the
reason for the money going to Sinethemba’s account. According
to Ms Dladla, Mr Buthelezi said that the money must be paid
first to
Ms Dladla’s phone by cash send and then she must send it to Mr
Buthelezi’s account. However, that is not what
happened with
the money that was sent to Sinethemba’s account. Ms Dladla then
suggested that there was another R5 000 that
she had to ask her
cousin for, but her cousin only had R2 500. Her version now was that
she was only going to get a share of R5
000 from the transaction and
that the rest of the Money was to go to Mr Buthelezi
[59]
On being taken through her bank statements, Ms
Dladla testified that the large amounts that were paid to her were
from persons purchasing
motor vehicles, fishing rods and machines to
make maize meal.
[60]
Under cross examination Ms Dladla denied that
money lending was one of her primary businesses. She stated that she
never wrote anything
down, she remembered everything. She
stated that she did not tell her counsel everything that she had told
the court
because she was planning to testify and tell the court her
story.
[61]
According to Ms Dladla, Thami, her boyfriend/
partner, knew nothing about her business, and was never involved.
However when Ms
Tyhalithi testified that Ms Dladla said she had to
talk to Thami, it was not put to her that this was untrue and that
Thami knew
nothing about the moneylending business. When Ms Ryan
sought to cross examine Ms Dladla on her bank statements, Mr Lebea
objected.
However, even though the bank statements arrived late, Mr
Lebea had himself led evidence on them and, in any event, Mr Lebea
had
requested that the state produce them. The cross examination was
therefore permitted.
[62]
Ms Dladla confirmed that Mr Konki was beaten until
the money came in, which was in early evening. She said she did not
know why
there were no records of her calling Mr Buthelizi, perhaps
she had called him on WhatsApp.
[63]
Ms Dladla had testified that she had received
money from a Mr Matola for purchase of a vehicle and that she never
lent him money,
but she could not explain why she had paid him money,
which was evident from her bank statements. When the amounts were put
to
her, she said that she would get him to acquire parts for her and
she would pay him. She could not explain how there were payments
from
her to people, who then paid to Sinethemba. Eventually, Ms Dladla
explained that she might ask someone who owed her money
to pay it to
members of her family. She said she had only used Sinethemba’s
account for this purpose twice.
[64]
Sinethemba, accused number two, testified next.
Her version was that she knew nothing about the events of 9 September
and she was
surprised when her mother sent her the pictures. She was
in KwaZulu-Natal repeating her matric to get better results. She was
writing
English. She did not know why her mother wanted her bank
account number. When asked in cross examination whether she had
looked
at her bank accounts before testifying, she first denied that
she had done so and then admitted it.
[65]
Sinethemba agreed that people paid money that was
owing to her mother into her account. She said that her mother used
her account
often and her mother would tell her where to pay the
money that came in. This would include payments to her stepfather.
Regarding
the payment she made to Cebisile from her account on the
day in question, she said that it was a stokvel amount due to
Cebisile.
This was not consistent with what Ms Dladla had said.
[66]
According to Sinethemba the first time she heard
of Mr Buthelezi was when her mother was arrested.
[67]
The next defence witness was Sithandiwe Ndaba, Ms
Dladla’s cousin, who is the cousin who Ms Dladla testified she
had asked
for money. She paid it using stokvel money received on 7
September, so it was after 7
September,
but she had no independent memory of the date.
[68]
The next witness was Mr Mathola. He testified that
he purchased an Audi A3 from Ms Dladla, and that he had later sold
it. He denied
that Ms Dladla lent him any money and he denied that
she ever gave him money for anything. When the payments reflected in
the statements
were put to him, he said that maybe he bought rims
from Ms Dladla and returned them because they were cracked. This does
not explain
over 40 transactions between them.
[69]
Mr Mvelase, the next witness, was Sinethemba’s
boyfriend – his testimony was intended to demonstrate that Sgt
Modupe
somehow interfered with Sinethemba’s phone, but in my
view there was nothing in it. Mr Mvelase’s evidence was also
intended to support Sinethemba’s version that she was in
KwaZulu-Natal on 9 September, and only came to Gauteng later that
day. In my view that is irrelevant because Sinethemba was in contact
with her mother by telephone and whether this was in Gauteng
or
KwaZulu-Natal makes no difference.
[70]
The last defence witness was a Ms Hendricks, a
translator, called as an expert. However, the evidence was of no
assistance to the
court, and she conceded that she was not in a
better position to interpret than the person who was in court on the
day.
[71]
Finally, an affidavit was uploaded from an
official at the Department of Home Affairs confirming that the Mr
Buthelezi whose details
were provided to the court is deceased.
[72]
Unfortunately, not only was Ms Dladla’s
evidence internally inconsistent and contradictory, it was not even
faintly believable.
The fact that she never mentioned Mr Buthelezi at
any point, even when being questioned about her involvement, leads
one to believe
that she only mentioned him at the trial knowing that
it was a deceased person who could not confirm or deny her version.
There
is no evidence that he was a person she knew well or that he
was her business partner and the controlling mind of events. It is
my
view that Mr Buthelezi’s involvement was a recent fabrication.
In addition, her testimony that the money for lending came
from her
stokvel was inconsistent with the version put to State witnesses that
it was Mr Buthelezi’s money that she lent
out.
[73]
Ms Dladla’s bank account shows activity that
is inconsistent with her narrative of her business. The number and
type of transactions
are consistent with layering and with attempts
to conceal where money comes from and where it goes. It fulfils the
requirements
of money laundering.
[74]
In my view the fact that Ms Dladla’s bank
statements show that a payment of R5 000 was made to Mr Konki’s
account
does not discredit Ms Tyhalithi for two reasons: the first is
that it was put to Ms Tyhalithi that the payment was made into her
account, rather than Mr Konki’s. She was correct on Ms Dladla’s
own version to deny that. The second, which would bear
less weight
had the first not existed, is that there is no reason on the evidence
before the court to conclude that Ms Tyhalithi
would necessarily have
been aware of a further loan Mr Konki may have taken from Ms Dladla,
or of what payments he received into
his bank account. Naturally this
could have been explored with her had that been the version put to
her, but it was not.
[75]
Ms Dladla’s version changed over the course
of the trial and it is an unavoidable conclusion that this was in
order to try
and answer the evidence against her.
[76]
On the evidence before me, it is clear that the
state has proved its case against her beyond reasonable doubt. Her
own version has
to be dismissed because of the inherent
inconsistencies. I am of the view that although Mr Buthelezi is a
real person and may have
been someone Ms Dladla knew and knew had
died in 2024, he was not involved in her business.
[77]
Mr Lebea criticised the state for not finding out
about Mr Buthelezi. However, part of the investigations is to
question suspects,
and act on what they say. Had Ms Dladla given any
indication that someone else was the mastermind, and who this was, it
could have
been followed up. My view is that Mr Buthelezi was a late
invention.
[78]
Ms Dladla’s version of 5 September is also
highly improbable, as is her explanation of the various bank
transactions. This
must be taken in conjunction with her refusal to
produce her own bank statements while insisting that the state
produces them.
COUNTS 1 & 2:
KIDNAPPING
[79]
The two counts of kidnapping are each related to
the events of 5 September and 9 September 2022 respectively. I am
satisfied that
the state has proved beyond a reasonable doubt that Mr
Konki was made to go with Ms Dladla and her companions against his
own will,
and that Ms Dladla was a directing mind and involved by
participation in common purpose.
[80]
Ms Dladla wanted to ensure that her money was paid
back, especially as it was not a sustainable business model for her
to allow
people to get away with not complying with the terms of her
loans. Her evidence regarding Mr Buthelezi’s alleged
unhappiness
with the situation applies equally to her.
[81]
Ms Dladla’s attempt to raise a defence of
compulsion does not succeed as she has not brought any independent
evidence that
shows even that she was in business with Mr Buthelezi,
let alone that he was the person who was behind the events of those
two
days, or that she had to comply with what he wanted because she
was under duress.
[82]
I am not satisfied that Sinethemba was actively
involved in the kidnappings. There is no evidence that she was even
aware of what
happened on 5 September, and although her mother shared
some photographs and comments with her, it is not clear that she was
aware
of all the details or that she participated in any way.
COUNT 3: TORTURE
[83]
The State relied on the contravention of s4(1)(a)
of the POCTA for the torture charge. A charge of assault is also
competent on
the evidence that has been adduced.
[84]
According to Ms Ryan, who appeared for the State,
“torture” is defined as any act by which severe pain or
suffering,
whether physical or mental, is intentionally inflicted on
a person to achieve a specified purpose, including to intimidate or
coerce
that person to do or refrain from doing something. A person
who “incites, instigates, commands or procures” another
person to commit torture is also guilty of torture.
[85]
She pointed out that it was never submitted that
there was no torture of Mr Konki. This was in fact the case. The only
question
raised by the defence was whether Ms Dladla was in fact
involved in the torture, or whether she was forced to allow it to
happen
in her home.
[86]
On the evidence as set out above, it is clear that
Ms Dladla’s involvement and therefore guilt has been proved
beyond a reasonable
doubt. As with the kidnapping, Ms Dladla had a
common purpose with the men who physically carried out the torture,
and participated
by providing her home as the venue, and facilitating
their comings and goings. Having found that there is no evidence that
Mr Buthelezi
was her business partner, and that the kidnappings were
not at his behest, but rather at Ms Dladla’s, the same applies
to
the extended and severe assault that took place in order to
procure the money that Ms Dladla contended was owing to her.
[87]
Again, and for the same reasons as I found
Sinethemba not guilty of the kidnappings, I do not believe that there
is sufficient evidence
that Sinethemba had any control or was
involved in the decisions being taken on that day.
[88]
Sinethemba is therefore not guilty of count 3.
COUNT 4: MURDER
[89]
It is common cause that Mr Konki’s death
occurred as a result of the extended and severe assault meted out to
him by Ms Dladla’s
companions, in her presence, and as I have
found, at her instigation.
[90]
The assault was carried out with no regard for its
effects on Mr Konki, and it was so severe and long lasting that the
possibility
of him dying from the assault was necessarily foreseen.
The parties involved, including Ms Dladla, were clearly reconciled to
this
possibility. This is borne out also by Ms Dladla’s various
text messages, and the evidence of Ms Nkonki and Ms Tyhalithi about
the threats made in an effort to prevent them report what had
happened to the police. In fact, as submitted by the State in
argument,
there was a likelihood that Mr Konki would die, which was
stronger than a possibility, and Ms Dladla was reconciled to this
likelihood.
[91]
Whether Ms Dladla had formed
dolus
eventualis
or
dolus
directus
does not matter in the
circumstances. It has been proved beyond a reasonable doubt that Ms
Dladla played an active part in the events
that led to his death. The
integrity of Mr Konki’s person was irrelevant to her, whether
he was severely injured or whether
the injuries resulted in death.
[92]
In these circumstances, and on the same basis as I
have found Ms Dladla guilty of the first three counts, I find Ms
Dladla guilty
of the murder of Mr Konki.
[93]
Similarly, and for the same reasons set out in the
first three counts, I find Sinethemba not guilty of murder.
COUNTS 5 & 6:
EXTORTION
[94]
The two counts of extortion are based on the facts
as set out above that Ms Tyhalithi and Ms Nkonki were “unlawfully
and intentionally”
threatened or subjected to pressure to
induce them to make payments to Ms Dladla.
[95]
It is common cause that Ms Dladla telephoned Ms
Tyhalithi numerous times to demonstrate that Mr Konki was being
severely assaulted
and that this would not stop until Ms Dladla was
paid.
[96]
Similarly, it is common cause that first Mr Konki
and then Ms Dladla telephoned Ms Nkonki to ask her to pay in order to
stop Mr
Konki’s ordeal.
[97]
Ms Dladla’s only defence here is the attempt
to claim compulsion. As I have said above, there is no merit in that
defence.
[98]
Ms Dladla’s guilt on counts 5 and 6 has been
proven beyond a reasonable doubt.
[99]
On the same basis set out above, I also find
Sinethemba not guilty on counts 5 and 6.
COUNT 7: MONEY
LAUNDERING
[100]
Money laundering is provided for in s 4 of the
POCA, which provides:
Any person who knows or
ought reasonably to have known that property is or forms part of the
proceeds of unlawful activities and
–
(a)
enters into any agreement or engages in any
arrangement or transaction with anyone in connection with that
property, whether such
agreement, arrangement or transaction is
legally enforceable or not; or
(b)
performs any other act in connection with such
property, whether it is performed independently or in concert with
any other person,
which has or is likely to have the effect –
(i)
of concealing or disguising the nature, source,
location, disposition or movement of said property or the ownership
thereof or any
interest which anyone may have in respect thereof; or
(ii)
of enabling or assisting any person who has
committed or commits an offence, whether in the Republic or elsewhere
–
(aa) to avoid
prosecution; or
(bb)
to remove or diminish any property acquired directly, or indirectly,
as a result of the commission of an offence,
shall
be guilty of an offence.
[101]
As Mr Louw pointed out, the “money
behaviours” he identified are only an indication that there may
be money laundering.
As can be seen from s 4, the relevant property
(in this case, money) must be part of the proceeds of unlawful
activities, and the
person must know or ought reasonably to have
known that this was the case. In those circumstances, even simply
agreeing to transact
with that property constitutes an offence.
[102]
In this case, the property that is the subject of
the enquiry is the money that was received as a result of the assault
of Mr Konki
and the extortion of him and his family members. That
money is clearly in the category of the proceeds of unlawful
activities.
[103]
Ms Dladla’s various unexplained transactions
with the money clearly fall into the category of attempting to
conceal its provenance,
and falls into both s 4(a) and (b). However,
charges were only brought in terms of s 4(b) and I am satisfied that
she is guilty
as charged.
[104]
The situation is slightly different for Sinethemba
and Cebisile. Their knowledge of where the money came from was not
direct, as
Ms Dladla’s was.
[105]
Ms Ryan emphasised that the provision is that a
person who knows
or ought reasonably to
have known
the provenance of the
property, and that s 1 of the POCA deals specifically with the
situation where a person is not proved to have
direct or actual
knowledge.
[106]
Section 1 (2) and (3) of the POCA provide:
(2)
For the purposes of this Act a person has knowledge of a fact if –
(a)
the person has actual knowledge of that fact; or
(b)
the court is satisfied that –
(i) the person believes
that there is a reasonable possibility of the existence of that fact;
and
(ii) he or she fails to
obtain information to confirm the existence of that fact.
(3)
For the purposes of this Act a person ought reasonably to have known
or
suspected a fact if the conclusions that he or she ought to have
reached are those which would have been reached by a reasonable
diligent and vigilant person having both –
(a)
The general knowledge, skill, training and
experience that may reasonably be expected of a person in his or her
position; and
(b)
The general knowledge, skill, training and
experience that he or she in fact has.
[107]
As far as Sinethemba is concerned, she received
payments and paid them on to where Ms Dladla instructed her to,
without enquiring
where they came from. The WhatsApp conversation
between Sinethemba and her mother makes it clear that she knew that
the assault
of Mr Konki was to do with making someone pay the money
to Ms Dladla, and she accepted that. So either she knew the money was
the
proceeds of the assault and extortion, or she ought reasonably to
have known. Sinethemba also testified that she paid the R9 700
to Cebisile because it was a stokvel payment, which was inconsistent
with Ms Dladla’s evidence. She also did not provide
any kind of
background for this alleged stokvel. In my view Sinethemba was
attempting to provide an innocent explanation that she
knew did not
exist.
[108]
In my view, Sinethemba falls into s1(2)(b). If she
does not, then she falls into the category of s1(3), in that, had she
been reasonably
diligent and vigilant, she would have known that the
money came from the assault and extortion. She is therefore guilty on
count
7.
[109]
Similarly with Cebisile. Ms Dladla had testified
that the payment to Sinethemba was then supposed to come to Ms Dladla
and then
to go to Mr Buthelezi. However, Sinethemba said it was a
stokvel payment due to Cebisile. Cebisile herself chose not to
testify
despite the court having found she had a case to answer. With
now other explanation of the money that found its way into her
account,
I am satisfied that Cebisile ought to have known, had she
been reasonably diligent and vigilant, that she was receiving money
from
a source that was not lawful. She was content to simply receive
unexplained money, and not to question it. This makes her complicit.
I am satisfied that Cebisile is guilty on count 7.
CONCLUSION
[110]
In summary, and for the reasons set out above, I
find as follows:
1.
Ms Busisiwe Dladla:
Guilty on all counts.
2.
Ms Sinethemba Dladla:
(a)
Counts 1-6: not guilty.
(b)
Count 7: guilty.
3.
Ms Cebisile Dladla:
(a)
Counts 1-6: not guilty.
(b)
Count 7: guilty.
S. YACOOB
JUDGE OF THE HIGH
COURT
JOHANNESBURG
APPEARANCES
For the
State:
Ms C Ryan, Office of the DPP, Johannesburg
For the
Accused:
Mr P Lebea
Instructed
by:
Mashao Kelly Lebea Inc
[1]
Act
51 of 1977.
[2]
Act
13 of 2013.
[3]
Act
105 of 1997.
[4]
Act
121 of 1998.