S v Mncwengi and Others (SS03/2013) [2014] ZAWCHC 215 (19 November 2014)

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[2014] ZAWCHC 215
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S v Mncwengi and Others (SS03/2013) [2014] ZAWCHC 215 (19 November 2014)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NUMBER: SS03/2013
DATE: 19 NOVEMBER 2014
In the matter between:
THE STATE
And
MZIWABANTU MADIBA
MNCWENGI
..............................................................................
Accused
1
MZIMASI MADIBA
MNCWENGI
........................................................................................
Accused
2
BUYELWA NOKWANDISA
MNCWENGI
...........................................................................
Accused
3
LUMKO
BAMBALAZA
..........................................................................................................
Accused
4
XOLANI RASTA
MAKAPELA
..............................................................................................
Accused
5
MAWANDE
SIBOMA
..............................................................................................................
Accused
6
J U D G M E N T
BOQWANA, J:
The accused were arraigned for trial
before this Court on an indictment consisting of altogether 8 counts
namely; four counts of
kidnapping count 1, 2, 3 and 4; one count of
assault with the intent to do grievous bodily harm count 5 and three
counts of murder
counts 6, 7 and 8 read with section 51 of the
Criminal Law Amendment Act 105 of 1977. It is alleged that the
killing of the deceased
was committed by a group of persons in the
execution of a common purpose.
The State alleges in respect of count
1, 2 and 3 that the accused during the evening of Wednesday 14 March
2012 and at or near Harare
Khayelitsha wrongfully and intentionally
deprived Sivuyile Rola, Luxolo Mpontshane and Mabhuti Matinise of
their freedom of movement
by tying their hands with wire and keeping
them against their will. In respect of count 4 it is alleged that
the accused on the
same date and evening wrongfully and intentionally
deprived Mphuthumi Nobanda herein after referred to as Mphuthumi, of
his freedom
by keeping him against his will and in respect of count 5
that the accused on the same date and evening wrongfully and
intentionally
assaulted Mphuthumi Nobanda with blunt objects with the
intention to do grievous bodily harm.
In respect of count 6, 7 and 8 the
State alleges that the accused on the same date and evening and at or
near Macassar Sand Mines
at Macassar in the district of Khayelitsha
wrongfully and intentionally killed Sivuyile Rola (‘hereinafter
referred to as
Mshwele and also known as Vido’), Luxolo
Mpontshane (‘hereinafter referred to as Luxolo’), Mabhuti
Matinise (‘hereinafter
referred to as Mabhuti’), all male
persons by hitting them with blunt objects. All the accused were
legally represented.
They all pleaded not guilty to all the charges.
Only accused 5 gave a plea explanation.
The trial commenced on 14 August 2013
with the Court constituted of the Judge and two assessors Mr H Swart
and Ms S Solomons. After
the trial had run for over seven months and
in the middle of a trial-within-a-trial I received a medical
certificate from a certain
Dr P C Ndomile on 17 March 2014 stating
that Ms Solomons was booked off sick due to acute anxiety disorder
from 17 to 19 March
2014. On the same day of 17 March 2014 Ms
Solomons contacted the Court’s registrar and advised her that
she had collapsed
the previous weekend and could not attend court for
the period she was booked off sick. The matter was accordingly
postponed to
Monday 24 March 2014 also taking into account the fact
that counsel for accused 5 had been involved in another matter that
same
week.
The office of the registrar attempted
to contact Ms Solomons for the duration of that week to ascertain the
nature of her sickness
and the period of her envisaged absence to no
avail. On Monday 24 March 2014 Ms Solomons did not attend the trial
proceedings,
the registrar attempted to contact her on the telephone
numbers that she had provided to no avail. An attempt was made to
contact
the magistrate’s court in Upington where she was
suspected to be. Ms Solomons had indicated in the past week that she
was
offered a position to act as a magistrate in Upington and
requested the presiding Judge to release her from the trial which
request
was declined. Indeed she was found to be at the Upington
Magistrate’s Court where she was appointed as an acting
magistrate.
Had it not been for the attempts made by this Court to
locate Ms Solomons this Court would not have known of her whereabouts
as
she failed to answer her calls.
As an explanation for her absence Ms
Solomons furnished this Court with a letter requesting to be excused
from further attendance
of the proceedings permanently for the
following reasons:
1. When she was requested to act as
assessor it was communicated to her that the estimated duration of
the trial would be six to
eight weeks. She was not aware that the
matter would run for such a lengthy period, it having run and having
been more than six
months on the court roll. It is not clear from
her letter who communicated this to her as it certainly was not an
instruction
from this court.
2. She is a practicing attorney. In
the interim she has lost income, clients and financially is not doing
well. She was offered
several positions which she had declined
however, when she was offered a position to act as a magistrate in
the Upington District
Court she stressed, panicked and thought about
her four children and her financial difficulties as well as her
future in the legal
profession and she decided to accept the job
offer.
She stated that she did not take this
decision in isolation but with due regard to the rights of the other
parties involved in the
matter that is the accused, the defence,
advocates, the State prosecutor. She further advised that her
decision was based on the
fact that she was aware that there were
other trials in which only one assessor was sitting and her wish was
for the matter to
proceed in her absence. In her view, the rights of
the accused would not be affected as there was still one assessor
remaining.
She apologised for the manner in which she dealt with the
situation and pleaded to all interested and relevant parties to
accept
her reasons and absence from the case.
When it was apparent that Ms Solomons
would no longer avail herself to continue with the trial the
presiding Judge requested the
State and defence counsel to present
argument on the effect of her absence in the proceedings in light of
section 147 of the Criminal
Procedure Act 51 of 1977 and the
prevailing case law. The matter was argued extensively. The State
submitted that section 147
was not applicable in this instance as it
dealt with incapacity or death of the assessor. It however submitted
that taking into
account that no prejudice would be suffered by any
of the parties the Court may release the assessor from her duties and
with reference
to the accused rights to a fair trial the trial should
not start de novo as it had already run for a lengthy period, some of
the
accused are in custody and witnesses might have to be recalled.
There was consensus from defence
counsel acting on behalf of accused 1, 2, 3 and 4 that it would not
be in the interest of justice
for the trial to start de novo taking
into account the rights of the accused to a fair trial and balancing
those with the interests
of the society and the administration of
justice. The most common view held by the respective counsel on
behalf of the accused
was that the accused would be far more
prejudiced if the trial were to start de novo. At the request of
counsel for accused 5
and 6, the Court requested further particulars
from Ms Solomons regarding her absence and requested release from the
proceedings.
She responded on 14 April 2014 by confirming that she
would not be able to further attend in the matter due to her decision
that
was taken on 17 March 2014 that she had signed a contract on 17
March 2014 and she was currently working as an acting magistrate
and
was bound by the contract. She stated that she could not breach that
contract as it may have an adverse impact on her future
in the
magistrate’s profession.
The matter was argued further on
receipt of Ms Solomons’ further representations. Counsel for
accused 5 and 6 were doubtful
as to whether the Court was empowered
to release Ms Solomons as an assessor based on the reasons that she
had put forward. Counsel
for accused 5 suggested that arrangements
could be made for Ms Solomons in her position as an acting magistrate
to be seconded
in terms of the Public Service Act 1994 to complete
the case as assessor. Having considered Ms Solomons’ letter
and argument
on this issue, I directed that the trial proceed in the
presence of the remaining members of the court and reserved reasons
for
later, here follows my reasons.
The Court in this matter was faced with
untenable and a unique situation. Although Ms Solomons’ letter
was couched as a request
to be excused from further attendance in the
trial she had already made herself absent and gave a clear indication
that she would
not be able to return. Effectively the decision I was
faced with was not whether or not to release her but to determine and
give
direction on the status of the trial and whether it was to
proceed in her absence or be set aside and proceed de novo before a
newly constituted court. Perhaps before I continue I should mention
that the proposal made by counsel for accused 5 was not applicable
in
this case as the provisions of the Public Service Act 1994, that he
referred to applied to permanent government officers and
are not
applicable in this instance. Furthermore, Ms Solomons had indicated
that she was unable to continue as assessor in the
trial. I must
also state that she was given an opportunity and was requested to
address the situation with the relevant authorities
in charge of her
acting appointment before she sent her final letter of 14 April 2014
confirming her inability to continue sitting
as an assessor in this
matter.
Paramount to this Court when a decision
was made was the fairness of the trial to all the accused persons,
the interest of justice,
the administration of justice and the
circumstances placed by Ms Solomons before this Court regarding her
absence and her inability
to continue to act as an assessor going
forward. The relevant provision that deals with the assessor’s
inability to act
in the Criminal Procedure Act is section 147.
Section 147(1) provides as follows:
“If an assessor dies or in the
opinion of the presiding judge becomes unable to act as an assessor
at any time during the
trial the presiding judge may direct:
a) That the trial proceed before the
remaining member or members of the court or;
b) That the trial starts de novo and
for that purpose summon an assessor in the place of the assessor who
has died or has become
unable to act as assessor.”
The issue to be determined was whether
the assessor became unable to act within the purview of section 147.
The meaning of the
words ‘unable to act’ has been
deliberated in many cases. In S v Malindi and Others 1990(1) SA 962
(A) Corbett CJ
held that:
“The word “unable”,
in the context of section 147(1) conveys to my mind an actual
inability to perform the function
of acting as an assessor. Such an
inability could derive from an inherent physical or mental condition
or possibly also a situation
which physically prevented the assessor
from attending the trial, such as for example indefinite detention
here or in a foreign
country.”
I do not read S v Malindi to limit
inability to act to physical or mental impairment. The list of
examples provided in that case
includes a situation where an assessor
is detained for an indefinite period here or abroad. The detainment
situation has nothing
to do with illness, it has to do with an
unforeseen situation that restricts an assessor from being physically
able to act, such
as his or her detention here or abroad which may be
indefinite or permanent. I venture to say that situations of the
assessor’s
inability to act are not limited to physical
sickness or mental impairment. Clearly, any other situation that
prevents the assessor
from being physically or mentally present to
act as an assessor for an indefinite or permanent period could
constitute inability
to act in my view. Each case would need to be
treated on its own facts.
It is also important that in this
Constitutional dispensation section 147 is not mechanically
interpreted, fairness of a trial to
the accused, policy
considerations, interest and administration of justice become
important. The judge, in my view, should in
the circumstances
balance all these factors in coming to an appropriate decision. To
support this view, I refer to a decision
of S v Jeke 2012 JDR
1551(GSJ) at para 15 in that case Mbha J said the following:
“Moreover the peculiarities of
the reason for the absence of the assessors ought to be a crucial
factor because any concept
of unable must be fact specific an aspect
addressed more fully hereafter. Furthermore, sight must not be lost
of the important
fact that the Act does give a court discretion to
formulate an opinion as to whether or not under the circumstances
prevailing
at the time it can be said that an assessor is unable to
act as an assessor. The proper formulation of an opinion about an
inability
of an assessor to continue participating implies more than
a mechanical fact-finding process. The magistrate unavoidably must
make
a value choice informed by policy considerations about the
administration of justice and chiefly about the avoidance of a
failure
of justice. In Malindi the policy choice excluded factors
pertinent to grounds for recusal. Furthermore, the approach I adopt

in fact is informed by the minority in the judgment of MT Steyn JA in
S v Gqeba and Others 1989(3) SA 712 (A) at 718-719 where
an assessor
sought, during a trial, to be discharged on the ground that he wanted
to be with his only child, a daughter, who was
in hospital having
been diagnosed with terminal cancer. The learned judge referred to
the Oxford English Dictionary Volume XI
definition of the word unable
meaning “not able, not having ability or power to do or perform
(undergo or experience) something
specified (chiefly of persons),”
and after considering the emotional attachment that existed between
the assessor and his
daughter he held that:
a) The ability to pay proper attention
to judicial proceedings is essential for the due performance of an
assessor’s task;
and
b) Should an assessor become incapable
of paying such attention he would whilst such ability lasts be unable
to act as an assessor.
(emphasis added)”
The court in the Jeke matter was of the
view that the approach adopted by the minority decision in S v Gqeba,
supra, fell within
what Corbett CJ had envisaged in S v Malindi,
supra, when he spoke of an ability deriving from a mental condition
or any situation
which physically prevented the assessor from
attending the trial. The majority in Gqeba found that the assessor
was released on
compassionate grounds and not on inability. In the
Jeke matter the magistrate had formed an opinion that the assessors
had become
unable to act based on a number of factors. Firstly, the
withdrawal from the court of the services of the assessors after the
collapse of the pilot project in terms of which the lay assessors had
been appointed as a result of a depleted budget. The magistrate

found that the collapse of the budget also collapsed their ability to
serve, that is, as fulltime assessors.
Secondly, claims by assessors for court
services would not be paid due to their unavailability of budget.
Thirdly, there were no
prospects of the pilot project being
resuscitated in the near future. Fourthly, the magistrate could not
cause the assessors to
continue to act at his own expense. Fifthly,
the court could not order the assessors’ participation at their
own expense.
It followed that if an assessor cannot be compelled to
attend then from the perspective of the administration of justice
such
assessor is unable to participate. Finally, the trial was at a
stage where the State had called their last witness. The appeal

court agreed with the view taken by the magistrate. Although that
case dealt with section 93 ter (11) (iii) of the Magistrate’s

Court Act 32 of 1944 the principles adopted therein are similar to
those required by section 147 of the Criminal Procedure Act.
The most important principle stated by
the court in the Jeke case, which I find to be equally important to
the present matter, is
that where it is impossible to obtain or
secure the assessor’s presence the court may in the interest of
justice direct the
proceedings to continue before the remaining
member or members of the court or direct that the proceedings start
afresh. The Court
found it would have been impossible to procure the
presence of the assessor and furthermore, because the matter was
almost at the
end of the State’s case, it would not have been
in the interest of justice, which is the chief and overriding factor,
to
order that the trial start de novo. See paragraphs 15, 16, 18 and
19 of the Jeke decision.
Another important decision with
circumstances similar to those in the present matter is that of S v
Matakati and Others
2007 ZAWCHC 328
(1 January 2008) which is a
decision from this division by Ndita J. In that case an assessor had
indicated to the court that in
view of the trial having continued for
longer than two years, which was more than he had predicted, his
legal practice as an attorney
was heavily impacted to the point that
he had been reported to the Law Society by clients, magistrates were
complaining about his
matters being constantly postponed, he had lost
clients and was unable to pay staff salaries and other expenses, due
to income
being severely affected. Ndita J held in those
circumstances at paragraph 8 that:
“The consistent approach of the
courts to the release of an assessor is understandable as the issue
of an accused having his
case considered by a properly constituted
forum is crucial and conflated with the right to a fair trial.
Indeed it would be most
undesirable to have assessors willy-nilly
deciding to be excused from trial when it suited their purpose to
serve. Neither should
an accused be unnecessarily deprived of the
benefits and safeguards arising out of a trial with a judge and two
assessors. However,
this issue is not only a matter for form, but
also of substance as well because two assessors can overrule a judge
on the merits.
Each matter should of course be decided on its
merits. In the present matter, it is not a question of Mr Godla
willy-nilly deciding
to excuse himself, the substantive reasons he
has submitted clearly demonstrate that a lot of injustice will result
to his person,
legal firm and clients whose cases he cannot attend
to. For all it is worth, Mr Godla has, to his detriment served far
more than
the estimated duration of the trial. That to his credit
shows commitment. It is not only a question of his compelling
personal
reasons but also about justice being denied or delayed to
numerous clients whose cases he cannot attend.”
What makes the present matter slightly
different from the Matakati matter is that unlike Mr Godla who
requested to be released by
the court due to his compelling personal
reasons Ms Solomons in essence deserted from her duties as an
assessor without being formally
released by the judge albeit for
reasons similar of Mr Godla in the Matakati decision. While it is
desirable that the trial should
be completed in the presence of all
members who constituted the court at the beginning of the trial,
unforeseen circumstances do
arise. Section 147 was introduced to
deal with eventualities specified in that provision that is death and
inability to act as
assessor. See S v Baleka and 4 Others 1988(4) SA
688 (T).
There is also no mechanism available
for a judge to force a member who has made her intentions clear that
she would not be returning
to continue sitting as an assessor to do
so. Letting that assessor go is not to condone irresponsible
behaviour but to focus the
Court on its primary function which is to
ensure that the rights of the accused are protected and the
administration of justice
is attained and not compromised by the
assessor’s absence. A situation like the one prevailing in
this case enjoins the
judge not only to look at the circumstances of
the assessor but also to balance the rights of the accused to a fair
trial with
the interests and administration of justice. I am in
agreement with Ndita J’s remarks in the Matakati matter where
she found
that circumstances like these call to question whether a
person under such emotional and mental distress would be able to
apply
his or her mind fully to the facts and the evidence.
Ndita J held as follows at paragraph
11:
“Section 35(3) of the
Constitution of the Republic of South Africa, Act 108 of 1996
provides that every accused person has
a right to a fair trial. In
my view, the substantive right to a fair trial demands from a trier
of facts a complete presence of
the mind and being alive to the facts
presented at trial. Whilst the dicta referred to above reflect a
commitment by the courts
to the strict enforcement of procedural
safeguards aimed at ensuring a fair trial, it is in my mind doubtful
that in the circumstances
of this case, the accused’s right to
a fair trial will be better served by the continued presence of an
assessor whose commitment
to the trial is questionable.”
She went on to state that at paragraph
13:
“When regard is had to the notion
of basic fairness and justice, I am not of the view that an assessor
who lacks commitment
to a trial is capable of delivering justice to
an accused. This renders him incapable of functioning as such.
Whilst acknowledging
that there has been consistency in judicial
decisions that the word “unable” relates to the
assessor’s physical
and mental inability, I am of the firm view
that the dictum in Zuma, supra, justifies that the scope of section
147 include eventualities
such as inability of the part of an
assessor to deliver justice. In my opinion, Mr Godla is unable to
act as an assessor due to
his inability to deliver justice to the
accused in these proceedings. Thus, I made the direction that the
assessor in this matter
was unable to continue with the trial.”
In the same manner the continued
presence of Ms Solomons in this trial would not have served the
interest of justice and those of
the accused as her commitment was
questionable. Moreover, she departed not having been released by the
Judge. It would not have
served the interest of justice and the
accused for Ms Solomons to be forced to sit in a trial in which she
was not committed.
I must stress that Ms Solomons was not released
by this Court due to her unwillingness to act as assessor or due to
lack of interest
rather, she advised having absconded that she could
not come back citing financial distress arising from loss of clients,
wrong
estimation of the trial duration which had caused her stress
and emotional distress and her appointment to act as a magistrate in

Upington.
Like Ndita J, my view is that the
meaning of the word unable to act in section 147 of the Criminal
Procedure Act should be interpreted
to include inability to deliver
justice to the accused. It must also be borne in mind that four of
the accused persons had been
in custody for just over two years
awaiting finalisation of the trial. The trial had been running for
about seven months and the
State was nearing the close of its case in
the main trial and the trial-within-a-trial had commenced when the
assessor became absent.
Witnesses had given extensive evidence some
of whom individually testified for a number of days. The procedural
safeguards in
the form of the provisions for the appointment of
assessor in section 145 of the Criminal Procedure Act are without a
doubt designed
to ensure a fair trial although such a right is not
listed in section 35(3) of the Constitution. As Tshabalala JP
observed in
S v Khumalo 2006(9) BCLR 1117 (N) if section 145 is a
procedural safeguard then section 147 is a limitation to the
protection afforded
by that safeguard. Section 147 of the Criminal
Procedure Act permits a trial to be continued in the absence of an
assessor in
certain specified circumstances.
Tshabalala JP in S v Khumalo, supra,
emphasised the point that the fact that there was only one assessor
remaining should not be
a threat to the fairness of the trial because
in terms of section 146(d) of the Criminal Procedure Act a judge is
obliged to give
reasons for the decision or findings of the assessor
that is remaining where there is a difference of opinion. The court
in Khumalo
found that on the balance a significant threat to the
administration of justice would have resulted if the trial started de
novo.
A similar situation would have prevailed in this matter.
Concluding on this matter it might
perhaps serve the legislature well to revisit the heading of section
147 of the Criminal Procedure
Act which reads “Death or
incapacity of assessor” as such wording might be the reason the
provision tends to be interpreted
in narrow terms. The language of
the body of the section itself however makes no reference to
incapacity but rather refers to
a judge forming an opinion that the
assessor is unable to act as an assessor which in my view is clearly
broader than the heading.
For the reasons above I directed that the
trial proceed in the presence of the remaining members of the court
being myself and
Mr H Swart.
Reverting back to the main judgment the
State altogether called 25 witnesses. The State indicated that
Morris Maxela (‘hereinafter
referred to as Morris’), who
was originally charged as accused 7 would be called as a State
witness in terms of section 204
of the Criminal Procedure Act and
withdrew the charges against him. Morris gave evidence as a State
witness and was warned by
the Court in terms of section 204 of the
Criminal Procedure Act. Accused 1, 2, 3 and 4 testified in their own
defence. Accused
2 also called an alibi witness. Accused 5 and 6
elected not to testify. The Court conducted an inspection in loco on
12 September
2013 in the areas of Harare Khayelitsha and Macassar
Sand Dunes. The observations made were agreed to by all the parties
and were
read into the record and marked as exhibit J. The Court
will not summarise all the evidence that was led as this was a
lengthy
trial and all the evidence is on record but the Court will
focus on the aspects of the evidence that are relevant to its
findings.
Dealing with common cause facts it is
common cause that accused 1’s house in Harare was broken into
on 10 March 2012 and his
plasma TV was stolen whilst he was in the
Eastern Cape at the time. Accused 2, who is the younger brother of
accused 1, and who
discovered the missing TV then reported the stolen
TV to the police the next day. Accused 2 then informed his brother
accused
1 of the missing TV which led to accused 1 coming back to
Harare. Accused 1 then arrived in Harare on 14 March 2012 between
1:00
and 2:00 in the morning. The two brothers are referred to as
Madiba senior and Madiba junior respectively in the community.
Accused
3 is married to accused 2 and their house is situated next to
accused 1’s house at Pumza Street in Harare. Accused 1 is the

owner of two taxis. Accused 2 was a driver of one of the taxis. It
is also common cause that the other accused also reside in
Harare.
It is further common cause that the
bodies of the three deceased, Luxolo, Mabhuti and Mshwele who resided
in Harare were found at
Macassar Sand Mines at approximately one
o’clock in the morning on 15 March 2012. According to the
post-mortem findings
Luxolo and Mabhuti died as a result of multiple
injuries and Mshwele died of a head injury and consequences thereof.
These three
young men were regarded at some stage or the other as
troublemakers in the community. By agreement between the parties the
State
submitted three affidavits in terms of section 212(1) of the
Criminal Procedure Act which identified the bodies of each of the
deceased as follows: the first is the body tag number WC/12/0090/12
belonging to Luxolo. The second body tag number WC/12/0091/12

belonging to Mabhuti and the third body tag number WC/12/0092/12
belonging to Mshwele.
The State’s case is that the
accused committed the offences that they are charged with. All of
the accused denied being the
perpetrators of the alleged offences.
No formal admissions were made.
At the end of the State’s case an
application was made in terms of section 174 of the Criminal
Procedure Act for discharge
on behalf of accused 2 in respect of all
the charges, on behalf of accused 5 in respect of charges 4 and 5 and
on behalf of accused
6 in respect of all charges. With regard to
accused 2 discharge was refused on all counts. In the case of
accused 5, discharge
was granted in respect of counts 4 and 5 and
with regard to accused 6, discharge was granted in regard to counts 4
and 5 and refused
in respect of counts 1, 2, 3, 6, 7 and 8.
During the trial all the accused except
accused 5 challenged the admissibility of the warning statements
pertaining to them which
the State sought to introduce as evidence.
It was agreed between all the parties that only one
trial-within-a-trial should be
held in respect of all the warning
statements of the accused concerned. After a trial-within-a-trial
was held the Court ruled
that all the warning statements were
admissible. Reasons for the ruling were reserved. These are the
reasons that follow.
The objections raised on behalf of the
accused 1, 2, 3 and 4 were similar and they were that the accused
never made statements but
were simply asked or told to sign documents
which contained information and that their Constitutional Rights were
not explained
to them. It was argued on behalf of accused 6 that the
version in the statement belonged to the investigating officer
Constable
Nceba Gojo and not to the accused and that his
Constitutional Rights were not explained, that he was not afforded a
right to legal
representation and that his right to a fair trial was
infringed. It was also argued on behalf of accused 3 that her
warning statement
amounted to a confession and therefore
inadmissible. Counsel for accused 3 and 6 also argued that the
warning statements were
not translated by a qualified interpreter or
a translator from Xhosa to English and vice versa.
In terms of section 219(A) of the
Criminal Procedure Act for evidence of any admission of an offence
made extra judicially to be
admissible in criminal proceedings it
must have been voluntarily made. See S v Yolelo 1981(1) SA 1002 (A)
and R v Barlin 1926
(AD) 459 at 462. In terms of section 35(5) of
the Constitution “Evidence obtained in a manner that violates
any right in
the Bill of Rights must be excluded if the admission of
that evidence would render the trial unfair or otherwise be
detrimental
to the administration of justice.”
The State called Constable Gojo who
testified that all the accused’s Constitutional Rights were
complied with and the statements
were made freely and voluntarily
without any undue influence. Sergeant Andrew April, Constable
Khanyiso Nyudwana and Constable
Tony Bobotyana were called as
witnesses to support Gojo’s evidence. To support his objection
to the admission of the statement
accused 1 testified that he was
assaulted by Gojo and April on the morning of 15 March 2012. He
testified further that Gojo came
to fetch him, accused 2 and 4 from
the cell where they were all held on Saturday 17 March 2012 and took
them to his office. Other
accused were taken out of the office and
Gojo gave him documents to sign. He did not know what was contained
in those documents
but signed because he was instructed to do so. He
also testified that he spoke to his lawyer Mr Godla on Saturday 17
March 2012
and Mr Godla asked to speak to Gojo who refused to talk to
him.
In the Court’s assessment of the
evidence, Gojo’s testimony that he explained the rights of the
accused is convincing.
He stated that he explained the accused’s
Constitutional Rights several times before he was charged and most
importantly
reminded him of his rights before taking the warning
statement. Furthermore, that accused 1 was not forced to make a
statement.
Gojo was challenged by Ms Losch in cross-examination that
he did not mention that the accused had the right not to be compelled

to make a confession or admission in his evidence-in-chief. In
response thereto Gojo mentioned that although he did not mention
it
he did explain the rights to accused 1 and that right also appeared
in the form of the warning statement. On perusal of the
warning
statements of other accused submitted as exhibits that right is
clearly stated in that document.
In addition to Gojo’s evidence,
Bobotyana testified that rights are explained to an arrested person
before he is put to the
cells by an investigating officer. The
arrested person is also required to sign the SAP14A form which he
also called Book of Rights.
The SAP14A is a document referred to as
a notification of Constitutional Rights. According to the occurrence
book entry 901 dated
15 March 2012 signed by Apleni, accused 1 was
detained at 5:25 and an entry was made which refers to the issuing of
SAP14A/QC797620
and that the suspect, accused 1, was free from any
visible injuries and had no complaints. On the same date reference
to the issuing
of SAP14A/Q679762 appears in register SAP14 also known
as movement register or custody book at entry number 261 in column 7
under
the heading Constitutional Rights. Both the occurrence book
and SAP14 register reflect the same information regarding SAP14A
notice
number Q679762.
Although the State did not lead
evidence on whether the Constitutional Rights were explained by
Apleni to accused 1 when he was
detained on the morning of 15 March
2012 reference to SAP14A/Q6797620 in both registers is a clear
indication that such a document
outlining SAP14 list of rights was
issued. Furthermore, in paragraph 70 of her heads of argument and
during oral argument Ms Losch
submitted that the accused was aware of
his right to legal representation and that he was advised to exercise
his right to remain
silent. Accused 1 was informed by Apleni when he
was arrested on the morning of 15 March 2012 of these rights. Notice
of rights
SAP14A section 3(a) and (b) handed in as exhibits in
respect of other accused clearly states the right to remain silent
and not
to be compelled to make a statement. From documentary
evidence it is clear that the accused was aware of his rights.
The likelihood of the assault having
taken place is questionable for the following reasons: First, Gojo
and April deny that the
accused was assaulted. Both Gojo and
Bobotyana testified that if a person was assaulted there was a
specific procedure to be followed.
A report will be made to the cell
guard and/or a duty officer in charge who would record the complaint
in the occurrence book
and attend to such complaint. Accused 1 would
have had several opportunities to report the assault to the cell
guard and/or duty
officer. Accused 1 testified that he reported the
assault to Bobotyana. Bobotyana could not recall whether or not
accused 1 made
such a complaint to him about the assault and whether
he had taken it further. There was nothing recorded in the occurrence
book
regarding injuries sustained by accused 1 or complaints made by
him. In fact, entry number 914 made on 15 March 2012 at 11:02 (the

time that accused 1 was brought back to the cells) indicate that he
was free from injuries at that stage. Then on the same day
entry
number 916 made at 11:50 and signed by Captain Mokoena indicates that
there was a cell visit by Captain Mokoena and Bobotyana
when accused
was in the cells and again no complaint or injury were recorded in
the occurrence book.
On the same day at 12 noon entry number
919 indicated another cell visit by Bobotyana and again nothing was
recorded regarding an
injury or complaint. On Friday 16 March 2012
in terms of entry number 959 there was another cell visit by Captain
Mokoena at 8:45
and again no complaint or injuries were recorded. On
the same day at 15H00 another cell visit by Bobotyana was recorded
and no
complaints or injuries were noted at this time as well. On
Saturday 17 March 2012 at 19H00 there was another cell visit by
Bobotyana
and no complaints were recorded. It is interesting to note
that accused 1 did not mention to his attorney Mr Godla that he was

assaulted and scared of Gojo and that he did not know the reason for
his detention.
None of the accused except his brother
accused 2 gave evidence about noticing injuries on accused 1’s
face. His version in
this regard is not supported by any other
evidence. Another important point is that when Gojo was
cross-examined by Ms Losch the
allegation of the assault was not
strongly put to him. The details of how, when and who assaulted
accused 1 were not put to Gojo.
Ms Losch simply put to Gojo that
accused 1 said he was assaulted on 15 March 2012 and that he was
scared of Gojo. The scanty
manner in which this was put to Gojo by
Ms Losch is not very convincing.
According to accused 1, during the
assault April uttered the words ‘thetha boetie thetha’
meaning ‘talk brother
talk’. The accused did not say
anything in response because they did not give him a chance to talk.
This evidence of accused
1 does not make sense, it begs a question as
to why Gojo and April would assault the accused in order for him to
talk and then
not give him a chance to talk so that they could obtain
the information that they wanted. In light of the above evidence it
is
in the Court’s view, highly unlikely that an assault took
place as alleged by accused 1. This, together with the fact that
he
was allowed and made a phone call to his lawyer in Gojo’s
presence and then not inform his lawyer about the assault and
his
fear of Gojo leads one to conclude that his version of events
regarding the assault and his fear of Gojo is false.
Accused 1 denied that his
Constitutional Rights were explained to him or that he made a
statement. His evidence is that he was
presented with documents to
sign. The version of the accused is inconsistent in that on the
other hand the accused alleges that
he made no statement at all but
on the other hand he says his Constitutional Rights were not
explained to him. Although accused
1 was made aware of his right to
remain silent by Apleni as confirmed by Ms Losch in argument, it was
not Gojo’s evidence
that the accused wanted to exercise that
right during his interview with him. Gojo testified that when he
explained accused 1’s
Constitutional Rights the accused replied
‘I have nothing to say but if I say something it will be out of
my own free will.’
Ms Losch took Gojo’s to task
about the meaning of this statement. In cross-examination Gojo
explained that, that was not
what he testified and that it could have
been misinterpreted. Gojo’s explanation was that accused 1 had
said that he did
not want to exercise his rights and they must
proceed. Ms Losch argued that Gojo tried to explain it away. In the
Court’s
view whether Gojo’s statement was misinterpreted
or not the inference that can be drawn from Gojo’s evidence is
that
accused 1 freely proceeded to give information regarding the
alleged offences. There is no evidence on record that accused 1 was

forced, prompted, unduly influenced to make a statement or that
accused 1 informed Gojo that his lawyer told him not to make a

statement. The phone call to his lawyer was made in the presence of
Gojo who did not prevent him to make the call and therefore
his
version that he was afraid or scared of Gojo is not convincing.
The personal particulars of the first
page of the warning statement is personal information that must have
been obtained and submitted
by accused 1 to Gojo and the explanation
that Gojo would have received those particulars from some unknown
person from the accused’s
house is speculative. Accused 1’s
version that Gojo completed the papers on 17 March 2012 for court
appearance is highly
improbable because the occurrence book and SAP14
register support Gojo’s version that he prepared the accused
for court on
Friday 16 March 2012. Accused 1’s version that
these entries are false cannot be accepted because entries would have
to
be made out of sequence in relation to other prisoners. Secondly,
different people completed the registers other than Gojo. It
is also
highly unlikely that other police officers who made entries would
have made subsequent entries knowing that the dates in
the occurrence
book were wrongly recorded.
According to the evidence of accused
1’s lawyer Mr Godla, accused 1 contacted him whilst he was
detained at Harare Police
Station. It was over the weekend of 17 or
18 March 2012, late in the afternoon and he spoke to accused 1. Mr
Godla did not mention
in his evidence that accused 1 told him that he
was assaulted or that he was scared of Gojo. Mr Godla testified that
he had no
knowledge that accused 1 made a statement. Further that if
he was aware of such a statement he would have challenged it at the

bail hearing. Even if his lawyer had told him not to make a
statement it would have been after the event that took place on
Friday
16 March 2012 as the statement would have already been made.
It is unclear why accused 1 would wait until 17 March 2012 to call

his lawyer when he was aware of his right to contact the lawyer since
the time of his arrest on the morning of 15 March 2012.
It is also
highly unlikely that everything that was recorded in the police
registers and supported by the evidence of the witnesses
was false.
In view of the totality of evidence in
relation to accused 1 the Court found that accused 1 was not
assaulted and that his Constitutional
Rights were explained to him
before a statement was taken and that he made the statement freely
and voluntarily. It is for those
reasons that the Court ruled that
the warning statement was admissible.
In brief accused 2’s case is that
on Saturday 17 March 2012 he was taken from the cells together with
the other accused which
is accused 1 and 4 and they met with accused
3 at the cell guard room. Gojo then wrote something in the book and
took all three
of them to his office. Gojo then told him to tell the
truth about the beating of the boys. Accused 2 then replied that he
was
not present and was at work as a taxi driver. He further
testified that he never saw the warning statement with his personal
details
on it. He admitted that the signatures on the documents were
his signatures. He stated further that no rights were explained to

him. It was not read back to him in Xhosa. He did not ask any
questions and just signed as he was told to do. He was not thinking

when he signed and he was not happy. Accused 2’s evidence
accordingly amounts to a total denial of the events.
Gojo’s evidence that he explained
Constitutional Rights to accused 2 when he came back on 15 March 2012
from his investigation
is supported by the form of rights SAP14A
issued to accused 2 on 15 March 2012. This is also confirmed by
entry number 926/967
in the occurrence book. Although the SAP14A
document is not very legible one can assume as stated by Gojo that
the original that
was given to accused 2 would be legible and clearly
state his rights and the charges of murder and kidnapping in the
first paragraph.
Paragraph 3 sections (a) and (b) clearly state that
the accused had the right to remain silent and is not compelled to
make any
statements.
Accused 2’s signature appears on
the SAP14A and he admitted that it was his signature. The
certificate part of the document
is signed by Warrant Officer
Bobotyana to certify that rights were explained by him and Gojo
signed at the bottom as a third person.
On the face of it the
SAP14A was clearly issued to the accused and explained. The denial
of accused 2 regarding the receipt of
SAP14A appears to be false and
his version in this regard is not acceptable.
Whilst the practice of having the
SAP14A notice being signed by the person who did not explain the
rights is not desirable that
does not invalidate the fact that the
accused was informed of his rights when he was detained. The warning
statement itself contains
a list of rights. With regard to the
warning statement the document speaks for itself. Accused 2
confirmed his signatures on
the document. Gojo failed to sign at the
bottom of the front page of the statement and he explained it as an
oversight on his
part. He did however put his initials on the front
page and signed the document on the last page as a peace officer.
The Court
is nevertheless of the view that the omission of Gojo’s
full signature is not fatal to the admissibility of the document.
As regards the content of the document
the first page of the statement contains personal information of the
accused. Gojo would
have obtained this information from the accused
as there is no evidence that he obtained this information elsewhere
other than
from the accused. The probabilities also do not favour
the accused’s denial that he made a statement, in that it would
not
make sense for Gojo to demand to know the truth from the accused
whilst interviewing him, only to present him with a document that
had
already been filled in, without hearing from the accused what the
truth was, that he was demanding.
In summary the accused had no objection
getting into the vehicle when arrested. He never asked why he was
detained. He never complained
about his shoes being taken by Gojo at
the cell guard’s office. He on his version saw accused 1
complaining to the cell
guard about assault so he would have known
that he also could complain but he did not do that. The version that
he simply did
what he was told to do without protesting and without
knowing what he was signing or what was being done is highly
unsatisfactory.
In the Court’s view, although
Gojo did not delete all the non-applicable parts on the statement his
evidence was clear that
he did apprise the accused of his rights. In
view of the aforementioned the Court is satisfied that accused 2 when
he was arrested
received his rights and that his rights were
explained to him before Gojo took his warning statement and the
statement was made
freely and voluntarily without any undue
influence. It is on that basis that the Court ruled that the warning
statement was admissible.
Accused 3 testified that she did not
know that she was going to make a statement and she was just told
that she was being prepared
for court. She stated that she did not
make a statement but on Saturday 17 March 2012 she was asked to sign
a document that had
already been completed and she was never told
about her rights at any stage. The analysis of the evidence
indicates that the accused
was aware of the reason for her arrest.
Gojo in fact introduced himself and told her why he was taking her to
the police station.
The evidence that accused 3 did not know why she
was arrested and detained cannot be true. It further makes no sense
that after
two full days in the cells, if her evidence that she was
not aware of why she was being arrested were to be accepted, that she
did not think to ask for the reason for her arrest. Furthermore, she
never objected or protested to being arrested and being locked
up.
The accused in her evidence-in-chief
did not give much detail regarding the circumstances under which the
documents were signed.
More information came out in her
cross-examination. It was put to Gojo by her counsel that the
accused gave her identity number
to him. It is highly improbable
that Gojo would only ask the accused for her identity document and
nothing else. The accused
could not remember whether Gojo had asked
for her address or her cell number. It can be reasonably concluded
that all the personal
information in the document was given by the
accused to Gojo.
It is also reasonable to conclude that
other information was also completed in the accused’s presence.
Also, what is important
is that accused 3 testified that she was not
compelled to sign the document. She signed freely and gave no reason
why she would
just sign except to say that she did what she was told
to do. It was contended on her behalf that the information contained
in
the statement was nothing new but information that would have been
known to Gojo as he had been busy with the investigations and

gathered information from the neighbours. No evidence was presented
to support this contention. It therefore remains a speculation.
Turning to the issue of the statement
being recorded in English, whilst the conversation between Gojo and
the accused was in Xhosa
and the statement being interpreted back to
the accused by Gojo. Mr Van Rensburg argued that this manner of
taking the statement
is fatal to the legality of such a statement.
The case law that Mr Van Rensburg has referred this Court to mainly
deals with evidence
that is led in a trial and during the hearing of
a matter in a court and not necessarily when statements are being
taken down outside
of the court process. There was no evidence
adduced during the trial-within-a-trial that the investigating
officer who took down
the statement in English did not properly
translate what he was being told by the accused from Xhosa into
English. There was also
no evidence that in order to take statements
the police officer must be a qualified or certified interpreter.
Brigadier Solomons who was called to
testify for accused 6 testified that the requirement that the
statement be written down in
the language of the suspect or that
there be an interpreter if it is recorded in another language is not
a standing order but ideally
it would be expected. The Court’s
view is that without any evidence to suggest that the content in the
statement was not
properly translated, the Court cannot simply come
to that conclusion that the accused’s Constitutional Rights
were violated.
In dealing with the issue of whether or
not accused 3’s statement amounted to a confession Mr Van
Rensburg urged the Court
to consider the approach followed in S v
Yende 1987(3) SA 367 at 372(c-f) where the court remarked that a
strikingly simple definition
in R v Becker 1929 (AD) was problematic.
The court agrees that the statement must be assessed objectively
with surrounding circumstances
taken into account. Surrounding
circumstances however should be taken into account only to place the
words in the correct context
without reading into the statement words
or circumstances that are not there. Facts which stand apart from
the words cannot be
considered as giving the words another meaning.
See S v Montasa 1963(2) SA 579 (T) at 584-585.
In the Court’s view, the
statement of accused 3 does not amount to a confession. The content
of the statement is such that
on charges against the accused it is
still open for the accused to raise possible defences of dissociation
from the commission
of the crimes, which are based on common purpose.
The Court accordingly disagrees with Mr Van Rensburg’s
submission that
the statement can be read to be an admission of guilt
on the charges. In light of the above evidence the Court was of the
view
that the statement was made freely, voluntarily and without
undue influence and the accused was informed of her Constitutional
Rights and accordingly the Court ruled that the warning statement was
admissible.
Accused 4’s version is that the
interview with Gojo took place on 17 March 2012. As with all the
other accused he testified
that Gojo fetched him together with
accused 1 and 2 from the cell which they were all held. Whilst in
the cell guard’s office
he was greeted by a lady with whom he
had had a business relationship. This lady allowed accused 1 to use
a telephone. Accused
1 used the phone to call his lawyer whilst Gojo
was busy writing something on the document. Gojo took them to his
office. He
took them out again and placed them in different places
or offices. In this other office where he was placed he found April
and
noticed a bottle of Bells Whiskey which was half full. Gojo then
asked him why he had assaulted the children and killed them.
He told
them he did not know why he was arrested. Gojo and April then
assaulted him with fists and open hands with April saying
‘we’ll
moer you today’. He was handcuffed whilst this was happening.
In order to stop the assault he asked
for forgiveness and told them that he knew about the beating of the
children. Upon him saying
those words Gojo and April stopped
assaulting him. He was then presented with an A4 size paper and told
to sign. He signed because
he was afraid of being assaulted again.
His rights were never explained to him. He confirmed that the
signature appearing on
the warning statement was his. He testified
that the document presented to him already had information on. He
denied having signed
the SAP14A nor receiving it on 15 March 2012.
He testified that he reported the assault to Bobotyana and later to
Mokoena who
promised to sort it out. The accused version amounts to
a bare denial.
The version of accused 4 is marred with
numerous inconsistencies. The accused kept changing his version as
he went along during
his testimony. He introduced a lot of new
evidence in cross-examination and contradicted earlier statements
materially. Unlike
the accused, Gojo stuck to his version and was
not materially shaken in cross-examination. April’s evidence
as to his involvement
and on the issue of the alleged assault was
clear and was also not disturbed during cross-examination. The
accused in his evidence
stated consistently that he was shocked and
could not remember everything. He however conveniently could
remember evidence that
supported his or other accused’s version
such as remembering that all the accused were handcuffed when they
were arrested.
It is also important to state that
accused 1 who was inside the police vehicle when Gojo went to
apprehend accused 4 at his house
never testified of seeing accused 4
being pushed by Gojo. The evidence of accused 1 was that when they
reached accused 4’s
house Gojo spoke to accused 4. Accused 4
went to his house and came back. None of the other accused testified
about Gojo smelling
of alcohol or being under the influence of
alcohol or not walking properly. The accused’s version that he
and his co-accused
were taken to Gojo’s office on 17 March 2012
and later to another office where he was assaulted and asked to sign
documents
should be rejected for the following reasons:
1. It has already been established from
documentary evidence which supports Gojo’s evidence that the
interview with all the
accused took place on 16 and not 17 March
2012.
2. Both April and Gojo testified that
Saturday was their off day and it would make no sense for them to
come to work on that particular
day for the purposes of assaulting
accused 4.
3. None of the other accused testified
about seeing accused 4 swollen after they were grouped back together.
The assault, if reported,
would have been recorded as is the norm in
all likelihood, by the police officer it was allegedly reported to.
No such report was reflected on the
occurrence book of 17 March 2012. Ms O’Neill tried to steer
Bobotyana into conceding
that the matter was reported to him. It is
clear from Bobotyana’s evidence when read in context that he
could not recall
whether such a report was done but when pressed he
testified that he reported the matter to Mokoena as he would in the
normal cause.
Bobotyana’s response in the Court’s view
was based on an instruction put by Ms O’Neill on behalf of
accused
4 that Bobotyana had gone to call Mokoena. It is unfortunate
that Mokoena passed away and therefore that issue could not be
verified.
Police records of the actual day when the interview took
place,which is, 16 March 2012 contained no complaint regarding
accused
4. Furthermore, no complaints were recorded from cell visits
on that day. The accused’s version that he was assaulted is

therefore rejected as being false.
Turning to the issue of whether rights
were explained to the accused. First, an SAP14A was issued. It
contains the signature of
the accused. Factually, the accused denied
that he signed anything on 15 March 2012 alleging that all documents
were signed on
17 March 2012. Then he changed his version to say he
was not sure if he signed anything on 15 March 2012 as he was lost
and then
he went back to his denial. This attempt by the accused to
deny everything did not create a good impression. It should be
accepted
that the accused was notified of his rights when he was
detained. SAP14A serial number Q6797628 bears the accused’s
signature
and furthermore under the heading Constitutional Rights of
the custody book column 7 the same notice number is reflected.
As regards the warning statement, Gojo
testified that he explained the rights to the accused and even quoted
from the form itself.
The rights were explained in the language of
the accused. The warning statement by the suspect bears accused 4’s
signature
on the first and second pages. The explanation given by
the accused about where Gojo obtained his personal information does
not
make sense. The accused testified that when Gojo went to
apprehend him he asked for Mzongozi which would be an indication if
the
accused’s version is accepted that Gojo did not know the
accused’s name, therefore his full names on the warning
statement
must have come from the accused.
No evidence was presented that Gojo in
fact was given the accused’s identity document by accused 4’s
brother. The brother
was also not called to support that evidence.
Gojo interestingly did not solicit information about ‘this
thing’ that
the accused said he knew but instead presented him
with a paper to sign. The accused’s version is false and must
be rejected.
In the final analysis there is no reason not to accept
Gojo’s evidence that the rights were explained to the accused
before
he made the statement and that the accused made the statement
freely and voluntarily without any undue influence. In the result

the Court ruled that the statement of accused 4 was admissible.
Accused 6 was arrested together with
Morris Maxela on 5 September 2012. Accused 6 testified that his
Constitutional Rights were
not explained to him before Gojo took the
statement and that he was forced to make a statement and ended up
signing documents where
an X was made. He was in a state of shock
when he saw that he was charged with three counts of murder and three
counts of kidnapping
on the SAP14A document. It then came to his
mind that he was being threatened by Gojo because for a long time he
asked him to
make a statement so he thought those were threats.
Further, that Gojo took him into the cells because he wanted to force
him and
Morris to make a statement. He did not know that he was a
suspect in the case but thought Gojo took him to the police station
merely
to get a statement from him. He was afraid of Gojo and
remained silent and eventually gave Gojo the statement he was looking
for.
He gave Gojo the statement because he
thought he could get rid of him. He testified that when Gojo fetched
him and Morris, he was
angry but did not force him to get into the
vehicle. He testified that he slept over at the police station and
did not ask why
he was being held and was afraid of Gojo. According
to him, when making the statement Gojo already knew all the
information and
kept on interfering and telling him what ‘the
correct version’ was referring to accused 1 and 4. No
questions were
posed to him by Gojo and Gojo was difficult with him
and he could see that Gojo was even about to assault him. He stated
that
he was not relaxed as Gojo had testified. He was stressed
because of Gojo’s threats to him.
Gojo testified that he did explain
accused 6’s Constitutional Rights on his arrest and before
taking a statement and that
he elected not to exercise any of his
rights. Gojo’s evidence is supported by documentary evidence.
It is noted that the
certificate of detention (Part 2) on SAPS14A was
signed by Nyudwana as the person who informed the detainee of his
Constitutional
Rights. Both Gojo and Nyudwana testified that the
rights were explained to accused 6 by Gojo and he handed to him the
document.
When questioned about this Nyudwana testified that when it
is busy at the police station and there are a number of persons to be

attended to, the police officers would assist each other. One police
officer would explain the rights whilst the other would complete
and
sign the applicable documents. Nyudwana stated that this was normal
practice at the police station and he saw nothing wrong
with the
procedure.
Ms Givati took Nyudawana to task about
this procedure. Although the document does not correctly reflect the
name of the person
who informed accused 6 of his rights, the Court is
of the view that the signing of the document by an officer who did
not inform
accused 6 of his rights does not in itself negate the fact
that accused 6 was informed of his rights as detailed in the
document.
Although this procedure is not desirable the Court is of
the view that the evidence of both Gojo and Nyudwana to the effect
that
accused 6 was informed and aware of his rights regardless of who
signed the document notifying him of his rights cannot be
disregarded.
Furthermore, accused 6 in his testimony admitted that a
piece of paper was handed to him reflecting the charges. That piece
of
paper contained his rights. The notice of rights in terms of the
Constitution refers to SAP14A/Q7038786 dated 5 September 2012.
The
accused confirmed the signature on this document as his. He also
confirmed the time and date on the form.
In view of this documentary evidence it
is clear that accused 6 was detained to be charged and for no other
reason. Furthermore,
before the warning statement was taken Gojo
testified that he again informed the accused of his rights. He
further stated that
he did not force, pressurise or threaten the
accused into giving a statement and that the information in the
statement came from
the accused. The fact that Gojo arrested accused
6 on 5 September 2012 which was about 6 months after the incident
took place
is a clear indication that he had not been harassing him
to be a State witness as it is suggested on behalf of accused 6. To
the
contrary, this factor shows that there was no urgency on Gojo’s
side to obtain a statement “at all costs”. Gojo

testified that he never asked accused 6 to be a State witness. The
fact that he arrested accused 6, detained and charged him supports

this version. Accused 6’s version, that he did not know that
he was arrested as a suspect in this case, must therefore be

rejected. The explanation by accused 6 that he eventually told Gojo
what he wanted to know is not plausible.
Although Morris testified that when
they were detained they were handed a document containing their
rights without those being explained
to them, his evidence did not
deal with what actually happened when accused 6’s warning
statement was being taken as he was,
according to him, seated with
Nyudwana at another table. The picture that accused 6 tried to paint
to the Court, throughout his
evidence that Gojo over a period of time
forced, threatened or influenced him to make a statement is not
convincing. In his evidence
he initially testified that he saw Gojo
seven or eight times during this period, that is before being
arrested. He however conceded
in cross-examination that it was
actually only two times they had a conversation, that is, once at the
Khayelitsha Court and the
second time when Gojo was driving past his
house. No evidence was placed on record of any form of direct force,
pressure or threat
to accused 6 to persuade him to make a statement.
The evidence that in his mind the accused thought Gojo’s
behaviour amounted
to threats is not supported by any evidence. The
accused further testified in cross-examination that he was not forced
to sign
the statement.
On the issue of the interpreter Ms
Givati argued that the fact that an interpreter was not used when
Gojo took the warning statement
is a violation of accused’s
Constitutional Rights. The case law quoted by her refers to trials
and not to instances of when
police officers are taking down
statements or conducting their investigations and is not relevant to
the facts of this case. According
to Brigadier Solomons who came to
testify for accused 6, the correct procedure in statement taking
would be to record the statement
in the language of the suspect. He
however stated that that was not a standing order but practice. He
conceded in cross-examination
however that most of the statements
that he has seen are written in English than in the language of the
suspect during the interview.
In the Court’s view, therefore
the mere fact that a qualified interpreter was not present during the
taking of the statement
does not in itself make the procedure
followed invalid and/or render the statement inadmissible.
Furthermore, the absence of the
entry in the occurrence book to the
effect that the person did not want to consult with a legal
practitioner does not mean that
the rights to communicate with a
legal practitioner of his choice was not explained or afforded to him
nor does it affect the fairness
of the trial. If it happens that a
police officer did not follow a standing order it is an internal
disciplinary matter. Failure
to make an entry in the occurrence book
was unfortunately not put to the relevant State witnesses for them to
comment when they
gave evidence in the trial-within-a-trial and so
were many other aspects that Brigadier Solomons testified on. In any
event Brigadier
Solomons testified broadly on standing orders and
acceptable police practices. It must however be mentioned that when
the issue
of an expert witness was raised during Gojo’s
evidence only evidence relating to pocket books and diaries was put
to the
witness. The Court does however take notice of Brigadier
Solomons’ evidence regarding the applicable standing orders and

expected practices. The alleged non-compliance with those does not,
in the Court’s view, affect the fairness of the accused’s

trial and the admissibility of the warning statement in the present
case.
On the issue of the accused being in
the same room when statements were taken the evidence is that accused
6 and Morris were sitting
apart from each other and at separate
tables, although in the same room. This is not an irregular
procedure and no evidence has
been placed on record on how this
procedure affected accused 6’s case negatively in any way.
Accused 6 was not a good witness. He
was evasive, inconsistent in his evidence and clearly tried to craft
his evidence to his benefit.
Mr Ntela had to repeat questions
several times. The accused contradicted himself on numerous
occasions in material respects and
in some instances blamed his
counsel for failing to put certain instructions. His evidence was
not credible. He did not come
across as a reliable witness and his
version was not convincing. The Court is of the view that accused 6
made the warning statement
freely and voluntarily without any undue
influence and that his Constitutional Rights were explained to him
prior to making a statement
and none of his rights were violated in
any way. The statement was therefore ruled to be admissible.
Turning to the main trial. The
evidence presented by the State before this Court begins with the two
incidents that allegedly occurred
at the Nobanda and the Matinise
households in Harare during the early hours of 14 March 2012 where it
is alleged that Mphuthumi
was apprehended and assaulted by accused 1,
2, 3 and 4 and Mabhuti by accused 1, 2 and 4 and continued to the
events at accused
1’s house, the footbridge in Ntlazane Road
and until the deceased’s bodies were discovered in the early
hours of the
morning of 15 March 2012. The Court will first deal
with the incidents at the households of the Nobandas and the
Matinises. The
State’s case in regard to these incidence is
based on the evidence of four witnesses Nolusapho Matinise
(‘hereinafter
referred to as Nolusapho’), her daughter
Nomvelo Matinise (‘hereinafter referred to as Nomvelo’),
Nomthunzi Nobanda
(‘hereinafter referred to as Nomthunzi’)
and her daughter Lindiwe Nobanda also known as Lindelwa (‘hereinafter

referred to as Lindelwa’).
Nolusapho is Mabhuti’s mother and
Nomvelo his sister and they all lived together in the same house in
Bengezela Street in
section 33 Harare. Nomthunzi is Mphuthumi’s
mother and Lindelwa his younger sister. Lindelwa and Nomthunzi lived
in Hlula
Street. Nomthunzi has another son called Nkululeko who had
a shack behind the main house. Mphuthumi did not live with his
parents
at the time of the incident. Mphuthumi died in 2013 in
circumstances unrelated to this case. The streets where the houses
of
the Nobandas, the Matinises and that of accused 1, 2 and 3 are
situated in the same area and not far from each other.
Nolusapho and Nomvelo Matinise
testified that at approximately 1a.m. on 14 March 2012, accused 1, 2
and 4 visited the Matinise home.
They questioned Mabhuti who was
sitting in the TV room about a missing TV. He denied any knowledge
of the TV and the three accused
dragged and pulled him out of the
house whilst they were assaulting him with blunt objects. According
to Nomvelo the accused tried
to put Mabhuti in the Quantum vehicle
but he managed to free himself and ran away. Mabhuti came back
limping, his shirt was torn
and had blood on it.
With regard to the second incident
Nomthunzi and Lindelwa testified that accused 1, 2, 3 and 4 visited
the Nobanda household. According
to Lindelwa, she saw them at
approximately past 1:00 and Nomthunzi testified that she was woken up
by her husband Mbhele at about
3 o’clock in the morning
alerting her to a noise that he heard outside. She went outside and
saw Lindelwa at Nkululeko’s
shack pushing the door. She then
heard fighting inside and Mphuthumi crying inside the shack saying
‘why are you assaulting
me’. She and Lindelwa pushed the
door unsuccessfully. The door eventually opened and Mphuthumi came
out. He was grabbed
by his belt by one of the accused although she
could not say who it was. Accused 1, 2, 3 and 4 struggled with him
towards the
gate and Mphuthumi tried to free himself at the gate and
he grabbed the vibracrete wall. Whilst holding onto the vibracrete
wall
the accused assaulted him with irons and sticks. He freed
himself and ran away.
Lindelwa testified that she went to
Nkululeko’s shack which is next to the house. She then saw
Mphuthumi next to the door
of Nkululeko’s shack. She saw also
accused 1, 3 and 4 in the light of the floodlights. She noticed that
Mphuthumi was red
with blood. Accused 1 and 2 took Mphuthumi into
Nkululeko’s shack which was closed. She confirmed her mother’s
evidence
that they tried to push the door open. Then accused 1 and 2
got out of the shack with Mphuthumi and they started assaulting him

with sticks and accused 3 also had a stick and a stone. Lindelwa
supported her mother’s evidence that Mphuthumi got hold
of the
vibracrete wall. Whilst holding onto the wall accused 1, 2 and 4
assaulted Mphuthumi with sticks and accused 3 hit him
with a stone on
his hand which was about 10 centimetres in width which caused him to
loosen his grip from the wall. Eventually
he freed himself and ran
away and they followed him.
Nomthunzi and Lindelwa then saw accused
1, 2 and 4 go into the Matinise home. The accused came out with
Mabhuti who managed to
free himself and ran away. According to
Nomthunzi at about 11:30 a.m. accused 1 arrived at her house to
apologise for assaulting
Mphuthumi and said it was because of his TV
that was stolen. Accused 1 then said he was in the Eastern Cape and
only arrived at
home that morning. He informed her that he had met
Mshwele under the bridge who told him that Mabhuti, Mphuthumi and
someone else
had stolen the TV. She requested accused 1 to allow
them to handle the matter in their way and should he see Mshwele he
must bring
him to her.
Mshwele was also a relative of the
Nobanda’s. Accused 1 later came back with accused 2 and
Mshwele and accused 2 left. She
called two elderly persons Thelma
and Nonkululeko and told them what had happened earlier that morning.
Mbhele, her husband, and
her brother-in-law Ncedo were also present.
Mshwele was asked if he saw Mphuthumi with a TV and he said that the
TV was at Endlovini.
It was then suggested by those present, to
accused 1, that he takes them to Endlovini to look for the TV, but he
did not accept
the proposal. Lindelwa supported her mother’s
evidence regarding these events.
Lindelwa also stated that the time
accused 1 came back was around four o’clock in the afternoon.
Lindelwa then left to go
to her friend’s place, Wendy.
According to Nomthunzi accused 1 left with Mshwele. Nomthunzi, Thelma
and Nonkululeko followed
accused 1 and Mshwele. On their arrival at
accused 1’s place they noticed accused 1 and 3 assaulting
Mshwele. She told
accused 1 not to assault Mshwele. Nonkululeko
also tried to stop accused 1 and 3 whilst they were hitting Mshwele
badly on his
head. She did not enter accused 1’s house as she
was scared of blood but stood at the gate. By then there were a lot
of
community members in front of the yard. She then saw accused 1
wrestling with Luxolo in the street and it was apparent that Luxolo

was overpowering accused 1. Then accused 3 came from inside the yard
and grabbed Luxolo and she and accused 1 helped each other
to bring
Luxolo inside accused 1’s yard.
Accused 3 hit Luxolo with a short iron
at accused 1’s garage. Nomthunzi then told accused 1 not to
assault the children and
that she was going to meet with their
parents in order to pay for the TV. At that stage accused 4 and
accused 5 arrived. Accused
5 and accused 1 tied the children up.
Accused 1 then took his bakkie out of the garage. Luxolo and Mshwele
were loaded and put
into the back of the bakkie by accused 1, 4 and
5. Accused 1, 3, 4 and 5 left with them to Endlovini. Accused 4 was
driving the
bakkie. She and the rest of the community remained
standing at the gate of accused 1. The bakkie was away for a long
time.
Accused 2 then came with a Quantum
kombi and asked where his brother was. He was told that they might
be at Endlovini. The bakkie
later returned followed by the kombi and
Mabhuti was standing on the bakkie. There was also an unknown young
man on the bakkie.
The residents asked Mabhuti, Mshwele and Luxolo
to tell the truth about the TV and they said they never took the TV
and Mabhuti
said the TV he had, was given to him by his sister.
Before the bakkie left again accused 1 came out of his house with a
rope.
Then Lindelwa and Morris, accused 1, 3 and 5 got onto the
bakkie where Mabhuti, Luxolo and Mshwele were and accused 4 was the
driver. The bakkie then left. Lindelwa and Morris later returned to
accused 1’s gate and said that accused 1 said that ‘those

with a heart of their mother must get off the bakkie because they are
going to work now’. They waited for accused 1 to return
with
the children from the work he said he was going to do but he did not
come back with the children.
Later on she went to the shop Kwa 10
and she met accused 3 at the door of the shop as accused 3 was about
to exit. There were many
people in the shop. Accused 3 was shouting
and saying ‘we killed the children, we burnt them and left them
in Macassar’.
She was not sure to whom accused 3 was speaking
as the person she was talking to was inside the shop. Nomthunzi then
went home
and told the people what she heard and they went to tell
Luxolo’s father. At approximately 4 a.m. the police came and
informed
them about the bodies of the three young men that were found
in Macassar.
According to Lindelwa, whilst she was
at Wendy’s place they heard Vido crying. Lindelwa went back
home from Wendy’s
place which is not far away. She asked her
mother whether accused 1 had come with Vido so that he could assault
him. Her mother
said that she told accused 1 not to assault Vido.
She then walked with Mabhayi to accused 1’s place. Mabhayi’s
other
name is Nonkululeko. On their way to accused 1’s place
she saw accused 1 and 3 calling Luxolo. Luxolo was about five metres

away, Luxolo could not hear because he had earphones in his ears.
Accused 1 then got out of the yard and
grabbed Luxolo and took him to his house. Lindelwa was at that stage
standing in the road
and she and Mabhayi followed accused 1 and
Luxolo. When they arrived at accused 1’s place, Vido was
already inside the garage
and bound with a yellow colour rope and
wire. Luxolo was then also tied up by accused 1 and then accused 1
and 3 assaulted them.
Accused 1 had a stick and accused 3 had an
iron pipe. The iron pipe was about half a metre in length. They
were hitting Luxolo
on his head and legs. Nothing was said to
Luxolo. She then asked accused 1 why he was assaulting Luxolo
without asking any questions.
Accused 1 and 3 did not stop and
carried on assaulting Luxolo.
Morris then arrived and without asking
questions slapped Vido. At that stage inside the yard of accused 1’s
house, were accused
1 and 3, Lindelwa, Mabhayi, Luxolo and Vido.
Outside the yard were a lot of community members. She asked Morris
why he slapped
Vido without asking any questions. Morris did not
answer. It appears that Morris left. When Morris came back he said
that Mabhuti
was on the bridge. They knew the bridge that he was
talking about. They drove to the bridge. Accused 4 arrived and took a
stick
from accused 1 and he also assaulted Luxolo. As they were
still tied up and being assaulted Vido then said that the TV was at
Endlovini.
Luxolo and Vido’s feet were
untied by accused 1 and they walked to the bakkie. They were then
told to get onto the bakkie.
Their hands were still tied behind their
backs with a wire. The bakkie was parked outside accused 1’s
house. Lindelwa asked
if she could get on the bakkie because she
wanted to see where the TV was. She then got on the bakkie with
accused 1, accused
3, Vido or Mshwele and Luxolo, accused 5, accused
6, Morris, accused 4 and two unknown persons. She further testified
that when
they approached the bridge at about 5 p.m. she saw Mabhuti
sitting on the stairs on top of the bridge. The bakkie then stopped

at the bridge.
Accused 5 and Morris got off the bakkie
and moved to the top of the footbridge where they caught Mabhuti and
brought him to the
bakkie. Accused 1 then told him to get on the
bakkie and he then tied Mabhuti up with the wire. Accused 6 then
used vulgar language
on the bakkie and said ‘I will hit you
bra’s until you shit’. She was on the bakkie all the
time. Accused 1
then said ‘that the one who is not going to do
job must get off the bakkie’. She then got off the bakkie as
she thought
that accused 1 meant that everyone on the bakkie must
take part in the assault of Mabhuti, Luxolo and Mshwele.
Morris and the two unknown persons also
got off the bakkie. The bakkie then proceeded to Endlovini and she
walked back to Harare.
Accused 4 was the driver of the bakkie. The
people that remained in and on the bakkie were Vido, Luxolo, Mabhuti,
accused 1,
accused 3, accused 4, accused 5 and accused 6. When she
arrived home she told her father Mbhele and her mother Nomthunzi
about
what accused 1 had said at the bakkie. They, as a family sat
at their place until sunset. Lindelwa then heard the people of the

community screaming ‘yoh yoh’. She went outside to check
and saw that the bakkie had come back to accused 1’s
place.
She walked to the bakkie and saw
Luxolo, Mabhuti and Vido on the bakkie red with blood. When she got
to the bakkie accused 1, 3,
4, 5 and 6 were on the bakkie. She then
went back home and phoned the police. The police did not come. When
she arrived back
at accused 1’s place the bakkie was no longer
there. At about 10 p.m. she saw accused 2 and 5 washing the bakkie.
She looked
at them from about 10 metres away and asked ‘did you
finish the job’, they did not answer. There was light coming
from a long pole with floodlights not far away from accused 1’s
house so she could see them. She was walking alone at the
time and
then walked home. At home she told her mother Nomthunzi, her father
Mbhele, her uncle Ncedo and her brother Nkululeko
that she saw
accused 2 and 5 washing the bakkie.
The next witness Lithule Mafethe
testified that he stays in Harare. On 14 March 2012 past 4 to 5 p.m.
he went to see Luxolo as
he had not seen him for a long time. They
went to Kwa 10 shop to buy cigarettes. As they exited the gate at
Luxolo’s place
they met accused 1, accused 5 and Thulani Blayi.
Accused 1 was looking for his TV set, accused 1, 5 and Thulani went
with Luxolo
to his place to look for a TV. After three minutes they
returned. Mafethe and Luxolo proceeded to Mabhuti’s house.
Mabhuti
was not there. Mafethe and Luxolo went back to Luxolo’s
place and after a while they went again to Kwa 10 shop to buy
cigarettes.
When they exited the shop they met accused 1, he was
carrying a stick of about one metre long and was aggressive. He
pointed
the stick and Luxolo saying that he wanted him. Accused 1
left with Luxolo holding him by his t-shirt and took him to his
garage.
Mafethe followed accused 1 and Luxolo. Accused 1 told
Mafethe to turn back.
Mafethe then ran to Luxolo’s
uncle Sanele’s house and asked him for a phone to call the
police. Accused 3 was standing
in the yard of accused 1 behind the
vibracrete wall. Accused 3 held an iron pipe in her hand and she was
talking but he, Mafethe,
could not hear what she was saying. He
phoned the police because he could see that Luxolo was in trouble and
that accused 1 and
accused 3 were going to assault him, judging from
the manner in which accused 1 was holding Luxolo by his t-shirt.
Police said
they were coming. He then left to go to Athi’s
place because he could not stand watching Luxolo being assaulted.
Mafethe
did not witness the actual assault. Athi lived in their
area.
He sat at Athi’s place until
late. He was not sure about the time but it was not dark yet. The
light was still visible when
he saw the white bakkie passing.
Accused 4 was the driver of the bakkie. At the back of the bakkie he
noticed accused 1, 2 and
5. He did not see the other people that
were in the bakkie. In cross-examination he testified that he could
see the three accused
as they were sitting at the tailgate of the
bakkie with their backs facing him. He recognised the three accused
because he knew
them. There were also other people on the bakkie but
he could not see them as they were seated on the floor of the bakkie.
Sanele Twetwa testified that at about 2
p.m. on 14 March 2012 he was lying on his bed where he lived with
Lindile Mpontshane’s
mother. Luxolo was also present lying in
his bedroom. Accused 1 with three other men arrived. Accused 1
entered his bedroom
and the other three men remained outside. He
greeted him and then went to the bedroom where Luxolo was and asked
him where his
TV was. Luxolo responded by saying that he did not
steal accused 1’s television. Accused 1 then left. After
about 20 to
30 minutes accused 1 arrived back again looking for
Luxolo. He told accused 1 that Luxolo left with Mafethe.
After about 30 minutes Mafethe arrived
at Twetwa’s house rushing and out of breath saying that accused
1 and accused 3 had
taken Luxolo as they were walking past accused
1’s house and he then asked him to phone the police. Twetwa
gave his cell
phone to Mafethe to phone the police himself. Mafethe
phoned the police in his presence. Luxolo’s father arrived
with Thulani,
a family brother, Sabelo who is Luxolo’s brother
and Khanyiso a cousin brother of Luxolo. They asked the police to
accompany
them to accused 1’s house to find out where accused 1
had left the children after assaulting them. They found accused 1
who informed them that the children had ran away to the side of
Macassar.
At about 3 o’clock in the morning
police arrived at his house and informed him that three children were
found dead in Macassar.
They asked for Luxolo’s description,
the police then requested him to accompany them to the scene where he
identified the
bodies of Luxolo, Mshwele and Mabhuti. He was able to
identify them because he knew all of them. During his observations
of the
bodies he noticed that they were assaulted. He noticed that
Luxolo’s eye was injured. He further noticed that Mshwele was

clothed and his shoes were next to him. Luxolo was not wearing his
t-shirt, it was shifted around his back. Mabhuti was not wearing

anything on the top part of his body.
The next witness Thulani Blayi
testified that on the morning of 15 March 2012 he was called by
accused 2. Accused 2 informed him
that there was a break-in at the
house of accused 1 and his TV was stolen. He further said that he
was suspecting Mphuthumi.
They went to Mphuthumi’s house to
enquire about the missing TV but they failed to complete their
enquiries as Mphuthumi ran
away before they could complete their
enquiries.
Morris, a section 204 witness,
testified that on 14 March 2012 and around 4 p.m., he woke up to go
to his work as a security officer.
He felt hungry and decided to go
to the shop Kwa 10. When he arrived at the shop he saw about 30
community members outside the
gate of accused 1 and accused 2’s
place. Inside the yard were accused 1, accused 3, accused 4, accused
5 and accused 6 and
also Mshwele and Luxolo. He then opened the gate
to the yard and asked accused 1 what was happening. Accused 1 then
told him
that Mshwele and Luxolo had stolen his TV and that at that
stage they were being assaulted by accused 1 and 4 with sticks and by

accused 3 with an iron pipe of about 56 centimetres long. They were
assaulting and hitting them at the same time. Accused 5 and
accused
6 were just standing there. Mshwele and Luxolo were bleeding and
there was something wrong with Luxolo’s one eye.
Whilst he was talking to accused 1 the
assault stopped. Mshwele and Luxolo were tied up with a rope on
their legs and they were
sitting next to each other in a space next
to the garage. He then spoke to Mshwele because he was his friend
and said to him that
he has spoken to him several times. He then
slapped Mshwele with his open left hand because he would not listen.
Luxolo and Mshwele
were crying and saying that they knew nothing
about the TV. Mshwele then asked him if he did not see Mabhuti and
he told him that
he would go and look for Mabhuti at his house.
When he arrived at Mabhuti’s
place he found Mabhuti standing next to his home in Bengezela Street.
He greeted Mabhuti and
told him that Mshwele was calling him and
that Mshwele and Luxolo were being assaulted. Mabhuti said he was
not going back to
the place where he was already assaulted the day
before. Mabhuti then ran away. His t-shirt, which was hanging over
his right-hand
shoulder, fell on the ground. He then picked up the
t-shirt and went back to Mshwele. He later gave the t-shirt back to
Mabhuti.
On his arrival at accused 1’s
yard he saw Mshwele and Luxolo on the back of the bakkie sitting on
the floor behind the back
window of the bakkie. He then also got on
the bakkie as his friend Mshwele was there. It was an open Toyota
bakkie with no canopy.
At that stage the people on the back of the
bakkie were Mshwele, Luxolo, accused 1, 3, 5, 6, Denjenje also known
as Dlamini, Pasika,
himself and Lindelwa. Accused 4 was alone in
front and he was driving the bakkie. He asked where the bakkie was
going and he
was told by accused 1 that the bakkie was going to
Endlovini to fetch the missing TV. The people on the bakkie were
sitting down.
The bakkie then drove off. Mabhuti was
noticed by someone on the bakkie on top of the footpath bridge across
the railway line.
Accused 1 instructed accused 4 to stop the bakkie.
The bakkie stopped under the bridge. Accused 1, 3 and 6 got off the
bakkie.
Mabhuti began to run. Accused 6 went across the railway
line and got onto the bridge on the other side. Accused 6 then
opened
his arms and blocked Mabhuti at the left-hand side of the
bridge about 30 metres away. Mabhuti just stood there. When Mabhuti

was apprehended he, that is, Morris, got off the bakkie. Accused 1
got on the footbridge at the left-hand side. Accused 1 got
hold of
Mabhuti by his arm and brought him to the bakkie walking with accused
6 and 3. Mabhuti was then loaded onto the bakkie.
Accused 1 then said if he did not find
the TV at Endlovini he will assault and injure them, referring to the
three deceased, and
anyone who was going to interfere must get off
the bakkie. Accused 1 was sitting at the back of the bakkie in the
corner. As
a result of the words uttered by accused 1 Morris then
decided to get off the bakkie, Denjenje, Pasika and Lindelwa
followed.
He walked home. Accused 1, 3, 5, 6 and the deceased
Mshwele, Luxolo and Mabhuti remained on the bakkie. Accused 4 drove
the bakkie
and he could still see them sitting in the bakkie as they
drove off.
Morris then went to look for Luxolo’s
father Lindile and he was at work. Lindelwa then told him that
accused 1 and the others
had returned with someone but without the
TV. He then ran to accused 1’s place. He was not sure of the
time but it was
before sunset. On his arrival he saw an unknown
young man on the bakkie wearing a Kaizer Chiefs t-shirt. At that
stage accused
1, 3, 4, 5 and 6 were in and on the bakkie with
Mshwele, Luxolo and Mabhuti. When he arrived at accused 1’s
place he saw
a lot of community people and the bakkie was parked in
front of accused 1’s gate. About five minutes later the bakkie
drove
off and left. During the five minutes nothing happened. Only
this unknown young boy with the Kaizer Chiefs t-shirt was crying
and
said that he knew nothing about the TV. Luxolo, Mshwele and Mabhuti
were sitting at the back of the bakkie and blood was flowing
from
their heads. When the bakkie drove off again accused 1, 3, 4, 5, 6,
Mshwele, Mabhuti, Luxolo and the unknown young man were
on the
bakkie.
At that stage the community members
dispersed and he went to Hlula Street to watch a soccer match. After
the game ended and on
his way home past 9 p.m. he walked past accused
1 and accused 2’s place. He saw accused 1 washing the inside
of the back
of the bakkie with a hosepipe. Accused 2 was just
standing there next to the front of the bakkie. He walked home to go
and sleep.
The following morning he heard that the children, that is
Luxolo, Mabhuti and Mshwele were killed.
During cross-examination he stated that
he did not see any sticks or iron pipes in the possession of the
community members who were
standing at accused 1’s gate
watching what was happening to the people who were being assaulted.
Further, that the community
members were not angry, the community
members at the gate were shouting that the parents must pay for the
stolen TV. They were
noisy and watching but no feelings of
animosity. He agreed that Luxolo and Mshwele were known in the
community as troublemakers
but he did notice when he arrived on the
scene that the community members were angry with them. The community
members were worried
and wanted the TV to be found. When the bakkie
left they were shouting ‘please do not kill them’.
He testified that he only saw the
sticks and iron pipes in the possession of accused 1, 3 and 4.
Accused 1, 3, 4, 5 and 6 were
inside the garage. He did not see
Lindelwa at the stage when he entered the garage. He disagreed that
she spoke to him about
the slapping of Mshwele. Mshwele asked him to
go and fetch Mabhuti and he decided to do so because if he knew
something about
the TV the assault may stop. He denied that he was
one of the persons who chased Mabhuti on the bridge. He testified
that Lindelwa
was lying and mistaken if she said so.
Ms Losch put to the witness that her
instruction from accused 1 was that the community members questioned
and assaulted Luxolo and
Mshwele. The witness stated that he did not
see that, maybe it happened before he arrived. He confirmed that he
saw accused 1
beating them. Accused 1 was furious and very angry.
He maintained that the three deceased who were on the back of the
bakkie
were red with blood flowing from their heads. He stated that
he did not see accused 5 when the bakkie was being washed. Mr
Colenso
put it to the witness that accused 5 agreed with 90% of his
version but the reason why he, Morris, got off the bakkie was that
there were too many people on the bakkie and that he wanted to go and
watch a soccer match. It was also put to the witness the
only
involvement of accused 5 was to interrogate Mshwele to make the TV
come out, so that it could be handed over to the rightful
owner. The
witness denied all this.
He stated that all the accused were on
the bakkie except accused 2. He did not see accused 6 again after
they left with the bakkie.
At that stage the men on the bakkie had
blood pouring from their wounds. He was not on the bakkie when it
left on the last trip.
He was telling the truth and had no reason to
lie. Further that no promises were made to him to become a section
204 witness.
He further stated that what normally happened in the
community in such situations was that discussions would be held at a
meeting
to resolve the issue but they do not assault people. He has
been living in this area for 22 years and was not aware of such
procedures.
Lindile Mpontshane testified that on
Wednesday 14 March 2012 he came from work after 7 p.m. Mafethe then
told him that accused 1
and 3 had come to fetch his son Luxolo. He
called Thulani, Khanyiso and Sabelo and informed them that Luxolo was
taken by accused
1. They decided to go to the Harare Police Station
and requested the police to accompany them to accused 1’s
house. They
all left with the police to accused 1’s house.
All of them entered accused 1’s house with the police.
Mpontshane
asked accused 1 where the children were and accused 1 said
they ran away in the direction of Macassar. Police officer Apleni
told
accused 1 that if the children were not found the following day
he would be arrested. At about 3 a.m. his brother’s elder
son
came to him and informed him that the bodies of the three children
had been found in Macassar in the direction accused 1 indicated
to
them the children had ran towards.
The three police officers returned,
accused 1 was in the van. The police left with Sanele Twetwa. On
Thursday he, Sanele and Mabuya
went to the mortuary at Stellenbosch.
He then confirmed that one of the deceased was indeed his son Luxolo.
Under cross-examination
he confirmed that Luxolo had been punished
at Ezinkukwini before. According to him, the community was not angry.
Normally the
children would be taken to Ezinkukwini to be punished
if there was an allegation against them. He further conceded that it
was
not written down in his statement that the police said that the
Madiba’s would be arrested if the children were not found
the
following day. It is also not recorded that accused 1 said the
children ran away to Macassar. It was put to him that in paragraph
5
of his written statement he did not mention that he was woken up by
Sanele Twetwa. He responded by saying that the police did
not write
down everything he told them. He also testified that he left out
some of the things in his statement because he was
upset. He also
confirmed that Thelma is his neighbour and a community member.
Bodies of the three young men were
discovered by security officer inspector, according to his testimony,
Bandile Koko. Koko testified
that on 15 March 2012 he was on his way
to a site at Macassar Sand Mines at about 1:00 in the morning for a
routine visit travelling
in his vehicle. Before he reached the
container of the security guards he observed a figure like object
next to the road. His
vehicle lights were on. He stopped the
vehicle and inspected the body of a person whose upper body was
naked. He made his observations
through lights of the vehicle and
with a flashlight.
The body of the deceased was covered
with ants. He saw bloody marks and injuries over the body and face
of the person. The body
had lacerations as if the person was
assaulted. He noticed wires around the wrists of the body. He also
saw marks on the ground
which looked as if somebody was dragged. He
looked around and about five metres away he noticed another body
dressed in tracksuit,
the clothing was torn. The body also had lumps
and lacerations over the head. He did not see wires around the
wrists of the body.
Near the bodies he observed broken sticks of 40
centimetres to 1 metre in length and about 2 to 3 centimetres in
thickness. He
came to the conclusion that the sticks were used to
assault the persons.
According to him he could see that the
incident happened some time ago and he estimated that it could have
taken place about five
hours earlier. He observed no other people in
the vicinity. He then arranged with his operation controller to call
the police.
The securities on duty reported that they did not see or
hear anything. He then left the scene and went to Macassar Police
Station
to fetch the police. He led the police to the scene where
the bodies were lying in an area which was bushy and partly open
field.
He pointed out the bodies to the police. The police then
discovered a third body in the bushy area. A female police officer
picked up all the broken sticks. He then gave a statement to the
police about the incident. Under cross-examination he confirmed
that
it was part of his duties to patrol the area where the bodies were
found on 15 March 2012 after 1:00, midnight. He confirmed
the
position of the bodies as depicted in photograph 1 of exhibit S. He
stated that he did not see an iron pipe on the scene.
Pakama Sharon Mkosana testified that
she is a constable stationed at Macassar Police Station. On 15 March
2012 at about 2 a.m.
she was on patrol by car in the Macassar area
when the commander called her back to the police station. She was
then informed
that a security officer discovered two bodies in the
bushes. The security officer Bandile Koko who had discovered the
bodies led
the way in his vehicle to the scene. On the scene Koko
pointed out the bodies to them. The lights of the vehicles and
flashlights
were on. She, the security officer and her passenger
started to search the area with flashlights. They then discovered a
third
body.
The bodies were not lying far from each
other. The one was lying next to the road, one in the middle of the
road and a third body
not far from the road in the bushes. She then
saw bloody wooded sticks of about 1 metre long near the bodies but
was not able
to recall the thickness. The first body was half naked
with a firearm tattoo on the left-hand side of the chest. Ants were
moving
up and down his body from his mouth and eyes. She noticed
bruises all over his body and open wounds on his head. The second
body
had ants coming in and out of his mouth. His shirt was torn on
the left-hand side. The third body also had bruises over his body.
They then collected sticks and stones
which were put into a forensic bag for handing in at the police
station and for recording
in the SAP13 exhibit register. She also
informed her commander Warrant Officer Fortuin about the incident.
An ambulance arrived
on the scene and the ambulance official declared
the persons dead. Harare Police arrived on the scene and confirmed
that the three
males were reported to be missing. She thereafter
handed the scene over to Warrant Officer Rosenberg. She made a
statement regarding
her observations on the scene.
She mentioned that the area where the
bodies were found was a quiet area near the bushes. To get to the
area one had to travel
along a tarred road and then turn into a
gravel road that leads to the scene. Under cross-examination she
stated that she and
Warrant Officer Rosenberg picked up the sticks
and stones with gloved hands. The sticks and stones were spread over
the area not
very close to the bodies. She further remembered that
only one of the bodies had wires around his wrists. She confirmed
the position
of the bodies as depicted in photograph 1 of exhibit S.
She was not able to say whether the sticks and stones were tested for
fingerprints. She was also not aware of a security guard container
at the scene and only noticed other security guards on the scene.
Mhlangabezi Rola testified that on 16
March 2012 he went to the forensic pathology laboratory in
Stellenbosch after he was informed
that his sister’s child
Sivuyile passed away to identify his body. He and his sister then
went to the mortuary. At the
mortuary he noticed injuries of assault
all over the body, scratches from beatings and also a hole on the
left part of his head.
Under cross-examination he testified that
Sivuyile was born in 1985 and that he had the nicknames of Mshwele
and Vido. He was
Mshwele’s uncle but in their culture he was
regarded as the father because the child did not have a father.
Bulelani Sandlana testified that he was
Mabhuti’s brother and identified his body at the mortuary in
Stellenbosch. He noticed
that under Mabhuti’s feet were signs
that his feet were burned. The feet were also black because of burn
wounds. The body
had marks of beating. His clothing was full of
blood and red on the inside. The way the clothing looked like, one
could think
that this person was attacked by an animal. In
cross-examination he testified that he never saw or heard of the
practice where
the police would stand by and let the community
discipline the thieves. If he had a problem he went to the police
station. He
agreed the police were supposed to come when there was
an incident of community members beating up or assaulting someone.
Simphiwe Msolo testified that he was a
detective sergeant and on 14 March 2012, the day of this incident, he
was on duty as a detective
in the crime office at Harare Police
Station. A complaint was received between 9 and 10 p.m. at the
charge office command centre
from Lindile Mpontshane about his
missing son. The complainant told him that he was informed at about
5 p.m. that his son was
missing and that he was assaulted by members
of the community. He then referred Mpontshane to the charge office
to open a case
in respect of his missing child Luxolo.
At about 2 a.m. on 15 March 2012 he
heard on the police radio that three bodies were found at the side of
Macassar. He then rushed
to the scene. When he arrived at the scene
the Macassar Police were already on the scene. He was given
permission to look at
the bodies. He saw the bodies of three young
men, they had bruises on them. He noticed broken sticks, stones and
rocks of about
5 centimetre by 5 centimetre in size next to the
bodies. The broken sticks were of different sizes some were longer
and others
shorter with lengths of about 20 centimetres, half a metre
and 1 metre. The thickness differed between 1 centimetre to 2
centimetres
and 5 centimetres. The stones and sticks were not lying
far from the bodies; they were about half a metre away. He then
returned
to the Harare Police Station and contacted Sergeant Apleni
to enquire whether they traced the missing child Luxolo. He then
rushed
to number 33 the house of Mpontshane. He and Sergeant Apleni
then took Mpontshane and other family members to the scene at
Macassar.
Mpontshane identified the body of his son Luxolo and other
bodies as those of his friends.
Under cross-examination he testified
that on 14 March 2012 he did not receive any information or complaint
regarding any incident
at Phumza Street. He was on duty in the crime
office and calls of this nature were received by the charge office.
Further, that
if a call was made of such an incident it would have
been recorded in the occurrence book which is kept in the charge
office.
He was not in a position to say if the charge office
received such a call. He fully explained the procedure regarding the
different
ways on how to report a complaint and the handling of
complaints by the police. If such a call was made he was not in a
position
to say why the police did not respond.
Mzukisi Apleni testified that he is a
sergeant in the SAPS stationed at Harare Police Station Khayelitsha.
On 14 March 2012 he
was on duty busy patrolling when he was called to
the charge office, it was between 10 and 11 p.m. On his arrival at
the office
he was asked by Msolo to go with Lindile Mpontshane to
attend to a complaint about his missing son. Mpontshane laid a
complaint
stating that upon his arrival home from work he found that
Luxolo his son was not at home. He was told that his son was
assaulted
by accused 1 at his house. He left with Mpontshane to
point out the house where his son was assaulted earlier on that day.
They
arrived at the house of accused 1.
Accused 1 informed Apleni that the
three young men broke into his house. He asked accused 1 ‘where
are these three young
men now’, accused 1 said that they ran
away. Apleni asked accused 1 whether he has opened a case regarding
his stolen TV
to which accused 1 answered yes. Apleni asked accused
1 why they did not take the young men to the police station, he did
not
answer. He told accused 1 that if Mpontshane was going to open a
case he, Apleni, would have to arrest accused 1 as accused 1 was
the
last person to see these young men. This conversation between Apleni
and accused 1 took place in the presence of Mpontshane.
On 15 March at about 4 a.m. Apleni was
called again by Sergeant Msolo who informed him that Mpontshane
opened a case of kidnapping
and they had to go and arrest accused 1.
Apleni went to the house of accused 1 arresting him for kidnapping.
After informing
accused 1 of his rights he locked him up in the
holding cells. The rights of accused 1 were read out to him as
contained in the
document called SAP14A. The accused understood these
rights and he signed the document. He handed a copy of the signed
rights
to accused 1 and left him at the holding cells.
James Agus testified that he is a
constable at the Local Criminal Record Centre in Somerset West SAPS
and was a criminalist expert.
On 15 March 2012 he was requested by
Constable Mkosana of Macassar SAPS to attend at a crime scene and the
Sand Mines Macassar.
Mkosana pointed out to him the scene. He made
a rough sketch of the scene and he took photos 1 to 10 in the
exhibits on the scene.
He also collected forensic exhibits on the
scene and these included two Nike training shoes and two Nova trainer
shoes.
These exhibits were sealed within the
swabbing evidence collection kit with kit number 10DCAA4073EB. He
also collected six alleged
blood swabs from six sticks which were
sealed in swabbing evidence collection kit number 10DCAC4355EB.
Saliva swabs from cool
drink bottles were also collected. These were
booked in at Somerset West SAP4591658A/2012. Agus testified that he
got on the
scene at 03:50 a.m. and processed the scene from 03:50
a.m. until 05:07 a.m. On 16 March 2012 from 09:10 until 10:20 he was
at
Stellenbosch Forensic Pathology Services where he photographed the
deceased as indicated to him by Dr Anthony. All photographs
as
depicted in exhibit S photographs 11 to 82 were taken by him.
Helgaard Brummer testified that he is
stationed as warrant office at the Criminal Record and Crime Scene
Management at the SAPS.
On 15 March 2012 he took a video recording,
photographs and collected evidence at 33-730 Phumza Street Harare.
He compiled a
photo album and three affidavits in this regard which
were handed in as exhibits. He further testified that photographs of
a white
Isuzu LDV bakkie with registration number CA756973 were also
taken and evidence was also collected on the same day at the SAPS
vehicle safeguarding unit at La Belle Road Stikland.
He then compiled an affidavit and
forensic report marked in this regard which were handed in as
exhibits. Amongst others from the
bakkie he collected presumed blood
by means of a swab from swabbing evidence collection kit
10DCAC3746CD. In cross-examination
Brummer testified that the
samples collected of presumable blood were forwarded to the forensic
science laboratory to determine
if that was blood or not. They
requested that the results be forwarded to the investigating officer
and that ended his involvement
in this matter.
Igshaan Kenny testified that he is
employed at the SAPS as a forensic analyst and stationed at Forensic
Science Laboratory at Plattekloof.
His duty is to interpret the
results on DNA process and to compile reports. On 20 July 2012
during the course of his official
duties he received a CAS file
Harare CAS313/03/2012 with a lab reference number 96122/12. He also
received results after the DNA
process and he then interpreted the
DNA results. He then explained the contents and findings of his
report. The document was
handed in as exhibit BB1. He confirmed
that he evaluated the results from the samples that were subjected to
the DNA process and
that the only results that matched of the
analysis were in respect of the training shoes and the t-shirt.
The DNA result of the evidence swab D
10DCAC3746CD and one training shoe FSG598758 [“E2”]
matched the DNA result of
reference number 11D4AB7957MX
(WC12/0091/2012). The DNA result of 11D4AD0405MX (WC12/0090/2012) is
read into the DNA mixture from
the other training FSG598758 [“E1”].
The DNA result of reference sample 11D4AB7957MX (WC12/0091/2012) is
read into
the DNA mixture result from a t-shirt FSG598759 [“D”].
In cross-examination Kenny explained
that swab D was a swab collected from a white Isuzu bakkie with
registration number CA56973
which was received on 19 September 2012
under cover of a letter with other exhibits from Warrant Officer
Brummer. Ms Losch asked
Kenny to explain why two different reports
were sent to the Prosecution. He testified that the first report
that was sent had
an error on the table, the error was on the third
row of the table in respect of training shoe FSG598758 (“E1”).
He
stated that the error came as a result of a simple of copy and
paste mistake on the table. When the error was discovered it was

reviewed. They accidently sent the mistaken version to the
Prosecution the first time. He stated that the results can be
trusted
as they were double-checked by someone else.
Brendon Craig Ruffer testified that he
is an emergency medical practitioner employed by Metro Emergency
Medical Services for the
past 15 to 16 years. On 15 March 2012 he
did declarations of the deaths of the deceased on the scene.
Dr Daphne Anthony testified that she is
a senior forensic specialist at the Stellenbosch Mortuary since 1 May
2009. On 16 March
2012 she examined a body of black adult male
approximately 22 years of age identified to her by forensic officer R
Roelofse as
WC12/0090/2012. The WC number is the number from the
mortuary death register allocated to each body. The body had wires
on the
wrists. She completed a post-mortem report of findings. She
fully explained the contents of her report regarding the body marked

WC12/0090/2012. Post-mortem report was handed in as exhibit W. She
testified that as a result of her observations she concluded
that the
cause of death was due to multiple injuries caused by blunt trauma.
She testified that on the same day she
examined the body of another black male of approximately 23 years of
age. The body was identified
to her by forensic officer E Meyer as
WC12/0091/2012. She compiled a post-mortem report. She explained
the contents of her report.
Post-mortem report was handed in as
exhibit X. Her finding was that the deceased died as a result of
multiple injuries caused
by blunt trauma. She testified that on the
same day and at the same place she examined a third body of a black
male approximately
23 years of age identified to her by forensic
officer G De Villiers as WC12/0092/2012. She compiled a post-mortem
report of her
findings. She explained the contents of her report.
Post-mortem report handed in as exhibit Y. She concluded that the
deceased
died as a result of a head injury and consequences thereof.
Her report also stated that the deceased had a brain injury.
In cross-examination she testified that
in respect of the body WC12/0090/2012 she noted remnants of a
material on different parts
of the body which appeared like burnt
plastic. It was burnt and attached to the skin. The body also had
superficial fresh burn
wounds on the wrists, back and arms. In
respect of the third post-mortem exhibit Y body WC12/0092/2012 she
noted lacerations on
the surface of the skull caused by forced blunt
trauma that was inflicted on the skin. Further that she was of the
opinion that
in this instance death was not instantaneous. The
deceased lost consciousness immediately but died later. She stated
that it
was a severe brain injury.
Mr Colenso for accused 5 put to Dr
Anthony that accused 5’s version was that it was not the
intention of the accused to kill
the deceased but to make them suffer
and that is the reason why they were apparently left alive. She
stated that if you inflict
trauma to the head and numerous parts of
the body you must realise that there can be serious complications
especially if it is
not a single infliction of trauma. In this
instance the cumulative effect of the injuries caused the death.
Further that exposure
could be a contributing factor to the death of
the deceased depending on the ambient temperature. The deceased lost
some blood
and it triggered shock and the shock combined with
injuries caused the death.
Aaron Mtati testified that he worked at
the Lingelethu West Police Station at Khayelitsha as a captain. On
31 October 2012 he conducted
a pointing out when accused 5 was
brought to him. They went to accused 1’s place accused 5 then
pointed out the garage where
Mshwele and Rasta were allegedly
assaulted. They then left there and went to Macassar. Accused 5
pointed out a road on the right-hand
side after they crossed Baden
Powell Road. They entered this road and then accused 5 stopped them
and he pointed out three places
where he indicated that the deceased
were assaulted at an area outside the township at the sand dunes.
The location was in the veld at the
bushy area. The document where the pointing out was recorded was
handed in without any objection
from accused 5. Mr Colenso placed on
record that his instructions from accused 5 were that the statement
was indeed made freely
voluntarily and with no undue influence. In
cross-examination Mtati testified that Macassar was not the same as
Makhaza. Mr Colenso
put to the witness that he testified in court
that the three deceased were assaulted but in the statement made
during the pointing
out at pages 8 and 9 his words are that they were
beaten up. Mtati testified that according to him the two words had
the same
meaning.
Mzoleli Matomela testified that he was
stationed at Lingelethu West Police Station as a captain. On 31
October 2012 he took a confession
from accused 5 which was not
objected to and it was handed in as an exhibit. During
cross-examination Matomela explained that
in the Xhosa language there
was no difference between assault and beat up and that assault can
also be read as beat up. Further
that he has seen people being
assaulted by the community but he denied that the police tolerated
this practice.
Nceba Gojo testified that he is a
constable in the detective section of the SAP Services and stationed
at Harare. On 15 March 2012
at 7H00 he was instructed to investigate
the case of three young men who were kidnapped and the bodies found
at Macassar. At that
stage accused 1 was already arrested. He
arrested accused 2, 3 and 4 where they lived in Harare. April
accompanied him. When
they arrived at accused 4’s place he
noticed bloodspots on the t-shirt accused 4 was wearing and requested
him to hand it
over and put on another one.
Other police members were requested to
come and assist and they were directed to the house of accused 1.
Whilst back at accused
1’s place, Gojo noticed bloodspots on
accused 2’s takkies and requested accused to hand over the
takkies for further
investigation. Accused 2 handed over the takkies
to him. He placed the takkies and the t-shirt in a forensic bag and
booked them
in the SAP13 register at the police station in Harare for
safekeeping. He then took the exhibits entered in the SAP13 register

and forwarded them to the laboratory at Plattekloof for DNA analysis.
The area around accused 1 and accused
2’s place was cordoned off with a tape and the forensic team
searched for more evidence
while Gojo was questioning the neighbours.
It was between 10:00 and 12:00 in the morning. He spoke to the
family of the victims
and he took statements from people who
mentioned the names of the suspects who were at that stage in the
police vehicle. Information
received confirmed the incident. The
community also gave the name of Rasta, accused 5, and pointed out his
shack. Accused 5 was
not there. He noticed the forensic people
lifting blood samples in the garage where a white van was standing.
They took photos
and they placed the collected items in the forensic
bag.
He then received information from a
detective in Macassar that linked his case of kidnapping of the three
boys at Harare with the
death of three boys at Macassar. These two
cases were then combined into one case with the Harare case number.
As the investigating
officer he was then taken to Macassar to the
place where the bodies of the deceased were found. The positions of
the bodies were
pointed out to him. The forensic team also took
photographs at the scene where the bodies were found. He proceeded
with his investigation
and went to the mortuary in Stellenbosch.
There he met Dr Anthony who conducted the post-mortem examinations
where he observed
bodies with wounds of a beating. The doctor also
drew blood from each deceased for purposes of DNA. Each blood sample
was placed
in a blood sample kit and he sealed each blood sample kit
and marked the blood sample in respect of each deceased.
He then proceeded to look for accused
5. He went to the Eastern Cape with Constable Khanyiso Nyudwana who
is a detective constable
at the Harare Police Station to look for
accused 5. Accused 5 was not there but he was eventually arrested in
Fish Hoek. Nyudwana
who was also called to testify as a witness
confirmed Gojo’s evidence in this regard. Further information
was received with
statements also linking accused 6 to the commission
of the offences. He obtained information from Morris regarding
accused 6.
He was also assisted by Nyudwana to arrest accused 6.
Accused 6 was detained at Harare Police Station with Morris.
He testified further that Makhaza and
Macassar are two separate places. Makhaza is a normal residential
area while Macassar had
a police station. He was not present at the
pointing out by accused 5 but only saw the document of the pointing
out that mentioned
Makhaza when he placed it in the docket. He
testified that he gave his testimony in Xhosa and maybe when he
pronounced the name
it was translated as Makhaza and not Macassar.
The dockets from Macassar and Harare were combined. The scene of the
crime was
at Macassar and the photographer who photographed the crime
scene confirmed to him that he collected the sticks and that he was

going to forward those to the laboratory. He was not in charge of
the exhibits in respect of the Macassar docket.
On 16 March 2012 he went to the
mortuary at Stellenbosch to collect blood samples of the victims and
they were marked with a reference
of each victim. He did not make a
statement in this regard. At the mortuary the blood samples were
handed to the forensic officer
R Roelofse who recorded it in a
register and signed it out for DNA analysis. The contents of the
warning statements pertaining
to accused 1, 2, 3, 4 and 6 that were
ruled to be admissible were read into the record by Gojo and handed
in as exhibits. That
concludes the summary of the evidence by the
State witnesses.
Moving to the defence case, accused
1’s version is that when he was called by his brother about his
stolen TV he decided
to leave the Eastern Cape and travel to Harare.
He arrived from the Eastern Cape between 1 and 2 a.m. he went to
sleep and woke
up at 12, midday. When he woke up at 12 noon he
phoned accused 4 to drive for him to Site C as he was tired from the
Eastern Cape
trip. Accused 1 testified that whilst he was on his way
to Site C with accused 4 driving they were stopped by a young man
called
Mshwele who allegedly told them that he had heard allegations
that he was the one that stole accused 1’s TV but that was not

the truth. He informed accused 1 that he could show him those that
were responsible for stealing his TV. Mshwele got into the
bakkie
and led them to a street where he pointed out four young men standing
on the street.
Two of the young men, Mabhuti and
Luxolo told accused 1 that they sold the TV at Makhaya and they would
show him where they had
sold it and they got on the back of the
bakkie with accused 1. Accused 1 testified that he instructed that
they first go to his
house so that the young men could show him how
they entered his house before driving to Makhaya. When they arrived
at accused
1’s house the community people arrived with them at
the same time and they all entered the yard together. When asked
about
how and why the community people were there he said that he did
not know but he thought that they were there because they knew about

the TV that was lost.
In cross-examination accused 1 gave
different explanations regarding the stage at which the community
people arrived at his yard.
He first stated that there were no
people when they arrived at his house and again testified that they
arrived there at the same
time with the people and all entered the
yard together but he could not say where the people came from.
As they had entered the garage with
Luxolo he heard a scream behind them. When he looked back he
discovered that it was Mshwele
and his nose was bleeding. He
testified that he did not see who assaulted Mshwele. Accused 1 went
on to testify that when he
saw the bleeding on Mshwele he told the
community people ‘if you are now assaulting them it is better
for us to turn back
and go to the place where they say they sold the
TV’.
They then got into the bakkie and drove
to Makhaya. Accused 1, Luxolo and Mabhuti got onto the back of the
bakkie while Mshwele
sat in front with accused 4 who was driving and
they all went to Makhaya. Upon their arrival at Makhaya at a place
where the TV
was allegedly sold they were told by the neighbours that
the people they were looking for had left a long time ago and the
neighbours
did not know when those people would return. According to
accused 1 he then decided to take the young men back to where they
had
picked them up in the first place. According to accused 1 the
route to the place where the young men were picked up goes via his

house. As they were travelling past his house community people
blocked the bakkie and prevented them from continuing further,

forcing them to stop in front of his house. Members of the community
asked if they had retrieved the TV and accused 1 said ‘no’.

The people started assaulting Luxolo and Mabhuti who were on the
back of the bakkie with sticks and later Mshwele who also got
out of
the bakkie. Luxolo and Mabhuti were eventually dragged off the
bakkie, accused 1 and 4 decided to intervene but the community

members also started to beat them with sticks.
He could not see who the community
people who assaulted the young men and them were. When it was
apparent that the people were
unstoppable he and accused 4 decided to
leave for Site C to go and eat and they left with the bakkie. They
left the young men
in the hands of the community people whilst the
assault of the victims carried on. They managed to drive slowly past
the people
in front of the bakkie. An opening was made when they
left. After that he did not see the victims again.
He stayed at Site C. Accused 4 then
left approximately at 4 p.m. Accused 1 left a bit later than accused
4. When he got home
he saw accused 3 in the yard for the first time
since his return from the Eastern Cape and asked her about what
happened to the
children. She told him that the children managed to
get away and ran. Police came at night and asked him about the
children that
were assaulted and he replied that he did not assault
the children but the community members did. Then police left and
came back
at about 5 a.m. and told him to go with them to identify
the children. He never got off the bakkie. He was then taken to
Harare
Police Station.
Accused 1 denied the evidence of all
the State witnesses who testified about his involvement in this case
and stated that they were
all lying. He never had a quarrel with
them and did not know why they would lie against him. The only
quarrel he referred to
was in relation to the Nobandas whom he said
had an argument with him relating to airtime that Nomthunzi bought
from his Vodacom
container and that happened four years ago.
Dealing with the version of accused 2.
Accused 2 denied that he played any role in the incident of the
afternoon of 14 March 2012
or any related incident at all. He
testified that he was at work driving his brother’s taxi as he
normally did. His evidence
was that he would normally get up at 3:00
in the morning and go to the taxi rank to register and queue. He
would pick up contract
people from Khayelitsha to Town until 12:00
midday and after 12:00 he would be in Town at the taxi rank. He
would then wait for
the passengers in order to take them back and
would normally get home at 9 p.m.
He testified that on the day of the
incident he was at the taxi rank far from Harare and no other place.
He knocked off at 9 p.m.
He went home, took a bath and before he went
to bed he was told by his wife, accused 3, that the thugs were beaten
by the community
members. He then went to bed. He only saw his
brother on 15 March 2012 for the first time after he had gone to the
Eastern Cape
in a police van. He testified that his witness Bulela
Phanginxiwa saw him at the taxi rank in the morning and afternoon on
the
day of the incident.
He testified further that if his memory
did not fail him they last saw each other just after 6 p.m. in the
evening. Bulela was
also a taxi driver. He testified that Bulela
was called in the bail application and testified that he saw accused
2 at the taxi
rank that day. Accused 2 also stated that he knew
nothing about what the Nobandas and the Matinises testified about
regarding
Mphuthumi and Mabhuti. Accused 2 knew Mafethe but denied
that he was a passenger on the bakkie and testified that witnesses
that
said they saw him on the bakkie were lying. Accused 2 also
denied that he informed Thulani or spoke to him about the stolen
television.
He also denied showing Thulani at accused 1’s
house that the television set was gone.
In cross-examination Mr Ntela put to
accused 2 that instructions had been put by his counsel to Thulani
that accused 2 met him on
10 March and that Thulani went with him to
accused 1’s house. He further stated in cross-examination that
he informed the
committee members Denny and Mabhayi on 11 March 2012
about the stolen TV and they inspected accused 1’s house.
Accused 2
did not notice how entry was gained into the house. There
was no forced entry. After he discovered that his brother’s TV

was stolen he informed the police but they never came to investigate.
Accused 2 denied all the allegations made by the State witnesses

against him and stated that they were lying. He knew of no reason
why the State witnesses would be lying against him.
Bulela testified that he knew accused 2
from work at the taxi rank for about two years. He stated that he
was driving a contract
taking specific workers to work at 6:00 in the
morning and he took them back at 4 p.m. The route was from the taxi
rank at Site
C to Cape Town and back. According to him accused 2
worked the whole week of the 11th March 2012 and he never took time
off.
On 14 March 2012 he was working as a taxi driver at the rank
and he started work at 4:00 in the morning and finished at the rank

between 5 p.m. and 6 p.m. He saw accused 2 that day at the taxi rank
until they finished work just after 5:00 before 6 p.m. if
his memory
did not fail him.
Bulela testified further that during
the day between trips he went back to Site C taxi rank and then saw
other drivers. He also
saw accused 2 during the day, from time to
time, they met and had a chat a bit. Accused 2 used to register him
at the taxi rank
as he was not on good terms with the clerk who kept
the books at the taxi rank. He was dependent on accused 2.
According to the
procedure they must register in the morning. Bulela
confirmed that he started to work at 4 a.m. at the taxi rank and on
arrival
he and accused 2 did the registration. In cross-examination
he stated that he, after knocking off at 6 p.m., at that time he
normally
left accused 2 at the rank and he did not know what accused
2 did after he left him.
Accused 3 testified that on 10 March
2012 in the morning she opened up accused 1’s house whilst he
was in the Eastern Cape
and that everything was in order. Between 4
and 5 in the afternoon whilst not at home she received a call from
her husband who
informed her that accused 1’s house was broken
into and his TV was missing. Enquiries were made from neighbours and
the
matter was also reported by her husband accused 2 to committee
members. Accused 2 reported the stolen TV to the police the
following
day. She did not see when accused 1 came back from the
Eastern Cape but noticed his kombi parked in the garage when she was
hanging
washing at about 11:00 in the morning.
On 13 March 2012 she went to bed early
and woke up at 9:00 on the morning of 14 March 2012. She denied
being involved in an assault
of any of the victims and being on the
bakkie at any stage whatsoever. According to her all the State
witnesses that testified
that she was involved were lying and making
a mistake. She testified that on 14 March 2012 she heard a noise
while she was inside
her house and went outside to check. She saw a
lot of community people entering accused 1’s yard. She could
not specify
who those people were. According to her they were very
loud, angry and spoke at the same time.
Just as she exited her house accused 1,
4, Luxolo, Mabhuti and Mshwele together with members of the
community were on their way
back from accused 1’s garage to the
gate. When it was put to her by Ms O’Neill that accused 4 will
testify that he
did not have an opportunity to enter the yard she
maintained that she saw them going to the gate. In cross-examination
she testified
that she did not see blood coming from Mshwele’s
nose as she was not walking with them. Blood was not visible from
the side
of his face that she could see. She saw accused 1 at that
stage for the first time after his return from the Eastern Cape. She

only remembered seeing Nomaliviwe from the community people. She
also noticed Morris. The other people lived there in the same

neighbourhood but she was not able to say who they were as it
happened long ago.
According to accused 3, accused 1, 4,
Luxolo, Mabhuti and Mshwele got into accused 1’s bakkie.
Accused 4 got into the front
of the bakkie with Mshwele and accused
1, Luxolo and Mabhuti at the back. Accused 4 was driving the bakkie.
Morris did not get
onto the bakkie. She did not know why people
were there and she did not ask any of them, she also did not ask
accused 1 what was
going on as it did not occur to ask him. The
bakkie drove off and the community people remained in the street.
Morris remained
along with them. She did not see any weapons carried
by the people at that stage. She went inside her house, came back
again
and continued to stand next to Nomaliviwe by the vibracrete
wall.
After approximately 30 minutes the
bakkie came back again with the same occupants and came to a
standstill in front of accused 1’s
gate. Before the bakkie
stopped people were standing next to the road and did not block the
road for the vehicle. Community people
moved closer to the bakkie.
They started to assault accused 1, Luxolo and Mabhuti whilst on the
bakkie. Accused 4 and Mshwele
disembarked when they saw the beating
and Mshwele also got beaten. The people had sticks with them. She
did not know where they
got the sticks from. They kept on asking
where the television set was saying ‘where is the TV’.
There were a lot of people there and
she could not say who did the beating. She saw accused 1 being
beaten at the back of the bakkie
also but she did not intervene
because there were a lot of people and she would not succeed in
stopping the beating. It never
occurred to her to phone her husband
accused 2. When accused 1 got off the bakkie the beating stopped
against him. The beatings
continued against the three young men on
the other side of the bakkie in the road. She did not notice if
accused 4 was beaten.
Whilst the beating continued she saw accused 1
and 4 got back into the bakkie. She did not hear them say anything
because there
was a lot of people.
When the bakkie left a lot of people
remained behind and the victims were being beaten by the people with
sticks. She did not hear
anything as the people were all speaking at
the same time. After accused 1 and 4 left, after a few minutes, she
went back to her
house. She heard people running and that made her
to come out of her house again. She then heard from Nomandla that
Luxolo, Mshwele
and Mabhuti managed to escape and ran away. Accused
1 arrived before dusk and asked her what happened to those children
who were
being beaten there and she said to him they were beaten and
escaped and he then left.
Accused 2, her husband, arrived after 9
p.m. She informed him that Mabhuti, Luxolo and Mshwele were being
beaten. She denied that
she knew why accused 1 was arrested. She
only heard that he was taken by the police. She testified in
cross-examination that
women only formed part of the meeting called
by the community to decide on the punishment of an offender they did
not take part
when thugs are beaten. She denied the evidence of the
State witnesses who testified about her involvement in the incidents
and
testified that she knew nothing about what they were talking
about. She testified that she came along well with the Nobandas and

they had no quarrels. She testified that all the State witnesses
were lying and she could not tell the reason behind that.
Accused 4 testified that he was friends
with accused 1 as they come from the same area in the Eastern Cape
called Cofimvaba. He
testified that between 2010 and 2011 he was a
member of a development forum and a street committee. He explained
that people who
stole property were taken to the committee where they
would be interrogated and beaten with sticks by the residents and
some of
the members of the community until they told the truth as to
where the stolen goods were. Goods were not recovered every day.

The beatings would stop when goods were recovered.
In 2010 the committee members reported
about three times that Luxolo stole items and they found them in his
house. Accused 4 testified
that he was involved in building
construction and had his own company with 20 people working for him.
His day to day duties were
to supervise and to see if work is done
properly. His workers knocked off at 5:00 in the afternoon. He
would then take them back
to their homes and would only arrive back
at his house at about 8 o’clock in the evening. Regarding 14
March 2012 he testified
that accused 1 phoned him at 2 o’clock
in the afternoon. Accused 1 then told him that he was on his way to
him and that
he just arrived back from the Eastern Cape. He was very
tired and he requested accused 4 to drive his vehicle to Site C to
have
lunch.
Accused 4 stated that he did not see
accused 1 for more than three weeks before that day. When accused 1
arrived at accused 4’s
house with his bakkie accused 4 drove
the vehicle and accused 1 was in the passenger seat. On their way to
Site C a young man
tried to stop the vehicle. Accused 1 then told
accused 4 to stop and he brought the vehicle to a standstill. The
young man came
to accused 1’s side of the bakkie and spoke to
accused 1 and said that he heard allegations that he was implicated
in connection
with the lost television set but that he was not
involved. The young man said he would go and show accused 1 the
people who had
stolen the television set.
At that stage they were standing
outside the vehicle. Accused 4 testified that he knew the young man
as Mshwele. Then both of
them, that is, accused 1 and the young man
entered the vehicle in the front. Madiba, accused 1, was seated in
the middle of them.
Mshwele gave instructions and he turned left
from Ntlazane Road and then turned left again, when he noticed four
young men standing
on the pavement smoking. Mshwele instructed
accused 4 to stop the vehicle and Mshwele and accused 1 then got out
of the vehicle.
Accused 4 remained in the vehicle. Mshwele and
accused 1 had a conversation outside the vehicle with four young men.
Accused
4 could not hear what the conversation was about.
Accused 1 and Mshwele came back to the
bakkie with two of the young men. The other two were left behind.
He did not notice the
mood they were in at that stage. The two young
men were referred to as Luxolo and Mabhuti. Accused 1, Luxolo and
Mabhuti got
onto the back of the bakkie and Mshwele joined accused 4
in front on the passenger side. Mshwele told him to drive to accused
1’s place. At that stage he did not know what was happening
and he did not ask Mshwele because he was lost in view of the
fact
that they were on their way to Site C to have lunch.
At accused 1’s place he parked on
the left-hand side of the road in front of his house in the street.
Accused 1, Luxolo and
Mabhuti disembarked from the bakkie. They
entered through the gate on their way to the garage and at that stage
Mshwele alighted
as well and he joined them. Accused 4 testified
that he was in the process of disembarking the vehicle when he saw
members of
the community also entering accused 1’s yard.
Accused 4 recognised some of the people namely Nomasimi Mqwambe,
Dlemthwaleni,
Ntomntwana, Bhodligazi, Ndutsu and Nomakacinge.
He knew the faces of some of the other
people but could not attach names to them. Accused 4 followed
accused 1, Mabhuti, Luxolo
and Mshwele into the yard but when he
arrived at accused 1’s gate. They turned around and accused 1
and the three young men
came back to the vehicle so he did not go
inside accused 1’s yard. Accused 4, whilst at the gate heard
cries but not for
long. They returned back and accused 1, Mabhuti
and Luxolo got back onto the back of the vehicle. Mshwele got into
the front
and he saw Mshwele bleeding from his nose. He also thought
that Mshwele had a bloodspot on his clothes but could not remember.

Accused 4 asked Mshwele what happened to him and Mshwele said he was
assaulted in the garage. It did not cross his mind to ask
Mshwele
who assaulted him and why.
Mshwele then told him to drive to
Makhaya and he gave instructions on their way to look for the TV.
They arrived in Makhaya and
Mshwele told him to stop at a certain
house. Accused 1, Mabhuti and Luxolo disembarked from the vehicle
and Mshwele followed them
and they proceeded to the people sitting
outside the house. After a while they returned to the vehicle. They
were at a distance
and he could not hear any conversation. When
accused 1 and the three young men came back he heard when they were
talking to each
other that the person who allegedly had the TV was
not known by those people. Accused 4 then asked Mshwele what their
conversation
was about and he confirmed that the person who allegedly
had the TV was not known. Accused 4 did not notice accused 1’s
mood at that stage but he could see that accused 1 appeared to be
disappointed.
Accused 1, Luxolo and Mabhuti got back
on the vehicle and were seated on the back and Mshwele seated in
front. Accused 1 instructed
that they must go back to Harare to take
the young men back to where they had found them and accused 4 drove
back to Harare. As
he was driving towards accused 1’s place up
Phumza Street and just as they were about drive past accused 1’s
house,
there were a lot of community members in the road. He did not
notice them when he came into Phumza Street. They blockaded the
road
and he could not drive past as they surrounded the vehicle. The
community members moved closer and forced the bakkie to a
standstill.
He did not look if the seven people that he recognised the first
time at accused 1’s house were still there.
As he was about to stop the bakkie the
residents started to beat the young men on the bakkie and he could
hear the blows and the
bakkie was being shaken. They were using
sticks. Accused 1 disembarked and started to intervene. Accused 4
saw the beatings
and also a spot of blood on a glass window behind
the driver’s seat. The occupants on the back of the bakkie
were bleeding.
Accused 4 then disembarked to assist accused 1 in
stopping the residents from beating the young men. Accused 1 and 4
tried to
intervene to stop the community from continuing with their
assault and they also got beaten. He and accused 1 were using their

hands to try and stop the residents. The residents kept on beating
the boys and dragged Luxolo and Mabhuti off the bakkie.
After accused 4 disembarked he was at
the front of the bakkie when the boys were still being beaten with
sticks and dragged. Mshwele
was also there and accused 4 saw him
also being beaten by the members of the community. The community
members all spoke at the
same time and he could not hear what they
were saying. The community members were also uncontrollable and
angry. The boys kept
on running towards them and then they would be
dragged away by the community members and that is why he ended up
with blood on
his t-shirt. The community did not say anything to him
directly, the community members were angry because they brought the
boys
without the TV that they went to look for at Makhaya.
It was put to accused 4 that if no
conversation took place between the two accused and the community
people how did they know that
the accused and the young men came back
without the television set. Accused 4 responded by saying that maybe
they did not see
a TV like object in the vehicle or they might have
asked people seated at the back of the bakkie. According to accused
4 it became
clear to him and accused 1 that the residents were
overwhelming them. They gave up and left the young men with the
community members
who continued beating them. The residents were so
angry and they would not have allowed them to take the young men with
them.
Accused 1 and 4 got into the bakkie and
proceeded to Site C to eat at Sasa Restaurant. They were able to
leave with the bakkie
because the community members were behind the
bakkie at that stage. Accused 4 then left Site C with a taxi to
return to his workplace
in Makhaza just before knockoff time at 5
p.m. He heard about the death of the three young men the following
day when a detective
with accused 1 arrived at his house. The
detective said to him he was looking for Mzongozi and accused 4
replied that he was not
Mzongozi. The detective then manhandled him
to the vehicle and took him to the police station where he was locked
up.
Accused 4 testified that all the State
witnesses were lying about his alleged involvement in the commission
of the crimes. He testified
that the Nobandas reason for lying
against him was as a result of an incident that took place when he as
a member of the ward development
forum allocating jobs to the
different street committees. Nomthunzi lashed out at him because her
children were not employed and
she said he was discriminating against
her son Nkululeko and her daughter Lindelwa. She was angry and
scolded him and said that
he did not want her children to succeed in
life. That happened at the end of the year of 2010 and beginning of
2011. According
to him Nomthunzi remained angry ever since and they
never spoke to each other again.
With regard to the Matinises the reason
for them lying against him related to an incident that took place in
2011 where Mabhuti
broke into the house of the next door neighbour
and ran away with a DVD player. The street committee went to
Mabhuti’s home
and he ran away. Accused 4 was part of the
committee. Mabhuti’s mother Nolusapho offered to pay for the
DVD player and
she paid the money. After this incident his
relationship with Nolusapho was not good at all she was angry and did
not greet accused
4 anymore and said that he wanted the members of
the community to beat her son and pressured her to pay the money.
That was the
reason why the Matinises mislead the Court.
Accused 5 and accused 6 elected not to
testify. That was the summary of all the evidence.
Starting with the events that took
place in the morning hours of 14 March 2012. The Nobandas placed
accused 1, 2, 3 and 4 on the
scene as having held and assaulted
Mphuthumi with sticks and a stone at their house. The Matinises
testified that their home
was also visited by accused 1, 2 and 4 who
assaulted Mabhuti. The four witnesses Nomthunzi, Lindelwa, Nolusapho
and Nomvelo impressed
the Court as being truthful and reliable
witnesses. With regards to the events of the early hours of that day
they corroborated
each other’s testimonies in material
respects.
It was argued on behalf of the accused
concerned that the evidence of the four State witnesses should not be
accepted by the Court
because of various contradictions between them
with regards to:
1. The events;
2. The evidence they gave in-chief and
in cross-examination and;
3. Differences between the testimonies
they gave in court and the statements they made to the police.
It was argued that they were evasive in
certain respects and furthermore the Nobandas in particular were not
objective witnesses
and were emotional because of the death of
Mphuthumi. The State accepted that there were discrepancies between
the evidence of
the witnesses and the statements made to the police.
However; it argued that the mistakes or omissions made in the
statements
were adequately explained by the witnesses. The State
referred to the judgment of S v Bruiners en Ander
1998 (2) SACR 432
(SE) at 437(h) where it was held that it was absurd to expect of a
witness to furnish precisely the same account in his statement
as he
would in his evidence in open court.
The witnesses of the State did
contradict themselves on certain aspects. One of the main
contradictions submitted by the defence
counsel was in relation to
the time upon which the homes of the Nobandas and the Matinises were
visited by the accused concerned.
It must be kept in mind that not
every error by a witness, and not every contradiction or deviation
affects the credibility of
a witness. Non-material deviations are
not necessarily relevant. The contradictory versions must be
considered and evaluated
on a holistic basis. In this regard see S v
Govender and Others 2006(1) SACR 322 (ECD) at 325(G).
The contradictions of the Nobandas and
the Matinises regarding the times the accused visited their homes are
in the Court’s
view not so material if one has regard to their
evidence as a whole. What is important is the fact that the Nobandas
corroborated
the version of the Matinises that the three accused
being accused 1, 2 and 4 went to the Matinise home and came out with
Mabhuti.
This according to the Nobandas happened after the accused
had gone into the Nobanda household and assaulted Mphuthumi who later

freed himself. In the Court’s view the four witnesses were
consistent on the fact that it was accused 1, 2 and 4 that went
to
visit the Matinise home taking Mabhuti who also managed to free
himself. This is significant corroborative evidence that strengthens

the State’s case that indeed those accused were there that
morning.
There was a discrepancy in the
testimony of Nolusapho and Nomvelo as to which objects were used for
the assault. Nomvelo testified
that the accused used wooden sticks
while Nolusapho in her evidence-in-chief said that the accused used
iron pipes. Under cross-examination
she testified that she could not
differentiate between iron pipes and sticks as there was chaos in her
house. It was put to her
that in her statement to the police she had
indicated that sticks were used and she never mentioned iron pipes.
In the Court’s
view, whether sticks or iron pipes were used,
the fact of the matter is that weapons that inflicted injuries on
Mabhuti were used.
Mabhuti was seen by Nolusapho and
Nomvelo returning home limping. According to Nomvelo his shirt was
torn and he had bloodspots
on his t-shirt. With regard to the
alleged assault and alleged kidnapping of Mphuthumi, Nomthunzi
testified that one of the accused
that were there held Mphuthumi by
his belt and accused 1, 2, and 4 assaulted him with sticks and an
iron pipe. Lindelwa’s
evidence on the other hand was that
Mphuthumi was assaulted with sticks by the accused concerned and
accused 3 hit him with a stone
on his hand whilst he held on to the
vibracrete wall, situated next to Nkululeko’s shack.
Once again the Court is satisfied that
the nature of the weapons used whether sticks and iron pipe or a
stone caused bodily injuries
to Mphuthumi because he was seen by
Lindelwa covered with blood. The witnesses testified that they could
see what was happening
although it was still dark outside. Nolusapho
testified that the light in her house came from TV which was switched
on as well
as the light from the bedroom and from the light coming
from the long pole outside the house which shed light through the
window
of the TV room. Nomvelo confirmed that evidence. Nomthunzi
testified that it was still dark outside but there was light coming

from Nkululeko’s shack and her kitchen area.
Nomthunzi’s sight problem was
also raised as an issue that should raise doubt as to whether she
could properly see what was
taking place. Nomthunzi admitted during
the course of her cross-examination that she was short-sighted and
diabetic and could
not see quite far. There was no evidence adduced
as to the extent of the condition of her eyesight. Whilst
cross-examined by
Mr Colenso for accused 5 about the later events she
was asked whether she could see the time on the wall clock of the
court room
about 9 metres away. She testified that she could see the
world clock but could not read the finer detail of the time. From
this
her evidence that she could see the events and the people
involved whom she knew from the area cannot be discounted based only
on her short-sightedness.
Furthermore, Nomthunzi’s evidence
was corroborated by Lindelwa’s evidence as to the identity of
the accused. Lindelwa
testified that she saw accused 1, 3 and 4 in
the light of the floodlight, accused 2 was also identified. The
Court and the parties
observed during the inspection in loco the
existence of the pole with six spray lights estimated to be 40 metres
in height situated
at the corner of Phumza and Bengezela Streets
which could be seen from the Nobanda and the Matinise properties.
In terms of the evidence the witnesses
and the accused concerned have lived in the same area for some time.
It was observed during
the inspection in loco that the houses of
accused 1, 2 and 3 and those of the Nobandas and the Matinises were
in close proximity
with each other. Exhibit H, that is, the street
map, also depicted the location of the streets where the houses are
situated,
which was around the same area. It is reasonable to
conclude that the witnesses would be able to recognise the accused
concerned
although the incidence occurred after midnight.
According to the Nobandas the events of
the day carried on with accused 1 coming to their house during the
course of the morning
to apologise for assaulting Mphuthumi earlier
that morning and later on in the afternoon coming back to their house
with Mshwele
and accused 2 after which accused 2 left. Even if it
could be argued that Nomthunzi was mistaken as to the identity of
accused
1 and 2 in the early morning the coming back to their house
would confirm the involvement of accused 1 and 2 in the incident of

the early morning. Nomthunzi also had a conversation with accused 3
in front of the gate of accused 3’s house during the
course of
the morning about why the accused concerned assaulted Mphuthumi and
accused 3 responded that these young men normally
passed by her house
looking in her direction only to find that they had stolen accused
1’s TV.
The version of accused 1 insofar as his
time of arrival from Cofimvaba to Cape Town is concerned does not
necessarily confute the
evidence of the State witnesses about what
happened that morning. On his own version the accused was in Harare
between the hours
of 1 and 2 a.m. His time of arrival in fact
confirms their evidence that he was back in Harare at least at the
time the alleged
incidence occurred. The exact time in the Court’s
view is not material especially because the time that accused 1
allegedly
got back to Harare is not too far apart from the time it is
alleged that the incidence occurred. The version of events as
provided
by the State witnesses regarding the incidents of the early
hours of 14 March 2012 is more convincing than that of the accused.

More so, that accused 1 left what he considered to be important in
the Eastern Cape to attend to his stolen TV. It is not farfetched

that immediately after his arrival he wanted to find the culprits who
stole his TV.
The Court did not observe the Nobanda’s
as not being objective and emotional in court and no basis was laid
for this viewpoint.
Furthermore Mphuthumi’s passing away in
2013 has nothing to do with this case. The Court is accordingly
satisfied that
the accused concerned were at the Nobanda’s and
Matinise’s households in the early morning hours of 14 March
2012 and
that they assaulted Mphuthumi and Mabhuti. The Court will
deal later with the issue of the alleged kidnapping of Mphuthumi.
Continuing with the events of the day.
The Court now deals with the events that allegedly occurred in the
afternoon to the evening
of 14 March 2012 at accused 1’s house,
at the bridge in Ntlazane Road, the driving of the bakkie allegedly
to and from Endlovini
and the discovery of the bodies of the three
deceased at Macassar Sand Mines on 15 March 2012.
In regard to the events at accused 1’s
garage, Nomthunzi, Lindelwa and Morris were consistent about the fact
that Mshwele
and Luxolo were in accused 1’s garage during late
afternoon of 14 March 2012. According to Lindelwa it was from
approximately
4 p.m. and according to Nomthunzi it was when her
grandchildren had just come back from school and Morris testified
that he witnessed
the events at accused 1’s house after he had
woken up at 4 p.m. to go to work that evening as a security guard.
From this
it can be safely concluded that the afternoon events at
accused 1’s house started at approximately 4 p.m. Secondly,
the
three witnesses corroborated each other’s testimony that
Mshwele and Luxolo were tied up. According to Lindelwa they were

tied up with a red rope and wires. Morris testified that they were
tied up with yellow ropes and Nomthunzi’s testimony was
that
the two were tied up with wires. The discrepancy regarding the
colour of the ropes is not material in the Court’s view.
The
point is that, there is corroborating evidence that they (the
deceased) were tied up.
Nomthunzi testified in-chief that
Luxolo and Mshwele were tied up by accused 1, 4 and 5. In
cross-examination she testified that
accused 5 was doing the tying
up. Morris however stated that accused 5 was just standing. It must
be borne in mind that Nomthunzi
and Morris did not arrive at accused
1’s place at the same time. Accused 5 in a document that was
regarded as a confession
but which appeared to be exculpatory in
nature and in his warning statement made a statement which ties up
Nomthunzi’s version
that he was asked to assist with the tying
up of the victims as approximately 16H00.
The mentioning of the tying up by
accused 5 in his statements gives credence to Nomthunzi’s
testimony that he had something
to do with the tying up upon being
asked by accused 1 to assist.
Accused 5 elected not to testify in
order to gainsay Nomthunzi’s testimony. It must however be
stressed that accused 5’s
denials put to the witness by Mr
Colenso during the cross-examination of Nomthunzi cannot be equated
with the evidence. Nomthunzi
maintained her testimony that when she
was cross-examined by Mr Colenso on this issue that accused 5 did the
tying up. The evidence
of this witness on this issue must stand.
Nomthunzi and Morris corroborate each
other that accused 1 and 3 assaulted Mshwele in the garage.
According to Lindelwa accused
1 assaulted Luxolo with a stick and
accused 3 with an iron pipe on his head and legs. The iron pipe was
about half a metre long
and Mshwele was already in the garage tied up
with a yellow rope and wire when Lindelwa arrived. Morris confirmed
the evidence
by Lindelwa that accused 1 used a stick whilst accused 3
used an iron pipe to assault Mshwele and Luxolo. According to
Lindelwa
accused 4 arrived and took a stick from accused 1 and
started assaulting Luxolo. As they were still tied up and being
assaulted
Mshwele said the TV was at Endlovini.
Morris supported Lindelwa’s
testimony that accused 4 assaulted both Mshwele and Luxolo using a
stick and that the two young
men were tied up with a rope. Nomthunzi
testified that as this was happening she and the members of the
community were shouting
to the accused not to assault the children.
This accords with Morris’ evidence that the community people
gathering at accused
1’s place did not participate in the
assault but were more interested in the TV being found and even
shouted ‘please
don’t kill them’ when the bakkie
left the last time.
Nomthunzi testified that accused 1 and
3 assaulted Mshwele badly on his head. The post-mortem report in
relation to Mshwele concluded
that the cause of death was as a result
of head injury and consequences thereof. Morris also noticed an
injury in Luxolo’s
left eye. The post-mortem report in
relation to the external examination of Luxolo’s body confirmed
that there was haemorrhage
around the left eye and the laceration
approximately 30 by 10 millimetres on the upper aspect of his left
eye. Dr Anthony explained
this to mean that the skin was torn.
Ms O’Neill submitted on behalf of
accused 4 that the State cannot rely on the testimonies of both the
Nobandas in relation
to what happened in accused 1’s garage
because according to Ms O’Neill, Lindelwa said her mother was
not present at
accused 1’s house. The Court’s reading of
the evidence is that Lindelwa never said that her mother was not
there but
that she did not go to accused 1’s place with her
mother, and her mother never entered accused 1’s house.
Therefore
it is possible that Lindelwa did not see her mother. First
it appears as though Lindelwa was at Wendy’s place when her
mother
arrived at accused 1’s house for the first time and
secondly according to her mother’s evidence she never entered
the
yard but remained with the members of the community outside the
gate of accused 1’s house. Therefore there does not seem
to be
a discrepancy there.
Morris testified that during the events
at the garage accused 6 was just standing and watching. Morris
confirmed Lindelwa’s
evidence about who got on the bakkie
during the first trip; that it was accused 1, 3, 5, 6, the three
deceased, Lindelwa, Morris
and two other men, accused 4 was driving.
Although Nomthunzi did not mention all the names of the people on the
bakkie during
the first trip that Lindelwa and Morris mentioned, she
later on with reference to the second trip mentioned Lindelwa and
Morris
as being on the bakkie that was going back to Endlovini.
There is a discrepancy between the evidence of Morris and Lindelwa as

to who apprehended Mabhuti at the footpath bridge in Ntlazane Road.
According to Lindelwa, Morris got off
the bakkie with accused 5 and moved to the top of the bridge where
they caught Mabhuti and
brought him to the bakkie. Accused 1 told
him to get into the bakkie and tied Mabhuti up with a wire whilst on
the bakkie. Morris
on the other hand testified that it was accused
1, 3 and 6 that got off the bakkie and accused 6 went across the
railway line and
blocked Mabhuti. Accused 1 got hold of Mabhuti by
his arm and brought him to the bakkie walking with accused 3 and 6.
In his
second statement to the police however, Morris mentioned that
he also got off the bakkie with accused 1, 3 and 6 in order to catch

Mabhuti.
Even though there might be
discrepancies as to who were involved in the catching of Mabhuti the
fact of the matter is that Mabhuti
was apprehended at the bridge and
placed on the bakkie where accused 1, 3, 5, 6, Lindelwa, Morris and
two community members were,
with accused 4 being the driver according
to the witnesses. On the back of the bakkie, according to Lindelwa,
accused 6 used vulgar
language to the effect that ‘I will hit
you bra’s until you shit’. Accused 6 did not come and
testify in order
to refute what Lindelwa said. There is therefore no
reason not to accept Lindelwa’s evidence in this regard.
Both Morris and Lindelwa testified that
accused 1 uttered words that led them and two other gentlemen to get
off the bakkie. There
is a slight difference as to the exact words
that were uttered by accused 1. Whatever words were said it appears
that they were
interpreted by both Morris and Lindelwa to mean that
assault was to take place on the victims and it had the effect of
them getting
off the bakkie. Morris mentioned in his warning
statement that accused 1 said the following words ‘if there is
anyone who’s
going to stop him in what he is going to do, he
must climb out of the bakkie’ and from that Morris deduced that
something
worse was going to happen and he decided to get off.
In his second statement Morris stated
that accused 1 said ‘as the journey goes to Endlovini to trace
a television and if it
could not be found he will assault these
victims (1) Luxolo, (2) Sivuyile, (3) Mabhuti very strong and badly
also more than he
already did, so those who had a will or soft heart,
they may rather remain behind’. This is also the report that
Nomthunzi
said she received from Lindelwa when she came back after
she had gone with the bakkie. Accused 6 in his warning statement
also
confirmed Lindelwa’s and Morris’ evidence in this
regard which he also states is a reason why he got off the bakkie.

The overwhelming evidence is that the people that got off the bakkie
did so because of accused 1’s threats that the victims
were
going to be seriously assaulted and everyone that remained on the
bakkie was expected to participate in the assault.
Lindelwa testified that when the bakkie
came back to accused 1’s place she saw Luxolo, Mabhuti and
Mshwele on the bakkie red
with blood. Morris supported this evidence
by stating that blood was flowing from the heads of all the three
young men including
Mabhuti. If one takes into account the fact that
Mabhuti was not in the garage when the assault on Mshwele and Luxolo
took place
and that there was no evidence that when he was caught at
the bridge he was assaulted there at the bridge or injured before the

bakkie took off again, it can be concluded that assault on Mabhuti
and further assault on Luxolo and Mshwele must have taken place

between the time of leaving the bridge and returning to accused 1’s
place. This coincides with the words that the witnesses
say accused
1 uttered at the bakkie before they got off to the effect that the
victims were going to be assaulted and injured if
the TV was not
found at Endlovini. Nomthunzi also mentioned that the bakkie was
gone for a long time before it returned back again
at accused 1’s
place.
Defence counsel for accused 1 contended
that there was no evidence that accused 1 actually went to Endlovini.
Accused 1’s
version is that they looked for the TV at Makhaya.
While it is so that the State witnesses got off the bakkie before it
proceeded
further, evidence is overwhelmingly that the remaining
members of the bakkie were on their way to Endlovini to look for the
TV
and they came back without the TV but with an unknown young man
who denied that he knew anything about the TV. Ultimately the
location of the place they went to to look for the TV whether
Endlovini or Makhaya has no real relevance.
Morris testified that when the bakkie
left the second time accused 1, 3, 5 and 6 were on the back of the
bakkie and that accused
4 was the driver. He at that stage did not
see community members with sticks and iron pipes. In fact according
to him the community
members were worried that the TV should be found
and when the bakkie left the second time they were shouting ‘please
do not
kill them, please do not kill them’. According to
Morris accused 2 was not there. Nomthunzi mentioned in her
evidence-in-chief
that when the bakkie left again Morris, Lindelwa
and accused 1, 3, 5 were on the bakkie with accused 4 driving and
Lindelwa and
Morris came back saying they got off the bakkie upon
accused 1’s utterances and the bakkie never came back again
with the
children alive.
In cross-examination by Mr Caiger
however Nomthunzi stated that when the bakkie returned followed by
the kombi the kombi was parked
at accused 1’s house and accused
2 also got on the bakkie. When the question about who was on the
bakkie the second time
was asked again by both Mr Caiger and Mr Ntela
in re-examination Nomthunzi mentioned that the occupants of the
bakkie were accused
1, 2, 3, 4 and 5. Lindelwa and Morris were not
mentioned this time which corresponds with their evidence that they
were not on
the bakkie on the last trip.
Mafethe’s evidence in regard to
who he saw on the bakkie is also relevant. Mafethe testified that
while sitting at Athi’s
place late afternoon to early evening
he saw a white bakkie driven by accused 4 passing. The occupants
that he could see were
accused 1, 2 and 5 with their backs turned to
him. Mafethe gave a reasonable explanation as to why he could not
see the other
people on the bakkie including the deceased as they
were seated on the floor of the bakkie. He also explained that he
recognised
accused 1, 2 and 5 even with their backs turned on him as
he knew them. The argument therefore that he was a poor observer,
selective
in his observations or evasive on this aspect is not
convincing. Mr Caiger in fact submitted in his argument that when
cross-examined
on this issue Mafethe remained adamant of his version.
Viewed together with the evidence of
Nomthunzi there is consistency that accused 1, 2 and 5 were on the
bakkie driven by accused
4. Taking into account that there were
other people on the bakkie that Mafethe did not see, Nomthunzi
completes the picture as
to who those others on the bakkie were being
accused 3 and the three victims. That is also supported by Morris
who said accused
1, 3, 4 and 5 were on the bakkie that drove off the
last time. Furthermore Morris testified that accused 6 was also on
the bakkie.
However, accused 6 did not come to testify in order to
rebut Morris’ evidence. According to the State witnesses the
bakkie
never came back with the three victims.
The bakkie was later in the evening
seen by Lindelwa and Morris at accused 1’s place. Lindelwa
testified that she saw accused
2 and 5 washing the bakkie at accused
1’s place at approximately 10 p.m. and she asked them ‘did
you finish the job’
and there was no response. Morris on the
other hand testified that after 9 p.m. he saw accused 1 washing the
bakkie inside using
a hosepipe and accused 2 was just standing next
to the bakkie. Morris testified that it was possible that Lindelwa
had seen the
bakkie washed by accused 2 and 5 because they did not
walk past there at the same time. This explanation by Morris is
reasonable.
Accused 1 confirmed during his
testimony that he washed the bakkie because it had blood that came
from the victims who according
to him were assaulted by the community
members whilst on the bakkie.
If one looks at accused 1’s
version it is questionable that a person after sleeping for
approximately 12 hours would still
be so tired that he was unable to
drive his vehicle for a short distance to Site C. It was peculiar
that he did not after having
woken up at 12 midday enquire from his
brother, accused 2, or accused 3 as to what happened with the issue
of the missing TV.
It is also very strange that those accused of
stealing the TV by Mshwele would without any protestation willingly
get onto the
bakkie without much discussion between them and accused
1.
Another anomaly is that Mshwele who
said he knew nothing about the TV offered to give directions while
sitting in the front of the
vehicle with accused 4 by leading them to
where the TV was sold whilst the culprits who informed accused 1 of
where the TV was
sold sat on the back of the bakkie with accused 1.
Instead of driving directly to Makhaya accused 1 directed that they
start at
his house first. A number of questions arise regarding this
decision, the first being that the main reason for coming from
Eastern
Cape was to find his TV. He got the information about the
whereabouts of the TV that it was sold at Makhaya but he decided to
go
to his house first. The second being, that the culprits who would
have known that they were in trouble would be so compliant and
so
subdued well knowing that something serious could happen to them due
to their wrongdoing.
It is farfetched to suggest that
community people would just arrive, at the same time with the bakkie
at his house, which was supposed
to be on its way to Makhaya, without
being informed that the accused would be going to his house at that
particular time and without
knowing the reason for him being there
and that the people with him on the bakkie were the culprits that
stole the TV. In cross-examination
accused 1 gave different
explanations regarding the stage at which the community people
arrived at his yard. He first stated that
there were no people when
they arrived at his house which gives an impression that people
suddenly appeared from nowhere. The second
explanation was that they
arrived there at the same time and all entered the yard together but
he was not able to say where the
people came from.
According to accused 1, as they had
entered the garage at his house with Luxolo he heard a scream behind
them. When he looked back
he discovered that it was Mshwele and his
nose was bleeding. He testified that he did not see who assaulted
Mshwele. Once again
it is peculiar that members of the community who
had no conversation with accused 1 about the reason why he was there
at his house
with the young men would without asking any questions
and out of the blue assault Mshwele. Accused 1 went on to testify
that when
he saw the bleeding on Mshwele he told the community people
‘if you are now assaulting them it is better for us to turn
back
and go to the place where they sold the TV’. They then
got into the bakkie and drove to Makhaya.
This does not make sense because
according to accused 1, he had no prior conversation with the
community people about the stolen
TV. Furthermore, the person that
was assaulted was Mshwele who according to accused 1, had earlier
professed to have had no involvement
in the stealing of the TV.
Accused 1 and the three young men went to Makhaya with accused 4
still driving the bakkie. Mshwele
still sat in front of the bakkie
whilst the other two young men sat on the back of the bakkie with
accused 1. Upon their arrival
at Makhaya at a place where the TV was
allegedly sold, they were told by the neighbours that the people they
were looking for had
left a long time ago and the neighbours did not
know when those people would return.
According to accused 1, he then decided
to take the young men back to where they had picked them up in the
first place. What is
strange about this is that, firstly, he did not
get his TV and that the people to whom the TV was allegedly sold had
left long
time ago, which means the TV could have never been sold at
that address as it was stolen only some four days earlier that is on

10 March 2012. In this regard the young men would have made a fool
of him by taking him to a wrong address. It is therefore unlikely

that he would not have been angry at them. After all this he gently
decided to take the young men back to the place where they
had picked
them up to drop them off. He testified that he was interested in
retrieving his TV. It is therefore strange that he
would decide to
let the young men who admitted to have sold his TV to go freely
without any questions and without taking them to
the police as his
brother had already laid a charge. Furthermore he remained on the
back of the bakkie with Luxolo and Mabhuti.
He gave no satisfactory
response as to why that was still necessary. The inference that can
be drawn is that he remained at the
back of the bakkie to ensure that
they did not escape.
The explanation given by accused 1 on
why they went to his house before driving to Makhaya in the first
instance was for the young
men to show him how they gained entry to
his house. It was never placed on record that in fact the route from
where the young
men were picked up to Makhaya went via accused 1’s
house in the first instance. It is in the Court’s view
convenient
to suggest that the road back from Makhaya to where the
young men were picked up had to go via accused 1’s house.
Accused
1 could not recall the names of the streets were these young
men were picked up. Another concern that the Court has with accused

1’s version is that he testified that when the community people
had assaulted Mshwele earlier at his house, he took them
away from
the community people giving an impression that he was removing them
from danger of being further assaulted. However,
after not
retrieving the TV he saw it fit to go past his house on his way to
dropping the young men off at the place where they
had picked them
up. He should have known that there might be further assaults on the
young men especially because the TV was not
retrieved.
Another issue is that it is not
convincing that accused 1 did not see the community people who were
at his house earlier and who
were assaulting them and the young men
on their return. It is highly unlikely that he would not look to see
who was at his house
and who was beating them. It is once again
convenient for him to suggest that he could not see even one person
or a few people
whilst he could observe the young men’s
movements during the altercation, in order for him to intervene. The
community people
could not have been strangers to accused 1. It must
have been people from the neighbourhood as they would have been the
only people
who knew about the stolen TV after they were informed by
his brother accused 2. Furthermore, he testified that at some point
he
distanced himself from the people who were doing the assault. It
is highly improbable that he did not identify any person at that

stage when he was just an onlooker.
The next issue is that if he was so
concerned about the victims it makes no sense that he decided to
leave them behind in an injured
and bleeding state whilst in the
hands of violent attackers to go and eat at his usual restaurant at
Site C and made no contact
to the police or emergency assistance or
inform the relatives that their children were being beaten by the
community members.
This was especially necessary because of the fact
that his attempts to intervene had failed and that him and accused 4
were overpowered
by the community people. The safety of the young
men should have been foremost in his mind as he was the person that
brought the
victims via his house in the first place. The
unstoppable behaviour of the community members should have indicated
to him that
something bad could happen to the victims.
It is also important to compare the
evidence given by the accused at the bail hearing with the evidence
he gave at the trial in
respect of the events of 14 March 2012. The
following differences in the versions at the bail hearing and the
trial have been
noted. Firstly, at the bail hearing he testified
that people were at his house because they also wanted to see how the
young men
broke in. Secondly, he testified that when they got to
Makhaya, he was told by the neighbours that the people they were
looking
for were not known. Thirdly, he testified at the bail
hearing that, after coming back from Makhaya they went back to where
they
came from, to which the Court (at the bail hearing) asked where
that was and he said that it was in front of his house. He never

mentioned a vehicle being blocked by the people. At the bail hearing
the destination was his house and not the place where they
had picked
up the young men.
Fourthly, he testified at the bail
hearing that on arrival at his house the second time he addressed the
community people as follows;
‘it was full of people and we told
the people that these people were not showing us these things and
that these things are
not where they were saying these things are
that’s when they got assaulted by the people’. Fifthly
the impression
he created during the trial was that he was not angry
about the stolen TV but was calm and friendly at all times. But at
the bail
application during cross-examination he admitted that he was
angry and annoyed because his house was broken into due to the loss

of his TV that was valued at approximately R6 000,00 to R7 000,00.
The difference in versions given by
accused 1 during bail proceedings and during the trial is material
especially with regard to
the destination from Makhaya. The
contradictions are glaring and unfortunately go to the route of the
crucial issues before the
Court. In the bail application it was very
clear that from Makhaya they were headed to accused 1’s place
and not to drop
off the children as testified by accused 1 in the
trial. This recent version creates an impression that it is a
fabrication designed
to justify why the young men were at accused 1’s
place the second time after the TV was not found in Makhaya.
Ms Losch on behalf of accused 1 argued
that the fact that only a few bloodspots were found in accused 1’s
garage as opposed
to those found outside his yard supported his
version that the community assaulted the young men outside the yard.
The fact that
bloodspots were found in the garage is consistent with
the evidence that assaults did take place in the garage. The young
men
were taken from the garage whilst bleeding to be loaded onto the
bakkie outside the yard. That could explain why blood was also
found
outside the yard.
Accused 1 denied the version of the
State completely and testified that the witnesses for the State were
all lying. It is very
clear from the assessment of the evidence that
the versions of the State and that of the accused were very different
regarding
the events that took place on 14 March 2012. However, as
it has been shown in the evaluation of the evidence above that the
State
version on the events of 14 March 2012 is more compelling than
that of the accused in view of the totality of all the evidence that

happened during the afternoon to evening of 14 March 2012. The
version of accused 1 cannot be reasonably possibly true and therefore

is rejected.
Accused 2 painted a picture to the
Court that he never leaves his work during the day at the taxi rank
and that he is on duty from
3 o’clock in the morning until 9:00
in the evening. According to his evidence, should he leave the rank
he would lose his
position in the queue as he must register. Accused
2 called an alibi witness Bulela to support his evidence. His
version however
that he never leaves his work is contradicted by the
following incidents. The first one is that he was able to report to
the police
the housebreaking and stolen TV at 8 o’clock in the
morning. Secondly, he saw his brother in a police vehicle. The
evidence
is that his brother was arrested after 5 a.m. which is after
the time he leaves home for work. Thirdly, accused 2 testified that

on 10 March 2012 at 6 p.m., he went to his brother’s house and
then discovered that the TV was gone.
It is reasonable to expect that a
person would in certain circumstances such as the crisis at home or
any other compelling reason
leave work to attend to such situations
that may arise as has been borne out by the evidence of accused 2
that he was at home at
6 p.m. when he discovered his brother’s
TV missing. Accused 3 also testified that she was phoned by accused
2, her husband,
between 4 and 5 p.m., to come and see for herself
that the TV at his brother’s house was missing. This is
another indication
that he sometimes left work earlier.
The evidence of Nomthunzi was that on
14 March 2012 accused 2 arrived there at accused 1’s place with
a kombi and asked where
his brother was and that he later returned
with the kombi following the bakkie and left with the bakkie during
the second trip.
He was also identified by Mafethe according to his
evidence. The evidence of these witnesses placing accused 2 on the
bakkie
late afternoon to evening is therefore not unreasonable.
Furthermore, Bulela’s evidence was that he would leave accused
2 at the taxi rank between 5:00 and 6:00 and knockoff and then he
would not be aware of what accused 2 did after he left him. This
is
important because from about 5 p.m. in the afternoon he was not aware
of accused 2’s whereabouts.
According to the evidence adduced by
the State witnesses as already mentioned the bakkie left on the last
trip in the afternoon
at dusk which would have been after 5:00 or
later. It is further obvious that it was impossible for Bulela to
know the whereabouts
of accused 2 for the whole day because they
transported people in separate vehicles. In his own evidence Bulela
could not say
where accused was during the lunch hour and after 5
p.m. Furthermore, while Bulela would be behind accused 2 in the
queue at the
rank in the morning, taxis would fill up and leave at
different times. They could not be following each other at all
times. Bulela
gave an impression that he was aware of accused 2’s
movements at all times and failed to acknowledge that there could be
situations that required a taxi driver to leave work before knockoff
time. In any event, from the evidence it appears that the
events of
14 March 2012 carried on until the evening. His evidence is
therefore not convincing.
The evidence of Gojo was that on the
day he arrested accused 2 he noticed bloodspots on his takkies and
asked accused 2 to hand
over the takkies for investigation. This was
not disputed by accused 2. Gojo testified that he placed the takkies
in the forensic
bag and booked them in an exhibit in the SAP13
register at Harare Police Station. He then sent the exhibits to the
forensic laboratory
at Plattekloof for purpose of analysis.
Kenny testified that on 20 July 2012 he
received the exhibits in sealed bags from Harare Police Station under
CAS file number CAS313/03/2012
laboratory number 96112/12 and these
exhibits were subjected to DNA analysis. In the forensic bag were
two training shoes marked
reference number FSG598758[“E2”]
and FSG598758[“E1”]; a t-shirt with reference number
FSG598759[“D”].
He also received Evidence Swab D
10DCAC3746CD[“12”] collected from the white Isuzu bakkie
by Brummer. The analysis
reflected that the training shoe
FSF598758[“E2”] matched with blood sample 11D4AB7957MX
which belonged to Mabhuti.
Training shoe FSG598758[“E1”]
matched with blood sample 11D4AD0405MX which belonged to Luxolo. The
reference blood
sample belonging to Mabhuti was read into the mixture
of DNA results coming from the t-shirt.
The Court was concerned about whether
or not a link was established as to which training shoes were sent
for analysis, that is,
whether those obtained from accused 2 by Gojo
or those that were collected on scene at Macassar by Agus. According
to Mr Caiger
the link was not established and Ms O’Neill also
argued that there was no documentary proof linking the exhibits from
the
police station to the laboratory. The State also conceded that
there was no documentary link.
Upon the Court’s diligent perusal
of the documentary evidence coupled with the evidence by Gojo, Kenny
and Agus on this issue,
it is clear that the three training shoes
collected at Macassar by Agus were sealed in exhibit bag FSD850102
and placed in the
swabbing evidence collection kit number
10DCAA4073EB and booked in at Somerset West Police Station under
number SAP4591658/2012.
Kenny testified on the other hand that on 20
July 2012 he received a CAS file pertaining to Harare Police Station
CAS313/03/2012
lab number 96122/12.
From this information it can be
concluded that the DNA analysis done by Kenny related to the training
shoes received from Harare
Police Station and not those from Somerset
West Police Station. The only training shoes received from Harare
Police Station according
to the evidence are those that were booked
in by Gojo which he got from accused 2. Based on the totality of the
evidence relating
to accused 2 it can be concluded that he was on the
bakkie during the second trip and therefore his version that he was
not there
at all is not reasonably possibly true and it is therefore
rejected.
Dealing with accused 3, it is hard to
believe that accused 3 who knew accused 1’s TV was stolen did
not even think that what
was happening there related to the missing
TV. It is even harder to believe that whilst people were talking
outside she never
asked anyone what was happening especially as this
commotion was taking place in the yard and in front of her
brother-in-law’s
house, whom she had not seen for about two
weeks. Secondly it is strange that she could only see accused 1, 4
and the three young
men, Morris and her neighbour Nomaliviwe amongst
the community members. It is highly unlikely that she was not able
to identify
any other person from the neighbourhood whilst just
standing around and talking to Nomaliviwe for about 30 minutes after
the bakkie
had left.
Furthermore, only people from her
neighbourhood could have known about the missing TV and they were
surely not strangers to her.
She, in any event admitted that the
people from her neighbourhood were there and were the ones doing the
assault. In that regard
she would have been expected to identify
some of these people. Her evidence in cross-examination slightly
changed when she said
that she knew that the community members were
from her neighbourhood but could not recall their faces as it was a
long time ago
but could see accused 1, 4 and the three young men at
all times. It is also quite strange that when she saw people the
first time
she did not notice them carrying any sticks.
A question then arises as to where did
the people who were standing there the whole time get the sticks
from, which they used to
assault the three young men and accused 1
with. More so, accused 3 was standing looking at these people the
whole time and that
is why she could see Morris amongst them. It is
also telling that Morris who was a section 204 witness was the only
community
member identified by accused 3 other than Nomaliviwe. This
leads one to conclude that accused 3 was either hiding the identity

of those from the community who did the assault in order to protect
them or to protect herself or others involved regarding the
assault
on the young men.
Accused 3 confirmed that no meeting was
called by the committee to discuss the missing TV because if such a
meeting had been called
she would have been aware of the meeting as
it was normally held in the house in front of their house. From her
evidence the people
just gathered there without a meeting being
called. If that is the case how did the people know that they must
gather at accused
1’s place to assault the young men when the
bakkie arrived the first time and to stay there and wait for the
bakkie to return?
The evidence therefore that people just out of
nowhere started assaulting the victims together with accused 1 on the
bakkie makes
no sense.
Accused 3 also agreed that it was
strange that the person whose TV was stolen would also be beaten but
according to her that was
what she saw. Accused 3 testified that she
normally went to open accused 1’s house at 09:30 or so, every
day. On 14 March
2012 however it is unclear why she did not open
accused 1’s house at the same time as she normally did but only
went out
of her house for the first time at approximately 11 a.m. to
hang the washing which is when she noticed accused 1’s kombi
parked in his garage. Accused 3 also stated that she could not hear
what the community members were talking about as they all talked
at
the same time. She later stated in cross-examination that the
community members started asking ‘where is the TV’
as
they were beating the young men and this is a contradiction.
Gathering from accused 3’s
evidence, accused 4’s intention was clearly to stop the bakkie
at accused 1’s gate.
In this regard she contradicted accused 1
and 4 who stated that the bakkie was blocked by the community members
forcing it to
come to a standstill and this is a material
contradiction. It is also unlikely that a person who witnesses an
assault on people
would just walk back to her house without any
further interest or take action that would show that she was
concerned about the
victims and what was taking place outside her
brother-in-law’s yard.
Regarding the bail proceedings accused
3 was accused 4. A number of discrepancies were pointed out to her
by Mr Ntela. In her
bail application accused 3 testified that
accused 1 and 4 came with the young men and while the young men were
showing accused
1 and 4 how they got into the house the people were
assaulting them and one started bleeding through his nose. This is
contrary
to the evidence she gave in this court when she testified
that she heard a noise outside and when she got out she saw community

people in accused 1’s yard, and accused 1 and 4 and the three
young men were coming from the garage towards the gate. Furthermore,

she testified during the trial that she did not see any assault or
that Mshwele’s nose was bleeding, which is clearly a
contradiction.
She also testified during the bail
hearing that accused 1 and the community members said the young men
must go and show them where
they had put the items that they had
stolen as the young men had said they had stolen the items. None of
these details were given
when the accused gave evidence in this
court. She also mentioned at the bail hearing that accused 1 and 4
and the victims came
back saying that the people that the young men
allegedly gave the items to were not known in Makhaya. At the trial
she made no
mention of any interaction between accused 1, 4 and the
community members.
In her evidence at the trial she stated
that people started beating the young men and she could not hear what
they were saying as
they all spoke at the same time. At some point
the only words she heard were ‘where is the TV’ whilst
the assaults
were taking place. She further testified at the bail
hearing that accused 1 and 4 went to Site C leaving the young men
with the
community, which details she never mentioned during the
trial. At the trial she stated that she never had a conversation
with
accused 1 or accused 4, she therefore could not have known where
they were going to. It was obvious that accused 3 tried to tailor

her evidence to be in line with that of accused 1 and 2 and adapted
her version of events in cross-examination. There were material

contradictions in her evidence at the bail hearing and her evidence
at the trial. Based on the totality of the evidence in relation
to
accused 3 her version is rejected as not being reasonably possibly
true.
Accused 4 contradicted himself and
changed his version many times during his cross-examination. At one
point he testified that
the community people whilst assaulting the
young men were all talking at the same time and he could not hear
what they were saying
but at another time he testified that the
residents said that they would assault the young men until they told
them where the TV
set was. Accused 4 also stated that he did not go
to the police because the people would have regarded him as an
informer. Surely
he could have made an anonymous call to the police.
His response that the police always requested the person’s
identity
when reports were made was not supported by any incidents,
which he had personal knowledge of.
According to him, community members had
lost trust in the police because they would call the police for
assistance when they lost
their goods but would not get any help. It
would take the police up to a week to respond and that is why the
Khayelitsha residents
decided to look for their stolen goods
themselves and take their own decisions. Whilst there is evidence
that police did not always
react on time or at all when complaints
were lodged it is always incumbent upon any person against whom a
crime has been committed
to call the police as the law enforcement
agents. Even if police do not respond no one is entitled in the
course of resolving
issues by themselves to assault people.
Further, accused 4 stated that he did
not think he was the one who was supposed to call the police because
he thought that if they
were in the hands of the community they were
in good caring hands and protected. He did not think they were going
to be beaten
to death. The behaviour of the accused is very strange
in this regard. It was irresponsible to leave the young man whom he
had
brought there at accused’s place together with accused 1
being assaulted by the community and then go and eat at Site C
without
calling for any help to rescue them if he was concerned as he
claimed. Furthermore his testimony at the bail hearing that he left

the young men in the hands of the community because the community
will have a way of getting answers from them contradicts his

testimony that he was concerned about the young men being assaulted.
This version of leaving the young men
in the hands of the community whilst they were beaten and bleeding is
therefore unconvincing,
so is his explanation of how the blood got to
be on his t-shirt. The version that he left with the bakkie that had
blood on the
window and him having blood on his clothing, to go to a
public place to eat is also implausible. Accused 4 testified that
when
a complaint was laid involving a person who had stolen someone
else’s property, a meeting would be called where the suspect

would be interrogated before he was beaten. Therefore beatings did
not take place randomly. Clearly if his version were to be
believed
the young men in this case would not have been beaten up before a
meeting was held. The evidence that the young men were
beaten before
being questioned about the missing TV is at odds with his testimony.
The fact that a meeting was not held was confirmed
by accused 3’s
testimony that if a meeting was held she would have known as the
house where the meetings were held was in
front of her house. The
lengthy evidence which accused 4 gave in relation to the process
followed by the committee when a culprit
is apprehended does not
assist his version regarding the events of 14 March 2012.
There were various contradictions
between his evidence in the bail hearing and his evidence in the
trial to such an extent that
accused 4 apologised and asked for
forgiveness when these contradictions were put to him by Mr Ntela. He
was accused 2 at the bail
hearing. At the end he gave an explanation
for these contradictions by saying that it happened a long time ago.
He was frightened
and scared at the time. He could not remember
everything and he was beaten to a pulp.
The first issue to be highlighted is
that at the trial he testified that when they were stopped by
Mshwele, Mshwele took the front
seat and accused 1 sat next to him
whilst Mshwele sat by the door. He testified at the bail hearing
that accused 1 and all three
young men sat at the back of the bakkie.
Again he testified in the bail hearing that Mshwele went into the
back of the bakkie
with the others at accused 1’s place and the
‘guys’ at the back of the bakkie told him at the window
saying ‘let’s
go’ and when he asked; ‘where
they were going to’ they told him, ‘to Makhaya’ to
the person to whom
the items were sold. At the trial he testified
that Mshwele gave him directions while sitting at the passenger seat
in front.
He also testified in the bail
proceedings that when they approached a shack and called a name the
community members said ‘no
there’s nobody with that name
in this house’. In this court he testified that he did not
hear the conversation between
the young men, accused 1 and the
neighbours when they stopped the vehicle. He overheard them when
they were coming back to the
vehicle and from Mshwele when he asked
him. Furthermore, in his evidence-in-chief he testified that he
heard that those people
were not known by the neighbours but later
changed his version under cross-examination to state that in fact the
neighbours said
those people they were looking for were gone for a
long time. He again testified at the bail proceedings that he then
asked, that
is after coming back from Makhaya, where they were going
to and he was told that they were going back to Harare. As he was
driving
he saw a few people, a group of people standing next to
accused 1’s house. He stopped the car again on an open space
on
the field. The community themselves then came to the car, accused
1 tried to explain to them that the items were not there. In
this
court accused 4 testified that they were on their way to drop the
young men where they had picked them up and the road went
via accused
1’s place. As they were about to pass accused 1’s place
the community members crowded the vehicle such
that he was forced to
bring it to a standstill. This is a material contradiction as it
goes to the heart of the issues placed
before this Court.
He further testified at the bail
hearing that after some time as he was busy with a cell phone in the
bakkie and when he looked
at the back he saw hands with sticks moving
up and down. As he was looking he saw blood and blood also spattered
on him. In this
court he testified that blood got on him because the
young men were running to him and accused 1. He further testified at
the
bail hearing that the spots of blood got through the window to
him and onto his right cheek and to the left of his t-shirt. He

never mentioned the blood spatter on his cheek in the trial. He
further stated at the bail hearing that he went out of the vehicle

because he felt the blood. This he did not mention to this Court.
He further testified at the bail
hearing that when they drove to accused 1’s place the first
time he never got off the car
and that the bakkie was parked outside
at an open field. He did not take note as to who was bleeding but
assumed that one of the
young men was bleeding. In this court he
testified that he noticed that Mshwele was bleeding when he got into
the bakkie in front.
He stated further at the bail hearing that he
told the people please do not assault them; he did not push anyone
because they
had kerries in their hands; they were next to the car
when he spoke to them and he did not go closer to them to stop them.
In this court he testified that he
intervened and the boys were running to him and accused 1. He also
got beaten because he was
intervening and members of the community
would pull the young men from him and accused 1. He further stated
that he only felt
some hit of the kerries when he got out of the car
whereas he told this Court he got hit because he tried to intervene.
He testified
further at the bail hearing that he did not see accused
1 pushing anyone he was simply shouting that they must not be
assaulted.
In this court he testified that both and he and accused 1
intervened and were assaulted in the process.
The different versions noted in the
bail hearing and the trial cannot be dismissed as mere shortcomings
or minor discrepancies but
go to the heart of the issues. Accused 4
clearly tried to distance himself from the events of 14 March 2012 in
this court. He
painted a picture of being a bystander who simply
followed instructions from Mshwele whom he did not know very well and
conveniently
stayed in the vehicle or did not see who assaulted the
young men or what they were saying or for what reasons they were
being assaulted.
It is very strange for accused 4 not to have asked
accused 1 about what was going on. It was also strange not to ask
Mshwele
about who had assaulted him when he noticed blood on him and
to simply drive as if nothing happened and admiring cars in the
process,
according to him. This does not make sense.
It is strange that he noticed seven
people the first time they had gone to accused 1’s place but
did not take notice of any
person during the assaulting, when they
came back the second time. Accused 4 was a member of a development
forum in the street
committee for two years and he must have known
most of the people living in that area. Accused 4 was also very
evasive as a witness.
He also changed his version several times. He
clearly attempted to tailor his evidence to be in line with that of
accused 1.
His version was therefore not reasonably possibly true
and is therefore rejected.
Accused 5 and 6 elected not to testify.
It was held in Naude and Another v S 2011(2) All SA 517 (SCA) at
para 37 that the court
was unlikely to reject credible evidence which
an accused has chosen not to deny. In such instances an accused’s
failure
is bound to strengthen the prosecution case. In S v Boesak
2001(1) SACR 1 (CC) at para 24 it was held that:
“The fact that an accused person
is under no obligation to testify does not mean that there are no
consequences attaching
to a decision to remain silent during the
trial. If there is evidence calling for an answer and an accused
person chooses to remain
silent in the face of such evidence a court
may well be entitled to conclude that the evidence is sufficient in
the absence of
an explanation to prove the guilt of the accused.
Whether such a conclusion is justified will depend on the weight of
the evidence.”
Having regard to the totality of the
evidence the issue that remains for consideration is whether the
State proved its case against
each of the accused beyond a reasonable
doubt. The State’s case rests both on direct and
circumstantial evidence. There
is direct evidence of eyewitnesses
regarding events of 14 March 2012, when the bakkie was seen leaving
accused 1’s place
for the last time with the three deceased on
the back of the bakkie, who at the time were still alive, injured and
bleeding as
well as the accused 1, 2, 3, 5 and 6 being on the bakkie
with accused 4 driving. With regards to the events that follow
thereafter
circumstantial reasoning must be applied. Furthermore the
doctrine of common purpose is also applicable. In this instance, both

the State and defence counsel referred to a well-known decision of R
v Blom 1939 (AD) 188 to 203, which established the two cardinal
rules
of logic which must be satisfied when dealing with inferential
reasoning.
The first principle is that the
inference sought to be drawn must be consistent with the proved
facts. If it is not, the inference
cannot be drawn. The second
principle is that the proven 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, there must be
doubt whether the inference
sought to be drawn is correct. It is
also well established that the Court would look at the conspectus of
all the evidence presented
before it, in order to come to a decision.
In S v Reddy and Others 1996(2) SACR 1 (A) at 8c-e Zulman AJA held
as follows:
“In assessing circumstantial
evidence one needs to be careful not to approach such evidence upon a
piecemeal basis and to
subject each individual piece of evidence to a
consideration of whether it excludes the reasonable possibility that
the explanation
given by an accused is true. The evidence needs to
be considered in its totality. It is only then that one can apply
the often
quoted dictum if R v Blom 1939 (AD) 188 at 202-203 where
reference is made to two cardinal rules of logic which cannot be
ignored.”
The principles regarding the doctrine
of common purpose are settled in our law. In this regard see S v
Sefatsa and Others 1988(1)
SA 866; S v Mgedezi 1989(1) SA 687 (A) at
705(i) to 706 (b) and Thebus and Another v S 2003(6) SA 505 (CC) at
para 45. Moseneke
J warns against the collective approach in the
Thebus matter. He urges the trial court to determine the active
association in
respect of each individual accused and all the facts
in relation thereto.
It is therefore imperative to consider
the totality of the evidence to determine whether the State proved
its case beyond a reasonable
doubt against each of the accused.
Starting with the charge relating to
the kidnapping of Mphuthumi. Kidnapping is defined as consisting of
unlawfully and intentionally
depriving a person of liberty of
movement. See Jonathan Burchel, Principles of Criminal Law, 3rd
Edition, 2005 at page 166. Regarding
the alleged kidnapping of
Mphuthumi, the Prosecution has not argued exactly what evidence it
relies on to suggest that Mphuthumi
was unlawfully and intentionally
deprived of his freedom of movement whether it was being held inside
Nkululeko’s shack with
the accused’s concerned or by
being held by his belt or pulled until he freed himself at the
vibracrete wall. Whilst removal
of a person is usually effected by
force, use of force and, duration of the depravation is not
necessarily a requirement in proving
kidnapping. The time period in
which a person is held may in some instances become relevant in
distinguishing kidnapping from
other cases of assault involving a
transient and incidental seizure of a person for a short period. See
Snyman CR Criminal Law
Fifth Edition page 481 to 482.
Mphuthumi was able to free himself
during the alleged assault. There is some serious doubt by this
Court that the evidence before
it satisfies the requisite elements to
justify a conviction on count 4. The Court’s view is that the
accused are entitled
to the benefit of doubt and the accused are
therefore entitled to be acquitted of the charge of kidnapping of
Mphuthumi in relation
to count 4.
On count 5 of assault with intent to
cause grievous bodily harm against Mphuthumi it must be noted that
there was no complainant
as Mphuthumi died later in 2013 in
circumstances not related to this case. Despite that, evidence is
overwhelming that accused
1, 2, 3 and 4 were at the Nobanda household
and assaulted Mphuthumi with blunt objects. Each of them took part
in the assault.
There was an issue regarding the charge referring to
the evening of 14 March 2012 whereas the evidence led showed that the
incident
on Mphuthumi occurred in the early hours of the morning. In
the indictment the State did not separate the Nobanda incident with

the afternoon to evening events.
In terms of section 88 of the Criminal
Procedure Act, ‘where a charge is defective for want of an
essential ingredient of
the relevant offence, the defect shall unless
brought to the notice of the court before judgment, be cured by
evidence at the trial
proving the matter which should have been
averred’. In view of the provisions of section 88, the defect
pointed out has
in the Court’s view, been cured by evidence.
Accordingly, there should be no prejudice on the accused if the Court
convicts
on what is borne out by the evidence, which is not
materially different from what they are charged with.
The second important issue raised was
that there was no medical evidence to support the charge of assault
on Mphuthumi. There was,
however, evidence adduced by the State
witnesses that Mphuthumi was injured, bleeding and had a broken arm
after this incident.
Despite the absence of medical evidence with
regard to injuries sustained by Mphuthumi, the Court is of the view
that the State
proved beyond reasonable doubt that he was assaulted
by accused 1, 2, 3 and 4 with the intent to do grievous bodily harm.
The Court will then deal with the
murder counts. In respect of the murder counts 6, 7 and 8 the issue
for determination is whether
the evidence establishes the accused’s
guilt beyond a reasonable doubt. It is common cause that Luxolo and
Mabhuti died
of multiple injuries and Mshwele of a head injury and
consequences thereof. Dr Anthony’s testimony in relation to
Luxolo
was that his hands were tied with a wire around the back.
Remnants of material which appeared to be burnt plastic were noted on

the body and evidence of superficial burn wounds was noted on the
wrists, back and arms. Various and extensive abrasions, lacerations

and contusions were found all over the body and scalp area.
Extensive haemorrhage was noted into the soft tissue of the chest,

extremities and buttocks.
Insofar as Mabhuti is concerned,
multiple focal abrasions and lacerations were found all over his body
and there was, amongst others,
extensive haemorrhage noted into the
soft tissue of both upper legs. With regard to Mshwele, chief
post-mortem findings were,
inter alia, intensive brain injuries and
had collapsed lungs. He also had multiple abrasions, lacerations and
contusions all over
his body. The evidence of Dr Anthony was
overwhelming that these three deceased were tortured all over their
bodies, over a period
of time with blunt objects which ultimately
caused their death. If one has regard to the findings of Dr Anthony
and the evidence
of the State witnesses of tying up with wires and
ropes, the inescapable conclusion is that all three deceased were
subjected to
severe and sustained assault whilst defenceless.
According to Dr Anthony the fact that
the deceased were left at Macassar in that condition meant that they
were exposed and loss
of blood further contributed to their eventual
death. The evidence of the eyewitnesses clearly established that the
assault on
the three deceased was over an extended period of time on
that day. The evidence regarding injury to the heads of the deceased

show that further assaults must have taken place after the bakkie
left the bridge. The evidence regarding the injury to Luxolo’s

left eye seen by Morris in the garage of accused 1 was also noted
during the post-mortem by Dr Anthony. Furthermore, post-mortem
found
that he was tied up with wires around his wrists, which coincides
with the evidence of Lindelwa and Morris that the victims
were tied
with wires, amongst others, at accused 1’s garage.
The evidence by Nomthunzi regarding
Mshwele being beaten very hard on the head ties up with the cause of
death reflected in his
post-mortem report. It is further evident
that the young men were also assaulted in Macassar because broken
sticks and stones
were found next to their bodies. In the Court’s
view, there are a number of parallels between the condition in which
the
bodies were found in Macassar, including objects found next or on
the bodies and the events that took place during the afternoon
to
evening of 14 March 2012. The pieces of evidence seem to complete a
story that runs like a chain of events from the early morning
of 14
March 2012 to the evening ending with the bodies being found at
Macassar Sand Dunes.
The first one is that the witnesses who
testified about the assault on Luxolo and Mshwele in the garage
testified that the victims
were tied up, inter alia, with wires on
the wrists as the Court has already mentioned. One of the bodies
found on the scene had
wires around the wrists according to the
witnesses who were at the scene in Macassar and identified the
bodies. It is reasonable
to conclude that sticks that were found on
the scene at Macassar were used to assault the three deceased. Some
of the wooden sticks
found on the scene next to the bodies in
Macassar were broken and bloodied according to the witnesses who were
at the scene where
the bodies were found.
The third parallel is that the
witnesses saw assaults on Luxolo and Mshwele in the garage with
sticks and iron pipes being used.
One of the witnesses even
mentioned that Mshwele was being assaulted very badly on his head.
As the Court has already stated,
according to the post-mortem report
Mshwele died of a head injury and consequences thereof. It is clear
that the victims were injured
whilst on the bakkie as they were seen
red with blood running from their heads when the bakkie came back to
accused 1’s place
from Endlovini. The evidence that Mabhuti
was also assaulted at his home early in the morning cannot be
ignored.
At the scene the bodies were found with
bruises all over, which was consistent with sustained assaults
according to Koko and Mkosana
and all other witnesses who saw the
deceased’s bodies at Macassar and at the mortuary. Dr Anthony
confirmed a sustained
assault on the deceased by blunt objects. On
the whole the State witnesses gave a satisfactory account of the
events. They did
not appear to have fashioned their evidence to be
identical even though some of them were related. It is furthermore
accepted
that Morris’ evidence as a section 204 witness was to
be treated with caution. His evidence however was corroborated by
other State witnesses in a number of material respects. The mosaic
of the body of the evidence being the direct evidence by the

eyewitnesses before the bakkie left on the last trip and the formal
evidence of when and after the bodies were found in Macassar
viewed
together seemed to complete the picture.
The role that each of the accused
played before the bakkie left for the second time was outlined by the
eyewitnesses. The role
pertaining to each of the accused before the
bakkie left is as follows: (as the Court has already mentioned, the
events that followed
thereafter require inferential reasoning).
Starting with accused 1; the accused was seen by the witnesses at the
Matinise house
assaulting Mabhuti. Then he captured Mshwele and
Luxolo and took them to his garage. He tied them up with ropes and
wires and
assaulted them with sticks and then loaded them onto his
bakkie. He was on the bakkie and present when Mabhuti was loaded at
the
bridge and he was seen tying up Mabhuti as well. Again accused 1
was heard uttering words to the effect that he was going to assault

and injure the young men if the TV was not found and/or whoever was
not going to do the job must get off the bakkie.
Furthermore, he was there on the bakkie
when it came back to his place and when the three young men were seen
red with blood or
with blood flowing from their heads. The bakkie
left for the last time with accused 1 and others, with the young men
still alive
and badly assaulted and that was the last time they were
seen until accused 1 was seen washing the bakkie some hours later
that
evening at his place. A few hours later the young men were
found dead. Even though none of the State witnesses saw the young
men being driven to Macassar by any of the accused or being assaulted
there, the only reasonable inference that can be drawn from
the
proven facts, which have been outlined already, is that accused 1 was
at Macassar and participated in the further assault of
the three
young men and in fact left the three victims to die in Macassar. The
possibility that anyone else other than those that
were involved in
the events from the afternoon to the evening would have assaulted,
injured the young men and transported them
to Macassar in the
condition they were, is remote.
The links between the events of the day
and the discovery of the bodies in Macassar as outlined by the Court
are so striking and
glaring to the point that there can be no other
reasonable conclusion than that the perpetrators of the assault were
those who
held the young men against their will on the bakkie and
left with them for the last trip. In view of the evidence it is
clear
that accused 1’s involvement and actions from the
beginning of the events until the bodies of the young men were
discovered
at Macassar runs like a golden thread through the events
of this case. He was there throughout the commission of the crimes
at
all times and was the conductor of the affairs of that day.
Evidently he was fully aware of the
kidnapping and assault on the victims. He did not only intend to
make common cause but was
actually leading the assault and the
kidnapping of the victims. He manifested the common cause by
apprehending, tying, assaulting,
kept them against their will and
loading them on the bakkie and by being on the bakkie and later
dumping the deceased at Macassar.
The evidence given by Mpontshane
also cannot be ignored that when accused 1 was asked about the boys
that were allegedly assaulted
by him he responded that they ran to
the direction of Macassar. In addition thereto the warning statement
which the Court ruled
to be admissible placed accused 1 on the scene
in Macassar.
Finally, accused 1 must have
subjectively foreseen the possibility of the death of the three young
men ensuing from his conduct
and must have reconciled himself with
that possibility because after the brutal assaults and blood loss he
left them unattended
in an open secluded bushy area where chances of
being rescued or found were remote. On the conspectus of all the
evidence this
Court is satisfied that the State proved accused 1’s
guilt beyond a reasonable doubt on counts 6, 7 and 8.
In respect of accused 2 the evidence
shows that without a doubt he was on the bakkie when it left accused
1’s place the last
time. Most importantly DNA belonging to two
of the deceased was found on his takkies and he was seen by Lindelwa
washing the bakkie
with accused 1 later that evening. By being on
the bakkie accused 2 must have been aware of the assault and the
kidnapping of
the victims. He made common cause with the actions of
the others by being on the bakkie during the last trip. He was not
seen
assaulting any of the deceased at any stage nor was he seen
participating in the tying, capturing or loading of the deceased on

the bakkie.
However, he went on the bakkie when the
purpose at that stage was clearly not to go and find the TV anymore.
He therefore actively
manifested his active participation by getting
and staying on the bakkie that had bleeding and injured young men on
it. The accused
chose to distance himself from the incident by
stating that he was not there which is found to be false. Accused 2
was an unreliable
witness. Accused 2 also participated in the
assault of Mabhuti in early morning hours of 14 March 2012. This was
indicative amongst
others of his association with the events early
on.
Getting on the bakkie was a further
manifestation of his involvement with other accused during the last
trip. An inference can
be drawn that by being on the bakkie he must
have either been a perpetrator to the further assaults on the victims
or must have
been aware of the assault and associated himself with
the actions of others involved. Furthermore he must have
subjectively foreseen
that his actions or that of the others involved
would cause the death of the victims and must have reconciled himself
with that
possibility. Accordingly the Court’s view is that
his individual involvement manifested an active association with the
acts
of the other accused which caused the death of the deceased and
the accused is also found guilty of counts 6, 7 and 8.
Dealing with accused 3, the State
witnesses were able to show that accused 3 was present at the garage
of accused 1 when Mshwele
and Luxolo were tied up. She in fact not
only assisted with the apprehension of Luxolo but participated in the
assault of the
two victims by beating them with an iron pipe. It can
never be argued that beating a human being with a hard blunt metal
object
is not dangerous. Accused 3 was also on the bakkie and was
present when Mabhuti was captured and loaded later at the bridge.
When words were uttered by accused 1 to the effect that anyone who
was not going to do the job, indicating assault on the victims,
must
get off the bakkie she did not get off the bakkie but remained.
Further when the bakkie came back at
accused 1’s place the second time she never got off. When the
bakkie came back to accused
1’s place from Endlovini she never
got off. When the three victims were seen red with blood after the
trip to Endlovini
she was there and she was also seen on the bakkie
when the bakkie departed the last time. She was also heard by
Nomthumzi although
she denied it, telling someone at Kwa 10 shop that
they burned the children and left them at Makhaza. Although the
witness referred
to Makhaza it was clear from the evidence that she
must have been referring to Macassar. This evidence is reliable
because it
is in accordance with the medical evidence of Dr Anthony
that one of the deceased had remnants of burnt plastic on the body.
Furthermore, Mabhuti’s brother
Sandlana testified that when he observed the bodies in mortuary he
noticed that Mabhuti’s
feet had signs that they were burnt and
were also black underneath because of burn wounds. Accused 3
actively participated from
the beginning by being at the Nobanda’s
house in the early hours of the morning. The overwhelming evidence
of the State
was that accused 3 was there and actively participated
in the assault. She was on the bakkie at all times and especially on
the
last trip when it was clear that the accused that remained on the
bakkie were on a mission which was not to find the TV anymore
as that
had been done.
Her actions from the outset and
throughout the day showed that she intended to make common cause with
others in the commission of
the crimes. She should have foreseen the
possibility of the death of these young men due to being beaten over
a long period all
over their bodies, more so, with an iron pipe and
being left at Macassar with a remote possibility of being found and
rescued.
She indeed reconciled herself with the possibility of
their death when leaving them seriously injured, bleeding and exposed
in
a secluded bushy area. The warning statement pertaining to
accused 3 that the Court ruled to be admissible also places her in
Macassar. From the conspectus of the evidence, the Court is of the
view that, for the reasons mentioned the accused is guilty of
counts
6, 7 and 8.
In regard to accused 4 he was seen at
accused 1’s garage assisting with the tying up. One witness
testified that accused
4 also participated in the assault and another
one testified that accused 4 helped with the loading of Luxolo and
Mshwele on the
bakkie. Apart from this evidence by the State
witnesses, there is consistent evidence that accused 4 was the driver
of the bakkie
throughout the events of the day. In light of the
evidence, the Court is of the view that he was at all times, aware of
the fact
that the victims were apprehended and beaten because of the
missing TV of accused 1. He intended to make common purpose with
those
who were actually perpetrating the assault and manifested his
sharing of the common purpose by first being at Matinise house with

accused 1 and 2 and assaulting Mabhuti and by being at accused 1’s
place assisting with the activities in the garage, loading
the
victims and agreeing to drive the bakkie throughout events with the
badly assaulted victims. Furthermore it was not disputed
that there
was blood on accused 4’s t-shirt that Gojo had asked him to
hand over when he arrested him.
DNA analysis was conducted on the
t-shirt together with the training shoes that came from Harare Police
Station and the blood on
it was found to be that of Mabhuti. Accused
4’s version on how the blood got to be on his t-shirt has been
rejected by this
Court. Accused 4 was either directly involved on
the further assaults of the victims after the bakkie left for the
last time or
was aware as to who was involved in the perpetrating of
the assault on the victims before they were eventually found dead.
He
must have subjectively foreseen the possibility that the sustained
assaults by the perpetrators on the victims could lead to their

deaths and indeed reconciled himself with that possibility. In
addition to that the warning statement that was ruled by the Court
to
be admissible places accused 4 on the scene in Macassar. The accused
is found guilty of counts 6, 7 and 8.
Dealing with accused 5. The accused did
not testify. The evidence of the State witnesses and accused 5’s
warning statement
as well as a statement which was taken as a
confession but appeared to be of exculpatory nature painted a bleak
picture regarding
the events. The evidence against accused 5 is that
he was at accused 1’s garage and he helped with the tying and
loading
of the victims. In his own statements he admitted that he
was there right from the outset and assisted in the looking for the
TV. He was at accused 1’s garage and was asked to help with
the tying. He admitted that he was on the bakkie on both trips.
According to the State witnesses he
remained on the bakkie when accused 1 stated that those who were not
going to do the job must
get off the bakkie. The State’s case
regarding accused 5’s participation in the tying and loading of
the victims on
the bakkie and his remaining on the bakkie despite the
words uttered by accused 1 when others got off is credible and there
is
no reason for the Court to reject it. Accused 5 was on the
bakkie when the deceased were seen bleeding profusely from their
heads
from Endlovini. He admitted being on the bakkie on the last
trip and he placed himself on the scene in Macassar.
The bakkie came back to accused 1’s
place and there was a further opportunity for accused 5 to get off
but he remained on
the bakkie still when it was clear that the search
for the TV had been done. Clearly the reason for the last trip was
clearly
not to look for the TV anymore. Accused 5 associated himself
with the actions of the others by being on the bakkie that had young

men assaulted and bleeding. It was argued on his behalf that the
evidence before the Court showed that he was just an onlooker.
In
the Court’s view this is not supported by the evidence.
The inescapable conclusion is that he
actually associated himself with the assaults and subsequent deaths
of the deceased by being
on the bakkie when it left for the second
trip. He must have been aware of the assaults on the victims and
associated himself
with the actions of others involved. He must have
subjectively foreseen the possibility that the sustained assaults by
the perpetrators
on the three victims could lead to their deaths and
indeed reconciled himself with that possibility. This Court is
satisfied that
he is guilty of counts 6, 7 and 8.
Accused 6 also elected not to testify.
He was seen on the bakkie and according to the State witnesses he
remained on the bakkie
after accused 1’s utterances that the
Court has already referred to. There is evidence that he was part of
the people that
helped to apprehend Mabhuti at the bridge. He was
also heard by Lindelwa making some utterances that ‘I’ll
hit you
bra’s until you shit’. These utterances are not
taken in isolation but with other evidence involved. According to

the State witnesses, he went to Endlovini with the bakkie and was on
the bakkie when the bakkie came back from Endlovini when the
three
victims were seen red with blood. He was seen by Morris on the
second trip when the bakkie left for the second time.
According to the State witnesses he
remained on the bakkie. The evidence of the State witnesses is
credible and there is no reason
not to accept it. The accused’s
failure to testify strengthens the case of the State regarding his
involvement. Accused
6 was at the garage and was aware of the
assault and the kidnapping of Mshwele and Luxolo. He got on the
bakkie and he made common
cause with the actions of other accused by
helping to apprehend Mabhuti at the bridge so as to be loaded on the
bakkie and he did
not get off the bakkie when others got off when it
became clear that there was an expectation that those that remained
would do
the job of the assault on the victim.
He left with the bakkie the second time
from accused 1’s house and never got off when it was clear that
the remaining accused
were on a mission which was no longer to look
for the missing TV. He must have subjectively foreseen the
possibility that the
sustained assaults by the perpetrators on the
three victims could lead to their deaths and indeed reconciled
himself with that
possibility. The only reasonable inference to be
drawn is that accused 6 associated himself with the assault on the
deceased which
led to their ultimate death. He is also found guilty
of counts 6, 7 and 8.
Although the evidence regarding the
kidnapping of Luxolo, Mshwele and Mabhuti is linked to the charges of
murder, the two offences
should be seen as separate from each other.
On the charges of kidnapping there were a number of eyewitnesses
regarding the events
or parts of the events until the bakkie left for
the second time. Evidence of the State eyewitnesses is overwhelming
that Luxolo
and Mshwele were captured, kept and tied up at the garage
of accused 1 against their will and then loaded on the bakkie.
Mabhuti
was then captured later also tied and also loaded on the
bakkie and that was clearly against their will. They were deprived
of
their freedom for a long time from afternoon till evening. From
this evidence, the Court is satisfied that the State proved beyond
a
reasonable doubt all the elements of kidnapping against all the
accused and they are accordingly all found guilty of kidnapping
on
counts 1, 2 and 3.
The Khayelitsha Commission Report was
mentioned by accused 5’s counsel. The Court does take judicial
notice that the report
exists however, it is of the view that that
report is irrelevant on the question of whether the accused should be
convicted of
the crimes they are charged with as the inefficiency of
the police is not a justification for any person to take the law into
their
own hands. In conclusion the Court finds as follows:
ACCUSED 1 IS FOUND GUILTY ON COUNTS 1,
2 AND 3 IN RESPECT OF KIDNAPPINGS; AND ON COUNT 5 IN RESPECT OF
ASSAULT WITH INTENT TO CAUSE
GRIEVOUS BODILY HARM; AND ON COUNTS 6,
7, AND 8 IN RESPECT OF MURDER; AND IS ACQUITTED ON COUNT 4 OF
KIDNAPPING.
ACCUSED 2 IS FOUND GUILTY ON COUNTS 1,
2 AND 3 IN RESPECT OF KIDNAPPINGS; AND ON COUNT 5 IN RESPECT OF
ASSAULT WITH INTENT TO CAUSE
GRIEVOUS BODILY HARM; AND ON COUNTS 6, 7
AND 8 IN RESPECT OF MURDER; AND IS ACQUITTED ON COUNT 4 OF
KIDNAPPING.
ACCUSED 3 IS FOUND GUILTY ON COUNTS 1,
2 AND 3 IN RESPECT OF KIDNAPPINGS; AND ON COUNT 5 IN RESPECT OF
ASSAULT WITH INTENT TO CAUSE
GRIEVOUS BODILY HARM; AND ON COUNTS 6, 7
AND 8 IN RESPECT OF MURDER; AND IS ACQUITTED ON COUNT 4 OF
KIDNAPPING.
ACCUSED 4 IS FOUND GUILTY ON COUNTS 1,
2 AND 3 IN RESPECT OF KIDNAPPINGS; AND ON COUNT 5 IN RESPECT OF
ASSAULT WITH INTENT TO CAUSE
GRIEVOUS BODILY HARM; AND ON COUNTS 6, 7
AND 8 IN RESPECT OF MURDER; AND IS ACQUITTED ON COUNT 4 OF
KIDNAPPING.
ACCUSED 5 IS FOUND GUILTY ON COUNTS 1,
2 AND 3 IN RESPECT OF KIDNAPPINGS; AND ON COUNTS 6, 7 AND 8 IN
RESPECT OF MURDER.
ACCUSED 6 IS FOUND GUILTY ON COUNTS 1,
2 AND 3 IN RESPECT OF KIDNAPPINGS; AND ON COUNTS 6, 7 AND 8 IN
RESPECT OF MURDER.
WITH REGARD TO MORRIS MAXELA WHO WAS A
SECTION 204 WITNESS ON BEHALF OF THE STATE THE COURT EVALUATED THE
QUALITY OF HIS EVIDENCE
AND THE COURT IS GENERALLY SATISFIED WITH THE
MANNER IN WHICH HE ANSWERED QUESTIONS AND THEREFORE HE IS DISCHARGED
FROM PROSECUTION.
BOQWANA, J