S v Dewani (CC15/2014) [2014] ZAWCHC 188 (8 December 2014)

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[2014] ZAWCHC 188
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S v Dewani (CC15/2014) [2014] ZAWCHC 188 (8 December 2014)

IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO. CC15/2014
DATE:
08 DECEMBER 2014
In the matter
between:
THE STATE
And
SHRIEN PRAKASH
DEWANI
......................................
Accused
JUDGMENT: 8
DECEMBER 2014
TRAVERSO, DJP
[1] At the close of
the case for the prosecution, Mr. Van Zyl, for the accused brought an
application for the accused’s discharge
in terms of
section 174
of the
Criminal Procedure Act, No. 51 of 1977
.
[2] The accused was
charged with the following offences:
(a) Conspiracy to
commit the offences of kidnapping, robbery with aggravating
circumstances and murder (count 1);
(b) Kidnapping
(count 2);
(c) Robbery with
aggravating circumstances (count 3);
(d) Murder (count
4); and
(e) Obstructing the
administration of justice (count 5).
[3] In count 1 it is
specifically alleged that the accused conspired with Zola Tongo
("Tongo"), Mziwamadoda Qwabe ("Qwabe")
and Xolile
Mngeni ("Mngeni") to commit the alleged offences:
"... by
entering into an agreement with Tongo, in terms of which Tongo would
procure the services of a person or persons to
do one or more or all
of the following:
2.1 simulate a
hi-jacking of Tongo's motor vehicle;
2.2 simulate a
kidnapping and robbery of Tongo and the accused; and/or
2.3 effect the
kidnapping, robbery and murder of the deceased, Anni Dewani, and in
that, according to the conspiracy agreement,
the Accused would
provide payment to the perpetrators as well as to Tongo for the
kidnapping, robbery and murder of the deceased,
Anni Dewani".
[4] Counts 2 to 4
contain the allegation that Tongo, Qwabe and Mngeni acted in the
furtherance of a common purpose to kidnap the
deceased, rob the
deceased and kill the deceased. The other accomplice Monde Mbolombo
was not charged as a co-conspirator.
[5] It follows that
it is therefore crucial for the State’s case to prove that the
accused entered into an alleged conspiracy
agreement with Tongo.
Failing such proof, the accused cannot be convicted of any of the
first four counts against him and accordingly
also not on the fifth
count.
The legal
position
[6]
Section 174
of
the
Criminal Procedure Act provides
:
“If, at the
close of the case for the prosecution at any trial, the court is of
the opinion that there is no evidence that
the accused committed the
offence referred to in the charge or any offence of which he may be
convicted on the charge, it may return
a verdict of not guilty.”
[7] It is well
established that “no evidence” does not mean no evidence
at all, but rather no evidence on which a reasonable
court, acting
carefully, might convict
1
.
[8] The question
whether a court should grant a discharge at this stage is one which
entails a discretion by the trial court. It
is a discretion which
must, self-evidently, be exercised judicially.
[9] The judicial
pronouncements on the manner in which the trial court must exercise
its discretion have over the years been contentious.
I do not intend
to give a full historical overview and will confine myself to a brief
reference to those cases that helped to define
the scope of the
court’s discretion in terms of
section 174.
[10] In S v Shuping
& Others, (supra), Hiemstra, CJ reviewed the case law history of
discharge applications and formulated the
test as follows at 120 in
fine to 121 A :
“At the close
of the State case, when discharge is considered, the first question
is: (i) Is there evidence on which a reasonable
man might convict; if
not (ii) is there a reasonable possibility that the defence evidence
might supplement the State case? If
the answer to either question is
yes, there should be no discharge and the accused should be placed on
his defence.”
[11] The second part
of the latter test did not always find favour. In S v Phuravhatha &
Others,
1992 (2) SACR 544
(V), Du Toit, AJ stated the following:
“The
presumption in favour of innocence, the fact that the onus rests on
the State, as well as the dictates of justice in
my view will
normally require an exercise of the discretion under
s 174
in favour
of an accused person where the State case is virtually and basically
non-existent. Strengthening or supplementation of
a non-existent
State case is a physical impossibility.”
[12] Since the
inception of our Constitutional order, conflicting views arose as to
whether or not the Constitution has impacted
on the test to be
applied by a court in an application in terms of section 174. These
decisions culminated in the Supreme Court
of Appeal finally deciding
this issue in S v Lubaxa,
2001 (2) SACR 703
(SCA), inter alia, as
follows:
“[18] I have
no doubt that an accused person (whether or not he is represented) is
entitled to be discharged at the close
of the case for the
prosecution if there is no possibility of a conviction other than if
he enters the witness box and incriminates
himself. The failure to
discharge an accused in those circumstances, if necessary mero motu,
is in my view a breach of the rights
that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively on his self-incriminatory evidence.
[19] The right to be
discharged at that stage of trial does not necessarily arise, in my
view, from considerations relating to the
burden of proof (or its
concomitant, the presumption of innocence) or the right of silence or
the right not to testify, but arguably
from a consideration that is
of more general application. Clearly a person ought not to be
prosecuted in the absence of a minimum
of evidence upon which he
might be convicted, merely in the expectation that at some stage he
might incriminate himself. That is
recognised by the common law
principle that there should be ‘reasonable and probable’
cause to believe that the accused
is guilty of an offence before a
prosecution is initiated (Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(A) at 135C-E), and the constitutional protection
afforded to dignity and personal freedom (s 10 and s 12) seems to
reinforce it.
It ought to follow that if a prosecution is not to be
commenced without that minimum of evidence, so too should it cease
when the
evidence finally falls below that threshold. That will
pre-eminently be so where the prosecution has exhausted the evidence
and
a conviction is no longer possible except by self-incrimination.
A fair trial, in my view, would at that stage be stopped, for it

threatens thereafter to infringe other constitutional rights
protected by s 10 and s 12.”
[13] It has been
held that the credibility of State witnesses at this stage of the
proceedings only play a very limited role. In
S v. Mpetha (supra),
Williamson, J held that relevant evidence can only be ignored if “it
is of such poor quality that no
reasonable person could possibly
accept it”.
[14] This sentiment
was also echoed and expanded on by Kgomo, J in S v Agliotti,
2011 (2)
SACR 437
(GSJ), who stated the following at 456 in fine to 457b:
“[272] In S v
Lavhengwa
1996 (2) SACR 453
(W) the view was expressed that the
processes under s 174 translate into a statutorily granted capacity
to depart discretionally,
in certain specific and limited
circumstances, from the usual course, to cut off the tail of a
superfluous process. Such a capacity
does not detract from either the
right to silence or the protection against self–incrimination.
If an acquittal flows at
the end of the State case the opportunity or
need to present evidence by the defence falls away. If discharge is
refused, the accused
still has the choice whether to testify or not.
There is no obligation on him to testify. Once this court rules that
there is no
prima facie case against the accused, there also cannot
be any negative consequences as a result of the accused’s
silence
in this context. …
[273] I agree with
the view that it is an exercise in futility to lay down rigid rules
in advance for an infinite variety of factual
situations which may or
may not arise. It is thus, in my view, also ‘unwise to attempt
to banish issues of credibility’
in the assessment of issues in
terms of s 174 or to ‘confine judicial discretion’ to
‘musts’ or ‘must
nots’.”
[15] To therefore
summarise the legal position regarding applications in terms of
section 174:
(a) An accused
person is entitled to be discharged at the close of the case for the
prosecution if there is no possibility of a
conviction other than if
he enters the witness box and incriminates himself;
(b) In deciding
whether an accused person is entitled to be discharged at the close
of the State’s case, the court may take
into account the
credibility of the State witnesses, even if only to a limited extent;
(c) Where the
evidence of the State witnesses implicating the accused is of such
poor quality that it cannot safely relied upon,
and there is
accordingly no credible evidence on record upon which a court, acting
carefully, may convict, an application for discharge
should be
granted.
[16] It is common
cause that the only witness who could implicate the accused was Tongo
(who was an accomplice witness).
[17] It is trite
that a court should approach the evidence of an accomplice witness
with caution. The duty of the court in this
regard has been described
as follows in Rex v Ncanana,
1948 (4) SA 399
(AD) at 405:
“The cautious
Court or jury will often properly acquit in the absence of other
evidence connecting the accused with the crime,
but no rule of law or
practice requires it to do so. What is required is that the trier of
fact should warn himself, or, if the
trier is a jury, that it should
be warned, of the special danger of convicting on the evidence of an
accomplice; for an accomplice
is not merely a witness with a possible
motive to tell lies about an innocent accused but is such a witness
peculiarly equipped,
by reason of his inside knowledge of the crime,
to convince the unwary that his lies are the truth. This special
danger is not
met by corroboration of the accomplice in material
respects not implicating the accused, or by proof aliunde that the
crime charged
was committed by someone; … The risk that he
will be convicted … will be reduced, and in the most
satisfactory way,
if there is corroboration implicating the accused.”
[18] In S v
Mhlabathi & Another,
1968 (2) SA 48
(A) at 50 G – 51 A,
Potgieter, JA dealt with this question as follows:
“It is clear
from the authorities if corroboration was required it had, for the
purpose of the so-called cautionary rule,
to be corroboration
implicating the accused and not merely corroboration in a material
respect or respects. …”
Potgieter, JA
confirmed the view of Schreiner, JA in the Ncanana case.
[19] In S v Gentle,
2005 (1) SACR 420
(SCA) at 430, Cloete, JA in dealing with the
approach to be followed by a court when it is faced with a situation
where a court
should caution itself in analysing the evidence, said
the following:
“It must be
emphasised immediately that by corroboration is meant other evidence
which supports the evidence of the complainant,
and which renders the
evidence of the accused less probable, on the issues in dispute.”
[20] In S v
Scott-Crossley,
2008 (1) SACR 223
(SCA) at 234, the court stressed
that:
“Matters which
are common cause between the State and the accused cannot provide
corroboration for matters in dispute –
otherwise, for example,
the fact that an accused in a rape case confirmed that he had had
sexual intercourse with the complainant
could be taken as
corroboration of the latter’s version that he had done so
without consent, which is plainly absurd.”
[21] Therefore the
images in the CCTV footage (to which I will refer in more detail
later) depicting:
(a) The accused
meeting with Tongo at the parking lot at the Cape Grace Hotel on
Friday, 12 November 2010;
(b) The accused
being picked up by Tongo on Saturday morning, 13 November 2010 at the
Cape Grace Hotel;
(c) The accused
being dropped off again by Tongo later on that Saturday morning at
the Cape Grace Hotel;
(d) The accused and
the deceased being picked up by Tongo on Saturday evening at the Cape
Grace Hotel;
(e) The accused
talking to Tongo after the incident on Sunday, 14 November 2010;
(f) The accused
paying Tongo R1 000,00 in the communications room on Tuesday, 16
November 2010; do not provide any corroboration
for the version of
Tongo where it differs from that of the accused set out in his plea
explanation, as none of these events are
in issue. It is what was
said during those events that is in issue and for that there is only
the version of Tongo.
[22] The same
applies to the telephone communication between the accused and Tongo,
and between Tongo and Mbolombo and Qwabe. This
telephone
communication does not in itself corroborate what was said during
those calls, it merely confirms that communication
took place.
[23] Against this
legal background I will now proceed to analyse the evidence:
23.1 Zola Tongo
At the outset it
needs to be repeated that Mr. Tongo is the only witness who testified
that the alleged conspiracy agreement was
entered into with the
accused and what the terms of the agreement were. It is clear that
Mr. Tongo, Mr. Qwabe and Mr. Mngeni (and
Mr. Mbolombo) acted in
execution of a common purpose to commit at least the offences of
kidnapping and robbery and possibly also
other offences. The only
issue to determine is whether the evidence shows that the accused was
part of that conspiracy.
Evidence in chief
23.1.1 Mr. Tongo
testified that he was an executive taxi driver and on the day in
question (12 November 2010) he was at Cape Town
International Airport
waiting for fares. He stated that the accused approached him and
asked him where he could get transport to
Town. Mr. Tongo responded
that he could transport him to Town, and although there was a taxi
rank to which he directed the accused,
he told the accused that those
taxis were generally more expensive. The accused informed him that he
wanted to go to the Cape Grace
Hotel and informed Mr. Tongo that he
was not alone, and that his wife was with him. Mr. Tongo testified
that while he was waiting
he saw a “lady” come from
inside the airport towards him. It is common cause that this woman
was the deceased.
23.1.2 Mr. Tongo’s
car was parked on the lower level of the parking garage. On their way
to the parking garage the deceased
asked him why he was not parked
where the other taxis were parked. He told her that he did not yet
have a permit to park there.
He testified that during the drive from
the airport to the Cape Grace Hotel, he did all he could to market
himself and his services
to the couple.
23.1.3 It is common
cause that Mr. Tongo was driving the Volkswagen Sharan in which the
deceased’s body was found.
23.1.4 On the way to
the Cape Grace Hotel Mr. Tongo told the couple about Cape Town’s
beauty, about the squatter camps and
the importance of the township
Gugulethu which is right next to the squatter camps. He told them
about the well-known tavern KwaMzoli
in Gugulethu. He also told them
about other tourist attractions such as the penguins at Boulders
Beach. Mr. Tongo was hoping that
the Dewanis would use his services
while they were in Cape Town. Mr. Tongo testified that en route there
was very little interaction
between the couple and himself.
23.1.5 Upon their
arrival at the Cape Grace Hotel the deceased accompanied a porter
with their luggage into the reception area while
the accused remained
behind at the car in order to pay Mr. Tongo his fare. At that stage
Mr. Tongo gave him one of his business
cards.
23.1.6 The accused
then informed him that he has a job for him and that he must wait for
him in the parking area of the hotel. Mr.
Tongo went to park his car
in the parking area and waited.
23.1.7 The accused
then went inside the hotel to check in and after a while returned and
got into Mr. Tongo’s vehicle. The
accused then informed him
that the job that he had for Mr. Tongo would make his business grow
because he, the accused, is from
overseas and can refer other
travellers to him who in turn would refer further travellers to him.
23.1.8 Shortly
thereafter the accused told him that the real job that he, the
accused, had for Mr. Tongo was that he wanted somebody
to be “removed
from the eyes”. When Mr. Tongo asked him to explain what he
meant, he stated that he wanted somebody
to be killed. Mr. Tongo told
the accused that he was not involved in such things, but informed him
that he knew somebody who lives
in the location who might know about
people who would be prepared to do it. According to Mr. Tongo he was
at all times informed
by the accused that it was his “business
partner” who would be arriving on the following day, that he
wanted killed.
Mr. Tongo knew that the person to be killed was a
woman.
23.1.9 Mr. Tongo and
the accused parted company on the basis that if Mr. Tongo should find
somebody who would be prepared to do
the job, he would contact the
accused and inform him accordingly. The two gentlemen exchanged phone
numbers. They also discussed
the remuneration that would be paid for
the job and the accused explained that he would be prepared to pay an
amount of R15 000,00
when the job was done. Over and above the R15
000,00, Mr. Tongo would receive an amount of R5 000,00. The accused
also stated that
he had dollars and could pay in dollars.
23.1.10 Mr. Tongo
thereafter left and immediately went to Century City, to the Protea
Colloseum Hotel, where he met his friend,
Mr. Monde Mbolombo, who
worked as a receptionist at the hotel. Mr. Tongo explained that the
reason why he approached Mr. Mbolombo,
was because Mr. Mbolombo lives
in the location and he “knows everything that happens in the
location. … I realised
that there must be things that he is
aware of, things that are happening in the locations, things that I
am not aware of”.
23.1.11 Mr. Tongo
explained to Mr. Mbolombo what he wanted. Mr. Mbolombo immediately
informed him that there is a young man that
he knows who might be
prepared to do the job. Mr. Mbolombo therefore took his phone and
went outside with Mr. Tongo where they
phoned this person and
explained to him about the job. It is common cause that the person
that he phoned was Mr. Qwabe. Mr. Tongo
heard Mr. Mbolombo explain to
Mr. Qwabe what he, Mr. Tongo, had explained to Mr. Mbolombo and asked
whether it would be in order
if the person who mandated this deal
would make payment in dollars. Mr. Qwabe stated that “they”
did not want dollars,
it had to be South African rands. Mr. Qwabe
stated that he still had to contact a friend. Mr. Tongo testified
that while they were
outside, he took the particulars of this person
from Mr. Mbolombo. He could however not remember his name and
accordingly listed
him in his contact list on his phone under “H”.
Mr. Tongo phoned Mr. Qwabe at a later stage in order to find out “how

things were going”. Mr. Qwabe informed him that things were
going just fine, but that he was still going to meet another
man and
he is “promising”.
23.1.12 Mr. Tongo
testified that he spoke to the accused later that evening because the
accused wanted to make sure that he had
found the people who would
“do the job”. He stated that, upon informing the accused
about the fact that the assailants
would not want to be paid in
dollars, the accused asked him whether he was aware of a place where
he could change his dollars.
Mr. Tongo knew of such a place because
whenever he was tipped by overseas visitors in dollars, that is where
he would go and exchange
them.
23.1.13 The accused
and Mr. Tongo then arranged for a time to meet the following day so
that Mr. Tongo could take the accused to
the money changer. Mr. Tongo
testified that he was slightly late. The accused phoned him and asked
him whether he had forgotten
to come and collect him and sounded
agitated. Mr. Tongo told the accused that he had been delayed but was
on his way to the Cape
Grace Hotel from the Waterfront. When he
arrived at the hotel, the accused immediately came out of the hotel
and told Mr. Tongo
that they must hurry because his wife was still in
the shower or washing. Mr. Tongo stated that he did not know how much
money
the accused was going to change. While he was waiting for the
accused he heard one of the women who works in the shop say “this

is a lot of money that you are coming to exchange here”.
23.1.14 In the car
on their way back to the Cape Grace Hotel from the money changer, the
discussion about “the job”
continued. On their arrival at
the hotel Mr. Tongo parked his car and had further discussions with
the accused about how the job
was going to be done. It is during this
discussion that the accused informed Mr. Tongo that he wanted the car
to be hijacked, and
that they must be robbed, whereafter Mr. Tongo
must be dropped and then they must also drop him, the accused, along
the way, and
then they must kill the “business partner”.
There was no discussion as to how, where or when the “business
partner”
must be killed.
23.1.15 It was then
agreed that Mr. Tongo would collect the Dewanis from the Cape Grace
Hotel at 7:30 p.m. on the Saturday evening,
that he would then show
them the Waterfront and that they would then go to Gugulethu. Mr.
Tongo then made an arrangement to meet
with Mr. Mbolombo and Mr.
Qwabe on the Saturday afternoon. All three of them could not meet as
Mr. Tongo had business commitments.
23.1.16 Later an
arrangement was made for Mr. Tongo to meet with Mr. Qwabe at the
Khaya Bazaar. He later phoned Mr. Qwabe who told
him to wait at a bus
stop in Khayelitsha. Mr. Tongo did so. Mr. Qwabe arrived and
introduced himself as “Spra” (which
is his nickname) and
informed Mr. Tongo that they must meet the other person who is going
to work with them. They then drove to
the other person, who later
transpired to be Mr. Mngeni. Mr. Mngeni got into the car and
introduced himself as Xolile. This was
Mr. Tongo’s first
encounter with Mr. Qwabe and Mr. Mngeni.
23.1.17 Mr.Qwabe
asked Mr Mngeni whether he remembered that he, Mr. Qwabe, had phoned
him telling him about a job. He then told
Mr. Mngeni that “here
is the man”, with reference to Mr. Tongo. Mr. Tongo then
explained to them what the accused wanted
done. He said the man
wanted his business partner, who was going to arrive that day,
killed. He wants it to look like a hijacking.
Thereafter, they (the
hijackers) must first drop Mr. Tongo, and after driving on, they must
drop the accused, and then lastly they
must kill the business
partner. Mr. Tongo then explained that he was going to collect the
Dewanis at the Cape Grace Hotel at 7:30
p.m. and would drive around
in Town with them, from where he would go to Gugulethu where they
would pass Mzoli’s place. There
is a T-junction in the road
where it was arranged that the two young men would wait for Mr.
Tongo.
23.1.18 Mr. Tongo
testified that at one stage he phoned his friend, Ta Vuks and asked
him whether he would not do the transfer for
him. He wanted Ta Vuks
to collect the Dewanis and then to take them where they wanted to go.
The reason for this was that his “knees
were shaking” and
he was scared, but Ta Vuks could not accommodate him so he decided to
do it himself, because he had already
initiated it.
23.1.19 On the
Saturday evening Mr. Tongo was running late for his arranged pick up
time of the Dewanis. He received a phone call
from the accused who
asked him where he was. He told the accused that he was delayed but
was on his way.
23.1.20 Mr. Tongo
testified that on arriving at the Cape Grace Hotel, although he was
late, he first cleaned his car and engaged
the child locks on both
rear doors before he collected the Dewanis. He then texted the
accused to say that he was there and the
accused came out with a
woman. Mr. Tongo stated that the “lady” was not the same
woman as the one with the accused
on the previous day. He thought she
was the “business partner”. The accused and the woman got
into the car and they
left the Cape Grace Hotel, drove around Cape
Town and then to Gugulethu.
23.1.21 Upon their
arrival in Gugulethu, Mr. Tongo could not see Mr. Qwabe and Mr.
Mngeni at the place where he was supposed to
meet them, and then
suggested to the couple that he take them to Somerset West/Strand,
where there is a restaurant on the beach.
While on the N2 Mr. Tongo
received a phone call from Mr. Qwabe who apologised for not being at
the designated place at the agreed
time, and stated that they were
having difficulty with their transport. Mr. Tongo testified about his
reasons for taking the couple
to Somerset West:
“Firstly the
reason was that we have decided, what we have decided did not happen.
And secondly, I’m on my way facing
in that direction. And
thirdly, I would be able to communicate with this young man and find
out, because here in the car I am looked
at with big eyes.”
23.1.22 Mr. Tongo
testified that when they arrived in Somerset West/Strand the accused
asked him what had happened (because the
hit did not take place in
Gugulethu as planned). Mr. Tongo then informed the accused that the
young men were delayed because of
transport problems. He stated that
the accused then told him that he must make sure that everything is
“going well”.
23.1.23 Mr. Tongo
dropped them at the restaurant whereafter he went to fill his car
with petrol, bought some airtime and went back
where he waited for
the couple. He contacted Mr. Qwabe and Mr. Mngeni and told them where
he was. He wanted them to come to Somerset
West, but they stated that
they could not do so because Somerset West is “wet”.
“Wet” is a term which indicates
that there are many
police officers around. Mr. Tongo said that he conveyed that message
to the accused and stated that Mr. Qwabe
and Mr. Mngeni would wait
for them in Gugulethu at the designated place. Mr. Tongo then stated
that he had a telephone conversation
with the accused, who enquired
whether everything was still going to happen as agreed, whereupon Mr.
Tongo informed him that it
was. They then proceeded along the N2
towards Gugulethu and Mr. Tongo said that he saw in his rear view
mirror that the accused
was looking directly at him with “wide
open eyes”. He stated that his knees became weak.
23.1.24 Mr. Tongo
explained that the money for Mr. Qwabe and Mr. Mngeni would be left
in the car. In their earlier discussions it
was agreed that the money
would be placed in the cubbyhole of the vehicle. But Mr. Tongo
testified that the accused told him in
the Somerset West/Strand that
the money was in the pouch behind the left front passenger seat.
23.1.25 At all times
it was agreed that the amount that had to be placed in the car was
R15 000,00. Mr. Qwabe and Mr. Mbolombo both
testified that only R10
000,00 was left in the car. Mr. Tongo testified that he had nothing
to do with how the payment was going
to take place as that was the
responsibility of Mr. Qwabe and Mr. Mngeni. All he knew was that he
would be paid R5 000,00 for his
input – once the job was done.
23.1.26 They then
left the Strand. Mr. Tongo turned off the highway into Gugulethu, and
upon arrival at the designated place he
noticed Mr. Qwabe and Mr.
Mngeni waiting for them.
23.1.27 They were
then hijacked by Mr. Qwabe and Mr. Mngeni, who were both armed with
handguns. Mr. Tongo was forced to the rear
seat next to the accused
and the woman. Mr. Qwabe got behind the steering wheel and Mr. Mngeni
got into the front passenger seat.
Mr. Mngeni robbed the accused and
the woman of their valuables and also took Mr. Tongo’s cell
phone.
23.1.28 Mr. Tongo
testified that both Mr. Mngeni and Mr. Qwabe had firearms. The one he
described as a 9mm and the other as a flywheel
(a revolver). During
the robbery Mr. Qwabe and Mr. Mngeni instructed everybody to hand
over their telephones and everything that
they had. Everybody,
including Mr. Tongo, obliged. Mr. Tongo stated that he handed over
his Nokia E90 because he knew that the
robbery was part of the plan.
He however had another phone which was a Blackberry which he
retained.
23.1.29 Mr. Tongo
stated that while all this was happening the deceased was crying, but
he cannot remember whether she said anything.
The accused was trying
to console her, but he also cannot remember whether he said anything.
Everybody was then told to put their
heads down, which they did,
until they arrived at a spot behind the Gugulethu police barracks
where there is a stop sign. At the
stop sign the back door of the
vehicle was opened from the outside by Mr. Mngeni. He told Mr. Tongo
to get out. Subsequently, Mr.
Tongo went to the Gugulethu Police
Station where he reported the matter. A statement was taken from him,
but he concedes that he
did not tell the truth in that statement.
23.1.30 Mr. Tongo
told the police that he had forgotten the names of his passengers but
that he knew where they were staying. The
police then took Mr. Tongo
to the Cape Grace Hotel. He stated that upon arrival at the Cape
Grace Hotel, he noticed a police vehicle.
Mr. Tongo stated that the
accused came out, approached him and asked him whether he was “okay”.
This discussion took
place around midnight. Mr. Tongo stated that
from the time that he arrived at the hotel the accused approached him
every now and
again to ask him whether he was okay, whether he was
fine and whether he had heard anything.
23.1.31 At one stage
Mr. Tongo went outside in the company of a police officer who was
known to him as Mr. Blacks. Mr. Blacks questioned
him and told him
that he must not waste his time as he, Mr. Blacks, was of the view
that Mr. Tongo knew what had happened. They
had an argument and Mr.
Tongo went back into the hotel.
23.1.32 A CCTV clip
was then shown with the accused and Mr. Tongo on the terrace of the
Cape Grace Hotel. A cleaner can be seen
entering the area where the
accused and Mr. Tongo were. He leaves after the accused had asked him
to give them some privacy.
23.1.33 According to
Mr. Tongo the accused continually kept asking him whether he was fine
and also wanted to know whether the “job”
had been done.
Mr. Tongo replied that he did not know.
23.1.34 Mr. Tongo
was thereafter taken back to the Gugulethu Police Station. Mr. Blacks
accompanied him to the scene where the hijack
took place. Mr. Blacks
again questioned him and told him that he, Mr. Tongo, knew about the
incident. Mr. Tongo got impatient with
Mr. Blacks and phoned a friend
to come and fetch him. Two of his friends arrived to come and fetch
him at between 1:00 a.m. and
2:00 a.m.
23.1.35 Mr. Tongo
then went to Vanguard Mall to do a sim swop. He retained his own
number. He stated that journalists tried to get
hold of him and
ultimately did get hold of him and offered him money for the story.
He stated that he had spoken to a certain “Mike”
who was
working for a newspaper in Britain.
23.1.36 On the
Tuesday morning Mr. Tongo phoned Captain Lutchman and explained to
him that the journalists were bothering him. Captain
Lutchman was at
the time in the presence of the accused. Captain Lutchman put the
accused on the line to speak to Mr. Tongo. The
first thing that the
accused asked was whether he, Mr. Tongo, was fine. Mr. Tongo replied
that he was not fine, but that he was
still alive. The accused said
to him that there is a number at which he was going to call Mr.
Tongo, as he wanted to pay him the
outstanding money. Mr. Tongo
stated that the accused later phoned him to say that he must come and
collect his money and arranged
that they would meet at the bridge
leading to the Waterfront, coming from the Cape Grace Hotel. Mr.
Tongo waited there but the
accused did not show up. Mr. Tongo phoned
the accused who informed him that he could not get out of the hotel
because of all the
journalists. He told Mr. Tongo to come to the
hotel to collect his money. When Mr. Tongo entered the hotel he saw
the accused standing
at the beginning of the corridor. He said that
the accused signalled to him that he had to follow him. They moved
into the communications
centre where the accused gave him an envelope
in a plastic bag, whereafter he left. Mr. Tongo then went to the
toilet where he
opened the envelope and counted the money inside, and
saw that it was only R1 000,00. He was very angry, folded the
envelope and
put it in his back pocket. He carried the plastic packet
in his hand. As he left the toilet he looked down the passage on his
right
to see if he could not see the accused. He did not see the
accused and left the hotel.
23.1.37 On either
the Wednesday or the Thursday, Mr. Tongo was not quite sure, Captain
Hendrickse contacted him and asked him to
visit him at their offices
in Bellville. Mr. Tongo stated that Captain Hendrickse begged him
that if he knew anything, he had to
tell him. He stated that he knew
nothing and gave Captain Hendrickse a statement which was false.
23.1.38 On the
Thursday, Mr. Tongo appointed an attorney, Mr. William de Gras, to
represent him. He stated that he did this firstly
because he was
scared, and secondly, because he knew that the police assaulted
people.
23.1.39 On Saturday,
20 November 2010 Mr. de Gras informed Mr. Tongo that the police were
looking for him. It was arranged that
he would go to their offices
where he handed himself over to Captain Hendrickse in the presence of
Mr. de Gras. At that stage Mr.
Tongo was aware that Mr. Qwabe and Mr.
Mngeni had been arrested. Mr. Tongo entered into a plea and sentence
agreement with the
State, which was signed on 5 December 2010. On 7
December 2010 he was convicted and sentenced in accordance with the
plea agreement
by Judge President Hlophe. His sentence was one of 18
years imprisonment.
23.1.40 Mr. Tongo
stated that he realised that the deceased was killed on the Sunday
morning. That was also the first time that
he found out that the
deceased was in fact the wife of the accused.
23.1.41 Mr. Tongo
stated that the accused never discussed a helicopter trip with him.
23.1.42 Mr. Tongo
was thereafter questioned about the role of Mr. Mbolombo. Mr. Tongo
was adamant that Mr. Mbolombo’s only
role was to connect Mr.
Tongo with Mr. Qwabe and Mr. Mngeni. He stated that after the
incident Mr. Mbolombo contacted him because
he wanted his money from
Mr. Tongo, and Mr. Tongo said that he must get the money from Mr.
Qwabe and Mr. Mngeni.
23.1.43 Mr. Tongo
explained that he decided to co-operate with the police because he
realised what he did was wrong, he was a fool
and he was misled.
23.1.44 In terms of
the plea agreement entered into by Mr. Tongo, he indicated his
willingness to testify in any subsequent criminal
trials instituted
in regard to the alleged conspiracy. To this end a comprehensive
affidavit was obtained from him by Lieutenant
Colonel Barkhuizen. Mr.
Tongo and his attorney, Mr. de Gras, who was also present throughout,
were given the opportunity to consider
the final typed document
whereafter on 26 November 2010, thirteen days after the incident, Mr.
Tongo signed the affidavit. The
affidavit was handed in as an
exhibit. Mr. Tongo’s plea agreement, which was signed by him
and his attorney on 5 December
2010 was also handed in as an exhibit.
Cross-examination
23.1.45 During
cross-examination a slightly different picture emerged from the
evidence of Mr. Tongo. Mr. Tongo’s evidence
was riddled with
contradictions. Some of these contradictions relate merely to
peripheral issues and I will not deal with them
in any great detail.
However, others are far more fundamental. His evidence and the
version of the events which he gave are also
highly improbable. But
having said that, it must be borne in mind at this stage of the
proceedings, credibility plays a limited
role. The shortcomings in
his evidence must be carefully scrutinised to determine whether his
evidence is so poor that the court
can ignore it.
23.1.46 When Mr.
Tongo was confronted with these contradictions and/or
improbabilities, his refrain was either that he had “made
a
mistake” or that “as time went by” his memory about
the events of the evening had improved.
23.1.47 It is
self-evident that the circumstances under which the agreement which
underlies this conspiracy was entered into, is
material. In this
regard Mr. Tongo testified that upon arrival at the Cape Grace Hotel
on the Friday, and after the accused had
paid him his fare, he handed
the accused his business card. The accused then told him that he has
a job for him and that he must
wait for him for a few minutes whilst
he goes to reception to check in. In cross-examination Mr. Tongo
confirms that it was only
after the accused had returned from the
reception desk that he learned that the job entailed the killing of a
person.
23.1.48 In his
affidavit however, Mr. Tongo stated this discussion took place before
the accused went to the reception area –
therefore the accused
asked Mr. Tongo to kill someone within minutes of arriving at the
Cape Grace Hotel, having met Mr. Tongo,
at most, 30 minutes earlier.
Mr. Tongo, who is not a person with a criminal record, then told him
that he does not associate himself
with “such things” but
immediately indicated that he could call somebody in the township who
may know someone who associated
himself with that type of life. That
person we know is Mr. Mbolombo.
23.1.49 By pure
co-incidence his friend, Mr. Mbolombo, immediately agreed to assist
him, phoned Mr. Qwabe, who also quite co-incidentally
was happy to
oblige for a fee of R15 000,00. On their version, quite by chance Mr.
Qwabe was in the company of Mr. Mngeni when
the call from Mr. Tongo
came through.
23.1.50 On Mr.
Tongo’s own evidence, this was the first time in his life that
he received a request to assist in the killing
of a person, and,
although the contradiction as to when this discussion actually took
place may in itself not seem significant,
when looked at in context,
it becomes very significant. Mr. Tongo testified that when the
accused returned to his vehicle from
the reception, he told him that
he has a job for him that will make his business grow and because he
is from overseas and can refer
other travellers to Mr. Tongo.
Thereafter the accused then said that there was somebody to be
killed. The person to be killed was
his business partner who would be
arriving the next day. The accused said that he was prepared to pay
R15 000,00 to have her killed,
which amount would be payable after
the job had been done. He also undertook to pay Mr. Tongo R5 000,00
after the job had been
done. The accused therefore expanded on his
initial request when he returned from the reception area.
23.1.51 Mr. Tongo
was adamant throughout his evidence that what actually persuaded him
to get involved in the commission of this
crime, was the promise by
the accused that he would make his business grow – rather than
the R5 000,00 remuneration which
he would receive.
23.1.52 In his
affidavit however no mention whatsoever is made of the so-called
promise by the accused to refer clients to him and
to grow his
business. When one considers that this was the main motivating factor
why Mr. Tongo, who had never previously been
involved in criminal
activities, was prepared to get involved, it is indeed strange that
he did not mention it in his statement.
For this discrepancy Mr.
Tongo blames Lieutenant Colonel Barkhuizen who took his statement.
23.1.53 Then there
is the question of the identity of the person who had to be killed.
In his statement Mr. Tongo stated “the
person that had to be
killed was a woman and that she was arriving later that evening”.
In his plea agreement Mr. Tongo describes
the person who must be
killed as a “client” of the accused. In his evidence he
testified that the accused explained
that the person to be killed was
“his business partner” who would be arriving the next
day. Mr. Tongo even stated in
his evidence quite categorically that
the woman that he picked up at the hotel on the Saturday evening was
not the deceased. However,
in his statement he said that the “same
lady” got into his car on the Saturday evening. When confronted
with these
startling contradictions, he once again blamed it on
Lieutenant Colonel Barkhuizen.
23.1.54 Both in his
plea explanation and in his affidavit, he stated that the accused had
asked him if he knew of a place where
he could exchange dollars for
rands and where he did not have to produce his passport. This money
was according to Mr. Tongo earmarked
to pay the killers. In
cross-examination it transpired that the accused never indicated that
he did not want to produce his passport.
His passport was, in fact,
never mentioned. Mr. Tongo stated that that was just something that
he (Mr. Tongo) thought. Mr. Tongo
attributes the allegation in his
affidavit in which he claimed that the accused did not want to
produce his passport to a “mistake”.
This is a serious
mistake – because if in fact the accused deliberately wanted to
act in a manner to hide the fact that he
changed the money to pay the
killers – it would certainly call for an explanation from the
accused. It is a further indication
of how Mr. Tongo was prepared to
lie in a way which creates an atmosphere of suspicion regarding the
accused.
23.1.55 Mr. Tongo
testified that he drove from the Cape Grace Hotel to the Protea
Colloseum Hotel at Century City to see his friend
Mr. Monde Mbolombo.
He told Mr. Mbolombo that he had transported clients from the airport
to the Cape Grace Hotel where the accused
said that he had a job for
him, and he proceeded to explain to Mr. Mbolombo what the job was,
namely that the accused wants somebody,
who would be arriving the
next day, taken “out of sight”. Mr. Mbolombo, who
similarly does not have a criminal record,
immediately said that
there is a young man that he knows that he is going to phone and
explain to him about the job. Mr. Mbolombo
then phoned this person
and explained to him exactly what Mr. Tongo had told him. According
to Mr. Tongo, Mr. Mbolombo told the
person on the other end of the
phone (whom we now know to be Mr. Qwabe) that this person (presumably
with reference to the accused)
said that he wanted his business
partner, who will be arriving the next day, killed and that he is
prepared to pay R15 000,00 for
the job. Mr. Mbolombo also enquired
whether the person would be prepared to accept dollars as payment,
but that he was informed
that they wanted rands.
23.1.56 Mr. Tongo
did not mention anything in his evidence in chief regarding any
possible payment to Mr. Mbolombo for his efforts.
In
cross-examination he stated that Mr. Mbolombo was going to be paid
but not by him, but by the young men (meaning Mr. Qwabe and
Mr.
Mngeni). This, he testifies, is something that he “now”
remembers.
23.1.57 Mr. Tongo
further testified that he could not remember how much money Mr.
Mbolombo was going to be paid by the young men,
but that that was
their concern. It had nothing to do with him. However, in his
affidavit he stated that Mr. Mbolombo wanted R5
000,00 for organising
the hitman (Mr. Qwabe) and that Mr. Mbolombo suggested that, “we
should pay Qwabe only R10 000,00”.
Mr. Tongo then explained
that Mr. Mbolombo did say that he wanted R5 000,00, but that how much
money he was going to earn really
had nothing to do with him. He
responded as follows, “Monde was going to get his share M’lady.
Whether he was going
to get R5 000,00, R2 000,00 or R1 000,00 I do
not know”.
23.1.58 Thereafter
he was confronted with his plea explanation, where he also stated,
“Monde said he wanted R5 000,00 for
organising the hitman and
that we should pay the hitman R10 000,00”. To this Mr. Tongo
once again replied that Mr. Mbolombo
was at all times going to get
his share, but how much his share was, he does not know, and then
stated that he does not remember
that Mr. Mbolombo stated that he
wanted R5 000,00.
23.1.59 His evidence
in this regard is telling;
“Monde,
according to what is written here, maybe I can’t recall that
very well. He wanted R5 000,00, if that is the
case. My response to
him was the young men are going to pay you.
So you remember that
now he wanted R5 000,00 and that you told him that the young men
would be paying him, do I understand you correctly
--- That is
correct Sir.
Why didn’t you
tell the police that in your statement --- Maybe that is just, was
just forgotten but it is written here Sir.
That was forgotten
but you did not forget twice to relay the fact that Monde wanted R5
000,00 and the hitman should get R10 000,00,
is that correct --- I
said everybody makes mistakes, as you also said I am ZH but I am ZR.”
23.1.60 This
evidence is indicative of how Mr. Tongo could change his version
under pressure of cross-examination without the slightest
hesitation.
23.1.61 This aspect
of Mr. Tongo’s evidence raises a further important question. At
all material times the accused only had
dealings with Mr. Tongo. He
had never even met Mr. Mbolombo, Mr. Qwabe or Mr. Mngeni. The only
person with whom the accused could
negotiate the payment of the
various role players, was Mr. Tongo. There was no evidence that Mr.
Tongo had received any money from
the accused which he could hand
over to the “two young men” to pay Mr. Mbolombo. Nor was
it ever suggested that the
accused was instrumental in getting any
money to them.
23.1.62 In addition,
both Mr. Mbolombo and Mr. Qwabe contradict Mr. Tongo on just about
every aspect of the interactions between
the two of them on the
Friday evening. Mr. Mbolombo testified that Mr. Tongo told him that
there is something that he wanted to
talk to him about. On his
question as to what Mr. Tongo wanted to talk about, Mr. Tongo said to
him, “is there no one that
I know of who is a hitman”.
Mr. Mbolombo then phoned Mr. Qwabe and told him that there is a
person with him, whose name is
Zola, who is looking for a hitman. Mr.
Qwabe asked him whether he knew this person. He responded by saying
that he does know Mr.
Tongo, whereupon Mr. Qwabe enquired how much
they would be paid if they agreed to do the job. Mr. Mbolombo did not
know and called
Mr. Tongo closer and switched off the phone to find
out. He redialled Mr. Qwabe’s number and informed him that Mr.
Tongo
said that they would be earning R15 000,00. Mr. Qwabe then
stated that they should not discuss the matter over the phone, but
make
arrangements to meet.
23.1.63 Mr. Mbolombo
further testified that on hearing about the R15 000,00 he told Mr.
Tongo that he should also get something,
“even if it is R5
000,00 for his involvement”. According to Mr. Mbolombo, Mr.
Tongo did not respond to this.
23.1.64 Mr. Mbolombo
testified that on the Friday night he had no idea who the person was
who had to be killed, and that he did
not ask Mr. Tongo. This
contradicts Mr. Tongo’s evidence that he explained to Mr.
Mbolombo that the accused wanted his business
partner, who was
arriving the next day, killed.
23.1.65 Mr. Qwabe
stated that he has no recollection that there was any reference to
dollars in his telephonic discussion with Mr.
Mbolombo and stated
that he would have remembered it if there was such a reference. He
also denied any arrangement that he and
Mr. Mngeni would have paid
Mr. Mbolombo anything.
23.1.66 Accordingly,
the evidence of Mr. Mbolombo, Mr. Qwabe and Mr. Tongo do not support
each other.
23.1.67 Mr. Tongo
testified that he phoned Mr. Qwabe later on the Friday evening as he
wanted to know how things were going, whereupon
Mr. Qwabe responded
that everything was going fine, and that he was still going to meet
with another man and “he is promising”.
Mr. Qwabe’s
version of this telephonic discussion completely contradicts Mr.
Tongo’s testimony. According to Mr. Qwabe,
Mr. Tongo told him
that he needed somebody to be killed and asked him whether he knew of
anybody that can do it. At that stage
Mr. Qwabe testified that he was
in Mr. Mngeni’s company, who said that he would be prepared to
do it. Mr. Tongo thereupon
asked for what fee they would be prepared
to do it, and Mr. Mngeni then responded by saying that he would do it
for R15 000,00.
They then agreed to meet the following day. During
cross-examination Mr. Qwabe testified that Mr. Tongo had told him
that there
was a husband who wanted his wife (not a business partner)
killed. Mr. Qwabe was at pains to stress that the amount of R15
000,00
was determined by Mr. Mngeni and not by Mr. Tongo. The two
versions of what happened during this telephone conversation are
clearly
irreconcilable.
23.1.68 Mr. Tongo’s
evidence regarding the events of the Saturday morning was clearly
tendered with an intention to create
the impression that the accused
had to change the dollars into rands to be able to pay the hitmen and
that he was very anxious
to do so. That is why Mr. Tongo testified
that he had received a call from the accused in which the accused, in
an agitated state,
asked him whether he had forgotten about their
appointment to go to the money changer. Mr. Tongo testified that he
then rushed
to the Cape Grace Hotel and when he arrived, the accused
immediately came walking out of the door. The accused told him that
they
must hurry, as his wife was having a shower or washing. This
evidence was proved by the CCTV footage to be untrue. The CCTV
footage
shows that the accused and the deceased appeared from their
bedroom shortly before 11:15 a.m. The accused was dressed in shorts,

sandals and a grey Polo shirt and had his sunglasses on his head. The
deceased was dressed in white trousers and a pink top also
with
sunglasses on her head. The Court was informed that there was CCTV
footage available to show that they went for breakfast
and that
thereafter they went to the pool. This footage was not shown.
23.1.69 At 11:52:19
Mr. Tongo texted the accused and at 11:53 the accused replied in a
text saying, “Okay, give me 10 minutes”.
The CCTV footage
shows that the accused had changed from his pool clothes into
trousers and a golf shirt. There is no record whatsoever
of any
telephone call made by the accused to Mr. Tongo on that Saturday
morning. The CCTV footage belies the fact that the accused
was in a
hurry and desperate to go to the money changer. In fact, it seems
apparent that the accused was late for the appointment
and still had
to go to his room to change to go to the money changer. Mr. Mopp
conceded that Mr. Tongo exaggerated the haste with
which the accused
wanted the transaction done but states that this is not a deliberate
falsehood, but understandable in view of
the time that has lapsed
since the incident. I do not agree. This evidence was clearly
tendered with a view to create the impression
that the accused was
extremely anxious to have the money changed with which he was due to
pay the killers.
23.1.70 Mr. Tongo
further testified that upon their return from the money changer, at
the Cape Grace Hotel, he and the accused discussed
how the job should
be done. The accused said that he wanted the car hijacked, then they
must be robbed, whereafter the hijackers
must first drop Mr. Tongo
and then himself whereafter they must kill the woman. The further
details of the evening were also discussed.
Mr. Tongo confirmed in
cross-examination that this discussion took place after their arrival
from the money changer whilst they
were sitting in the parked car.
However, he was then shown CCTV footage of them arriving from the
money changer. The car had hardly
stopped when the accused alighted
and walked towards the hotel. On the CCTV footage one then sees the
car leaving. It was therefore
clearly a figment of Mr. Tongo’s
imagination that the discussion took place in the parking lot of the
hotel. Once Mr. Tongo
was caught out, he again changed tack with
apparent ease and stated that the conversation actually took place in
the motor vehicle
while they were driving, once again he called this
discrepancy a “mistake”.
23.1.71 Mr. Tongo
further testified that he told Mr. Qwabe and Mr. Mngeni that the R15
000,00 would be in the cubbyhole of his vehicle
because that was what
he had agreed with the accused that morning. Mr. Tongo was then
confronted with his statement in which he
said, “the first man
(Mr. Qwabe) said that we had to leave the R15 000,00 in the cubbyhole
of my vehicle, as they wanted
their payment available to them as soon
as the job had been done”. In his evidence he told the court
explicitly that it was
the decision of Mr. Qwabe and Mr. Mngeni that
the R15 000,00 had to be left in the cubbyhole. When it was put to
him that his earlier
evidence was that the accused agreed with him
that morning that the money should be left in the cubbyhole, he
suddenly could no
longer remember whether the accused had said that.
The one fact that is however of crucial importance is that Mr. Tongo
knew, when
he left the Cape Grace Hotel on the Saturday evening that
there was no money whatsoever in the cubbyhole. There is also no
suggestion
that Mr. Tongo, before they left the hotel asked the
accused for the money. He did not even know whether the accused had
the money
with him.
23.1.72 Questioned
about what would happen to his motor vehicle after the woman had been
killed, he testified that Mr. Qwabe and
Mr. Mngeni had to abandon the
car on the spot where they were going to kill the woman. Later he
testified that he did not know
where they were going to leave the
motor vehicle. At yet a later stage he was confronted with an audio
recording of a telephonic
discussion which took place between him and
Mr. Mbolombo at 18:38 on the Saturday evening during which Mr.
Mbolombo said “Oh
so the car should get there and get washed”.
Mr. Tongo responded, “once this thing has been done, Qwabe and
Mngeni
was to leave the car near the carwash that was … close
to Mbolombo’s house in Khayelitsha”. This discrepancy
he
could not explain. To expose his vehicle, which is his livelihood, to
this kind of risk cannot be believed.
23.1.73 Mr. Tongo’s
evidence about whether he knew the identities of Mr. Qwabe and Mr.
Mngeni is also strange. In his statement
he refers to Mr. Qwabe as
the first man and Mr. Mngeni as the second man. He also stated that
he was never introduced to them.
However, in his evidence in chief he
testified that both Mr. Qwabe and Mr. Mngeni introduced themselves to
him on the Saturday
afternoon, even though he denied that he had
known their names. First he tried to attribute this to the police
taking down his
evidence incorrectly. He then tried to say that he
could not remember their names, and then he replied “let’s
say then
that’s a mistake that happened that I never mentioned
but they did introduce themselves to me and I just forgot their names

but as time went on I then remembered their names again”.
23.1.74 The
inference is irresistible that initially Mr. Tongo wanted to bring
the investigating officers under the impression that
he did not know
the names of Mr. Qwabe and Mr. Mngeni.
23.1.75 It must be
remembered that Mr. Tongo’s affidavit was not just an ordinary
police statement. It was taken down in anticipation
of the accused
entering into a plea and sentence agreement and in the presence of
his attorney, Mr. de Gras. The final typed version
of this affidavit
was handed to Mr. de Gras and Mr. Tongo for consideration before it
was signed. It was a statement taken by an
extremely senior police
officer. It cannot be equated with a “run of the mill”
police statement. In fact Mr. Tongo
confirms in this statement that:
“The facts
contained in this affidavit are true to the best of my knowledge and
belief. I am aware that I make myself liable
to prosecution were I
wilfully to state anything therein (sic) that I know to be false or
do not believe to be true.
I have been informed
that were anybody to be arrested and prosecuted in regard to any
incident or fact that I refer to in this affidavit
– I may be
called as a witness to testify for the State. I have further been
informed that were criminol (sic) proceedings
to ensue – a copy
of this affidavit may be made available to the accused and or his
legal council (sic) prior to the trial
– to enable them to
prepare his/her/their defence.”
23.1.76 It was
agreed in terms of the common cause facts that the accused and the
deceased had a booking at a restaurant in Somerset
West which was
made by staff members of the Cape Grace Hotel. Mr. Tongo however
testified that when Mr. Qwabe and Mr. Mngeni did
not show up at the
predetermined place in Gugulethu, it was he who suggested to the
Dewanis that he would take them to Somerset
West. This was indeed a
strange co-incidence.
23.1.77 Mr. Tongo’s
explanation as to why he engaged the child locks of both rear doors
cannot be believed. He stated that
he did not know on which side the
accused would sit and on which side the deceased would sit. Seeing
that this was part of a conspiracy
with the accused in which the
accused was going to be the second person to be dropped from the
vehicle, it is simply not a credible
explanation. How was the accused
going to get out of the vehicle? The fact that he engaged the child
locks was also not mentioned
in his affidavit. But it appears that he
decided to give this evidence only after he was confronted by the
CCTV footage where this
is shown.
23.1.78 It will be
recalled that Mr. Tongo testified that it was agreed with Mr. Qwabe
and Mr. Mngeni that the accused would leave
the R15 000,00 for the
killing in the cubbyhole of the vehicle. Mr. Tongo conceded that Mr.
Qwabe and Mr. Mngeni were dangerous
individuals. He knew that they
would be armed. However, he drove to the agreed hijack spot with the
deceased and the accused in
the car, without the money being in the
cubbyhole or without even establishing from the accused whether he
had the money with him.
It must further be remembered that according
to Mr. Tongo the initial plan was that the hijack would take place
when Mr. Tongo
first drove into Gugulethu. At that stage there was
therefore no suggestion that they would drive to Somerset West, and
Mr. Tongo
knew that the money was not in the cubbyhole. Yet in his
affidavit he stated that after he had picked up the accused and the
deceased
from the Cape Grace Hotel, “the accused instructed me
to first drive around in town as he wanted to see what the City
looked
like at night and then through to Somerset West where they
plan to have dinner”. This is irreconcilable with his evidence

that it was his, Mr. Tongo’s decision to take the couple to
Somerset West. When confronted with this, it was again a mistake.
23.1.79 Importantly,
Mr. Tongo testified that when the hijack did not take place at the
place and time initially agreed upon, he
received a text message from
the accused enquiring from him what is happening. When it was however
pointed out to him that there
was no such sms message on record,
which was common cause between the parties, he stated that the
records are wrong. This is yet
a further untruth told by Mr. Tongo in
an attempt to incriminate the accused.
23.1.80 Mr. Tongo
also claimed that there was telephonic communication between him and
the accused while they were underway from
Gugulethu to the Strand.
Once again he was confronted with the documentary evidence that there
was no such communication indicated
on the documentation. Once again
Mr. Tongo stated that there might be a problem with the records
although they were agreed upon
between the State and the defence.
23.1.81 As regards
the events on the Saturday evening on their arrival at the Strand,
Mr. Tongo testified that he and accused were
walking ahead of the
woman on their way to the restaurant. The accused then asked him
softly what had happened. He explained to
the accused that the men
were delayed as a result of a problem with a motor vehicle, but that
they were going to wait in Gugulethu.
The accused then told him that
he must make sure that everything is “going well”.
23.1.82 However, in
his affidavit he states the following:
“Dewani and
the lady first took a stroll on the beach and then I walked with them
to restaurant. At the entrance the lady
went in and Dewani turned
around and spoke to me, he asked what is happening, he appeared to be
stressed and then threatened me.
He said if the job was not done that
evening, he was going to kill me. I told him that I would call the
man I had arranged for
the job and ask him what was happening. I then
went to my car while Dewani went into the restaurant to have supper.”
23.1.83 When
confronted with this statement in his affidavit, he said that it was
not the truth. The accused never said he was going
to kill him. He
stated that a mistake was made, “maybe the one who typed it,
typed it wrong, maybe just a mistake”.
He was then asked:
“Did you tell
Colonel Barkhuizen in the presence of your attorney when this
statement was taken down, that the accused at
the Surfside Restaurant
asked you what’s happened and then threatened you by saying if
the job was not done that evening,
he was going to kill you? Did you
tell Colonel Barkhuizen that? – I never said that M’lady.
I said he said that I must
remember that I’m the one who is
having the knowledge.
So Colonel
Barkhuizen simply wrote this down although you never said it? –
It’s the same as the mistake that he made
by saying: oh ja …”
23.1.84 This story
about the accused threatening Mr. Tongo must be considered in view of
the objective evidence, namely the audio
recordings. They show that
at 21:31:55 Mr. Mbolombo called Mr. Qwabe. In the course of this
telephone discussion Mbolombo told
Mr. Qwabe, “It’s that
thing we were talking about it must happen today.”
23.1.85 It is common
cause that Mr. Mbolombo had not spoken to Mr. Tongo since 18:38, and
yet in the abovementioned telephone call
he is clearly instructing
Mr. Qwabe that the hijacking must take place that night. How could
Mr. Mbolombo have known about the
discussion and the threat between
the accused and Mr. Tongo?
23.1.86 Mr. Tongo
further testified that during the discussion between him and the
accused whilst they were in Somerset West/Strand,
the accused told
him that he had put the money in the pouch of the front passenger
seat. He further testified that he conveyed
this message to Mr. Qwabe
and Mr. Mngeni. He cannot recall whether that this was done by means
of a text.
23.1.87 After this
evidence he was confronted with what he had stated in his affidavit,
where he stated the following:
“Whilst I was
driving, it was either on the way to Somerset West or after we had
departed from Somerset West, I realised that
Dewani had not discussed
the money that was destined to be paid over to the men. I then sent
him a text message ‘don’t
forget the money!’ He
then answered, also by text, informing me that the money was in an
envelope in a pouch behind the front
passenger seat.”
In other words at
the original time that the hijack was supposed to take place the
accused had not placed any money in the vehicle.
23.1.88 Mr. Tongo
concedes that this paragraph reflects what he had told Lieutenant
Colonel Barkhuizen, but states that it was not
the truth. His
explanation about this discrepancy mirrors a theme that came through
throughout his evidence:
“It’s
going back to what I said M’lady, as I said as time goes by or
goes on, some of the things just resurface,
and now I can remember
some of the things much better or well.”
23.1.89 The accused,
in his plea explanation, stated that after the attackers had hijacked
the vehicle, there was a person with
a gun in his hand next to him
(the accused) on the seat. Mr. Tongo stated that that was a lie,
because it was he, Mr. Tongo, that
was forced into the rear seat next
to the accused and he did not have a firearm. Once again, Mr. Tongo
was confronted with the
following statement in his affidavit:
“The first man
got into the driver’s seat and pushed me over to the passenger
seat. The second man got into the back
of the vehicle with Dewani and
the lady.”
23.1.90 Mr. Tongo
found himself in the predicament that he had now placed himself in
the back seat with the child locks engaged,
he needed to explain how
he left the vehicle. His evidence in this regard is virtually
incomprehensible, and is totally irreconcilable
with his affidavit in
which he stated, “the driver (Mr. Qwabe) put his firearm
against my head and ordered me out of the
vehicle”. Once again
he stated that this allegation that the driver put a firearm against
his head was yet another mistake.
23.1.91 A CCTV clip
was shown in which the accused and Mr. Tongo were on the terrace of
the Cape Grace Hotel. According to Mr. Tongo
the accused continually
kept asking him whether he was fine, and he also wanted to know from
him whether the “job”
had been done. Mr. Tongo replied
that he did not know. The accused also asked whether Mr. Tongo had
any information as to whether
the men really did what they were
supposed to do. This was obviously a vitally important discussion.
Yet, in Mr. Tongo’s
affidavit, not a word is mentioned about
it. It is appropriate to quote from his affidavit:
“The police
then took me through to the Cape Grace Hotel. When we arrived there
was a marked police vehicle from the Harare
Police Station, also
parked there. When we got to the reception I saw another two
policemen standing with Dewani in the reception
area. I then pointed
out Dewani to them. Dewani spoke to me briefly and enquired whether I
was okay. The policemen then had a discussion
while I sat on the
couch. Then I heard the policemen referring to the lady as Dewani’s
wife. This was the first time that
I realised that the lady that
Dewani wanted us to murder was his wife. Dewani then went with the
police to another office.”
23.1.92 It is clear
that Mr. Tongo’s evidence that the accused wanted to know
whether the job had been done, or whether the
young men had done what
they were supposed to do, was something that he had made up to
incriminate the accused after he had viewed
the CCTV footage.
23.1.93 It is also
common cause that Mr. Tongo never during the course of all these
discussions asked the accused for his R5 000,00.
23.1.94 It will be
recalled that Mr. Tongo testified that the accused handed him an
envelope with R1 000,00 in it on Tuesday, 16
November 2010. However,
in his affidavit he makes no mention whatsoever of having received
any money from the accused. He makes
mention of this for the first
time in a statement dated 22 December 2010, most probably after he
was confronted with the CCTV footage.
In that statement he states
that he was scared to admit that he had received money because he
believed that it would have increased
his participation in the
offence. In his evidence however, he had a different explanation for
not disclosing this:
“The reason
for that, the reason for me to admit that with them, and I did not
admit that from the beginning or on the beginning,
it’s because
I was scared, M’lady, for such a big job that I have done, then
now I only get an amount of R1 000,00.”
23.1.95 It appears
far more probable that Mr. Tongo did not reveal this because if he
had revealed to the police that he had received
R1 000,00 from the
accused, it would have flown in the face of his entire story.
23.1.96 Another very
strange aspect of his evidence is the fact that he did not throw away
the empty plastic bag while he was in
the toilet. He rather left the
hotel carrying the plastic bag, which on his own version was empty at
the time, by the handles.
23.1.97 During a
viewing of the CCTV footage it was pointed out to the court that
there is a shadow of something inside the plastic
bag and that the
manner in which Mr. Tongo was carrying the bag also indicated that
there was something inside. The purpose of
this evidence was that it
was put to Mr. Tongo that there was a thank you card from the accused
in the envelope with the R1 000,00.
Mr. Tongo denied this.
23.1.98 In
cross-examination Mr. Tongo deals with this as follows:
“That’s
not true M’lady. That plastic bag is little bit hard. If you
are holding it correctly on the top side,
that’s now where the
handles are, it might appear that there is something inside the
plastic bag whereas its empty and with
nothing inside. It might
appear to you as if there is something inside whereas there is
actually nothing inside.”
This answer speaks
for itself.
23.1.99 As stated
above, Mr. Tongo was clear that the only role that Mr. Mbolombo
played was that of a go-between between him, Mr.
Qwabe and Mr.
Mngeni. As he was cross-examined, the thread of his evidence that “as
time goes by he can remember more and
more”, continued. He
could then remember that he phoned Mr. Mbolombo on his way to
Somerset West because he wanted to know
from Mr. Mbolombo why the
young men did not do the job. Eventually he conceded that Mr.
Mbolombo’s role included assisting
him (Mr. Tongo) “to
make sure that everything just happens”.
23.1.100 When Mr.
Tongo was confronted with the various audio recordings of telephone
calls which make it clear that Mr. Mbolombo
played a much bigger role
than simply being the link or an assistant to Mr. Tongo, he kept on
protecting Mr. Mbolombo by sticking
to his version that he was merely
an assistant. Mr. Mbolombo was forced to concede during
cross-examination that he was the person
who was actually in control
of the events on that Saturday night. The contents of the audio
recordings in this regard become significant.
I quote from an audio
recording of a call from Mr. Mbolombo to Mr. Tongo from the Protea
Hotel cordless handset. This is a call
that was made at 18:38 on
Saturday, 13 November 2010:
“No there’s
two of them.
Yes.
Huh?
There’s five
of us, remember.
So you will leave
him/her with … It is what?
…
Oh so the car should
get there and get washed.
No then I hear you
‘grootman’
At that place.”
23.1.101 Mr. Tongo
tried to explain that the five people that Mr. Mbolombo was referring
to was himself, Mr. Mbolombo, Mr. Qwabe,
Mr. Mngeni and the accused.
However, Mr. Mbolombo did not testify that he ever counted the
accused in as one of the five.
23.1.102 From the
aforegoing it is clear that Mr. Tongo contradicted his affidavit made
to Lieutenant Colonel Barkhuizen in virtually
every material respect.
His evidence is also inherently contradictory. In some instances it
makes no sense, and in others, his
explanations are laughable.
23.1.103 His
evidence is contradicted on material points by his accomplices, Mr.
Qwabe and Mr. Mbolombo. But, apart from the contradictions,
the
entire story as told by Mr. Tongo is highly improbable. I say this
for the following reasons:
23.1.103.1 The
accused met Mr. Tongo at the airport when he was looking for a taxi
to take him and his wife to the Cape Grace Hotel.
Mr. Tongo was a
shuttle operator, he was neatly dressed and his car was in a good
condition. It was never suggested that the meeting
between the
accused and Mr. Tongo was pre-arranged. In other words, the accused
simply approached Mr. Tongo because he was the
first taxi driver he
came across as he walked out of the airport.
23.1.103.2 On their
way to the Cape Grace Hotel Mr. Tongo attempted to sell his services
as a guide to the accused and his wife,
offering to show them around
Cape Town. There could have been no indication to the accused that
Mr. Tongo was anything other than
a law abiding shuttle operator and
a guide. Can this court, without some credible corroboration, for one
moment accept that the
accused, after he had been in Mr. Tongo’s
company for approximately 30 minutes, would without more approach him
with a request
that he find somebody to kill his “business
partner”.
23.1.103.3 It is
even more improbable that Mr. Tongo, who says he has never been
involved in any criminal activity, would virtually
immediately agree
to contact his friend Mr. Mbolombo to obtain the services of a
hitman. Even if one accepts that he was offered
R5 000,00 at this
stage, it must be kept in mind that Mr. Tongo testified that in a
good month he earned between R30 000,00 and
R40 000,00 per month.
Again the question arises: would such a person risk his vehicle, his
income, his future and his freedom for
a mere R5 000,00? It is
equally strange that Mr. Tongo immediately approaches Mr. Mbolombo,
who is a hotel receptionist, who on
his own evidence, has the
wherewithal to contact people telephonically because he works as a
receptionist in a hotel. It is even
stranger that Mr. Mbolombo,
without any promise of financial gain, almost immediately agrees to
assist by phoning Mr. Qwabe.
23.1.104 Clearly
aware of these problems, Mr. Mopp argued with reference to S. v.
Francis,
1991 (1) SACR 198
(A), that it is not necessarily expected
of an accomplice that he should be wholly consistent and wholly
reliable or even wholly
truthful – the ultimate test, after
cautiously considering accomplices’ evidence is whether the
court is satisfied
beyond reasonable doubt that in its essential
features the story he tells is true. The passage upon which Mr. Mopp
relies must
however be looked at in context. At 205 e – g
Smalberger, JA stated:
. “In my view
D’s evidence has not been shown to be substantially flawed.
There are no material contradictions or inconsistencies
in his
evidence. Nor are there improbabilities in his evidence of such a
degree as to render his veracity suspect. He has not been
shown to
have been a deliberately untruthful witness. At best for accused No 5
it can be said that D was not a perfect witness
who gave unblemished
evidence. It is not necessarily expected of an accomplice, before his
evidence can be accepted, that he should
be wholly consistent and
wholly reliable, or even wholly truthful, in all that he says. The
ultimate test is whether, after due
consideration of the accomplice’s
evidence with the caution which the law enjoins, the Court is
satisfied beyond all reasonable
doubt that in its essential features
the story that he tells is a true one. “
23.1.105 By
contrast, in Mr. Tongo’s case, there were manifest material
contradictions and inconsistences in his evidence.
And, as pointed
out, there are a number of improbabilities of such a degree as to
render his evidence suspect.
23.1.106 In my view,
Mr. Tongo’s evidence is of a very poor quality. It was conceded
by Mr. Mopp that there were “deviations”
and
contradictions, but he argued that his evidence was not of such poor
quality that the court can draw a proverbial line through
it. But
that is not the test. The test is whether, approached with the
required caution, I can find that the evidence is such that
a
reasonable court, acting carefully, might convict.
23.1.107 There are
undoubtedly aspects of Mr. Tongo’s evidence which implicate the
accused. But his evidence is of such a
poor quality that one simply
does not know where the lies end and the truth begins or vice versa.
A court should not under those
circumstances cherry pick certain
parts of his evidence which can possibly be accepted and others which
should be rejected. Reliable
corroboration is required in such
circumstances.
23.1.108 However, by
sharp contrast, and when his evidence is considered with that of Mr.
Qwabe and Mr. Mbolombo – the picture
becomes even bleaker for
the State’s case.
[24] I will now
proceed to discuss the evidence of the two other accomplice
witnesses, Mr. Qwabe and Mr. Mbolombo.
24.1 Mr. Qwabe
24.1.1 Mr. Qwabe’s
evidence in chief was that he received a call from Mr. Mbolombo on
the Friday evening, who told him there
was a job that needed to be
done. He agreed that Mr. Mbolombo could give his telephone number to
the person who wants the job done.
24.1.2 He testified
that Mr. Tongo called him later and told him that he obtained his
number from Mr. Mbolombo and that he had a
job that needed to be
done, namely somebody needed to be killed. Mr. Tongo also enquired
how much it would cost. At the time Mr.
Qwabe was with Mr. Mngeni and
asked Mr. Mngeni whether he would be prepared to partake, and what he
would charge. Mr. Mngeni said
that he would do it for R15 000,00. It
was then agreed with Mr. Tongo that they would meet the following day
to discuss the matter.
24.1.3 On Satruday
Mr. Qwabe received a call from Mr. Tongo and they arranged to meet at
the Khaya Bazaar in Khayelitsha. Mr. Tongo
described the motor
vehicle that he would be driving. Mr. Qwabe waited for him at the
place agreed upon and when Mr. Tongo arrived,
he recognised his car.
Mr. Qwabe introduced himself as “Spra” (which is his
nickname). Mr. Tongo told him that there
was a husband who wanted his
wife killed. He told Mr. Tongo to wait because he is not in this
alone, and that they must go to his
friend’s house, who
transpired to be Mr. Mngeni. Mr. Mngeni joined them and introduced
himself to Mr. Tongo as “Xolile”.
Mr. Tongo then told Mr.
Qwabe and Mr. Mngeni that there was a husband who wanted the wife
killed, and that it had to look like
a hijacking. Mr. Tongo told them
which route he would be taking and he explained that he would drive
to Gugulethu near Mzoli’s
and they agreed on where the
hijacking would take place, which was at the corner of NY112 and
NY108. They also agreed on the remuneration
of R15 000,00 and told
Mr. Tongo to leave the money in the cubbyhole. It was agreed that the
woman would be killed, but that nothing
would happen to Mr. Tongo and
the accused. Mr. Tongo told them that he would give them a call when
he left, which would be some
time “past seven” on the
Saturday.
24.1.4 On the
Saturday evening Mr. Tongo called Mr. Qwabe saying that they were now
leaving the hotel. Mr. Qwabe phoned Mr. Mngeni
but they struggled to
get transport. On their way Mr. Tongo phoned them and informed that
he had already left Gugulethu and that
he was on his way to Somerset
West with the accused and the deceased. They agreed “to let the
matter stand over for another
time”.
24.1.5 Mr. Tongo
again phoned Mr. Qwabe at a later stage and informed him that he was
at a restaurant in Somerset West/Strand and
told him that “the
job had to be done the same evening, the husband wanted his wife
killed the same evening”. Mr. Tongo
also informed him that he
would be taking the same route to Gugulethu and that he and Mr.
Mngeni should meet him at the place agreed
upon.
24.1.6 Mr. Qwabe and
Mr. Mngeni got a lift to Gugulethu. Mr. Mngeni had Mr. Qwabe’s
Norinco pistol. Mr. Qwabe was unarmed
but took yellow kitchen gloves
along to prevent fingerprints.
24.1.7 Mr. Qwabe
received a text message from Mr. Tongo to say that he was close by.
They saw Mr. Tongo’s car approaching.
Mr. Mngeni stopped Mr.
Tongo’s car by pointing his firearm at the occupants. Mr. Qwabe
got in behind the steering wheel and
Mr. Mngeni got into the front
passenger seat, while Mr. Tongo got into the back seat.
24.1.8 Mr. Qwabe
stopped at the intersection near to the police barracks, where Mr.
Tongo was ordered out of the car. As Mr. Tongo
was getting out, he
told them in Xhosa that the money was in the pouch behind the front
passenger seat.
24.1.9 Mr. Qwabe
then drove with the accused and the deceased along the N2 in the
direction of Khayelitsha. They had no plan as
to what they would do.
He took the Baden Powell turnoff and stopped between Harare and
Kuyasa, where the accused was ordered out
of the vehicle. He then
drove further with the deceased and Mr. Mngeni in the car into Mew
Way between Harare and Mdlovini, an
informal settlement. While
driving down Mew Way, between Ilitha Park and Mdlovini, Mr. Qwabe
heard a gunshot. He was shocked at
the gunshot and asked Mr. Mngeni
what he had done. Mr. Mngeni replied that he had shot the woman. He
then took the first turnoff
into Ilitha Park and stopped at the side
of the road.
24.1.10 Mr. Qwabe
testified that when he got out of the vehicle he noticed that Mr.
Mngeni was looking for something in the back
of the vehicle. He
informed Mr. Qwabe that he was looking for the cartridge case. Mr.
Qwabe assisted him to look for it, found
it and they left the car.
Mr. Qwabe threw the cartridge case in a storm water drain and a
little further away, he threw away the
gloves that he had been
wearing. Mr. Mngeni then took out the money which was in the pouch.
Mr. Qwabe was not certain when Mr.
Mngeni removed the money from the
pouch although he thinks it was shortly after Mr. Tongo had told them
where the money was. They
counted the money and found that it was R10
000,00. They shared it between them and Mr. Qwabe then went home.
24.1.11 On the
Sunday he called Mr. Mbolombo. He wanted to see Mr. Mbolombo because
they were short paid in that they were paid
R10 000,00 instead of the
R15 000,00 agreed upon. Mr. Mbolombo apparently undertook to sort it
out with Mr. Tongo.
24.1.12 Mr. Mngeni
returned Mr. Qwabe’s firearm.
24.1.13 Mr. Qwabe
testified that he thinks he had further contact with Mr. Mbolombo to
find out how far Mr. Mbolombo got to recover
the money that was
short.
24.1.14 Mr. Qwabe
assisted the police to retrieve the cartridge and one of the gloves
that he had thrown away.
24.1.15 He
eventually pleaded guilty and admitted his involvement in the matter.
24.1.16 He explained
that Mr. Tongo’s number does not appear on his list of contacts
on his cell phone as he had deleted it
after the incident.
Cross-examination
24.1.17 During
cross-examination it soon appeared that Mr. Qwabe was a
self-confessed liar. He had to concede that after his arrest
he
applied for bail and testified, under oath, in the bail application
that he had an alibi defence to the charges against him.
This, he
maintained for a period of almost two years before he decided to
plead guilty.
24.1.18 There are
various aspects of his evidence which are unsatisfactory. There are
two aspects that stand out and require particular
scrutiny.
Mr. Mbolombo’s
role
24.1.19 Mr. Qwabe
was questioned about Mr. Mbolombo’s role, and testified as
follows:
“As far as you
are aware, apart from Monde phoning you and giving Zola your
telephone number, did Monde have anything further
to do with this
incident up until the Sunday? --- I think maybe he would have asked
have we met with the guy, something like that.
So we might have
communicated. I’m not sure.
So he might have
asked whether you have met. --- Yes Sir.
Yes. --- Yes.
But he was not
actively involved in arranging things, giving messages, talking to
you, that sort of thing --- No Sir.
Not at all? --- No.”
24.1.20 When
questioned more specifically about Mr. Mbolombo’s role in the
events, he testified as follows:
“What was his
role in this affair? --- He’s the one that put me in contact
with Zola.
Yes, no, I
understand that according to you he put you in contact with Zola. ---
Yes.
Did he have any
other role to play? --- Not that I know of. He was the link between
me and Zola.
Ja. --- Yes Sir.
And then that’s
all he did and then he was out of it is that right? --- He was the
link Sir.
I said that’s
all he did, he linked you with Zola and for the rest he was out of
it? --- Yes Sir.”
24.1.21 When he was
asked whether he spoke to Mr. Mbolombo on the Saturday, he replied
that he could have spoken to him. He then
testified:
“For what
purpose Sir? --- Maybe if Zola didn’t come just to confirm, you
know things like that.
No why would you
phone him if Zola didn’t come to confirm that, what does that
mean, why would you do that? --- (No answer)
I’m waiting
for a reply --- I don’t know Sir
Was Monde Mblomobo
not deeply involved in what happened that Saturday when the accused
and his wife were hijacked? --- Deeply involved
would be a strong
word Sir because he was only the contact between me and Zola, he
wasn’t even at the meeting Sir.
There would be no
reason for him to discuss this matter with you at all that Saturday
afternoon and evening is that what you are
saying? --- The only time
I recall discussing the job was the Friday with Monde.”
24.1.22 He persisted
with this attitude. Even when he was confronted with the audio
recordings of a phone call from Mr. Mbolombo
to him in which Mr.
Mbolombo told him “its that thing we were talking about, it
must happen today”. He replied that
he did not recall that call
and reiterated that Mr. Mbolombo was only the link. He could however
not explain why, if Mr. Mbolombo
was merely a link, there were so
many calls made between him and Mr. Mbolombo, and between Mr.
Mbolombo and Mr. Tongo during the
course of the Saturday.
24.1.23 There can be
no question that Mr. Qwabe was at all times aware of the role that
Mr. Mbolombo was playing, particularly if
one has regard to the
contents of the audio recordings of the telephone conversations and
the number of calls and attempted calls
made by Mr. Mbolombo on the
Saturday night to Mr. Qwabe and Mr. Tongo.
The shooting of
the deceased
24.1.24 Mr. Qwabe
testified that Mr. Mngeni shot the deceased while he was sitting in
the left front passenger seat with the firearm
in his left hand
pointing at the deceased who was sitting on the back seat. He had his
right shoulder to the back and his left
shoulder was turned with the
firearm pointing at the deceased.
24.1.25 Dr. Verster
testified that the single shot that killed the deceased was an angled
contact shot. She further testified that
the shot would immediately
have rendered the deceased paralysed. It is clear from the
photographs of the deceased’s position
in the vehicle after the
incident that she was very close to the back rest of the rear seat.
According to Dr. Verster, the deceased’s
left hand would have
been against, or very close to her chest when the shot was fired. In
fact, the State’s ballistic expert,
Warrant Officer
Engelbrecht, conceded that it would have been impossible for Mr.
Mngeni to have shot the deceased from the position
in which he
claimed he was.
24.1.26 Mr. Qwabe’s
explanation as to how the deceased was shot also does not explain the
marks of a right hand found on her
left lower leg by Dr. Verster.
24.1.27 Mr. Qwabe’s
evidence as to how this incident took place, and how Mr. Mngeni shot
the deceased, can, with reference
to the objective facts, simply not
be correct. I say this for the following reasons:
24.1.27.1 On the
State’s case, Mr. Mngeni could not have shot the deceased
whilst he was seated on the left front passenger
seat.
24.1.27.2 His
explanation does not cater for the marks on the deceased’s left
lower leg. Dr. Verster’s evidence is that
these bruises were
caused by fingertips and were sustained before she died. She would
have been immediately paralysed after the
shot, and would have died
virtually instantly. These marks undoubtedly indicate some form of
struggle – which is irreconcilable
with Mr. Qwabe’s
evidence.
24.1.27.3 Primer
residue was found on the web of the glove that Mr. Qwabe wore,
between the thumb and the forefinger. Although,
according to
Lieutenant Colonel Mlabateki, this could have been the result of Mr.
Qwabe being in close proximity of where the shot
was fired. It must
be borne in mind that the primer residue was found where one would
expect to find it, if a firearm was fired
by a person with that hand.
24.1.27.4 It is
common cause that glove marks corresponding with Mr. Qwabe’s
type of glove was found on the outside left rear
door by a
fingerprint expert. Mr. Qwabe tried to explain this by stating it
might have happened when he opened the door to look
for the cartridge
case. But his evidence then disintegrated into a garbled mess.
24.1.27.5 According
to Lieutenant Colonel Mlabateki’s evidence, primer residue can
be transferred from, for instance, a glove
contaminated with primer
residue to surfaces coming into contact with the glove. In this
regard it is important to note that primer
residue was found to be
present on the inside handle area of the driver’s door. No
primer residue was found to be present
in the area around the left
front passenger seat where Mr. Mngeni were supposed to have been
sitting.
24.1.28 There are
other questionable aspects of Mr. Qwabe’s evidence. According
to the State’s case, Mr. Qwabe and Mr.
Mngeni were to shoot and
kill the deceased after they had dropped the accused. Yet, after they
had dropped the accused, they did
not go to the nearby bushy areas,
but instead drove back into the residential area, down Mew Way, which
is one of the major roads
in that area, in the direction of the N2.
When Mr. Qwabe was questioned about this, and asked where they were
going, he stated
that they were going to no specific place. He could
also not give a reason as to why they decided to drive back into a
residential
area if they knew that they now had to kill the deceased.
This evidence should be looked at carefully against the reference to
a fifth person in Mr. Mbolombo’s telephonic conversation with
Mr. Tongo on the Saturday evening.
24.1.29 Mr. Qwabe’s
evidence, of course, contradicted the evidence of both Mr. Mbolombo
and Mr. Tongo as far as their discussions
on the Friday evening. I
have dealt with these aspects, and I am not going to repeat them.
24.1.29 Mr. Qwabe
also contradicted Tongo’s evidence that he was not aware that
the person that had to be killed was the accused’s
wife, but
the accused’s business partner, who would be arriving on the
Saturday. Mr. Qwabe persisted that when Mr. Tongo
phoned him on the
Friday night he told him that there was a husband and wanted a wife
killed.
24.1.30 Mr. Qwabe
also testified that the remuneration of R15 000,00 was a price
determined by Mr. Mngeni and not Mr. Tongo as he
stated in his
evidence.
24.2 Mr. Monde
Mbolombo
24.2.1 Mr. Mbolombo
was also an accomplice witness and was warned in terms of
section 204
of the
Criminal Procedure Act in
respect of all five charges.
24.2.2 Mr. Mbolombo
testified that Mr. Tongo telephoned him at his work place on the
afternoon of 12 November 2010, and he informed
him that he was on his
way to the hotel where he worked. Upon his arrival, Mr. Tongo asked
him whether he knew of anyone who was
a hitman. They then moved to
outside the lobby of the Protea Hotel. Mr. Mbolombo told him that he
did not socialise with criminals.
However, he could make enquiries
from a person whom he called Abongile. It is common cause that
Abongile is a reference to Mr.
Qwabe.
24.2.3 Mr. Mbolombo
and Mr. Qwabe had previously worked together on a project called “The
Pride of Table Mountain”.
They last had contact in 2006, but
purely by chance, on 1 November 2010, they met at Monwabezi Beach. On
that occasion Mr. Qwabe
was apparently in the company of people who
looked like criminals. During the course of the conversation, Mr.
Qwabe asked him,
Mr. Mbolombo, whether he had any people bothering
him, or worrying him, and that if he had, he must just phone Mr.
Qwabe. They
exchanged phone numbers.
24.2.4 Shortly
thereafter Mr. Mbolombo’s son fell ill, and he approached Mr.
Qwabe to obtain a bullet from him in order to
use the powder thereof
on the advice of a traditional healer.
24.2.5 Mr. Mbolombo
explained that it was because Mr. Qwabe could supply him with a
bullet that he decided to approach him pursuant
to Mr. Tongo’s
request to find a hitman. Mr. Mbolombo stated that he told Mr. Qwabe
that there is a person called Zola, and
told him about the job and
the nature thereof. He told Mr. Qwabe that he knew Mr. Tongo and that
Mr. Tongo would pay R15 000,00
for the job. Mr. Qwabe at one stage
during the conversation indicated that they should not discuss the
matter over the phone, but
that they should rather meet. According to
Mr. Mbolombo, Mr. Qwabe indicated that he would have no problem to do
the job. After
Mr. Tongo had left, Mr. Mbolombo telephoned Mr. Qwabe
in order to reassure him that he knew Mr. Tongo, and that he could be
trusted.
24.2.6 Mr. Mbolombo
then testified that he received a call from Mr. Tongo on the morning
of 13 November 2010, who requested that
he accompany him to a meeting
with Mr. Qwabe in order to discuss “how to go about in doing
this”. Mr. Mbolombo contacted
Mr. Qwabe and informed him that
Mr. Tongo would be coming to Khayelitsha.
24.2.7 Mr. Mbolombo
said that he waited for Mr. Tongo to meet him at his home in
Khayelitsha. Mr. Tongo was aware that Mr. Mbolombo’s
shift at
the Protea Hotel started at 15h00. Mr. Tongo did not arrive and Mr.
Mbolombo went back to the taxi rank at Site C but
shortly after his
arrival there, Mr. Tongo contacted him and said he was on his way.
Mr. Mbolombo then got into Mr. Tongo’s
vehicle. Mr. Tongo gave
him a lift to work. In the vehicle Mr. Mbolombo enquired from Mr.
Tongo why he was looking for a hitman.
Mr. Tongo informed him that
there was a married couple and that the husband wants the woman to be
killed. Mr. Mbolombo then wanted
to know which woman and how had he
met these people. Mr. Tongo informed him that he met them at the
airport and that “it
is the man who wants his wife to be
killed”.
24.2.8 Mr. Mbolombo
testified that while he and Mr. Tongo were driving towards Mr.
Mbolombo’s work, Mr. Tongo received a phone
call and then said,
“here is the gentleman that we are talking about, the man who
wants his wife to be killed”. Mr.
Tongo then spoke on the phone
and all Mr. Mbolombo heard Mr. Tongo saying is, “I’m
coming, I’m coming”.
Mr. Tongo thereupon put the phone
down and said that the gentleman does not trust him. Mr. Tongo then
informed him that he had
to go and take the accused to change his
dollars into rands so that he can pay the killers. He added that the
accused did not want
to go to a “legitimate” place where
the dollars are being changed for rands because he, the accused, did
not want to
be charged for tax. Mr. Tongo also informed Mr. Mbolombo
that the couple was from overseas and that it is not the first time
that
the accused had done “this”, that he has been in
South Africa before, done “this” before, and he wants to

do it again, but it should appear to be a fake hijacking. Upon
arrival at the Protea Hotel, Mr. Tongo said to Mr. Mbolombo that
he
had to rush to Khayelitsha to meet with Mr. Qwabe.
24.2.9 During his
evidence in chief, Mr. Mbolombo described his role as follows:
“To make sure
that Zola and Abongile meet, and to see to it that this thing
happens.”
24.2.10 Later, he
elaborated by stating that the reason why he had further telephonic
contact with Mr. Qwabe was “(T)o get
things into order and to
make sure that things go according to how they were planned”.
24.2.11 Mr. Mbolombo
testified that he knew that the persons involved was a married couple
and that Mr. Tongo was going to drive
them to a restaurant in
Somerset West where they would have dinner.
24.2.12 Mr. Qwabe
telephoned Mr. Mbolombo at approximately 19h00 that evening and
informed him that he was looking for Mr. Tongo
but that Mr. Tongo’s
phone was switched off. Mr. Mbolombo eventually got hold of Mr. Tongo
and informed him that “these
guys are looking for gloves”.
He explained that this related to an earlier request from Mr. Qwabe
on the Saturday morning
to inform him that they wanted gloves so as
not to leave any fingerprints behind.
24.2.13 Mr. Mbolombo
stated that when he heard that the person who had mandated this
killing was going to pay R15 000,00, he indicated
that he would also
have to be paid for all his effort in the matter, “even if it
was R5 000,00”. There was however
no firm agreement on the
amount he would be paid.
24.2.14 Mr. Mbolombo
testified that during a telephone conversation on the Saturday
afternoon with Mr. Tongo, Mr. Tongo informed
him that he was going to
place the money in the cubbyhole of the vehicle. Mr. Mbolombo stated
that Mr. Tongo was supposed to have
met with Mr. Qwabe to give him
the money, but they could not meet.
24.2.15 Mr. Mbolombo
also enquired from Mr. Tongo during this same telephone discussion
whether he managed to get the gloves they
earlier spoke about.
24.2.16 Mr. Mbolombo
testified that it was after this conversation with Mr. Tongo that Mr.
Qwabe telephoned him looking for Mr.
Tongo and informed him that they
were supposed to have met.
24.2.17 When Mr.
Mbolombo finally got hold of Mr. Tongo, Mr. Tongo informed him that
his phone was switched off as he was “with
the people (the
Dewanis) at a table” and that was the reason why he could not
answer the phone.
24.2.18 Shortly
thereafter Mr. Mbolombo received a phone call from Mr. Tongo who
informed him that they were leaving the restaurant
and that they were
on their way to Gugulethu.
24.2.19 According to
Mr. Mbolombo, he did not know exactly where in Gugulethu this thing
would happen, only that it would happen
in Gugulethu.
24.2.20 Mr. Mbolombo
testified that Mr. Qwabe informed him that, as the people were coming
to Gugulethu, they will take the vehicle
and then go to Khayelitsha.
They will then drop off Mr. Tongo as well as the husband, and then
they will drive on with the wife.
24.2.21 Mr. Qwabe
also informed Mr. Mbolombo that they were going to stop the people,
take the vehicle and then take it to Khayelitsha.
24.2.22 Mr. Mbolombo
testified that he did not know exactly where in Khayelitsha they were
going to do this, only that it was going
to take place in Khayelitsha
and that they were going to leave the vehicle there, and thereafter
wash the vehicle.
24.2.23 On Sunday,
14 November 2010 Mr. Mbolombo was at home and tried to call Mr. Tongo
but could not get hold of him. Mr. Mbolombo
said that Mr. Qwabe
arrived at his home on the Sunday morning at about 10:00 o’clock
and informed him that the money that
Mr. Tongo gave him was short by
R5 000,00. Mr. Mbolombo testified that at that stage Mr. Qwabe was so
angry that he did not ask
Mr. Qwabe about whether he, Mr. Mbolombo,
would be paid. Mr. Qwabe wanted to know where Mr. Tongo was, and Mr.
Mbolombo informed
him that he did not know.
24.3.25 Mr. Mbolombo
then asked Mr. Qwabe what had happened and Mr. Qwabe told him that he
should not ask a lot of things and whether
he did not see on TV what
had happened. Mr. Qwabe also requested Mr. Mbolombo to inform Mr.
Tongo that Mr. Qwabe wanted his R5
000,00.
24.3.26 On his
arrival at work on 15 November 2010, Mr. Mbolombo read about the
incident in the newspaper. He then realised that
they had really
killed the woman.
24.3.27 On
Wednesday, 17 November 2010, Mr. Mbolombo was contacted by Mr. Tongo
who informed him that he was phoning from his girlfriend’s

telephone. Mr. Tongo informed him that the police contacted him about
the shooting incident, that he did not tell them the truth,
and that
he just told the police that he does not know anything. Mr. Mbolombo
then informed him that Mr. Qwabe was looking for
him. Mr. Tongo then
warned him, Mr. Mbolombo, to get away from those guys “as they
were very dangerous”.
24.3.28 Mr. Mbolombo
was arrested on 18 November 2010. He made a warning statement to
Lieutenant Colonel Barkhuizen. Thereafter
he was interviewed and he
was advised that police were going to take down a statement in terms
of
section 204
of the
Criminal Procedure Act. That
statement was made
on 19 November 2010, again to Lieutenant Colonel Barkhuizen.
24.3.29 Mr. Mbolombo
was released after he had made the two statements.
24.3.30 At the
beginning of his evidence, Mr. Mbolombo admitted that he had lied in
his warning statement and in his statement to
the police in terms of
section 204
of the
Criminal Procedure Act. He
also admitted that he
had lied during his evidence in the Mngeni trial. He however
testified that his lies were limited to down-playing
the extent of
his involvement in this matter.
24.3.31 Mr. Mbolombo
testified that the provisions of
section 204
were not only explained
to him on two occasions, but that he understood what they meant.
24.3.32 Shortly
before the commencement of this trial, Mr. Mbolombo made yet another
statement correcting certain errors and/or
lies in his previous
statements. He stated that after a lengthy consultation with the
prosecution team, and after having been given
the opportunity to view
the CCTV footage and listen to the audio recordings, he realised that
he could no longer “hide”
and that he had to open up and
be honest.
24.3.33 Before Mr.
Mbolombo proceeded with his evidence, he delivered a pre-prepared
speech which, from the record, appears to be
virtually identical to a
similarly emotive speech which he gave the court in the Mngeni trial,
before blatantly lying about material
aspects. Those aspects had
nothing to do with hiding his involvement in the matter.
24.3.34 Be that as
it may, Mr. Mbolombo’s evidence unravelled during
cross-examination. He started to contradict himself on
each and every
material aspect of his earlier evidence.
24.3.35 I do not
intend to deal with all these contradictions. Mr. Mbolombo is a
self-confessed liar, who admitted in court that
he lied when he
deposed to his warning statement on 18 November 2010. He lied when he
deposed to his
section 204
statement on 19 November 2010. He lied
when he testified before Justice Henney in the Mngeni matter. And he
also admitted that
he had concealed his own involvement and knowledge
on these previous occasions since he was fearful of what the
repercussions would
be.
24.3.36 As his
evidence progressed it became more and more clear that he was deeply
involved in this entire incident and played
a very important role. I
mention but one example.
24.3.37 Mr. Mbolombo
testified that the accused telephoned Mr. Tongo in his presence
shortly before 3:00 p.m. on the Saturday afternoon
on their way to
the Protea Hotel. Mr. Tongo told him that he had to take the accused
to exchange dollars into rands in order to
be able to pay the
killers. It is common cause that no such telephone call ever took
place. It is further common cause that by
that time Mr. Tongo had
already taken the accused to exchange the money. Mr. Mbolombo
testified about a further call which was
supposed to have taken place
between him and Mr. Tongo at 19h30 on the Saturday evening when Mr.
Tongo explained to him that the
reason why he could not answer his
phone was because he was “sitting at the table with the
couple”. Similarly, it is
common cause that no such call
between Mr. Tongo and Mr. Mbolombo ever took place and that Mr. Tongo
was never inside the restaurant
with the accused and the deceased.
24.3.38 In addition
to this, there are stark contradictions between the evidence of Mr.
Mbolombo, Mr. Tongo and Mr. Qwabe on material
aspects of their
evidence.
24.3.39 Mr. Mopp
argued that Mr. Mbolombo in an “ironic twist” moved from
protecting himself at all costs to asserting
that he played a leading
role in the events of 12 and 13 November 2010.
24.3.40 This is
hardly an “ironic twist”. His leading role is supported
by clear objective facts such as the phone records
and the audio
recordings. I cannot agree with Mr. Mopp’s argument that the
incentive for Mr. Mbolombo to now actively involve
himself in
communicating with Mr. Tongo and Mr. Qwabe, is the prospect of
receiving R5 000,00 payment. This submission by Mr. Mopp
only has to
be made to be rejected.
24.4 To summarise,
Mr. Tongo, who was the only witness who could link the accused to
this conspiracy, gave evidence to the court
which is so improbable
and contains so many mistakes, lies and inconsistencies that one
simply cannot know where the lies end and
the truth begins. I accept
that at this stage of the proceedings the credibility of a witness
plays a limited role. But, in my
view, the evidence of these
witnesses is so replete with fundamental contradictions on the key
components of the State case that
I can all but ignore it. In making
this finding, I take into account that all three witnesses, Mr.
Tongo, Mr. Mbolombo and Mr.
Qwabe are intelligent people, and
therefore more than capable of attempting to twist their version to
implicate the accused.
24.4.1 Mr. Tongo
obtained Grade 12 at the Malibu High School in Blue Downs. Thereafter
he became and insurance consultant. Then
he became a VIP taxi driver
with Platinum Escapes, and then started his own shuttle services in
2010.
24.4.2 Mr. Mbolombo
matriculated from Modderdam High School. Thereafter he was employed
until 2000 at The Pride of Table Mountain.
He thereafter did a two
year course as an assistant educational officer, presented by the
Department of Environmental Affairs.
He thereafter worked as a
security guard, and since 2007 was working at the Protea Colloseum
Hotel, where he was dismissed as a
result of his involvement in this
matter.
24.4.3 Mr Qwabe
attended Oude Molen High School, and obtained a N2 in electrical
engineering in 2003 at the Western Province Technical
College in
Pinelands. After his studies he was formally employed until 2010,
inter alia, as an assessor at an insurance company.
24.4.4 These men are
not typical of the criminal elements which one encounters. Each one
of them impressed me as intelligent and
bright, but, calculated. They
may have been amateurs in arranging a hit on a person’s life,
but I do not believe that any
one of them would be so stupid as to
take part in this crime for just a few thousand rand. On Mr. Tongo’s
own saying he was
earning between R30 000,00 and R40 000,00 per
month. Mr. Mbolombo had a job, and Mr. Qwabe was formally employed
until April 2010,
and thereafter assisted his mother in her business.
24.4.5 The inference
is inescapable that they anticipated that there would be much more in
it for them than the R15 000,00 which
they testified about.
24.5 Mr. Mopp argued
that but for the tragic consequences of this case, the conduct of the
three co-conspirators would have been
comical. He said I must look at
the evidence of Mr. Tongo, Mr. Qwabe and Mr. Mbolombo in the light
that they are not the “A
team” of hijackers. I, however,
cannot ignore the fact that these are three intelligent men who
testified, and that each
one of them was a self-confessed liar, who
continued lying in this court.
24.6 On the question
of whether I should grant Mr. Mbolombo indemnity from prosecution I
think I have said enough about his evidence,
to justify a refusal to
grant him indemnity. I therefore refuse to grant him indemnity.
24.7 As pointed out
above, Mr. Tongo is a single witness who is also an accomplice
witness. As I have noted earlier, in these circumstances
the court
must look for corroboration of his evidence. On the cases referred to
above it is clear that such corroboration must
be corroboration
implicating the accused. Mr. Mopp attempted to persuade me that I
could find corroboration in the circumstantial
evidence. This
evidence, such as it is, he was constrained to concede does not
implicate the accused. Regrettably, there are many
unanswered
questions about what exactly happened on the fateful night. I realise
that there is a strong public opinion that the
accused should be
placed on his defence. I have taken note of that. I have also taken
note of the plight of the Hindochas. I have
however taken an oath of
office to uphold the rule of law and to administer justice without
fear, favour or prejudice. That I cannot
do if I permit public
opinion to influence my application of the law. If any court
permitted public opinion, which has no legal
basis to influence their
judgments, it will lead to anarchy. I am obliged to follow the
established legal principles regarding
a discharge at the close of
the State case. In the light of the analysis of the State case there
is no evidence upon which a reasonable
court, acting carefully, can
convict the accused, and I am obliged to follow the established legal
principles regarding a discharge.
The law is clear: the evidence of
the accused – if he does not incriminate himself can never
strengthen the State’s
case. Even if the accused is therefore a
wholly unsatisfactory witness – I will still be left with a
weak State case which
cannot on any basis pass legal muster.
24.8 At this stage
of the proceedings I have a discretion as to whether to grant or
refuse the application in terms of
Section 174.
This is a discretion
that must be exercised judicially.
24.9 Having regard
to the fact that I have already found that there is insufficient
evidence upon which a reasonable court, acting
carefully, might
convict, the only possible reason for refusing the application at
this stage can be the hope that the accused
will implicate himself
during his evidence. To do so will be a manifest misdirection (S. v.
Lubaxa, supra).
[25] Mr. Mopp argued
that the evidence of Sergeant Mellet, Warrant Officer Stephanus,
Captain Lutchman and Captain Hendrickse, all
testified that the
accused informed them the deceased wanted to see the nightlife in the
township and that it was at her request
that they drove into
Gugulethu. This shows that Mr. Tongo did not take the detour into
Gugulethu of his own accord. This submission
cannot be sustained. The
entire hijacking and killing was planned to take place in Gugulethu
and Khayelitsha. But in any event
– these issues raised by Mr.
Mopp can only be answered in favour of the State if the accused
incriminates himself.
[26] The same
applies to Mr. Mopp’s submissions regarding the accused’s
version that he gave to the Hindocha family
about the deceased’s
killing. These statements do not bolster the State’s case –
on the contrary – without
the accused taking the witness stand
and incriminating himself, they take the matter no further. This
case, in my view, falls squarely
within the ambit of the following
dictum of Nuggent, JA in Lubaxa, supra at 707h – 708b (which,
for the sake of completeness,
I repeat):
“Clearly a
person ought not to be prosecuted in the absence of a minimum of
evidence upon which he might be convicted, merely
in the expectation
that at some stage he might incriminate himself. That is recognised
by the common law principle that there should
be ‘reasonable
and probable’ cause to believe that the accused is guilty of an
offence before a prosecution is initiated
(Beckenstrater v Rottcher
and Theunissen
1955 (1) SA 129
(A) at 135C-E), and the constitutional
protection afforded to dignity and personal freedom
(s 10
and
s 12)
seems to reinforce it. It ought to follow that if a prosecution is
not to be commenced without that minimum of evidence, so too
should
it cease when the evidence finally falls below that threshold.”
The evidence
presented by the State in this case falls far below this threshold.
[27] In the
circumstances I make the following order:
27.1 The application
in terms of
section 174
of the
Criminal Procedure Act is
granted.
27.2 The accused is
found not guilty and discharged.
27.3 Mr. Mbolombo is
not granted indemnity from prosecution.
TRAVERSO, DJP
1
R
v Shein
1925 AD 6
; Rex v Herholdt & Others 1956(2) SA 722 (W); S
v Mpetha & Others 1983(4) SA 262; S v Shuping & Others
1983(2) SA
119 (B); S v Lubaxa 2001(2) SACR 703 (SCA)