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IN THE EASTERN CAPE HIGH COURT, GRAHAMSTOWN

(EAST LONDON CIRCUIT LOCAL DIVISION)

CC 96/2011

In the matter of:

THE STATE

versus

VUYANI SIBANDA                                                                                     ACCUSED NO. 1

NTSIKELELO MANANI                                                                             ACCUSED NO. 2

ISAAC PHIRI                                                                                              ACCUSED NO. 3

THABISO MINI                                                                                           ACCUSED NO. 4

SAKHELA MAGASANA                                                                            ACCUSED NO. 5

MAKHAYA QWALA                                                                                    ACCUSED NO. 6

 

Dates of hearing:  17, 24, 25, 26, 27, 28 & 31 October 2016;  1, 2, 3, 22, 23, 24, 28, 29 & 30 November 2016; 1, 8, 9, 12, 13, 14 & 15 December 2016; 6, 7, 8, 9, 13, 14, 15, 16, 17, 27 & 28 February 2017;  1 & 2 March 2017; 19, 20, 21, 24, 26 & 28 April 2017;  2, 3, 4, 8, 9, 10, 11, 12, 15, 16, 17, 18 &19 May 2017;  19, 20, 21, 22, 23, 26, 27, 28, 29 & 30 June 2017; 16, 17, 18, 19 & 20 October 2017.

Dates of judgment: 13, 14, 15, 16 and 20 November 2017.

Prevention of crime – Offences – Contraventions of s2(1) of Prevention of Organised Crime Act 121 of 1998 – Interpretation of ss2(1)(f) and (g) - distinction between management and participation. Evidence – admissibility of and weight to be attached to evidence received in terms of section 2(2) of Prevention of Organised Crime Act 121 of 1998 – Constitutionality of – fact that section 2(2) permits potentially inadmissible evidence of hearsay, similar facts and previous convictions does not create procedural unfairness that infringe accuseds’ fair trial rights – approach to be adopted.

 

JUDGMENT

 

STRETCH J:

1. This matter became part heard before Diliso AJ who passed away before the delivery of verdicts on the charges which the six accused are facing. I shall hereinafter refer to hearing as the “uncompleted trial”.  The matter proceeded before me de novo.

2. The accused were legally represented throughout their trial. They  have been charged with numerous offences committed in the Eastern Cape Province during the first half of 2010, ranging from racketeering in terms of the Prevention of Organised Crime Act 121 of 1998 (“POCA”), to murder, robbery and the unlawful possession of arms and ammunition.

3. At the commencement of the trial, the prosecution sought to submit exhibits A, B and C into evidence.

 

Exhibits A, B and C

4. Exhibit A is a copy of a direction dated 30 November 2011 in terms of section 111 of the Criminal Procedure Act 51 of 1977 (“the CPA”). In terms thereof, the National Director of Public Prosecutions (“the NDPP”) issued a directive that it is in the interests of the administration of justice that all the offences alleged to have been committed within the Eastern Cape be consolidated and tried within the area of jurisdiction of the DPP of the Eastern Cape high court, Grahamstown, at the local circuit division sitting at East London.

5. Exhibit B is a copy of an authorisation in terms of section 2(4) of POCA issued by the NDPP on 11 Nov 2011, for the accused to be prosecuted on charges of racketeering in contravention of section 2(1)(e) of POCA.

6. Exhibit C is a copy of an authorisation in terms of section 2(4) of POCA issued by the NDPP on 30 November 2011 for accused nos 2 and  3 to be prosecuted for managing racketeering activities in contravention of section 2(1)(f) of POCA.

7. The accused, who were legally represented throughout their trial, pleaded not guilty to all of the charges put to them and elected not to disclose the bases of their defences. After pleading they objected to the admission of these exhibits on the grounds of authenticity and validity. The authenticity objection was directed at the fact that the documents are copies. The validity objection suggested that these documents were only valid in respect of the previous incomplete trial.

8. I dismissed the objection to the validity of the certificates. The documents are clearly intended to determine the venue where the accused are to be prosecuted for the entire duration of their trial in respect of the charges which they face under this case number and in terms of this indictment.  That trial has not been completed. It will only been complete once the accused have obtained verdicts with respect to the charges against them, and if any of them are convicted, once they have been sentenced.

9. As for the authenticity of the certificates, I provisionally allowed them to be admitted subject to the presentation of secondary evidence. This evidence was presented through the testimony of one Mr Gounden. Gounden is an admitted advocate and the deputy DPP. He is also the head of the organised crime component for Grahamstown, Bhisho and Port Elizabeth. He has been the deputy DPP for the past 17 years and has dealt with several POCA  applications. He testified that he himself compiled, typed and executed the draft orders reflected in exhibits A, B and C, and confirmed that what was before the court were true copies of these orders. During October 2011 the draft orders were submitted by the DPP of Grahamstown to the NDPP in Pretoria. Centralisation was applied for because it was the State’s case that various offences had been committed in different regions throughout the Eastern Cape. Furthermore, the State intended charging the accused with offences relating to racketeering. In terms of section 2(4) of POCA a person shall only be charged with committing such offences if a prosecution is authorised by the NDPP.

10. According to Gounden the NDPP (in his ex officio capacity) granted authorisation and signed exhibit B on 11 November 2011 and exhibits A and C on 30 November 2011. The NDPP forwarded the originals to Gounden who received them and read them. He thereafter handed them to the prosecutor seized with the presentation of this case. At the uncompleted trial which commenced in 2012, the originals were handed in and were subsequently misplaced. Despite a diligent search they have not been found.

11. I am satisfied that the copies of the certificates are not only the best evidence available in the circumstances, but that they are true copies of the original authorisations. In the premises I am of the view that the State has been properly authorised to prosecute the accused on the racketeering charges set forth in the indictment.

12. I do not deem it necessary, for purposes of this judgment, to repeat the contents of the 25 charges in the indictment. I direct that the indictment (including the preamble thereto relating to racketeering offences and the summary of substantial facts) be treated as if specifically incorporated at this stage of my judgment.

13. For ease of reference however, it will be useful to deal with the charges under separate heads:

a. Counts 1 and 2 deal with managing and taking part in racketeering activities during April to July 2010. It is alleged that all the accused participated in this conduct and that the enterprise was managed by accused numbers 2 and 3. The purpose of the enterprise was to murder, to rob, and to assassinate for reward. In particular, during the first half of 2010, accused numbers 2 and 3 were hired to kill three women including Tozama Tenge and Beauty Sibamba in exchange for R30 000.

b. Counts 3, 4, 5 and 6 relate to accused numbers 2 and 3 only. It is alleged that they conspired to and were hired to murder Tozama Tenge which they did by shooting her execution style in the head on 22 April 2010 at her home at Mdantsane.  

c. Count 7 (conspiracy to murder) relates to accs 1 and 6. It is alleged that acc 1 was hired to murder one James Duka and that he became acquainted with acc 6 who conspired with and procured acc nos 2 and 3 to carry out the job. Count 8 (murder) relates to accs 1, 2, 3 and 6. It is alleged that they murdered James Duka on 15 May 2010 after ambushing him at his home in King Williams Town. Accs 2 and 3 were in unlawful possession of a firearm and ammunition (counts 9 and 10) with which acc 2 shot Duka (once again execution style) in the stomach.

d. Counts 11 to 15 relate to accs 2 and 4. They are in respect of the conspiracy to murder and the murder and robbery with aggravating circumstances of Beauty Sibamba on 16 May 2010 at Mdantsane. It is alleged that due to the unavailability of acc 3, acc 2 recruited acc 4 to assist him with this job. They went to the deceased’s home and demanded money. When she said that she had none they tied her hands and legs with wire and searched her home. They stole a DVD player and speakers. Acc 4 shot her, point blank, twice in the head.

e. Counts 16, 17 and 18 relate to accs 2, 3, 5 and 6. It is alleged that acc 6 inter alia procured the services of accs 2, 3 and 5 to commit robbery  (aggravating circumstances having been present) at Hollywood Sports Book in East London on 6 June 2010. On that day they went to these premises with others. Acc 6 remained outside and accs 2, 3 and 5 entered. They held up the employees with a knife and a firearm and robbed them of personal items and cash takings. Thereafter they shared the spoils at Mdantsane. The complainants are:

Roxanne Barendse (robbed of cash and keys), Caryn Bantom (a gold chain), Claudia Zeeland (cash) and Tylor Jele (cash).

f. Counts 19 to 25 involve all the accused. It is alleged that accs 1 and 6 procured the services of accs 2 and 3 to rob Mshiceleli Ndita (a money lender) of certain cash. Acc 1 was Ndita’s spiritual healer at the time and was thus acquainted with the procedures that Ndita would follow at the end of the month with respect to his cash loan business. Acc 1 shared this information with his co-accused. On 1 July 2010 accs 2, 3, 4 and 5 attacked Ndita at his Fort Beaufort home. When he resisted they shot and killed him. They demanded money, ATM cards and the keys of his Honda motor-vehicle from the occupants of his home who were also robbed of money, cell phones and jewellery. The victims were:

Neliswa Jim (Nokia cell phone), Nasiphi Ndita (Nokia cell phone) and Nozuko Ndita (watch, chains, wedding ring set consisting of seven individual rings, cash and a Nokia cell phone). Accs 2, 3, 4 and 5 also attempted to murder Nozuko (the deceased’s wife) by shooting her.

On the same day and at Alice accs 2, 3, 4 and 5 set fire to Ndita’s Honda motor-vehicle.

 

Discharges in terms of section 174 of the CPA

14. At the close of the prosecution’s case some of the accused applied for discharges in respect of certain counts. Having found that there was no evidence before me that the following accused persons had committed certain of the offences referred to in the charges, or in any competent verdicts to those charges, I returned verdicts of not guilty in respect of the following:

a. Accused no 3 on counts 3 and 25 (the conspiracy to murder Tenge and the malicious injury to Ndita’s car);

b. Accused no 4 on count 25;

c. Accused no 6 on count 19 (the consipirary to rob Ndita).

 

The charges remaining

15. At the close of the State’s case the accused were accordingly left facing the following charges:

 

a. Accused no 1 (Vuyani Sibanda):

Count 1: racketeering

Count 7: conspirary to murder James Duka

Count 8: the murder of James Duka

Count 19: the conspiracy to rob Mshiceleli Ndita

Count 20: the robbery of the Ndita household.

 

b. Accused no 2 (Ntsikelelo Manani):

Counts 1 and 2: managing and participating in racketeering;

Counts 3, 4, 5 and 6: conspiracy to murder, Tenge’s murder and possession of an arm and ammunition;

Counts 8, 9 and 10: Duka’s murder and the possession of an arm and ammunition;

Counts 11, 12, 13, 14 and 15: conspiracy to murder and the murder and  robbery of Sibamba as well as the possession of an arm and ammunition;

Counts 17 and 18: possession of an arm and the Hollywood robbery;

Counts 20 to 25: the murder of Ndita and the attempted murder of his spouse, the robbery of the members of their household, the possession of an arm and ammunition and malicious injury to property.

 

c. Accused no 3 (Isaac Phiri):

Counts 1 and 2: managing and participating in racketeering;

Counts 4, 5 and 6: Tenge’s murder and the possession of an arm and ammunition;

Counts 7, 8, 9 and 10: the conspiracy to murder and the murder of Duka as well as possession of an arm and ammunition;

Count 17: the Hollywood robbery;

Counts 20, 21, 22, 23 and 24: the murder of Ndita and the attempted murder of his spouse, the robbery of their household and possession of a firearm and ammunition.

 

d. Accused no 4 (Thabiso Mini):

Count 1: racketeering;

Counts 11, 12, 13, 14 and 15: conspiracy to murder and the murder and robbery of Sibamba and possession of an arm and ammunition;

Counts 20, 21, 22, 23 and 24: the murded of Ndita and the attempted murder of his spouse, the robbery of their household and possession of an arm and ammunition.

 

e. Accused no 5 (Sakhele Magasana):

Count 1: racketeering;

Count 17: the Hollywood robbery;

Counts 20, 21, 22, 23, 24 and 25: the murder of Ndita and the attempted murder of his spouse, the robbery of their household, possession of an arm and ammunition and malicious injury to property.

f. Accused no 6 (Makhaya Qwala):

Count 1: racketeering;

Counts 7 and 8: conspiracy to murder and the murder of Duka;

Counts 16 and 17: conspiracy to rob and the Hollywood robbery.

 

The evidence of Jabulani Nodada

16. Jabulani Nodada was called by the prosecution as a witness in terms of section 204 of the CPA. He was warned in terms of the provisions of this section with respect to counts 1, 2, 7, 16 and 19.

17. Nodada was 45 at the time that he testified. It is common cause that by this time he had already testified in the Bhisho High Court against acc nos 1, 2, 3 and 6 with respect to the murder of one Makeleni. He has a grade 12 education and a background in information technology. Before the commission of these offences he was self employed installing computers. His business was called “Brainwave”. He was subcontracted to install computers in schools across the Eastern Cape Province.

18. According to Nodada his business initially thrived but towards 2010 he began to develop problems with the IT company he was subcontracted to and ran into financial difficulties. Some time before April 2010 his friend Skara introduced him to two people called Ryder and Cousin. They were planning robberies. Nodada asked to be part of the plan.

19. He paid a visit to Ryder where he met accused no 6 (Qwala) whom he knew from before. He had met acc 6 in 1994 when Nodada sold R5 rifles to acc 6 during the taxi violence. Acc no 6 was a taxi owner and operator. When he met up with acc 6 again this time around he commented on acc 6’s smart BMW. Acc 6 told him that if you want nice things you must work hard.

20. The robberies planned by Nodada, Skara, Ryder and Cousin were aborted when Ryder was arrested. This was when Nodada and Skara decided to approach accused no 6 to substitute Ryder. They met up with acc no 6 in King Williams Town. This was during January 2010. Accused no 6 was with one Busko and one Siya and was driving his Toyota Quantum Combi taxi. He said they were going to work on the robberies. At the time acc no 6 was in possession of a blue bag which contained a 9mm pistol, a revolver, an Uzzi machine rifle and a police blue light.  They decided to scout King Williams Town to find a place to rob. The blue bag was moved to a Citi Golf which Nodada had borrowed from his tenant. Acc no 6 was still driving his taxi. His passengers were Skara, Busko and Siya.

21. They stopped at the Kentucky Fried Chicken (“KFC”) outlet. Acc no 1 (Sibanda) parked close to them. Nodada testified that he had known acc 1 for a long time. Hehad been introduced to acc 1 in 1995 by a mutual friend. He had last seen acc 1 in King Williams Town between 2008 and 2010 when he was installing computers. He and acc 1 used to call each other “Mfundisi” (meaning “reverend”) as they were both pastors in their respective churches. Nodada was a minister in the Methodist church and acc 1 (who was also a herbalist and a traditional healer) was a minister in a church where they wear white robes. According to Nodada acc 1 had started off as a spiritual healer, but later turned to traditional medicine and ultimately to organising assassinations.

22. When they met at KFC he told acc 1 about his financial problems and that they were scouting for a place to rob. Acc 1 told Nodada about certain murder and robbery jobs which he himself had lined up.[1] Nodada indicated that he was seriously interested in these jobs by revealing to acc 1 the contents of the blue bag. Acc 1 was excited when he saw the contents of the bag. Acc 1 indicated that they would be hired and paid R40 000 for each murder (that is R30 000 for acc 1 and Nodada, and R10 000 for the physical perpetrators). Acc 1 also promised that he would buy Nodada a Golf motor-vehicle if the jobs went according to plan. In summary then, acc 1 promised to pay Nodada R15 000 per murder plus a car if the jobs were successful.

23. According to Nodada, as they were speaking a “brownish/silver” double cab Toyota bakkie passed them. Acc 1 said that the driver was on his murder hit list and suggested that they should carry out the job straight away. Nodada however indicated that these things required some planning. Before they parted ways acc 1 gave Nodada a rough outline of the jobs that had been lined up. He mentioned that four people had to be murdered and that there was a big armed robbery with lots of money in the pipeline as well.

24. By then acc 6 had returned with Skara and the others. They reported that they had been unable to find premises to rob. They parted ways after a decision had been made that Nodada should keep the firearms. They continued looking for places to rob.

25. Thereafter Nodada stayed in touch with acc 1. Nodada testified that he himself found robberies more attractive than murders as armed robberies did not necessarily involve the taking of lives.

 

Outline of the jobs

26. Acc 1 began to furnish him with details about the murders and robberies. Nodada summarised the plans for the jobs as follows:

a. The armed robbery would involve a cash loan business run by a loan shark in Fort Beaufort.[2] Acc 1 told Nodada that this money lender (Ndita) withdrew between R900 000 and R1,2 million after midnight on the first day of every month. Acc 1 had this information at his disposal as he was Ndita’s herbalist. Acc 1 also told Nodada that he had become acquainted with Ndita’s wife and that he had a girlfriend living in the very same homestead. Ndita and acc 1 drove to Fort Beaufort where acc 1 pointed out Ndita’s home and business premises to Nodada. There was a brownish Toyota Corolla parked outside. Acc 1 explained to Nodada that Ndita would be using this vehicle when he went to withdraw the cash in the middle of the night. Once the premises and the car had been pointed out to Nodada by accused no 1, the plan was that it would then be Nodada’s delegation to organise people to carry out the job.

b. Thereafter accused no 1 and Nodada drove from Fort Beaufort to King Williams Town. The intention was for acc 1 to point out the homes of intended assassination victims to Nodada. To this end acc 1 took Nodada to Quzini Village near King Williams Town where he pointed out the same double cab Toyota bakkie which had passed them when they were discussing the jobs at KFC.  He identified the driver as one Mr Makeleni who had abandoned his matrimonial home in King Williams Town to co-habit in Quzini Village with another woman .According to acc no 1 the scorned spouse wanted Makeleni dead.

c. By nightfall they had returned to King Williams Town. There acc 1 pointed out a third prospective crime venue to Nodada. It was a house in Frere Road. It was painted orange. A Ford Bantam motor-vehicle was parked between the garage and the orange house. In the dark the car looked “brownish/silver”. Acc 1 told Nodada that he held instructions from the wife of the driver of this car that he must be killed at the golf club because he likes to go there. The client also mentioned a tavern in Westbank which the target (apparently a policeman[3]) also frequented but an assassination at that venue would perhaps be too risky as a lot of policemen liked to go there. According to acc 1 he had been attending to the problems of these two women because they were also his patients as a herbalist and that was when they told him that they wanted to have their husbands killed. According to acc 1, if these problems could not be solved by other means, murder was the only option.

d. The fourth target was in Bhisho. Nodada assured accused no 1 that Bhisho would not pose a problem as Nodada lived there and was familiar with the area. All he needed was an address. Acc 1 gave him the address. It was number 25 Hintsa Crescent. This time the proposed murder victim was a woman. Acc no 1 handed over a photo of her which his client (her husband) had given to acc 1. According to Nodada the photo was not clear enough and he asked acc no 1 to give him a better description of the assassination target the following day.

27. Thereafter acc 1 took Nodada home so that he could arrange to return to Fort Beaufort with Skara, which he did. Nodada there and then made the election that he was going to organise people to carry out these jobs. The first thing he did was to instruct Skara to collect Siya and a friend to carry out the Fort Beaufort job. They set off for Fort Beaufort in due course. They saw Ndita’s Toyota Corolla. Nodada regularly reported back to acc 1 about their progress. They waited at Ndita’s house until 3am but there was no movement. They decided to abort the robbery and went home whereafter Nodada furnished acc no 1 with an update on developments. The idea was that they would go back some other time. According to Nodada, he was already out of the picture when this happened. Indeed, he only came to hear that Ndita had in fact been killed when he handed himself over to the police.

28. Nodada went on to relate that one weekend accused number 6 telephoned him for the revolver which was in the bag which was in his custody.  They agreed to meet at the Engen Garage in Bhisho. When he arrived acc 6 was there in his BMW. With him were accused nos 2 and 3. It was Nodada’s first time to see acc 2 and 3. Acc 2 went by the name “Mantsiki” and acc 3 was introduced to him as “Jack” or “Jeff” (Nodada himself called acc 3 “Madala” which means “older than me” or “old man”).[4] Acc 6 wanted the revolver because acc nos 2 and 3 were going to Port Elizabeth to kill someone. Acc 6 took acc nos 2 and 3 to King Williams Town and drew money for them to hitch a ride to Port Elizabeth. Ultimately, the Port Elizabeth murder was not carried out as there had been a disagreement between acc nos 2 and 3 and the person who had hired them to do this job. It was at this point that Nodada seized the opportunity to introduce acc no 6 to the jobs which he and acc no 1 had discussed. Nodada’s word were:  “I wanted to bring acc 6 into acc 1’s loop”.

29. Following upon this introduction, accused no 6 said that he would organise acc nos 2 and 3 to do the jobs. At this stage acc no 1 was not yet aware of acc no 6 but he kept on pressurising Nodada to carry out the work. One Saturday acc 1 visited Nodada to get feedback in this regard. It was then that Nodada explained that their communication with acc no 6 (whom he described to acc no 1 as someone who was organising the hitmen) had been somewhat limited due to financial constraints. In response acc 1 drew R500,00 from a Nedbank automatic teller machine (“ATM”) and gave the money to Nodada. This was early in April 2010. Thereupon Nodada communicated with acc 6 who gave him acc 2’s contact number and said that he had already told them about the jobs. Nodada made contact directly with acc no 2. Acc nos 2 and 3 met up with him in King Williams Town.  They discussed payment for the jobs. Nodada phoned acc 1. He handed the phone to acc 3. The purpose of this was for acc no 3 to discuss payment for the work directly with acc no 1. Acc 3 spoke to acc no 1. He reported to Nodada that acc 1 had agreed that he (acc 3) would be paid R15 000 per job.

30. Thereafter Nodada arranged transport to convey acc nos 2 and 3 to Makeleni’s place in Quzeni. Acc 2 and 3 asked for a deposit for the Makeleni job. Nodada told acc 1 to bring R5 000 along. Accused no 1 arrived and withdrew R3 000 from a Nedbank ATM at the “Kewuti garage shop” which Nodada then handed over to acc nos 2 and 3 as a deposit for Makeleni’s assassination. This was still during early April 2010.[5]

31. After Makeleni’s murder Nodada told accused no 1 to pay acc nos 2 and 3 the balance of the money they were owed for successfully carrying out this job. Nodada and acc nos 2 and 3 met up with acc no 1 at the Kewuti Garage in Mdantsane. Acc 1 was driving his white Mercedes Benz.[6]

32. Acc 1 came with excuses about not having the money and withdrew R350 from an ABSA ATM at the Kewuti Garage in Mdantsane.  Nodada himself contributed R120 making the total R470 which he handed over to acc nos 2 and 3. Acc 1 promised to pay them the balance the next day.

33. The next day acc no 6 paid a visit to Nodada to collect this balance. Nodada met up with acc 1 in King Williams Town. Acc 1 had organised about R4 000 which Nodada handed over to acc 6. At this stage Nodada was still acting as a type of middle-man between acc nos 1 and 6.  Acc 1 and 6 saw each other but did not talk. Nodada continued to act as a go-between between acc nos  1 and 6 until acc no 1 had almost finished paying.

34. It was then that Nodada cut ties with these people. It happened like this:

a. One day Nodada happened to be in King Williams Town. He saw directions in Frere Street to the “Duka” funeral. He followed the directions and realised that it was the funeral of Captain James Duka which was being conducted from the deceased’s home.  It was the same orange house which acc 1 had pointed out to Nodada previously, which belonged to a man who had to be assassinated.

b. About two weeks later he saw a report in the Daily Dispatch newspaper about a woman who had been shot at 25 Hintsa Crescent in Bhisho. It was the same address in Bhisho which accused no 1 had given to him previously where a woman had to be assassinated.

c. By then, one thing which had really been gnawing away at him was the gruesome, callous and dispassionate way in which acc no 2 had described the response of a child to one of the assassinations. This account persuaded him to sever ties with the people carrying out these jobs.

d. When he saw the directions to Duka’s funeral and the obituary in the paper about the woman who had been murdered at no 25 Hintsa Crescent, it occurred to him that these killers had not missed a beat. This also ate away at his conscience.

e. He started talking. Acc nos 1, 2, 3 and 6 got word of this. Acc no 6 and others began to threaten him. An associate of acc no 6 in fact called him one day when he was in Zwelitsha. On another occasion he was followed. He had to request the Berlin police to escort him home. On a different occasion he saw acc 1 and acc 3 together in acc no 1’s car in Taylor Street in King Williams Town. They were driving towards the post office and he was driving in the opposite direction towards Grahamstown. He had no doubt that he saw them together and that they were in acc no 1’s car, which he knew very well. He said that he could not have been mistaken. Taylor Street is particularly busy and one cannot drive at a speed of much more than ten kilometres per hour. He observed them for at least a minute. It dawned on him that acc 1 was now communicating with the hitmen directly. This had not been part of the plan. He had never been paid his liaison fees. He telephoned accused no 1 and enquired about his half of the R30 000 for orchestrating Makeleni’s murder. Acc no 1 could not give him a straight answer. Nor did acc no 1 deny that he was now working directly with the hitmen.

f. Nodada testified that his conscience continued bothering him to the extent that he eventually handed himself over to the police and confessed. He remembered that it was between 10 and 15 June 2010 when the Netherlands was playing World Cup soccer in South Africa.[7]  He phoned some members of the police whom he knew and they decided to take him to one Colonel Mboniswa. He told Mboniswa about all the cases, both the planned and the executed ones. Mboniswa asked whether he had known that a few days previously there had been a murder and robbery in Fort Beaufort. Nodada said he did not but gave Mboniswa all the detail he could recall about the planning of the robbery of the cash loan business including the details of acc no 1’s involvement. Mboniswa confirmed that the same loan shark (Ndita) had in fact been murdered and his family had been robbed.

g. Accordiing to Nodada, after he had confessed to Mboniswa, the colonel said that he would be used as a “section 204 witness” and he was placed in a witness protection programme.

h. In response to a direct question in this regard, Nodada added that acc no 1 had, at some stage during their association, also mentioned a robbery to be carried out at the Willowvale post office.[8]

i. Nodada said that he had also at another stage overheard acc no 6 and acc no 2 discussing the Hollywood Sports Book robbery with one of acc no 2’s friends by the name of Sakhi Ngele.[9]

35. Nodada concluded his evidence in chief by summing up the structure of the enterprise in which he was involved in the following words:

 

The structure of the enterprise

a. Accused number 1 provided the jobs.

b. Nodada’s role was to scout for people to execute the jobs.

c. Nodada found accused no 6 who organised acc nos 2 and 3 as hitmen.

d. For the robbery cases Nodada organised other people (acc 1 had suggested that he also use acc nos 2 and 3 but he did not because he knew that if they robbed they would be inclined to kill. In fact he told acc 1 this after the Makeleni murder, but nevertheless suggested that they use acc nos 2 and 3 in the Fort Beaufort robbery).

36. Nodada was cross-examined by counsel for accused no 1. It was put to him that accused no 1’s version would be along the following lines: Nodada and Skara used to be close friends. Skara believed that accused no 1 had betrayed him which led to Skara going to prison for a long time. In the light of this, accused no 1 would not have associated with either Nodada or Skara. Accused no 1 had sensed animosity from Skara after Skara was released from custody. There were also many things about Nodada which would have barred acc no 1 from associating with him. Acc no 1 was not close to him and did not trust him. Indeed, according to acc no 1, Nodada’s evidence consisted of elaborate and fabricated details.

37. Nodada responded to this with a smile. He replied that there was no animosity at all between acc no 1 and Skara and that he had never heard the suggestion that acc no 1 had betrayed Skara or of any belief therein. His words were “this is new to me”. He said that he had not been particularly interested in arranging the murder jobs but knew that if he told acc no 1 this he would have been excluded with respect to the robberies as well. He and acc no 1 had such a close relationship that acc no 1 even confided in him that his house was being repossessed.[10] Acc no 1 knew where he lived. Acc no 1 used to visit him.

38. It was also put to Nodada that at another trial Nodada had said that he had threatened to go to the police if he was not paid. He could not recall having said this but remembered that he did approach “the lady” who hired the killers and demanded money from her because acc no 1 had not paid him. He also sent her an “SMS”. She responded that she was in Pretoria with her sister but undertook to sort out this issue of payment.

39. Finally, it was put to Nodada that acc no 1 would deny having taken Nodada to the various prospective crime scenes, having asked Nodada for feedback about the crimes, or having pestered or paid him with respect to these murders. It was also put on acc no 1’s behalf that acc no 1 never withdrew the sum of R350 to be handed over to anyone else, nor did he withdraw the sum of R3 000 at Nedbank in King Williams Town. Acc no 1 would say that he neither knew nor saw acc no 3 in the circumstances described by Nodada. Acc no 3 would likewise confirm that the first time he and acc no 1 set eyes on each other was after they were arrested.

40. It was put to Nodada that acc no 2 does not know him at all, did not plan anything with him and did not discuss the Hollywood robbery with him and acc no 6. Acc no 2 would also deny that his image was captured in the closed circuit television (“CCTV”) footage of the Hollywood robbery (which was at some stage shown to Nodada who identified certain accused on the footage, including acc no 2, and commented that acc no 2 was so clearly visible on the footage that anyone who knew him would have been able to identify him therefrom). Nodada confirmed that the robbery had not been not discussed with him. He just overheard discussions amogst acc nos 2, 6 and Sakhi when they said that they were going to rob Hollywood. He conceded that he did not mention the Hollywood robbery in his section 204 affidavit, but said that he did tell the police about discussions which he had overheard. It was put to Nodada that his only reason for implicating acc 2 in the Hollywood robbery was to curry favour with the police. Nodada once again denied that he had implicated acc 2 in the robbery itself (which is quite correct) and added that when he handed himself over to the police he was expecting to be charged like the others. He admitted that his participation in these criminal events was wrong but said that as a Christian, he had asked for forgiveness. He denied ever having been involved with one Colonel Nkosiyane and said that the person who took his first statement at the office of the Hawks in East London was a policeman called Hanisa. Another policeman called Qakala took another statement from in Port Elizabeth.

41. It was also put to him that acc no 2 has a scar on his face. His response was that he never really noticed it before, but that he knew acc no 2 well and had been in his company on several occasions (during his evidence he was able to see the scar standing about a metre away from the accused but could not see it standing any further away from acc 2.[11]).

42. He also added without hesitation that he was unable to say whether acc 2 actually shot Makeleni because he (Nodada) was not present.

43. During cross-examination on behalf of acc no 3 Nodada explained that before he handed himself over, he received a call from a friend of acc 6. This person threatened that they were coming to get him because he had been talking about the crimes. He said that if acc 6 knew about these threats, acc nos 1, 2 and 3 would also have known as they were constantly together. It was denied on acc 3’s behalf that he was ever known as Jeff or that he was introduced to Nodada at the Engen Garage in the company of acc no 6. Acc 3 would also deny that he had a meeting with Nodada and acc 2 in King Williams Town. In short, it was put to Nodada that acc no 3 did not know him at all before their arrest.

44. It was also put to Nodada that when he testified in a related matter in 2011 he had said that after acc no 3 had spoken to acc no 1, acc 3 told them that he and acc 1 had agreed on payment of R20 000 and not R15 000 as mentioned by Nodada in his evidence in chief at this trial. Nodada candidly conceded that he may have been mistaken about the amount but added that he clearly recalled acc 3 speaking to acc 1 on the phone about payment. He admitted that he himself needed money after the Fort Beaufort robbery had been abandoned on 31 March 2010. That was why he participated in the organisation of the Makeleni murder.

45. With respect to acc no 6, Nodada again explained during cross-examination that he first became acquainted with acc no 6 a long time ago (between 1995 and 1996). At that time he (Nodada) was selling R1 machine rifles (when taxi violence was prevalent) and acc no 6 (who was involved in the transport business) was one one his customers who had been introduced to him by another taxi owner, one Mvuba. Nodada agreed that his conduct, in selling machine rifles, was wrong and said that he was “young and stupid” at the time. In the year 2000 he became a pastor and qualified as a Methodist priest in 2003. He said that he was much older (about 40) when he foolishly backslid and resorted to the criminal conduct which forms much of the subject matter of this trial.

46. In reply to answers elicited by counsel for acc no 6 he said that he was under pressure from acc nos 2 and 3 to get their money from acc no 1 and that he took a number of steps to secure their compensation such as phoning acc 1, visiting acc 1’s home in Dambuza and also taking acc no 1 to the house of the deceased’s wife, Ms Makeleni. Whatever money he was able to collect he handed over to acc nos 2 and 3 because he felt that he could only keep payments for himself once acc nos 2 and 3 had been settled in full. He expected acc no 1 to pay him after he had paid acc nos 2 and 3 but acc no1 just came up with different excuses, so he abandoned all hope of payment after about two months of trying. He said that his visit to the police was not really motivated by vengeange because he had not been maid, but primarlily because his conscience got the better of him, particularly when acc no 2 was boasting about the reaction of a child who was an eye-witness to the Makeleni murder. He said that he himself, had a little child the same age as Makeleni’s child. He had given some thought to what would happen to his daughter if he was killed like that. He realised that this was “the devil’s work”. He could not eat. He could not sleep. When he handed himself over to the police he cleared his conscience properly and told the police about everything bad he had ever done. He even spoke about cases where none of the accused were involved, but where he himself had benefitted, such as the Shoprite robbery in King Williams Town. He also told the police about crimes not related to this indictment, such as the robbery at Dyson’s Quick Spar in King Williams Town where acc 6 had participated.[12]  He just wanted to “come clean” again.

47. After all this information had been elicited from Nodada during cross examination, it was eventually put to him on acc no 6’s behalf that acc 6 knew nothing about the blue bag which Nodada said had been handed over to him by acc 6. Acc no 6 would say that he was a simple taxi owner and driver and sometimes his passengers had parcels in their possession which he did not really pay attention to. In response to this, Nodada testified that when acc 6 had handed the blue bag over to him, he was not working as a taxi owner or driver.

48. It was put to him that acc no 6 would further say that Skara (Nodada’s friend) used to visit acc no 6 who became Skara’s benefactor and arranged passengers for Skara’s transport business. Needless to say, Nodada had no comment. He disputed acc no 6’s version, which would be that acc no 6 never had any dealings whatsoever with acc nos 2 and 3. When asked about where the contents of the blue bag eventually landed up, he spontaineously revealed that the revolver and the 9mm firearm belonged to one Siya who took them back, the Uzi belonged to Busko and he took it back, and that the police blue light just happened to have belonged to none other than acc no 6, who reclaimed it.

49. Finally, it was put to Nodada that despite the fact that Nodada had described acc no 6 as a “comrade in arms in racketeering”, acc no 6 saw himself as a mere driver hired by clients to transport them. In short, acc no 6 would deny all involvement in any illegal activites. He was simply an “easygoing, gregarious person and a man of the people.”

50. This then was the sum total of the prosecution’s evidence against, inter alia, acc no 1. The State did attempt (during a trial within a trial) to introduce a statement which acc no 1 had allegedly made to a police captain during August 2010. I ruled the statement inadmissible. I stand by this ruling. In my view the prosecution did not succeed in proving that the statement was made freely and voluntarily. There is sufficient evidence before me to suggest that acc no 1 exercised his right to legal representation from the onset. He wanted to consult with his lawyer and made this clear in no uncertain terms. He was denied this opportunity.

 

Nodada as a single witness and an accomplice

51. There are two cautionary rules which apply when evaluating the evidence of Nodada against acc 1 in relation to counts 1, 7, 8, 19 and 20. The first is that he is essentially a single witness. The second is that he is an accomplice in the true sense of the word.

52. It is trite that the cautionary rule with respect to an accomplice is, in itself, no more than an admonition to apply common sense. Differently stated, the cautionary rule applies to any witness who, in the circumstances of the case, is more susceptible to mendacity owing to ostensible motives which he may have to misrepresent.[13]

53. By virtue of the provisions of s208 of the CPA, an accused may be convicted of any offence on the single evidence of any competent witness. It has not been suggested that Nodada is not a competent witness. It is however so, that in essence he is a single witness against acc no 1.

54. The reasons for approaching the testimony of an accomplice with care were set out by Holmes JA in S v Hlapezula[14] as being the following:

a. He is a self confessed criminal.

b. Various considerations may lead him to falsely implicate the accused, for example, a desire to shield the real culprit, or (particularly where he has not been sentenced), in the hope of clemency.

c. By reason of his inside knowledge, he has a deceptive facility for convincing description, his only fiction being the substitution of the real culprit with the accused.

55. Thus, says the learned judge, there has grown up a cautionary rule of practice requiring recognition by the trial court of the foregoing dangers and the safeguard of some factor reducing the risk of a wrong conviction.[15]

56. I am acutely mindful of the compelling likelihood that one of the reasons that Nodada is testifying is in the hope of being granted clemency. Having said this, I am am likewise aware that the law in this regard has elevated itself beyond that stage of thought in which the accomplice’s commission of crimes, self confessed, are automatically deemed to render him a radical liar.  Also, the extreme case of the wretch who fabricates merely for the malicious desire to drag others down in his own ruin can be no foundation for a general rule[16]. This is particularly so when the s204 witness (as in the case of Nodada) happens to be the fons et origo of the information disclosed to the police about his own commission of these offences and the contribution of others, and not the other way around. Simply put, this is not a case where the police had information at their disposal to justify seeking him out and arresting him. It is an undisputed fact that he not only of his own volition handed himself over to the police, but that he freely spilt the beans not only about his participation and that of the accused in these offences, but also that he confessed about his own participation in other crimes where he completely exonerated the accused before me. In the premises, what I have before me is not the run of the mill scenario where Nodada was arrested and released on a promise or a spes of clemency.

57. As stated by the prosecution, Nodada, propelled primarily by his conscience, voluntarily handed himself over to the police. Without Nodada the police would not have been able to establish the vital links between all these offences.

58. The question still remains however: What safeguards are available for this court’s consideration to reduce the risk of a wrong conviction?

a. Corroboration is the most obvious one, even if there is no rule of law or practice requiring corroboration of the accomplice.[17] Having said that, where the witness is both an accomplice and a single witness (as in the case of Nodada) I am of the view that I should only rely on his evidence to support a conviction if it is not only clear and satisfactory in every material respect, but also only if there is also corroboration implicating the accused in the commission of the offence. In other words, in instances where conspiracy is alleged and corroboration is considered necessary, there must exist some reliable evidence which links the accused to that conspiracy.[18]

b. The absence of gainsaying evidence from the accused.

c. The fact that the accused has been shown to be a lying witness.

d. The plausibility of the evidence, given the general probabilities and the norms of human behaviour.[19]

59. I am mindful of the generally accepted view that one cannot expect an accomplice to be wholly consistent, wholly reliable or even wholly truthful in all that he says. This court need only to satisfy itself that in its essential features the story which he tells is a plausable one. It is certainly not required of accomplices that they be perfect witnesses.[20] In S v Mashumpa and another[21] Froneman J went as far as describing the accomplice in that matter as an admitted liar, fraudster, braggart and coward, who had contradicted himself on many occasions in the witness box, both in regard to earlier evidence as well as with earlier extracurial statements, but found nevertheless that:

‘… behind the bluster and unconvincing explanations of contradictions in detail, relating to times and places, there is in our judgment a credible consistency in the essentials of his story … Despite the contradictions and almost surreal aspects of the plan deposed to in evidence by Mr. Tukani we have no doubt that his version of the origin of the ploy is more credible than that of Mr. Best. It fits in with other background evidence …The essentials of that plot as testified to by Mr. Tukani are corroborated by other evidence: (1) by many of the undisputed facts set out earlier in this judgment, such as Mr. Mshumpa’s introduction to Mr. Best, the various trips in Mr Best’s car driving to various places in Mdantsane …’

60. As stated by Schreiner J in R v Nhlapo[22]:

‘ The cautionary rule may well be a helpful guide to the right decision, but it naturally requires judicious application and cannot be expected to provide, as it were automatically, the correct answer to whether the evidence of the Crown witness shoud be accepted as truthful and accurate. More specifically, it does not mean that the appeal must succeed if any criticism, however slender, of the witness’s evidence were well founded.’

61. These remarks were quoted with approval in R v Bellingham[23], and it seems clear that this more flexible approach to the testimony of a single witness/accomplice represents both the better and the majority view.

62. At the end of the day, the exercise of caution should not be allowed to displace the exercise of common sense, and once a judicial officer has anxiously scrutinised the evidence of a single witness he should not be swayed by fanciful and unrealistic fears.[24] Indeed, it has even been held  that the mere fact that a single witness has a bias adverse to the accused does not mean that he should, notwithstanding, be considered a credible witness[25]. The court in S v Teixera[26] emphasised that in evaluating the evidence of a single witness, a final analysis can rarely, if ever, be made without considering whether such evidence is consistent with the probabilities.[27]Corroboration, which is a common safeguard against the dangers of relying on the evidence of a single witness, has been defined as other evidence which supports the evidence of the single witness and which renders the evidence of the accused less probable on the issues in dispute.[28] It is in short, what can be described as that which has the effect of taking us beyond the realm of coincidence and misfortune.

63. A court will usually find it profitable to compare the nature and quality of the evidence of the single witness with that of the accused, to cautiously assess its quality and it nature and finally to take into consideration independent corroboration of material respects of the witness’s evidence as well as the probabilities of the respective versions. In performing this exercise the court must caution against a compartmentalised approach in the assessment of the evidence in this context, and should refrain from examining the defence case in isolation from that of the prosecution.[29]

64. The factual events and the commission of the offences described by Nodada are not in dispute. Nor is it disputed that he played a pivotal role in the commission of these offences. What is in dispute is that those accused before me whom he refers to, played any role, directly or indirectly in what Nodada describes.

 

ACCUSED NO 1: VUYANI SIBANDA (also known as “Vido”)

65. According to acc no 1, Skara was previously arrested while driving acc no 1’s car. During cross-examination it was suggested to Nodada that he (Nodada) must have thought that acc no 1 had something to do with this arrest, that he accordingly bore a grudge against acc no 1 and that he therefore implicated him falsely in the commission of the offences. This suggestion has no real basis and was dismissed by Nodada without further ado. This does not mean however, that I am constrained to reject it altogether. On the other hand, in order to accept it , I must find that Nodada (because of an apparent grudge against acc no 1 about something which has had no direct or indirect impact on Nodada), took it upon himself to adopt the following course of conduct:

a. He committed extremely serious offences with culprits who are not before this court (indeed they must be anonymous) over a period of about six months.

b. One day, out of the blue, he decided to confess what he had been up to.

c. He decided that in confessing, and implicating himself, he would substitute the absent anonymous but actual perpetrators of the offences with which acc nos 1, 2, 3 and 6 have been charged, with these accused.

d. He did this, for the sole reason that once upon a time his friend Skara was arrested while driving acc no 1’s car, and he had this somewhat vague notion that acc no 1 might have had a hand in this arrest.

66. To my mind, such a conclusion on the part of this court would not only be far fetched, highly imaginative and dangerously speculative but would have no rational basis whatsoever. It would, quite simply, conflict with simple common sense and accepted and observed human behaviour. Nodada has admitted that he was not paid by acc no 1. He has conceded he was informed about possible indemnification. It would be naïve of this court to believe that Nodada’s feelings about not having been paid, together with his hope of clemency, would not be inclined to serve as an inducement for him to testify, over and above his niggling conscience. I must caution myself however, not to simply assume that there is necessarily anything dishonest or unrealiable about a witness whom I suspect is not all that fond of the person whom he implicates, and who may be anticipating some form of reprieve in exchange for his testimony. At the end of the day it is necessary for this court to consider all the evidence and the probabilities holistically in deciding whether Nodada’s evidence is not only true, but sufficiently reliable for a conviction beyond a reasonable doubt.

67. It is acc 1’s version that Nodada’s testimony about acc 1’s involvement in these offences is a tissue of lies and a complete fabrication. Nodada’s evidence about acc 1’s relationship with the Ndita family however[30] is independently confirmed by Ndita’s widow Nozuko Ndita.

68. Nozuko Ndita testified that before her husband’s murder she and her husband knew acc 1 (to whom she refers by his calling name “Vido”) as a traditional leader. He used to visit their home and medically treat one of their staff members. He performed healing rituals at their home. He knew that the deceased was fond of cars and performed a ceremony at their home to protect and bless their vehicles. He visited often - on a weekly basis. He had insight of and access to the deceased’s cash loan books and records. Acc 1 was interested in this business and he and the deceased would discuss it at length.  Nodada on the other hand, was not known to her at all and there are no reasons whatsoever to suspect that there is any collusion between them.In the premises, Nodada’s version (that acc 1 told him about the cash loan business, his relationship with the Ndita family, that he was their traditional leader and had a girlfriend staying at their house and that this was at a time when Nodada and acc no 1 were in the throes of a criminal enterprise) is, to my mind, both reliable and true particularly when compared with acc 1’s version that he and Nodada were actually enemies and that he (acc 1) did not trust Nodada. Not only is it reliable and true, but it is wholly consistent with the probabilities. Indeed, in the absence of acc no 1’s input and inside knowledge, Nodada would not have known where the deceased Ndita lived, what type of business he ran, what his profits were, and how much money he drew on average from these ATMs in the middle of the night at the end of each month. There would also not have been a stake-out and an abandoned robbery on the first occasion (the fact of which is not in dispute).

69. It is furthermore significant that acc 1, who has admitted that he had a love relationship with one Neliswa Jim (who was living with the Nditas) denied that he knew her at a previous trial. In my view this was not just an innocent  mistake (as acc 1 now alleges) but a deliberate and dishonest attempt to distance himself as far as possible from prior and inside knowledge of what transpired at any given time in the Nidta homestead. What is also significant of course is that Nodada would not have known about this relationship if he and acc 1 were not on intimate speaking terms at the time. Nor for that matter, would he have known where acc 1 lives and that his house was due to be repossessed at the time (which is also not disputed).

70. In this respect I agree with the submissions made on behalf of the prosecution. If Nodada wished to falsely implicate acc 1 it would have been so much simpler for him to implicate acc 1 him as much as possible, instead of dileanating fine and detailed distinctions between the participation of the role players and the fact that acc no 1 ran the enterprise but never held the proverbial smoking gun.

71. Of particular relevance and significance in this regard is the independent evidence of Themba Ndlovu. At the time of his testimony, Ndlovu was the Nedbank ATM area manager in Beacon Bay in East London. In this capacity he had access to all ATM systems, and the use of Nedbank cards, at Nedbank itself or at any other teller machine.  With reference to supportive documentary evidence in his possession, he testified that a client by the name of Elmo Vuyani Sibanda held an account and card facilities with Nedbank.[31] According to certain log reports in his possession the following of significance transpired in 2010:

a. On 4 April 2010 at 12.34pm R500 was withdrawn from this account at a Nedbank ATM in Bhisho.

b. On 12 April 2010 at 10.16pm R3 000 was withdrawn from this account at a Nedbank ATM in Taylor Street, Bhisho.

c. On 14 April 2010 at 9.29pm R200 was withdrawn from this account at the Total Garage ABSA in East London.

72. It is not the evidence of this witness that acc 1 himself withdrew this cash. All he did was to place on record certain factual transactions recorded under the profile of a Nedbank account holder with the same names and identification number of acc no 1 and to record certain movements on that account according to what is reflected in contemporaneous bank records.

73. The log report on which this witness relied confirms that these transactions took place between May and July 2010. Considered in isolation, not much turns on these transactions. Banking facilities are available for use at any time of the day or night. Indeed the amount of R200 appears at least four times on page three of the log report. The amount of R3 000 appears three times. Various other amounts are reflected. Some appear to be cash withdrawals. Others may even reflect debit or stop orders. What is significant however is that out of the 107 transactions reflected in the log report, a cash withdrawal of the exact amount of R500 appears once only, at 12.34pm on 4 April 2010 from a Bhisho offsite ATM.

74. This dovetails perfectly with Nodada’s evidence that early in April 2010, acc 1 drew the sum of R500 from a Nedbank ATM in Bhisho and gave the money to Nodada in order for Nodada to fund his arrangements with acc 6. To my mind this is not, indeed cannot be a mere coincidence. Nodada said that he was present when acc 1 withdrew this money. The upshot of this evidence is that it supports Nodada’s evidence thaT acc no 1 withdrew this money in the furtherance of the criminal enterprise which he was involved in in collusion with Nodada.

75. Acc no 1’s response to this independent documentary corroboration of Nodada’s version is a bare denial. In an attempt to fortify his denial, he has accused the police, and particularly Colonel Mboniswa and Lt Col Nkosiyane of having been party to a finely tuned conspiracy with Nodada to falsely implicate him. He could not however suggest any reasons why the police would have gone to such lengths and into such detail to implicate him falsely.

76. The following are but a few of the improbable features of acc no 1’s version:

a. He claims that Nodada was his enemy to such an extent that he would never have discussed anything with him let alone sensitive matters such as murder and robbery. The magnitude and the intensity of the animosity described by acc 1 in the witness stand did not, to my mind, come across in the early stages of the trial, when Nodada testified and described his long and somewhat intimate relationship with acc 1. In essence all that was really put to Nodada was that Nodada was friends with an enemy of acc 1 and accordingly acc 1 would not have trusted Nodada. It was put to Nodada that this person was arrested while driving acc 1’s car and that acc 1 suspected that Nodada thought that he (acc 1) was instrumental in this person’s arrest, so Nodada decided to implicate acc 1 in a host of serious offences which acc 1 knew nothing of. As I have said, this is mere postulation. It is significant that it gained rapid momentum  as the trial went on.

b. As for the ATM log, acc 1 suggests that the police must have shown Nodada ATM slips which could have been left behind in his car which was seized upon his arrest.  I have some difficulty with this proposition. The transactions were effected in April 2010 both before and after Makeleni’s murder. Nodada handed himself over to the police during July 2010. The police would have had no interest in obtaining independent documentary corroboration of ATM transactions if Nodada had not told them about these. In any event, if Nodada had removed ATM slips from acc no 1’s car (this being yet another suggestion) or if he had been shown ATM slips and had been carefully coached by the police, it is unlikely that he would have made a mistake about one of the amounts drawn at Kewuti Garage, referring to it as R350 when the ATM log says R200.

c. In any event, if Nodada was so desperate to falsely implicate the accused at all costs he could have resisted or simply ignored the opportunities to present evidence favourable to the accused or evidence which has the effect of minimising their roles in some instances as opposed to the dramatization of their roles. For example, Nodada consistently maintained that acc 1 did not physically participate at the coalface in the commission of any of the offences. He furthermore limited the role of acc no 6 to the procurement of acc nos 2 and 3. Although he took acc nos 2 and 3 to the scene of the Makeleni murder for example, it was never his evidence that he knew what transpired there or who fired the fatal shot. On the contrary, he said that he did not know as he was not present. It was only when he was pressed during cross-examination that he disclosed that acc nos 2 and 3 had told him that acc no 2 fired the fatal shot.

d. It would also have been relatively easy for Nodada (who knew where the deceased victim James Duka lived) to say that he took his co-accused to that scene as well. He did not.

e. His evidence is also corroborated by the contents of statements made by acc 2, which I will deal with more fully in due course.

77. I accordingly find that the evidence of Nodada has not only been honest and reliable but also that it is fortified by the type of corroboration which I have already referred to and which assists in preventing a wrong conviction. It is indeed, the type of corroboration which emphasises the credible consistenty in the essentials of Nodada’s version. It fits in with the background evidence. It takes this court well beyond that realm of coincidence and misfortune, which must be guarded against.

ACCUSED NO. 2: NTSIKELELO MANANI (also known as “Ntsiki”)

78. Acc 2 allegedly made three statements and a pointing out after his arrest. The statements were made to Captain Buys, Brigadier Maqashalala and Magistrate Stander, in order of sequence. It was placed on record by his legal representative that acused no 2 challenged the admissibility of this evidence on the following grounds:

a. The accused was not informed of his legal rights in advance.

b. He was tortured by policemen by the names of Dastile and Hlulani, and upon the instructions of Colonel Nkosiyane, he was suffocated by police members Sityoshwana and Baartman.

c. He denies that he ever pointed out firearms to the police.

79. After a lengthy trial within a trial in the course of which acc 2 also testified, I provisionally ruled all three statements and the pointing out admissible in evidence with the provisor that my reasons for doing so (or for deviating from a provisional ruling for that matter) would be traversed in my judgment at the conclusion of the main trial. Insofar as it may be necessary to say so, I confirm the rulings I made with respect to the statements. The ruling with respect to the pointing out is reversed. These are my reasons:

80. Accused 2 testified that he was extensively assaulted by a number of policemen in the presence of the investigator (Colonel Nkosiyane) who told acc 2 that he (Nkosiyane) knew everything. These assaults took place in the offices of the organised crime unit (“OCU”) in East London immediately after he was arrested. The purpose of the assaults was to induce him to talk. Certain suggestions were put to him which were read from a wadd of documents attached to a clipboard. He was severely assaulted for over five hours and lost consciousness a few times.

81. The next day Nkosiyane reminded him about the assaults and about what the police had told him. He agreed to make a statement to Captain Buys to avoid further assaults. However, the story that he told Buys was his own invention padded at intervals with information which he had gleaned from the police.

82. Acc 2 denied that he ever made a statement to Brigadier Maqashalala. He said that when he arrived at the brigadier’s office, he (Maqashalala) was already in possession of a statement. Acc 2 was simply made to sign it.

83. With respect to Magistrate Stander, acc 2 agreed that he made this statement freely and voluntarily, in his sound and sober senses, and without undue duress.

84. With respect to the alleged pointing out, acc 2 testified that he and acc 1 were taken to Butterworth where acc no 1’s Mercedes Benz had been impounded, but neither of them pointed out anything.

 

Section 217 of the CPA

85. In terms of section 217(1) of the CPA, evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence.

86. This section must be read together with section 35(5) of the 1996 Constitution which states that evidence obtained in any manner which violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

87. In order to determine whether an alleged confession is admissible, a trial within a trial (a voir dire) is held. The fact that an accused person avers that his statement was false (as alleged by accused no 2 with respect to his statement to Buys), or that it has been made up by the police (as alleged with respect to the Maqashalala statement) does not necessarily mean that a voir dire does not have to be held.[32]

88. Only the question of admissibility is in issue at this stage of the proceedings. Whether the confession was made at all or in terms alleged by the prosecution, remains to be determined by the court when it has all the evidence before it.[33]

89. The purpose of the voir dire then is to determine the admissibility of a statement and whether it was voluntarily made.  The contents of the statement and the truth thereof, are not ordinarily considered to be relevant to the issue of admissibility. Once the statement has been proved to be admissible, the state must still prove not only that the accused is the author thereof, but that it is, for all essential purposes, the truth.  It is important to note however, that an accused may be questioned on the truth of his statement where he alleges that his confession was false and that he only made the statement as a result of coercion (as in the case of the statement to Buys).[34] The rationale underlying this exception was explained by Lord Hailsham[35] in a passage cited with approval by the then Appellate Division in S v Khuzwayo[36]. It reads as follows:

‘I can conceive of many cases in which it is of the essence of the defence case on the voir dire that the confession, whose voluntary character is in issue, is in whole or part untrue, and, it may be, contrary to the admitted fact. If the defence can succeed in establishing this or even raising a serious question about it either as a result of cross examination of the prosecution witnesses, or by evidence led by the defence itself, serious doubt can be raised as to the voluntary nature of the confession. How can it be said, counsel for the defence may wish to argue, that the defendant can have provided so much inaccurate information to his own detriment, unless he was forced to do so by some improper means? If the defence can be allowed to make that point, which seems to be a valid one, it must be open to the prosecution to cross examine upon it when it is the turn of the defence witnesses to be scrutinised.’

90. To sum up then, Khuzwayo, Talane and Lebone (referred to above and in each of which the prosecutor was permitted to cross examine on the contents of the statement) were all cases where the accused had alleged that the statement had been prescribed to him by the police and that the statement was false. In each of those cases, such an allegation was so much part and parcel of his attack upon the admissibility of his statement and so plainly relevant to the question of whether or not he was coerced or unduly influenced to make the statement, that in the interests of fairness the state had to be permitted to explore by appropriate cross examination the truth or otherwise of that particular allegation. The outcome of such cross examination was obviously highly relevant to both the accused’s credibility as a witness in the voir dire, and the central issue which was being considered in this compartmentalised trial, namely the voluntariness of the tendered statement.

91. In S v Mriba and others[37] for example, the court allowed the prosecution to cross examine the accused as to credibility by reading out his confession and comparing it with that of his co-accused. The accused had indicated that his co-accused’s confession had been read out to him by the police and that they had forced him to make a similar statement. The accused had furthermore denied any knowledge of the crime and had alleged that his confession was a mere repetition of his co-accused’s statement and of information which he had heard. The court, relying on an unreported decision of the Appelate Division[38]  held that the fact that not everything contained in the confession was alleged to have been based on what the police had read out to him, did not affect the question. It added too, and this goes without saying, that the statement of the co-accused could not be admitted to establish the truth of its contents, but merely to test the accused’s credibility in the voir dire.

92 At the end of the day the position remains that the trial court entertains a discretion in this regard, and it must consider the force exerted against the presumption of innocence and the extent of any prejudice ensuing to the accused when it exercises that discretion. The court’s decision at the conclusion of the voir dire is furthermore interlocutory and provisional. Thus the accused may lead the same evidence as he adduced during the voir dire in order to persuade the court, at a later stage, that little weight should be attached to the confession or the pointing out because of, for example, the circumstances in which it was made. It is with these guidelines in mind that I now turn to the three statements and the pointing out in question.

 

The voir dire

93. The prosecution, during a lengthy trial within a trial called the following material witnesses:

94. Lieutenant Colonel Nkosiyane (the investigating officer) testified that acc nos 1 and 2 were arrested on 4 August 2010 by Captain Hanisa in the Butterworth area whereafter they were transported to East London.  He immediately commenced an interview with acc 2 (between 4 and 5pm) on the 7^th floor of the OCU after he had explained all his rights to him. He also told him that he was being arrested for the murders of Tozama Tenge, James Duka, Beauty Sibamba and Mschiceleli Ndita as well as the attempted murder of Nosuko Ndita and the Hollywood sports book robbery.[39] He told acc 2 that these are very serious cases and that he had a right to legal representation or a lawyer provided by the State. He even had the phone number of the legal aid board in East London at his finger tips, but acc 2 did not want a lawyer and chose to make an explanation instead. When Nkosiyane realised that acc 2 was implicating himself during the course of this explanation, he immediately requested an officer from an independent unit (in this case Captain Buys from the asset forfeiture unit) to assist in recording the statement.

95. He said that these events took place outside of office hours. In his experience magistrates are too busy to assist with these types of things even during office hours so he did not even bother to try and secure one.  Buys arrived immediately and acc no 2 was farmed out to him while Nkosiyane proceeded to interview acc 1.  While acc 2 was with Buys, Nkosiyane was with acc 1 searching his home until late that night (about 11pm).

96. After acc 2 had made a statement to Buys he was detained at Fleet Sreet police station in East London.

97. On 20 August 2010 acc 2 made a second statement to Brigadier Maqashalala, who had apparently been arranged by Colonel Mboniswa who had had an interview with acc 2 in prison at acc 2’s behest.  Before he made the second statement, acc 2 was taken to the district surgeon (Dr Zondi) on the instructions of Mboniswa. The doctor completed a form J88 which reflected that the accused did not present with any visible injuries.

98. On a separate occasion, towards the end of September 2010, Nkosyane  had another interview with acc 2, as a result of one Warrant Officer Qakala having advised him that acc 2 wanted to point out some firearms. He informed him of his rights again. Acc 2 wanted to point out firearms in accused no 1’s Mercedes Benz, which was the car in which the two of them had been arrested, and which had been left at the Butterworth police pound.  According to the arresting officers, they did conduct a search of the vehicle when they arrested the accused but did not find anything. According to Nkosiyane, acc 1 confirmed that no firearms were found in his car when they were arrested but nevertheless gave his consent for the vehicle to be searched again. To this end Nkosyane accompanied acc 1 and 2 to Butterworth. There acc 2 pointed out two firearms which had been concealed in the vehicle. Nkosiyane conceded that the car had been left unlocked in an open air pound together with other motor vehicles.

99. During 2011 acc 2 made a third statement to magistrate Stander.

100. All this information was collated and submitted to the DPP who made the final decision to prosecute acc 2.

101. Col. Nkosiyane denied that he or anyone else assaulted the accused or that the accused was not advised of his rights.

102. Colonel Mboniswa is the head of the OCU in East London. He explained that there were many investigators in these cases but that he finally appointed Nkosiyane to be the lead investigator for purposes of consolidation. He confirmed the evidence of Nkosiyane in all material respects. In particular he confirmed that he had indeed been informed that acc 2 wanted to see him in King Williams Town prison. In fact, he also saw accused no 2 (who is well known to him) immediately after his arrest at the OCU offices. Indeed, it is common cause that when this happened Mboniswa greeted acc no 2 with the words: “I can smell the smell of Mantsiki” (which is acc no 2’s calling name).

103. Mboniswa testified that he responded to acc no 2’s request and visited him in prison. There he and the accused were allowed to talk in a private office. He and acc 2 go way back to 1998. Acc no 2 knows him and trusts him. According to Mboniswa, this was probably why acc 2 requested to chat to him instead of to the official investigator. Before they chatted, he asked acc no 2 whether his lawyer knew that he had invited Mboniswa to visit him. Acc 2 said there was no need for that. Mboniswa nevertheless persisted and explained acc 2’s rights to him again as a precaution in the event of acc no 2 requesting a lawyer at a later stage.  He also, once again, explained to the accused that these were serioius matters. During the course of so doing, he had no idea of what the accused was about to disclose. Indeed he informed acc no 2 that he was aware of the fact that he had already made a confession, and wondered what more the accused had to say. Acc 2 said that he wanted to ‘clear his chest’ as there were a couple of issues which he had not spoken about previously.

104. Mboniswa again reminded acc 2 of his rights, particularly the right not to incriminate himself, the right to remain silent, and the right to the presence of an attorney. Acc 2 however, persisted in talking. Mboniswa stayed and listened. It transpired that what acc 2 had to say was old hat to Mboniswa, as Mboniswa already knew about the crimes mentioned by acc no 2. So he told acc no 2 that he could share this information with someone else if he really wished to do so. Acc 2 repeated that he wanted to get these things off his chest and Mboniswa promised to send someone to relieve him of his burden. To this end he arranged for Brigadier Maqashalala (who at the time held the rank of a colonel) who was stationed at the Crime Intelligence Unit in Zwelitsha which was completely separate and distinct from the OCU. He also confirmed that he sent acc no 2 to thie district surgeon first as this was the procedure which he always followed. Mboniswa readily conceded that he had already seen the statement which acc 2 had made to Buys when he visited acc no 2 in prison. However, what acc 2 now wanted to disclose was more detailed than that which he had shared with Buys.

105. During cross-examination it was put to Mboniswa that acc 2 never summonsed him but that it was he (Mboniswa) who had approached acc 2 to assist in “nailing” acc no 1 because the police had insufficient evidence against acc 1 (indeed, all they had was the evidence of the s204 witness Nodada). Mboniswa even promised that he would arrange a “plea bargain” for acc no 2 which would result in him receiving a lesser sentence “if he became a witness”. In short, according to the instructions of acc 2, Mboniswa was taking advantage of their long standing relationship and was trying to manipulate him.

106. Mboniswa denied this and said that the police do not have the power to engage in plea bargaining. All they can do is to advise a suspect what it meant to be a s204 witness. He spontaneously added that he had also at the time received a phone call from the sister of the deceased in count 7 (Captain James Duka). She informed him that she too, had received an invitation from acc no 2 to visit him in prison. When she did so, acc no 2 had a cunning plan. His idea was to set a trap for Captain Duka’s widow (who hired acc 2 and others to assassinate Captain Duka). Acc 2’s plan was that he would engage in a conversation with the deceased’s widow which Mboniswa and Duka’s sister could secretly record or listen to. According to Mboniswa however, he was not taken by this plan as he was not amenable to the idea of setting traps.

107. Mboniswa also added that it would in any event have been pointless to try and get acc 2 to implicate acc 1 in a confession because one person’s confession cannot be used against another. Such an end can only be achieved if the person becomes a s204 witness and a s204 statement is obtained subject to the approval of the DPP. I digress to point out that when the accused testified later on in the voir dire, he tailored his evidence accordingly and no longer referred to a plea bargain, but said that Mboniswa had promised that he would be a state witness. Indeed, when the accused testified he said that he later on made a statement to Magistrate Stander (which I shall deal with presently) because Mboniswa had asked him to do so to implicate acc no 1 and in exchange he would be used as a state witness in connection with the murders of the people whom Mboniswa said had been killed by acc no 1 as the front runner. Significantly, this important aspect of acc no 2’s evidence was never put to Mboniswa for his comment.

108. Colonel Mboniswa impressed me as a witness. He was presentable. He was calm and collected. He spoke confidently and clearly, yet softly and politely. His response to questioning both during his evidence in chief and during cross-examination was logical, sensible and thorough. He struck me as a particularly intelligent and experienced member of the service.

109. Mr Hlulani testified next. At the time he was stationed in the drug section of the OCU in East London. He was part of the team responsible for the arrest of acc nos 1 and 2 and for transporting them to East London. The other members of the crew were Baartman, Sityoshwana and Dastile. During cross-examination it was put to Hlulani that he had assaulted acc 2 in the OCU offices by suffocating him and stuffing him into a safe where he lost consciousness and came to when water was poured over him. It was also put to him that Baartman and Dastile were not part of the crew who fetched acc 2 from Butterworth but that it was Hlulani, one Tiyeka, one Vumazonke and Sityoshwana. Hlulani denied this and also confirmed that he works in a different section to these people altogether and was not involved in the investigation at all. All he was asked to do was to collect the accused from Butterworth which he did, and then left.

110. Detective Warrant Officer Sityoshwana is a member of the police stationed at the OCU in East London. He confirmed that he escorted Hlulani, Baartman and Dastile to arrest acc 2 in Butterworth. He confirmed that Tiyeka and Vumazonke were not there.  When he collected acc nos 1 and 2 they had already been arrested. They travelled to East London with him and with Hlulani. He testified that when they arrived at the East London offices they took the accused to the boardroom and he then reported to Nkosiyane. He left the accused in the custody of Hlulani, Dastile and Baartman.

111. Acc no 2’s version as put to this witness was far more detailed than that put to the other witnesses. He was told that when acc 2 testified, he would describe an unused office where there were broken chairs and blood stains on the walls (in his evidence acc no 2 referred to drops of blood and a smear of blood on the wall). Sityoshwana was in this room armed with a clipboard. Nkosiyane was also there. Nkosiyane instructed acc no 2 to write on the clipboard if he did not wish to speak. Sityoshwana also suffocated him.

112. Sityoshwana’s simple response to this was that after he had escorted acc 2 to the boardroom his mandate came to an end and he left. He denied the existence of a room with broken chairs and blood stains on the walls. He did not possess a clipboard. He was not present when acc 2 was interviewed. No one was assaulted. He confirmed that he was present when the investigator conducted a pointing out at Butterworth with acc 2. He recalled acc no 2 standing near the Mercedes Benz and pointing towards two hand-guns in the vehicle. It was put to him that the two firearms were deliberately positioned on the boot of the vehicle and that he (Sityoshwana) took photos of them with his mobile phone camera. Sityoshwana denied this.

113. Detective Warrant Officer Baartman was also employed at the East London OCU at the time.  He confirmed that he collected acc nos 1 and 2 after their arrest from Butterworth and conveyed them to East London. He said that he left them both in the OCU boardroom and continued with his other tasks. He too confirmed that it was he, Hlulani, Dastile and Sityoshwana who collected the accused. He did not interview them. He does not speak isiXhosa in any event. He denied the existence of a safe in the boardroom. He bore no knowledge of an unused office with broken furniture and blood on the walls. He confirmed the evidence of his colleagues that Tiyeka and Zomazonke were not there that day. He said that the boardroom is on the third floor of the building and that Nkosiyane’s office was on the seventh floor (the top storey). It was put to him that the safe into which acc no 2 had been forced was in a corner office on the third floor. He once again denied the existence thereof. He said that he did not even know what the charges were which the accused were facing, except for the Hollywood robbery matter. He was the initial investigating officer in the Hollywood robbery matter prior to consolidation.

114. During cross-examination an even more elaborate version was put to him regarding acc no 2 having been “ill-treated” and tortured. It was put to him that he was the one who had held acc no 2 while he was tortured with “a plastic bag”. It was also put to him (and this is yet a further construction of the intial version), that Nkosiyane had told acc 2 what to say when he made a statement to Buys. He denied this and testified that acc 2 had volunteered to give a full statement. This was the sum total of what was put to Baartman on acc 2’s behalf. However, when acc 2 testified in the voir dire he added that:

a. On the very day of his arrest Baartman called the accused to his office.

b. He opened a laptop and showed the accused some images.

c. He pointed at a certain person and insisted that this was acc no 2.

d. Acc 2 denied that it was him.

e. Baartman then loosened his tie, unbuttoned his shirt and rolled up his shirt sleeves.

f. He told acc 2 that one “Fatyela” who had been in acc no 2’s company had told him the whole story.

g. He said that when acc no 2 made his confession, he should include this information. Acc no 2 agreed to do this.

h. Thereafter they went upstairs to where Mboniswa was.

i. Mboniswa told him not to give the police a hard time as they knew everything.

j. Mboniswa said he had evidence after which he produced certain documents and began to read to acc no 2 about the murder of Makeleni.

k. He then made a phone call and asked acc 2 if he was going to assist the police. Acc 2 agreed.

l. Then Baartman returned and asked him about safes and keys that were taken during the Hollywood robbery, but acc 2 said he had no knowledge of this. Baartman just shook his head.

m. Thereafter he was taken to one Mtwetwa’s office and thereafter to Buys where the first statement (which I have already referred to) was recorded.

115. In my view it is quite extraordinary that this detailed, elaborate and particularly significant description of events was never put to Baartman and Mboniswa for their comment. I have no doubt that the accused fabricated this convoluted story during the course of the trial.

116. Detective Warrant Officer Qakala testified that at some stage acc 2 (who had previously asked for and was provided with Qakala’s cell phone number) phone him and said he wanted to see him in King Williams Town prison. Acc no 2 told him about firearms that had been left in acc no 1’s car and volunteered to point them out. This was Qakala’s first time to hear about these arms. He reported this to Nkosiyane who apparently arranged for acc 2 to do a pointing out. Qakala himself also attended the pointing out. He was rather vague about what transpired there. He said that it “seemed” as if the arms were found under a mat on the driver’s side and that acc 2 had pointed them out and Nkosiyane had then retrieved them.

117. I mentioned earlier on in this judgment that it was recorded on acc no 2’s behalf that he did not point out anything. With respect to this aspect of his otherwise mutating version he has been relatively consistent, the upshot of which is that he and acc no 1 were simply taken along as witnesses to watch something taking place which had to do with firearms. This time however it was put to Qakala that acc no 2 merely witnessed two firearms being planted on the bonnet (not the boot as suggested previously) of the Mercedes Benz after which the investigator took photos.

118. Fortunately for acc no 2, the witness appeared to have no proper recollection of what had transpired on this occasion. Indeed he admitted that he could not remember.

119. Captain Buys holds the rank of a detective captain in the police. He is stationed with the Directorate for Priority Crime Investigations (“the Hawks”) as a narcotics investigator. He testified that he recorded accused no 2’s statement on 5 August 2010. He was not involved in the investigation of these matters and did not know accused no 2 from before. Indeed he had just rececently been transferred from the asset forfeiture unit to organised crime. Colonel Nkosiyane asked him to take a statement from acc no 2. He used an interpreter who was not from their offices (Cst Maja).

120. He testified that acc no 2 was brought to his office at 9.45am on 5 August 2010. The statement which he took from the accused comprises 14 pages transcribed in 12 point type with the use of 1,5 line spacing. The body of the statement (excluding the pro forma parts thereof) comprises nine pages. Buys completed the statement at 3pm (more than five hours later). He recorded in the statement, and testified with independent recollection, that the accused enjoyed at least one ten minute smoke break.

121. He had himself devised what I can only describe as a very detailed and finely tuned template or pro forma for these very purposes.  He testified that he does not (and did not on this occasion) take statements down in manuscript but types what the deponent says. His cross-examination in this regard reads as follows:

Question: Accused no 2 did not know that he was dealing with a justice of the peace.

Answer: I disagree.

Question: Upon his arrest accused no 2 was assaulted, detained in a safe or strongroom and tortured. The safe is greyish (about one metre by 60 centimetres) and made of corrugated iron. It is fitted in a wall.

Answer: He did not tell me that. It is clear from what he told me that he was not assaulted or threatened. He was relaxed. He even had a few smoke breaks.

Question: He could not tell you that he had been tortured because he was going back to the police. He had no visible injuries due to the nature of the assault.

Answer: I hear you.

Question: The statement was not read back to him.

Answer: I dispute that. I do not know what the interpreter said to him but I gained the impression that he was trustworthy. Sometimes the accused even respondend by interrupting indicating that he understands English.

Question: The accused depended solely on you to decide whether he was doing the right or the wrong thing.

Answer: I don’t agree. He seemed to be a person in his senses. He was not illiterate. I was satisfied that he understood all his rights. They were sufficiently explained. I didn’t know what offences he was facing. After I took his statement I realised it was serious. … Normally if I don’t have an official photographer I take photos of the suspects myself.

Question: Accused 2 says he had been told by Colonel Nkosiyane about all the cases that Nkosiyane had investigated. What he told you comes from Nkosiyane.

Answer: Looking at the contents of the statement, acc no 2 implicated himself in several cases, but I can’t comment on whether Nkosiyane told him what to say.

122. Buys made a favourable impression on me. He struck me as a sound, impartial, independent-minded witness who thinks out of the box. He took the trouble, during the course of his career with the police, to design his own pro forma for these types of statements, properly substituting and amplifying what is often so sadly lacking in the sometimes badly drafted roneod forms which this court has had to contend with. I quote from the statement by way of example:

‘I explain to the deponent that by making a statement to a Justice of the Peace, such statement made, could amount to a confession, implicating him in a criminal offence and that such a statement could be used against him in evidence in a court of law … He can report any irregularities to me and that, if necessary, protection against such irregularities can be provided for him…

Question: Is there anything you want to tell me at this stage?

Answer: Yes I would like to have a smoke before I begin just to calm my nerves.

NOTE:  Interview stopped at this stage (10.00) Cigarette given to deponent and interpreter takes him to a smoking zone in order to smoke. Deponent returns at 10.10 and interview continues.’

123. Furthermore, the preamble designed by Buys reflects a full and accurate explanation of an accused person’s rights in terms of section 35 of the Constitution. Notwithstanding the apparent adequacy of this, it also reflects a repetition of the warning that the deponent is not compelled to make a confession or admission which could be used in evidence against him in a court of law. The preamble also deals carefully and comprehensively with the deponent’s response to and understanding of the rights explained to him. In this regard Buys recorded that the accused had told him that he had already made a statement to the police the night before when he was arrested. In this regard the statement reads as follows:

‘They asked me questions and they wrote it down.’

124. The document also reflects the following detailed observations:

‘The deponent has no visible injuries. He has an old scar on his right side of the face and on the left. He also has several old scars on his arms.’

125. After the accused had been asked repeatedly about whether he still wished to make a statement, the following is recorded:

‘Since it appears that the deponent is in his sound and sober senses, has not been unduly influenced thereto, and freely and voluntarily wishes to make a statement, and, having elected not to consult with a legal practitioner or have one present at this time, I inform the deponent that he may now proceed to make a statement …’

126. The following is recorded upon completion of the statement:

‘On completing the statement, I read everything back to the deponent starting from page 1, interpreted by the interpreter. I also explain to the deponent to initial next to each question and explanation as an indication that he does in fact understand everything I asked and explained to him.’

127. The document then reflects that the accused is asked whether he is satisfied that that which he had stated has been noted down correctly. According to the document acc 2 confirmed that he was satisified and said that he had no complaints about the manner in which the statement had been recorded. It also states that he was satisfied with the interpreter.

128. Towards the end of the document the following is recorded:

‘Observations of Justice of the Peace: Deponent wearing a green t-shirt, black shoes and brown pants… Deponent appears calm. … Attitude of deponent (spontaneous, scared, at ease etc) … Deponent speaks freely and does not seem scared.’

129. Buys’s evidence was confirmed in all respects by the interpreter. As I have said, Buys impressed me as a conscientious and careful policeman who takes his mandate seriously. I have no hesitation in believing his evidence (confirmed by the interpreter) that he did read the statement back to the accused. I find the accused’s allegations regarding this, and in many other respects which I will deal with in due course, to be disingenuous to say the least.

130. Brigadier Maqashalala testified next. During 2010 he held the rank of a colonel and was attached to the analysis division of Crime Intelligence. At the time that he testified he was working in kwaZulu-Natal under the Directorate for Serious Crime Investigation. He obtained the second statement from accused 2. He explained that he did not know the accused from before and was not involved in the investigation of these matters. Indeed, his first acquaintance with that which is recorded in the body of the statement was when he heard it from accused 2. He also did not know about the statement made to Buys. He said that if he had known about these cases before acc 2 was brought to him, he would not have taken the statement. In his own words:

‘ … sometimes we are accused of writing our own information …’

131. He also said that it would have been unethical for him to talk to anyone investigating the cases before he took acc 2’s statement.

132. He took the statement on the seventh floor of the OCU offices. He started at 10.40am and finished almost eight hours later, at 6.05pm. The entire document consists of 37 A4 pages. The accused’s statement itself is recorded in long-hand with no paragraphing. It comprises 32 pages.

133. It was put to him, on behalf of the accused, that:

a. He had presented the accused with a pre-recorded statement, and that he had explained to the accused (in isiXhosa) that he had been sent just to make the accused sign the papers.

b. At that stage acc 2 had already appeared in court and had his own attorney.

c. His rights were not explained to him.

d. The accused was just asked to sign and nothing was ever read back to him.

e. Colonel Mboniswa had asked the accused some time before, whether he had a lawyer, upon which the accused had replied that he would “check” with the Scorpions.

134. It seems to me to be a strange coincidence that, whilst the Scorpion issue was not put to Mboniswa for his comment, Maqashala had recorded that the accused told him that he intended getting a lawyer from the Scorpions. Indeed, Maqashala recorded that when he informed the accused about his rights to legal representation, and when he told the accused that he was entitled to have an attorney present during the interview with Maqashala, the accused is recorded to have said:

‘I might use one of the Scorpions during the trial. … I understand but I want to proceed with explanation.’

135. In my view this is but one of the many illustrations that the issue of legal representation is and was not foreign to acc 2.

136. Maqashala explained that he did not make use of the services of an interpreter as his home language was also isiXhosa. The accused did not have a problem with this.

137. Maqashalala testified in fluent English. He presented as a well spoken and intelligent witness. To my mind, central to his testimony was the unchallenged evidence that acc 2 had spent a whole day with him. In this regard, the probabilities favour his version that the accused spent this time deposing to a 37 page statement, as opposed to the accused’s story, that he was merely taken there to sign these pages. Indeed,  it was only when the accused testified in the voir dire  and my difficulty regarding the eight hours spent with Maqashala was put to him, that the accused said that he only spent one and a half hours with Maqashala. In my view, this was clearly a self-servicing fabrication in the witness stand to support the accused’s version that all he did on that occasion, was to sign a pre-recorded statement.

138. According to the prosecution, acc 2 deposed to a third statement before  Stander Esq. (a senior magistrate in East London) on 3 November 2011. I digress to mention that acc 2 did not dispute the admissibility of this statement. Nor did he indicate, during the State’s case in the trial within a trial, that he intended challenging any of the facts, findings and opinions reflected in the document as a whole. Stander was nevertheless called as a witness in the trial within a trial. It is common cause that the accused had an attorney when he made a statement to Stander. In fact, the attorney signed the last page of the statement, and recorded (which is not disputed by the accused) that the accused had informed her that although he understood his rights, he nevertheless wished to proceed with making a “confession”.

139. To my mind this independent recordal on the part of the accused’s attorney, is reflective of the stance which he took during his interaction with all the voire dire prosecution witnesses whom I have already referred to. His disposition throughout is furthermore supported by the answers recorded by Stander to two crucial questions, one of them being a query as to why the accused had indicated that he wished to repeat a statement that he had made to someone else. The relevant portion of the statement goes as follows:

Question: Do you expect any benefits if you make a statement?

Answer: No, it’s just that I want all my matters to be handled and finalised so that I can have a clear heart.

Question: Why do you wish to repeat this statement?

Answer: I want to add something to the confession that I have already made … Nobody knows what I want to tell. It is something I did.

140. As I have already stated, accused 2 indicated during the State’s case that what he told Stander was the truth and that he had made this statement in compliance with the prerequisites of section 217 of the CPA. When he testified however, he did yet another volte face and said that he did not speak the thruth throughout when he spoke to Stander. In fact, he said that when he spoke to Stander he lied twice, firstly when he told Stander that no promises were made to him, and secondly, when he said that he was making the statement freely. The reason he lied, according to acc no 2, was because he was hoping at the time that Mboniswa would make him a witness. He candidly added that he had been quite prepared to lie and falsely implicate acc no 1 in exchange for being a section 204 witness.

141. The matter does not end there. Indeed, when pressed during his cross examination, accused 2 spiraled into a further version and said that everything he said to Stander came from Mboniswa and was all about what Mboniswa had planned. In a nutshell, he stated that he was quite prepared to lie about something he was never involved in, in order to implicate a person (in this case acc no 1) whom he did not know.

 

Analysis and evaluation of the evidence in the voir dire

142. As I have said, over and above the provisions of section 217(1) of the CPA, it has become increasingly apparent of late that the question of the admissibility of admissions and confessions has significant constitutional implications, the most notable being the duty to inform the accused of his rights. It is clear now that there are two separate yet potentially related enquiries that have to be carried out in determining the admissibility of a confession or admission:

a. whether the requirements of s217 or s219A (admissions) have been satisified;

b. whether, in all the circumstances, the accused had a fair trial[40].

143. To my mind, the second leg of the enquiry should, in certain circumstances, include a consideration of whether the admission of the evidence would otherwise be detrimental to the administration of justice. A court has a duty to exclude evidence that has this effect even where there is no causal connection between the constitutional infringement and the obtaining of the evidence, and even if no prejudice was caused to the accused[41].

144. I previously ruled the evidence with respect to the alleged pointing out of the firearms admissible. This was a provisional ruling. I have since had the opportunity to consider further evidence from both the prosecution and the accused.

145. Acc 2 does not in essence attack the admissibility of the evidence of the pointing out on the usual grounds pertaining to voluntariness. His version is that he and acc 1 were taken to Butterworth where firearms appeared out of nowhere which were photographed after having been placed on acc 1’s car. Although this was not put to the state witnesses during the trial within a trial, acc number one’s version during the main trial on this aspect corroborates that of acc no 2 on the fact of the pointing out.

146. The primary witness with respect to this pointing out is the chief investigator in these matters, Colonel Nkosiyane. His evidence is to some extent confirmed by Detective Warrant Officer Qakala (also part of the investigation team), who said that acc 2 pointed at the car whereafter Nkosiyane took the firearms out of the car.  According to Qakala, Nkosiyane took notes at this pointing out. This was not confirmed by Nkosiyane. Nor were these notes ever produced. After having heard all the evidence in this trial, it is clear to me (and it is not really disputed) that the leading investigator in these matters also played a leading role in the alleged pointing out.

147. It is trite in matters of this nature that investigating officers should refrain from becoming directly involved with confessions and admissions by conduct. Indeed, section 217 makes it a prerequisite that a confession must be reduced to writing in the presence of a magistrate or justice. It is custom that where an accused person has indicated a desire or a willingness to make a pointing out, an independent officer is arranged to accompany him and to conduct the proceedings. Standard documents are completed which are similar to those dealing with confessions. They make provision for odometer readings and other details to be contemporaneously and independently recorded, such as times, places, the demeanour of the subject, whether he understood what he was doing and whether he was made alive to the implications thereof. None of these entrenched guidelines and directives were complied with in these circumstances. This is borne out by the relative vagueness of the evidence surrounding the alleged pointing out.

148. To my mind, and in these particular circumstances, the fact of the pointing out is neither here nor there, and it is not necessary for me to make credibility findings either way in this regard. The admitted manner in which the investigating officer and his team dealt with this issue has the makings of unfairness and in my view is detrimental to the proper administration of justice. To allow the evidence to stand would only serve to encourage the police to take short cuts and to lower previously complied with and expected standards. I have no hesitation in the premises in reversing my previous ruling and substituting it with a ruling that all evidence which seeks to link acc no 2 with the discovery of these firearms is inadmissible.

149. The reversal of the ruling at this stage of the trial does not prejudice the accused. I say so because in the normal course of events, and in the light of the accused’s version that he did not  point anything out, the state would have been entitled in any event (as it did within the voir dire) to present the factual evidence of the pointing out, not only to test the accused’s credibility in this regard, but to demonstrate (as indeed rather hesitantly alluded to by Nkosiyane),  that the police would not have managed to discover these items without the cooperation of the accused.

150. I will now return to the triad of confessions. As I have said, acc 2 has presented somewhat of a bouquet of versions in connection with these statements. These versions (and the list is not intended to be exhaustive) are:

a. that he was not informed of his rights;

b. that he was assaulted to induce him to talk;

c. that he was assaulted by one Dastile (which accusation he later retracted) and two policemen who appear not to have been present when he was arrested;

d. that his statement to Captain Buys is a tale which he independently contrived in order to evade further assaults; alternatively,

e. that his statement to Buys reflects what the investigating officer told him to say; as a further alternative,

f. that his statement to Buys is a blend of his own false invention and what the police told him to say;

g. that the statement before Maqashala was pre-prepared and he was not the author thereof;

h. that the police needed more evidence against acc 1, which was the primary purpose of these lengthy and detailed statements;

i. that he made the statement to Stander Esq. freely and also spoke the truth; alternatively,

j. that he did not make the statement to Stander freely, and that he lied to Stander on two occasions; as a further alternative,

k. that everything he told Stander came from Mboniswa.

151. The prosecution summonsed all the witnesses either directly or indirectly fingered by acc 2 in challenging the admissibility of his statements. I have no serious criticism of their evidence. Their versions that the accused made these statements himself and that he was not fed any information dovetail throughout and are fortified by the probabilities. In the premises I confirm that the ruling which I made at the close of the trial within a trial was based on a finding that the statements which acc 2 had made comply with the provisions of section 217 of the CPA and that the State has proved this beyond a reasonable doubt. Insofar as it may be necessary, I make the following additional observations in support of this finding:

a. On a conspectus of the evidence as a whole, it is abundantly clear that accused no 2 became progressively more confused and somewhat disorientated in his enthusiasm to place an umbrella case before this court to cater for every conceivable defence regarding his alleged conduct at the time when he deposed to these statements and the elections which he is purported to have made.

b. The assaults described by the accused are shocking, extremely serious and quite frankly life threatening. It is my view that it is highly improbable (assuming they were perpetrated as described by the accused) that he would have commanded faculties (the very next day) to fabricate the detailed and comprehensive statement which Buys so carefully and pedantically recorded. Nor would he have had the presence of mind to cunningly and carefully select certain information of his own invention (mostly false), merge it with what the police had told him to say, and then produce what just happens to be a version which is substantially corroborated not only by the section 204 witness Jabu Nodada (to whom I have already referred) but a host of independent evidence.

c. Buys, to my mind, was an excellent witness who was acutely aware of his role and duties as a commissioned officer tasked with the responsibility of taking a confession of this nature with serious potential implications not only for the accused but also for the State.

d. The suggestion that Brigadier Maqashala was armed with a 37 page fait accompli which acc 2 was simply told to sign is so imaginitve and improbable as to be rejected outright, and I do so. 

e. Acc 2 was given an opportunity to phone his girlfriend and his mother which he apparently did. He could not explain why he refrained from telling them about the alleged assaults.  Nor could he explain why he did not take the magistrate into his confidence when he appeared in court for the first time on 10 August and tell him about the assaults. Significantly, his evidence is that when he appeared before the magistrate for the first time in Zwelitsha his rights were explained to him but he declined a legal aid lawyer as he knew all along that his family had a lawyer from “Scorpion”. His state of mind in this respect was corroborated by at least two prosecution witnesses in the trial within a trial.

f. In order to accept that acc 2 invented the contents of the statement to Buys, this court is constrained to find not only that Maqashala must have read the invented story told to Buys, but also that he must have added information of his own to round off the statement which Maqashala took, which not only reflects a lot more detail but which is 28 pages longer than the statement made to Buys. This begs the question why, if this were the case, the police did not fabricate all the information reflected in the second statement.

g. It is not in dispute that no one compelled or encouraged acc 2 to make the third statement to Stander. On his own version, acc no 2 was free, he had an attorney whom he had informed that he was desirous of making a “confession”, and according to one of his many versions, the statement reflected the truth. Indeed, that which Stander recorded in the preamble to the statement (which is not in dispute), accords with the probabilities that acc no 2 wanted to make a clean breast of things, and that he approached Stander as he wished to amplify his previous statements.

152. For these reasons, amongst others, I ruled these statements admissible and the persons who scribed them were recalled in the main trial to place their contents on record. I might add, that the content of these statements (which I will deal with presently), fortifies my finding not only that they were taken in compliance with the CPA, but also, that what they contain is substantially true.  The statements reveal a number of significant and interwoven facts, which not only show that acc 2 is the author of these statements, but also that what he describes in them is independently corroborated. Differently put, it is my view that acc no 2’s version, as set forth in these statements, is for all intents and purposes a relatively accurate account of what transpired when the offences he describes, were committed.

 

The first statement to Captain Buys and the second statement to Brigadier Maqashalala

153. Ex facie the statement made to Buys, accused no 2 is by no means a man who minces his words. He refers to accused no 6 in the very first sentence of the statement where he says:

‘I have got a friend of mine, Makhaya Qhwala’.

154. True to form, the first opening sentence in his statement to Maqashalala also refers to one of his co-accused, but this time accused no 3 when he says:

‘I was at Fort Beaufort when I met one Isaac Phiri, affectionately known as Jack.’

155. This, in the light of accused no 2’s version that the police wanted him to make a statement to implicate accused no 1. I have some difficulty with accepting why the police would then either coach acc no 2 or record their own statements to commence with introductions to acc nos 3 and 6 instead.

156. It does not end there. The statement to Buys describes in detail how acc no 6 gave acc no 2 the phone number of one “Jabu” (that is the witness Jabulani Nodada referred to hereinbefore) who told acc no 2 that someone had to he shot and killed. According to the statement, acc no 2 told Jabu that he would source a firearm from acc no 3 for this purpose, but acc no 3 did not have one. They then met up with Jabu who told them that they would be paid R30 000,00 to kill a man in Quzini. Jabu said that he would arrange the transport. Jabu then made a telephone call. Thereafter one “Skara” arrived on the scene in a red Toyota Corolla. Jabu drove this car to the court building. Acc nos 2 and 3 joined him. Jabu then drove them to Quzini. En route Jabu produced a firearm from his waist which he handed to acc no 3 explaining that there were nine rounds in the magazine. Acc no 3 removed the magazine and inspected the rounds. He and Jabu then chatted about their respective relationships with Skara. In particular, Jabu said that Skara was his friend.

157. At Quzini, Jabu pointed out a cream coloured flat and a wooden shack. They drove past slowly. Jabu said the target was a man who drives a grey Mitsubishi 4x4, and that this man stayed in the flat, and another man lived in the shack. Jabu said that acc nos 2 and 3 should wait for the proposed victim to come home.

158. Some time thereafter, they approached the place and noticed that the 4x4 had already arrived and that the gate was locked. This was a problem. They phoned Jabu and told him about the problem. Then acc no 3 came up with the idea that they should wait until the target needed to use the outside toilet. Acc no 3 was carrying the firearm (which had been given to him by Jabu) in a small First National Bank bag. They then sat and waited in the vicinity of the toilet. According to acc no 2, the toilet was in the corner of the premises close to the fence.

159. They waited from 8pm until 11pm. This was when Jabu phoned and said that Skara wanted the vehicle back. Jabu said he was returning the vehicle and would collect acc nos 2 and 3 “when the job was done”. Acc no 3 said that this was not a problem as his (acc no 3’s) girlfriend lived nearby. They then “waited and waited” (these words are used frequently throughout the statements of various accused persons). At ten minutes to one in the morning they called Jabu as the target had not yet surfaced. Jabu said he did not have a car but that they should walk to King Williams Town where he would meet them at the petrol station. Acc 3 told acc no 2 that they might as well do so and get some money from Jabu despite the fact that the “job” had not yet been carried out.

160. Upon arrival at the fuelling station acc no 3 asked Jabu for R1 000. Jabu said the “job” was not his and that he did not have this type of money. He said that the “job” was “for a man in Dimbaza who had a lot of businesses.” Acc no 3 accepted R200 towards a taxi fare. Jabu arranged for them to meet again early the next day. He left. He took the gun with him. Acc nos 2 and 3 hitched a ride. They managed to secure one back to Mdantsane in a pick-up truck.

161. The next day, at about 9am, acc no 2 received a call from none other than acc no 6. Acc no 6 wanted to know if the “job” had been done. Acc no 6 said that acc no 2 should report to him when the “job” was finalised as he (acc no 6) had organised it for them and wanted a cut of the payment. Acc no 3 agreed that acc no 6 was entitled to a share.

162. They arranged to meet Jabu at 6pm at the same petrol station in King Williams Town. Jabu said that he had spoken to the man who wanted the “job” done and had explained that they were struggling for transport. The man said that they could use his truck.

163. Once again they “waited and waited”. Jabu made another phone call. Thereafter a white Mercedes Benz arrived. Jabu boarded this vehicle and said that he was going to fetch the truck. Indeed, some time later Jabu arrived in a white Isuzu bakkie and flicked the lights (it is not in dispute that acc no 1 owned a white Mercedes Benz and a white Isuzu bakkie).

164. Jabu produced a wadd of cash which they were told they would get when the “job” was done. Jabu said that he (Jabu) would take R1 000 thereof (R400 for diesel for the bakkie and R600 for himself). They refuelled the truck and once again made their way out to Quzini. Jabu handed the firearm to acc no 3 once more. He dropped them close to the same house and parked far away. The 4x4 duly arrived and the proposed target entered the flat where he lived. The man who lived in the shack also went into the shack, and came out with a bucket of water to wash the 4x4. The target exited the flat. The target positioned himself behind the 4x4 and stood there talking on his cell phone. He then took some papers out of the car and went back into the flat. A woman came out of the flat. Acc no 3 said that this was their chance as the target would be alone in the flat. Acc no 3 produced the firearm from the bag, cocked it and put it back again.

165. Inside the flat, children were playing in the lounge. They told acc no 3 that their father was “in the room”. Acc no 2 stood in the dining-room next to the door while acc no 3 tried to enter the room but was met with resistance from the other side. Acc no 3 forced the door open and fired four shots. The target was “still fighting”. Acc no 3 “shot three holes into the door towards the handle”. The target was lying on the floor. The children were crying and “ran and screamed in the dining room”. Acc no 3 fired more shots into the body of the target.

166. They exited the flat. The man who had been washing the 4x4 was standing still, shocked. People from the village started arriving so acc nos 2 and 3 fled to acc 3’s girlfriend’s house. Later on they phoned Jabu to report that the “job” had been done. Jabu told them to walk towards King Williams Town where he would meet them. He collected them close to King Williams Town and they went back to the same petrol station. There he counted out R4 000 in cash. Acc no 3 argued with Jabu. He was expecting R30 000. Jabu said that he would speak to “the man” (who it transpires is accused number 1). Acc 1 would meet them at “Kewuti” Garage at “NU6 Mdantsane”. They went there and found acc 1 and the same white Mercedes Benz. Acc 1 and Jabu went into the shop. They came out and Jabu reported that acc 1 had reached his daily withdrawal limit from the bank, and had said that he would source the balance of the payment from the wife of the deceased (in other words, the target whom they had just executed) who had arranged the killing.

167. Jabu dropped them off at NU11 (a suburb in Mdantsane). Acc no 3 gave acc no 2 R1 700 of the R4 000. According to acc no 2, acc 3 kept more money for himself because he “did the job” (by implication, he pulled the trigger). When acc no 2 got home, he phoned acc no 6 (as instructed by acc no 6) and dutifully reported that the “job” had been carried out. Acc no 6 demanded his share but acc no 2 said that they had not yet been paid in full. Acc no 6 wanted money for fuel in any event.

168. Early the next morning acc no 3 arrived. They tried to phone Jabu (ostensibly about the balance of payment). He did not answer. Acc nos 2 and 3 approached accused no 6 and told him this. Acc no 6 said they must not panic. Skara would show them where Jabu stayed. That night Jabu returned the call, explaining that he did not answer his phone earlier as acc no 1 had not paid him yet. He suggested that they should approach acc 1.

169. That following Sunday, Jabu once again, did not answer his phone. Acc nos 2 and 3 approached acc no 6 and they all went to Skara who said that they needed to contact “Vido” (acc no 1) from Dimbaza as he was “the man” who wanted the “job” done. They went to acc no 1’s house but he was not present. Nor was the Mercedes Benz. Acc no 3 said that they would return later. They dropped Skara off and handed over R300 to accused no. 6 in Mdantsane.

170. The following day Jabu was still not answering his phone, so acc nos 2 and 3 went back to acc no 1’s home in a taxi. He was still not present. Acc no 3 obtained his cell phone number, phoned him, and reported that they had shot the target. It was arranged that they would meet acc no 1 at the Caltex Garage in King Williams Town. When they arrived he was there in his Mercedes Benz. They introduced themselves to acc no 1 – it appears for the first time.  Acc no 1 reported that he had given Jabu R15 000 from his personal funds as the wife of the deceased had not paid him yet. Acc no 3 told acc no 1 that Jabu only gave them R4 000. Acc no 1 paid them a further R2 000 and gave them a lift back to Mdantsane. He said that he would return with the balance from Queenstown that following Wednesday. On the Tuesday directly preceding this day, acc no 1 telephoned and said that Jabu would give them a further R5 000 from the R15 000 which he (acc no 1) had handed over to Jabu. Thereupon acc no 2 phoned Jabu, who responded this time. Jabu said that he was afraid to meet with them. He would rather hand over the money to Skara. He did. Skara paid the R5 000 over to acc nos 2 and 3 who gave him R500 in return and another R500 to acc no 6, leaving acc nos 2 and 3 with a balance of R2 000 each.

171. Acc no 3 told acc 1 that Skara had paid them R5 000 but that they were still short of the transacted payment. Acc no 1 said that they would still meet on the Wednesday as promised. On that day acc 1 paid them a further R7 000 and it was agreed that the remaining outstanding balance was R8 000. Acc no 1 promised that he would pay them this as soon as he had been paid by the deceased’s widow.

172. According to acc no 2 this all transpired during June 2010. They never received the R8 000 balance. In his own words:

‘Up until today Vido has not paid us’.

173. I digress to mention that what accused no 2 had thus far described to Buys is the murder of Mr Makeleni, for which he has already been convicted and sentenced.

174. Acc no 2 then moved on to describe another set of events which ultimately led to his arrest and that of acc no 1. He said that during the following month (that is July 2010), Vido (acc no 1) divulged that R620 000 would be delivered at the Willowvale Post Office on 3 August 2010 (apparently for pension payouts). Acc 1 had said that he was arranging to rob the money the next day and that acc 3 would participate. Acc 2 agreed to join in as well. Acc 2 phoned acc 3 who said that he was in Port Elizabeth buying firearms for “the job” and that he would be back on 18 July. Indeed on 20 July acc 3 showed him three firearms which he had purchased in Port Elizabeth: a 9mm long pistol, a 9mm short pistol and a 7,65mm pistol.

175.  Acc nos 2 and 3 asked one Asanda to participate as well as he had cars and he could drive. Asanda said that acc 1 had already approached him. Asanda and acc nos 2 and 3 went to Mdantsane to discuss this “job”. They drove in Asanda’s Audi. They phoned one Khaya (also known as Case) on the way. They arranged for Khaya to drive a car. Acc 3 then phoned acc 4 to participate in the same job. Acc no 4 agreed.

176. Acc 1 phoned acc 2 late on Tuesday, 3 August 2010 and said that Asanda would collect them the following day. Acc 2 conveyed this to acc 3 who in turn told acc 4.

177. Acc 2 contacted Khaya to meet them the following day at 5am on the freeway. Asanda arrived at 5.45am driving a Honda. They all boarded and left for King Williams Town. According to acc no 2 they drove to a garage on the way out of King Williams Town (where the “Wimpy” is situated). Acc 1 met them there driving his Mercedes Benz and they departed for Willowvale, where they arrived at 9am. They parked next to the post office. Acc 1 spoke to his girlfriend (one Nwabiso Nombola). She said the money would arrive at about midday. It did not. It transpired (according to what acc 3 later told them), that the money had been delivered the day before and that the pensioners had already been paid. It was agreed that they would postpone the job to the following month.

178. They were arrested as they were leaving Willowvale. Acc 2 was with acc 1 in his Mercedes Benz (this is common cause). Acc nos 1 and 2 were escorted from Willowvale police station to Idutywa (this is also common cause) where they met Asanda who had also been arrested.

179. In his statement to Buys, acc no 2 then proceeded to talk about the robbery at the Hollywood sports book.[42]

180. It is significant that it is acc no 2’s version that shortly before he made this statement to Buys, he had been coached by Baartman regarding what to say about Hollywood. This portion of his statement commences with the words:

‘I also want to tell you about a robbery at Hollywood in Quigney.’

181. He then proceeded to relate that in about June that year (2010) acc no 6 had asked him to help with a “job” at a place where they “play horses”. Acc no 6 duly collected him. Acc 6 was in the company of acc no 3 and acc no 5 (whose name is spelt ‘Sakhi’ in the statement recorded by Buys). Acc no 6 gave him a firearm. Acc 6 said that he had obtained information that there was a lot of money at this venue from his friend “Mister” who in turn had been told this by a security guard by the name of “Ayanda” who was working at the place.

182. According to acc 6, Ayanda would be at the “bottom gate” of the Hollywood building. He was not to be harmed. What Ayanda would do was to press a button to allow them into the building. The plan was then for acc 2 to point the firearm at another security guard.

183. On the arranged date, accused 6 parked around the corner of the venue at about 9pm (I digress to mention that the footage of the robbery which Baartman had already viewed when he ostensibly coached acc no 2, shows that the robbery was committed at around 6pm – something which Baartman would surely not have missed if he indeed told the accused what to say).

184. According to acc no 2, he and accused nos 3 and 5 went into the venue and took the guard with them as arranged. Acc no 2 then pointed the firearm at the staff and the customers and instructed them to lie down. Acc 5 ran around the counter and demanded the safe keys which were duly handed over to him. Acc no 2 then went to the other side of the venue where the toilet was. Here he found the other security guard. He escorted him back and told him to lie down with the others. Acc no 3 already had some loot and they left for where acc 6 was waiting outside.

185. They proceeded to acc no 5’s house at NU10 (Mdantsane) where they counted the money. “The money came to R28 000,00”. Acc no 2’s cut of the spoils was R4 200. The person by the name of “Mister” arrived and wanted R3 000 to give to the security guard.

186. Acc no 2’s statement to Buys ends here.

187. As I have said, this statement to Buys dovetails in significant respects with the version of the s204 witness, Jabu Nodada. I mention a few:

a. That Nodada had met acc no 6 at the Engen Garage in Bhisho and that he was in the company of acc nos 2 and 3 at the time;

b. That Nodada again met with acc nos 2 and 3 in King Williams Town where acc 3 told Nodada that he (acc no 3) had agreed with acc no 1 that they would carry out these “jobs” for payment of R15 000 per person per job.

c. That acc no 3 discussed payment with acc no 1 directly on the phone in the presence of acc no 2 and Nodada;

d. That Skada, who was also involved, is known to Nodada, to acc no 2 and to acc no 3.

e. That it was Nodada, using Skara’s car, who had transported acc nos 2 and 3 to the victim Makeleni’s place and who then parked far away.

f. That it was agreed that acc nos 2 and 3 were to be paid for Makeleni’s murder;

g. That Nodada was not present when Makeleni was assassinated;

h. That acc no 2 had told Nodada that after he had shot Makeleni, Makeleni’s small child was running around crying hysterically for his father;

i. That acc no 1’s white Mercedes Benz and his white Isuzu bakkie were vehicles which were familiar to people like Nodada, Skara and acc nos 2 and 3.

j. That acc no 2 and 3 were eventually introduced to acc 1 who started working with them directly and excluding Nodada. In this regard it must be remembered that it was Nodada’s version that he had phoned acc no 1 and had queried why acc 1 was working directly with the hitmen when, he (Nodada) had not yet been paid his R15 000 as the middleman. On that same aspect (and to the contrary), acc no 2’s statement to Buys states that when acc 1 met with acc nos 2 and 3, he told them that he had given Nodada R15 000 to pay them. To my mind, these two conflicting statements of self-interest in Nodada’s version corroborate that the statement to Buys is a recordal of acc 2’s version of the events or at least his recollection thereof. It does not reflect what Nodada recollected. Nor does it reflect what the police could possibly have sourced from Nodada before acc no 2 made the statement to Buys;

k. That Skara told acc nos 2 and 3 that acc no 1 was “the man” who wanted “the job” done.

188. A comparison of the two statements with Nodada’s testimony and evidence which either has a basis in fact or which has not been seriously disputed, reveals inter alia that:

a. Prevalent issues throughout were those of a shortage of transport, firearms and funding.

b. Payment in the sum of R25 000; alternatively, R20 000 appears for the first time in the second statement.

To my mind, if the information disclosed by acc 2 had come from the police and/or if the police had gleaned the information from Nodada, one would at least have expected things such as the quantum of the payment and the identities ascribed to the roleplayers to have been consistent throughout the statements. The registration number of Captain Duka’s motor-vehicle (which the police knew), was also incorrectly reflected in the statement to Maqashala.

189. Furthermore, the statements reflect intricate and minute detail which could not possibly have been put together by the police. I intend traversing 49 examples of this detail. The list is not exhaustive:

a. The second statement says: “We inspected the firearm. We noticed it had sufficient bullets.”

b. The information that the first attempt on Makeleni’s life was aborted and the reasons for this: because Skara had become panicky about his car which they had borrowed.

c. The second statement says: “We noticed that the gate was locked”.

d. The second statement describes the exact location of the outside toilet in relation to the rest of the property.

e. The second statement says that acc no 1’s white Isuzu bakkie had stickers and writing on the door.

f. Both Nodada and the first statement say that Nodada had asked accused no 1 to bring along a deposit of R5 000.

g. The second statement gives the following somewhat irrelevant and unnecessary detail: “In front of this homestead there was a rank for small taxis ‘amaphela’. Some were still there. We had to wait until it was quiet.”

h. The second statement says: “We saw a slender (emphasis added throughout to stress detail) man coming out of the shack in that homestead.”

i. “I noticed/saw a male person wearing a black jacket lying on the floor.”

j. “Isaac Phiri handed over the gun to Jabu informed him that the bullets are finished.” Nodada and the first statement refer to Isaac Phiri as “Jack”.

k. “We went past the person who was washing the bakkie. We greeted him.”

l. “Isaac shot the door I think about four to five times”.

m. “He (referring to Nodada) phoned someone and said Reverend we are finished. They call each other reverend.”

n. “Jabu (referring to Nodada) came back and told us that Reverend’s (referring to acc 1) daily limit at the bank is R3 000,00”. This happens to be corroborated by acc no 1’s bank statements.

o. The second statement continues to say “Isaac Phiri gave me R1 700 from R4 000 we get from Jabu”.

p. “Skara said he knows the person who has hired Jabu. He said his name is Mzi Vido.”

q. “Jabu (?) explained the complaint. He said he had given Jabu R15 000.” It is significant that Maqashalala, as the scribe of the second statement, placed a question mark after the first “Jabu”, obviously to indicate that the statement did not make sense, but that he was writing it down verbatim as acc no 2 spoke. To my mind it is simply nonsensical to suggest that the police would have recorded their own statement, inclusive of placing question marks where that which is written down does not tally with other information.

r. The second statement goes on to read: “He said that is not a problem but lets cut Jabu off. He gave us R6 000. He said we need not worry. He said it is still difficult for him to meet the victim’s wife as she is still fighting with the girlfried over the victim’s estate. They are at the Supreme Court.”

The statement then goes on to describe in detail what happened after Nodada was out of the picture. I say “out of the picture” because what is recorded thereafter could not have come from Nodada. This begs the question: If the police had pre-recorded this statement, as suggested now by acc no 2, from whence would they have obtained the factually correct; alternatively, objectively corroborated detail which I am about to traverse?

s. Dealing then with what transpired after Nodada was out of the picture, the statement says: “Vido arrived, he told us about the jobs he has. We introduced him to Makhaya. He said he has robbery jobs as well.” I digress to mention once again that Vido is acc no 1 and Makhaya is acc no 6.

t. According to the second statement, acc no 1 had said that the jobs were co-ordinated by one woman.

u. Acc no 1 showed acc nos 2 and 3 a silver-grey ford bantam bakkie with a white canopy and registration no BDD 009 EC and said the owner (apparently the target of the next “job”) possibly had shares in the golf club pub, because, according to his wife who wanted him dead, he was there all the time.

v. One day late, Nodada phoned saying that he was in Cape Town and promised to give them R5 000. He said that he was afraid to meet them as he knew that what he did was wrong.

w. Nodada gave the money to Skara who in turn, gave it to them but complained that he was having a problem with the “clutch” of his car so acc 2 gave him R500 of the money.

x. They all agreed that acc no 3 should buy firearms in Port Elizabeth from one “Lister”. Acc no 3 bought a 7,65mm and a 9mm firearm.

y. At some stage acc nos 2 and 3 did a reconnaissance of the golf club but found it to have been an unsuitable venue for an assassination.

z. They discussed venue options. The wife eventually said that if they were going to kill him at his house it would be better to stab him. In response, acc 1 said that he had a sharp instrument from China which acc nos 2 and 3 could use. Not long after this acc 2 saw acc no 3 brandishing this weapon.[43]

aa. In his second statement acc no 2 then proceeded to traverse the murder of James Duka[44] in King Williams Town. According to the statement, acc 3 knew where his house was. The plan was that one Z and acc no 3 would grab the deceased and tie him up with cables. Acc no 2 would then stab him with this sharp instrument. It turned out that they ultimately went to his house. He arrived in a car and was shot once (this is consistent with the post mortem). A red tazz emerged, loaded with young men and women. The assailants ran into the forest near the graves. Z announced that the firearm had jammed. They telephoned acc no 6 to collect them. He picked them up in his BMW. Thereafter they met acc 1 at the Caltex Garage. He promised to pay them. In the interim he gave them R2 000 as a “drink”. (R700 for acc 1, R700 for acc 2 and R600 for acc 6).

bb.  At some stage acc no 3 also told them that he had now met the woman who was co-ordinating these “jobs” himself. She said that they were supposed to get paid R45 000 (for the three of them).

cc. According to the second statement acc nos 2, 3 and 4 once again met up with acc no 1 who said he had yet another job for them. They visited three houses in Mdantsane of women who had to be killed. Acc 3 received a call from one Zelda Caraj (in the statement the sirname is spelt interchangeably with either a K or a C) who was co-ordinating these assassinations. She said that R20 000 was ready for them. Acc nos 2, 3 and 4 went to her house. Acc no 3 went in and came out “with the fish” (it is not clear what this irrelevant detail means) and told them to wait. They then saw acc no 1’s Mercedes Benz approaching. They went into Zelda’s house fearing that acc no 1 was going to “cheat” them behind their backs. Zelda tried to hand a “Shoprite” bag to acc no 1. Acc no 3 intercepted it. An argument ensued. Eventually they all boarded acc no 1’s car and parked near the “Sweet Water” area where the argument continued. According to the second statement “Isaac (acc no 3) was so furious”. Eventually they shared the R20 000, with acc no 1 getting R8 000, acc no 2 R4 000, acc no 3 R6 000, and acc no 4 R2 000.

dd. The very next day acc nos 2 and 3 went back to “work” at Mdantsane. They visited a house where a lady opened the door. She was joined by a man. Acc no 3 shot her twice. He tried to clean prints off the door with a jacket.

ee. At some stage they were introduced to one “Lungiswa”. Acc no 3 suggested that they work with her directly and cut acc no 1 out of the picture. Acc 3 went away for some time. Acc no 4 came back from a place called Peelton. Acc no 2 recruited acc no 4 because acc no 3 had disappeared and he (acc no 2) knew the houses of the two outstanding vicitims and he still had the 7,65mm firearm in his possession.

ff. To this end, it seems, acc nos 2 and 4 visited house 47 near the clinic.[45] They demanded money from an old lady in the kitchen. Acc no 4 said she was a witch. They tied her up and acc no 2 took her DVD player (which he later on alleged he had bought), a subwoofer and Phillips “twitter” speakers in a black bag. Acc 4 threatened to shoot the old woman. Acc 2 exited. He heard a shot. The children playing outside asked what was happening. When he went out of the gate he heard a second shot. Acc no 4 came running out of the old lady’s house. Once again they phoned acc no 6 to collect them, which he apparently did.

gg. At some stage they met with a “job owner” called Mister. He said that the security guard who had given them a job was panicking. Acc no 3 told acc no 2 that he (number 3) had been doing all the jobs and it was now acc no 2’s turn.

hh. “Sakhele Machosana” (the name is spelt similarly to that of acc no 5, Sakhela Magasana) approached the security guard at the Hollywood sports book.[46]

ii. In this regard acc no 2’s second statement reads as follows: “We drove the guard up the steps. I was in front followed by the guard and Sakhela”.[47]

jj. According to acc no 2’s second statement the only person standing at the time was the coloured female manageress who was receiving orders from acc no 5.

kk. Acc nos 3 and 5 collected money from her. In this regard the statement reads: “I was given the bag since I was the only armed person”.

ll. Thereafter acc nos 2, 3 and 5 jumped into the “van” (not acc no 6’s BMW as one would have expected the statement to read if it was drafted by the police), and they shared the takings at acc no 5’s friend’s place in Mdantsane. They got R4 000 each and “spared” R3 000 for the security guard.

mm. Acc no 2’s second statement then moves onto a different topic. It states that after the Hollywood sports book robbery in Quigney, acc no 1 phoned acc 2 and said that there was a “job” at Bhisho. A man wanted his wife killed.

nn. Acc nos 2 and 4 proceeded to the address which acc no 1 had given them. It happened to be 25 Hintsa Crescent (the address mentioned by Nodada in his evidence). The target was a nurse. Acc no 4 shot her four times after she alighted from a taxi. Acc no 1 paid them R2 000 and promised to give them a further R11 000 the following day. The statement reads: “We had charged him R13 000. In fact Vido had told us that Zizi has R13 000.” The next day acc no 1 phoned with bad news. The target was still alive. She was in the intensive care unit of the Cecilia Makiwane Hospital. The instructions were that they should finish her off there.

oo. The statement (in accordance with what appears to be chronological independent reflection) then reads as follows: “Days later Vido told us that the nurse is out of hospital, but he has something of his own which is urgent … He does not have money currently but he needs our help.” Apparently acc no 1 then proceeded to inform them that his house had been auctioned (this is confirmed by Nodada’s evidence). He told them that he owed R70 000 and that he could not raise the funds. Someone had bought the house and had told acc no 1 that he had to pay R150 000 to salvage it. Acc no 1 told them that he did not have that kind of money. Acc 1 said that the purchaser had to die together with his wife and son so that they could not lay their hands on his house. He named the person as Mr Dukani of house no 150, zone 2, Zwelitsha. Acc no 1 described him as an elderly person who would be driving a red “botsoso” (apparently the description for a Nissan 1400). Acc nos 2 and 4 went to see the house escorted by acc no 1.

pp. After this somewhat unexpected diversion, the statement reverts to read as follows: “The Fort Beaufort date came, 30 June 2010[48]. We had two guns, Isaac had the 7,65 and Thabiso as well. Between midnight and 1.00 o’clock in the morning, the silver grey Isuzu arrived.”

qq. According to the statement two shots were fired on that occasion. Acc no 2 found a bag with bank cards and a pocket book in the target’s car. There was R800 in R100 notes in the glove compartment. Acc no 3 exited the house carrying a money bag and acc no 5 followed with the car keys. Acc no 4 came out last. They drove off in the deceased target’s vehicle. Acc no 3 said that he had managed to get some money and two firearms. They searched the deceased’s vehicle. Acc nos 4 and 5 set the vehicle alight using “papers” as they were worried about fingerprints. Thereafter they drove for about three kilometres when they reached a security control point in a game reserve. Acc no 5 said that he would enter a false registration number for the vehicle in the register. Thereafter they continued their journey past Peddie to King Williams Town and finally to Mdantsane where they shared the loot at acc no 3’s place. They each took R1 000. Acc no 2 not only kept the firearms stolen from Fort Beaufort, but also those with which they had been armed with. In other words, he retained four arms altogether. Acc 2 also mentioned that he must have dropped the phone which acc no 5 had given him for contact purposes during the course of the robbery. Thereupon acc no 5 phoned the cell phone. It rang and then went dead.

rr. In the second statement acc no 2 then digressed once again to address acc no 1’s private job (to salvage his auctioned home).  He said that acc 1 kept on pressurising them about it. They however were reluctant because acc 1 had no money. He then said that they should carry out the Willowvale job and get money. He told them that “Randel” were investigating corruption at Willowvale post office, and that they should approach the venue, pretending to be Randel’s investigators. To this end acc no 3 had a wallet from “Scorpion” which he said he would use. It was ultimately agreed that they would approach the post office on 4 August, 2010. They (that is acc nos 2 and 3) were taken to the post office by Asanda in his Honda (presumably the same person and car which had featured before). Acc no 4 and Khaya (presumably the same Khaya mentioned before) were transported by acc 1 in his Mercedes Benz. On the way, acc no 1 bought a clip board and exam pads in Butterworth – presumably so that they could look the part of investigators. At Willowvale there were a few people. Acc no 1 phoned Nwabisa Nombola. She said they were too late. They money had been paid out the day before. They left. This time acc 2 was in acc 1’s car together with Khaya. A few kilometres later they were arrested (the rest is history).

The third statement to Magistrate Stander

190. Accused no 2 made a four page statement to Stander Esq. on 3 November 2011. In this document he admits to having “attempted” to commit murder at the Ndita homestead[49] and to the commission of the robbery at the Hollywood sports book[50].

191. When the magistrate asked him what he wished to add, he said:

‘I want to clean all my matters but am puzzled by questions asked by the Court … I want to tell where cases start and where they end. There are other murder cases I’m involved in. The person that instructed the people to be killed told me. He informed me that people came to him to be helped. He is a herbalist. People who visit him would ask him to kill their partners, but he does not have the medicine to do that. He told them the only medicine he has for those people is that they should be involved in accidents.  His plan was to hire people to shoot people who is to have accident.’

Question: ‘He told you all these things?’

Answer: ‘Yes. He hired me to be present when these things are done. But I was not alone. There was problem after people had been killed with payment of people who executed killing. They wanted more money than what was paid for “position” initially. The herbalist Vuyani Sibanda then went and told people who initially came to him that he had hired people to kill these people. He told them that if they don’t come up with more money they too would be killed by people who killed others. It took little while for them to gather money. The person who organised the hitmen on behalf of Vuyani (Jabu) panicked and put pressure on Vuyane because the hitmen wanted their money.’

Question: ‘How are you involved in these murders?’

Answer: ‘I was present when they were killed but I did not participate in the killings.’

192. Having dealt with the three statements, I will now return to sum up the evidence against accused number two in conjunction with other evidence presented by the prosecution. The information reflected in the statements with respect to counts 3 and 4 is corroborated by the evidence of David Tenge.

 

The murder of Tozama Tenge[51]

193. On 22 April 2010 David Tenge was living with his 45 year old sister Tozama (the deceased) in unit two, Mdantsane. At about 6.30pm he heard a knock at the door. The deceased opened the door. They were confronted by two black males. One of them pushed the deceased with a firearm. The other pointed a firearm at him and ordered him to lie down behind the sofa. The deceased was told to lie down next to the dining-room table. One of them hid behind the fridge. He could see the reflection of the man with the firearm in the mirror of the display cabinet. He was an old man. He was repeatedly asking the deceased where the lady of the house was. He spoke in an angry tone. The deceased told him more than once that her mother was no longer alive, whereupon he shot the deceased.

194. Tenge identified the man who shot the deceased in court as accused number three.[52] He did not observe the other man. He was certain about his dock indentification, and his opportunity to have identified accused no 3 on the scene. Indeed, he described in some detail how he watched acc 3 looking at his family photos on the wall, and how he thought that acc 3 was “dumb” and “stupid” for looking around him, allowing Tenge the opportunity to observe his face from all angles.

195. He continued to describe that after a few minutes he smelt gun powder and blood. Acc 3 moved away and exited through the door leading into the kitchen. He grabbed a panga and tried to chase them. He could not find them.

196. His sister had been shot in the side of her head with the projectile exiting through her jaw.

197. He attended an identification parade but acc no 3 was not in the line-up (this is common cause). He saw acc 3 for the first time when the accused shot his sister. He saw him again at court when the hearing in this matter commenced.

198. Acc no 2’s statement to Maqashalala is corroborated by Tenge’s evidence in the following respects:

a. The fact that there were two intruders.

b. The fact that Tenge and his sister were the only two people in the house.

c. Accused no 2’s statement says that acc no 3 pointed a firearm at the male occupant of the house. Tenge confirms that acc no 3 pointed a firearm at him.

d. According to the accused they had asked who the owner of the house was. Tenge’s states that the intruders asked who the “mother” of the house was.

e. Acc no 2’s statement says that that acc no 3 shot the deceased twice. This is corroborated by Tenge, by the post mortem report and by the police who subsequently attended the scene.

 

The murder of James Duka[53]

199. Accused no 2 confessed to the conspiracy to murder (at the very least on the basis of common purpose) of James Duka in his statement to Maqashalala. He said that they had walked to the house of the victim. He was carrying a firearm. It had been decided that Z and accused no 3 would grab the victim and tie him up with cable ties. Acc no 2 had been “assigned” to stab the victim with the sharp Chinese instrument which acc no 3 had been carrying. After the victim stopped his vehicle acc no 2 “heard one shot” (the post mortem report confirms that the deceased was shot once). They all ran away. Accused no 1 promised to pay them the following day. He gave them R2 000 which they shared (R700 each for acc nos 2 and 3 and R600 for acc no 6 who had transported them home after the murder).

 

The robbery and murder of Beauty Sibamba[54]

200. Accused no 2 is once again linked to this crime scene by virtue of what he said in his statement to Maqashala. Therein he describes how he and acc no 4 went to house 47 near the clinic after 3pm on a Sunday. He recalls that there were children playing outside. In the kitchen of the house, they came across an old lady with a light complexion. She was peeling vegetables. They demanded money from her. In the bedroom, they saw herbal medicine under a mattress. Acc no 4 said that she was a witch. Acc no 4 took a tie from the wardrobe, ordered her to sit on the bed, tied her up and gagged her with a head cloth.

201. Acc no 2 took a black bag from the top of the wardrobe into which he placed a DVD player, a sub-woofer and three Phillips speakers.

202. Acc no 4 said that he was going to kill the old lady. Acc 2 walked out. He heard a shot. The children enquired. He proceeded through the gate. He heard a second shot. Acc no 4 came out running. They ran towards Highway where they phoned acc no 6 to collect them. They reported to acc no 1 that acc no 4 had finished the job. Acc no 1 paid acc nos 2 and 4 the sum of R4 000 for the job, which they split between them. Acc no 2 kindly paid acc no 6 the sum of R500 out of his own cut.

203. Acc no 2’s statement to Maqashala is corroborated by the evidence of Siyabonga Sibamba and in particular by nuances in his version and that of Sibamba, such as that there were children playing outside, and that the deceased had been peeling vegetables when she was attacked.

204. Acc no 2’s description of the scene is also confirmed by the testimony of Cst. Hlalu. He was the first policeman to attend this tragic scene. He confirmed that he had found the deceased, whom he described as an old lady, on the bed in the bedroom. Her hands and her feet had been tied. She had been gagged with a piece of cloth.

205. As for the robbery, the deceased’s daughter, Nontembakaya, confirmed that a DVD player, a sub-woofer and speakers were missing from the scene after the deceased had been murdered. Over and above this, one Phumzile Sineko testified that during 2010 acc no 2 arrived at his house and asked him to safe keep a DVD player, a remote control and speakers for him.

 

The robbery of the Hollywood sports book[55]

206. In this respect accused no 2 implicated himself in all three his statements. In his first statement he explained how acc no 6 had telephoned him during June 2010 and had asked him to help with the “job” at Hollywood “where one plays horses”.[56]

207. Accused no 2 agreed. To this end he was collected by acc no 6. Acc nos 3 and 5 were already in the car. Acc 6 gave acc 2 a firearm. Acc no 6 said that his friend “Mister” had been told by the security guard “Ayanda”, that there was a lot of cash at this venue.[57]

208. Part of the plan was that one security official would let them in, whereafter acc no 2 was to point the firearm at the other security guard. When it was time, they parked around the corner from Hollywood. He, acc no 3 and acc no 5 entered the premises.[58] Once inside, acc no 2 pointed the firearm at the staff and at the patrons and instructed them to lie down. Acc no 5 ran around the counter and demanded the safe keys. They were handed to him. Acc no 2 then proceeded to the side of the building where the toilet was. Here he found the other security official, whom he escorted back to where the others were lying on the floor. Acc no 3 already had the loot. They left.

209. They proceeded to acc no 5’s house in Mdantsane. They counted the money. It came to R28 000. Acc no 2 received R4 200 and “Mister” wanted R3 000 to reward the security guard.

210. Acc no 2’s second statement was recorded some two weeks after the first one. The versions of the Hollywood sports book robbery dovetail in these two statements in all material respects, in particular in that:

a. Acc no 6 had arranged this “job”;

b. They had been informed that the “owner” of the job was one “Mister”;

c. They had met up with “Mister”;

d. Acc no 2 was armed with a 7,65mm firearm;

e. Acc nos 2 and 5 approached the security guard who had “given out the job”;

f. Acc no 3 followed them;

g. Acc no 2 pointed the arm at the patrons and the employees and instructed them to lie down;

h. Acc no 2 heard the second security guard in the toilet and pointing the firearm at him, ordered him to lie down with the others[59];

i. They went to NU10 in Mdantsane where they shared the money;

j. Acc no 2 also admitted in his third statement to Stander that he had “robbed in Hollywood”.

211. Acc no 2’s account of these events in his three statements is corroborated independently and in my view reliably by the evidence of the staff members of Hollywood:

212. Roxanne Barendse (“Roxi”) was a supervisor and team leader at Hollywood at the time. On 6 June 2010 during the day she observed a new customer on the premises. He was tall. She subsequently identified him as acc no 5. He was suspicious looking. He was not gambling. They closed up just before 6pm. Two men entered. The taller of the two was wearing a cap. He took her panic button.  An “elderly man” (whom she identified as acc no 3), put a knife to the throat of her colleague Claudia Zeeland (“Claudia”). Acc no 3’s hands were “all over” Claudia. Acc no 5 asked where the safe was. She escorted him to the walk-in safe which is fitted with a time delay code. Acc no 5 asked if she could open the safe. She said that she could not unless it was set on zero. She explained to acc no 5 that a siren would then be triggered which would indicate that the safe could be opened.

213. She said that while she was talking to acc no 5 the safe was on “0,2” and she prayed that if would open as she knew that her life was in danger. Eventually the siren went off and she opened the safe. She showed acc no 5 where the money box was. They took it out and returned to the office. Acc 5 asked her which keys opened the box. She showed him. He opened it. Roxi said that acc no 5 was speaking in a “nice way” and that he was not rude. By now she had three robbers standing in front of her. They grabbed the money from the box and threw it into bags. About R25 000 was taken from the business for the day, plus rental money of about between R1 400 and R1 600.

214. In summary then, she described acc no 3 as old and acc no 5 as tall. The third person, who was neither tall nor old, was the one with the “gun”. He also, according to Roxi, had an unobtrusive scar on one of his cheeks, which she was able to see at the time from a distance of about 150cm. She later identified him as acc no 2. She said that she heard acc no 2 telling the other security guard (“Tyler”) to lie down. He spoke in isiXhosa. When they left, she asked them to leave her rent money (which was with the takings) behind. Acc no 5 said that he would leave it downstairs at the door. He did not.

215. She described acc no 3 as follows:

‘He was old looking. The thing about him that caught my attraction was that he was old enough to be my dad or granddad. I couldn’t expect something like this from an old man like him. Normally younger guys do this. That’s what stood out the most … I think he might have worn a cap.’

216. She said that there was CCTV footage of the robbery which was retrieved the next day. She was present when this happened. The technician placed the footage on a disc and she handed it to the investigator. She was asked to look at certain photographs.  She identified herself and Ayanda, as well as acc nos 2, 3 and 5 on the photos in various positions. She confirmed that she had not been robbed by the accused whom she identified on any other occasion. She said that the photos were a true reflection of what had transpired and of who was present during the robbery in question. She said that even without the benefit of the camera footage, she would still have identified the accused at the lineup which she attended after the robbery. Her words were:

‘I was there. I know what I saw in front of me. It was clear and visible to my eyes.’

217. It was suggested to her in cross examination that she had seen acc no 5 just before she attended the identification parade. She rejected the suggestion. By way of amplification and quite spontaneously she stated that when she had testified at the previous uncompleted trial she implicated acc no 2, even though he was not present at this trial (which is common cause).

218. She confirmed that at the lineup she had identified acc no 5 as the “tall guy” and acc no 2 as the “one with the scar on his face”. She said that she did not point out the “old man” at the parade as he was not there (this is common cause).

219. Claudia Zeeland confirmed Roxi’s evidence in all material respects. She testified that on 6 June 2010 she was working as a clerk at the Hollywood sports book. Just before 6pm she was cashing up when she saw a tall man wearing a cap (whom she identified as acc 5) coming into the office. There were electric lights and the visibility was clear. He looked straight at their faces. He put his finger to his lips and told them to be quiet. Thereafter “an old uncle” (whom she identified as acc 3) also entered. He was wearing a cap. He approached her and put a knife against her throat.  He searched for panic buttons inside her blouse. Acc no 5 went with Roxi to the safe room. Acc no 3 asked where the second security guard was.They called for Tyler (the other security official). The first security guard (Ayanda) was in the betting area.  Tyler came out of the toilet with a “short guy” with a firearm in his hand. She and acc no 3 went back to the office. He asked for “the white bag”. She said it was on the table. Roxi came out of the safe room with acc no 5. He was shouting. He also asked for the white bag. Acc no 5 said they must lie on the floor. Acc no 3 and the “short guy” went downstairs.

220. According to Claudia, acc no 3 was with her throughout the course of the robbery. After the robbery she noticed that her handbag was open and that R600 was missing therefrom.

221. On 25 August 2010 she attended a formal lineup where she pointed out acc no 5. She confirmed that acc no 3 was not there.

222. During cross examination she was asked to approach acc no 5 in order to identify certain relatively feint facial scarring (a 2cm mark on his nose, a 2cm mark along the hairline of the left temporal region, a 1,5cm mark between the brows, a 2cm mark above the left eyebrow, and three even smaller scars about 1mm each in length across the forehead).

223. She declined the invitation to approach acc no 5, expressing fear of him. She said that during the course of the robbery she was about 2,5 metres away from him at all relevant times.[60]

224. She confirmed Roxi’s undisputed evidence that acc no 3 was not in attendance at the lineup.

225. Tyler Jele testified that on 6 June 2010 he and Ayanda were the only security guards on duty at the Hollywood sports book. It is a double storey structure with stairs leading up to the betting area. On that day acc no 5 (whom he had pointed out previously at a lineup) went in and out of the premises. He was wearing a cap as depicted in the still photos of the CCTV footage. Acc no 5 said he was waiting for other people. He had a cell phone. He drank a beer. At about 5.30pm Jele closed up. Acc no 5 was still inside but asked to be let out after Jele had closed the door. Ayanda asked to swap positions with him and go to the main entrance of the business. While he was busy closing toilet windows a man entered, pointed a firearm at him and asked for his panic button. This man forced him out of toilets. He was short and wearing a hoody. The same man took about R250 out of Jele’s wallet. He pointed out someone at the lineup whom he thought was this person.[61] An old man (whom he identified as acc no 3) was holding a knife to Claudia’s throat. He confirmed that acc no 3 was not at the lineup.

226. To my mind, the fact that Jele pointed out a different person to acc no 2 at the lineup, is an error of judgment which does not detract from what he describes of the scene, nor is it fatal to the prosecution’s case against acc no 2. In his statement to Maqashalala, acc no 2 himself says that he was the only person armed with a firearm at the robbery. This is confirmed by all the Hollywood employees, including Jele. Roxi and Claudia corroborate each other’s versions that acc 2 was wearing a hoody, and described him as the short man who approached Jele where he was at the toilets. Jele described this man in the same words. Claudia testified that Jele came out of the toilet with acc no 2 holding a firearm in his hand. This is exactly what acc no 2 said in his statements.

227. Jele testified that acc no 5 (the tall man wearing a cap) kept on going in and out and said that he was waiting for his friends. This is corroborated in acc no 2’s statement to Maqashalala, where he says that acc no 5 went to view the venue ahead of the others. In my view acc no 2’s statements (regarding his own role on the scene) are materially and reliably corroborated not only by the three eyewitnesses, but also by the still photos where he is depicted carrying out various functions which he ascribed to himself in his statements.

228. Indeed, in his statement to Maqashalala accused no 2 described in relative detail how he and his co-accused ascended the steps with the security guard Ayanda. Not only is this clearly visible from the photographs, but the Hollywood employees testified that Ayanda was present and positively identified him in the photos.

 

The murder of Mshiceleli Ndita and associated offences[62]

229. In his stament to Maqashalala, accused no 2 furnished a detailed account of what, according to him, transpired on 1 July 2010 when Mschiceleli Ndita was murdered, an attempt was made on the life of his spouse Nozuko, and the occupants of his home at Fort Beaufort were robbed of his car, cash, bank cards, cell phones and at least one firearm.

230. In brief, he explained how they arrived at Fort Beaufort on the night of 30 June 2010. Acc nos 3 and 4 were armed with firearms. Acc no 3 had the 7,65mm pistol previously mentioned.  Between midnight and 1 ‘o’ clock on the morning of 1 July 2010, the deceased’s silver-grey Isuzu arrived and parked in front of his home. Two shots were fired. Acc no 4 grabbed the deceased, assisted by acc no 5. Accused nos 3, 4 and 5 entered the house with the deceased. Whilst outside he (acc no 2) took the opportunity to help himself to bank cards, a “pocket book” reflecting certain pin numbers as well as R800 cash from the glove compartment of the deceased’s abandoned car.

231. Ultimately he and his co-perpetrators drove off in the deceased’s car. En route acc no 3 reported that he had managed to get money and two firearms. They also managed to get about five cellular phones.

232. They burnt the deceased’s car near Peddie (where it was subsequently found).

233. They drove back home in a vehicle driven by acc no 5, who furnished false information in a register when they went through a security check point at a certain game reserve. They shared their spoils at acc no 3’s home. Each person got R1000.

234. Acc no 2’s version in his statement of what had transpired at the Ndita homestead is to some extent corroborated by the deceased’s widow and his daughter Nasiphi Ndita.

235. Nasiphi Ndita, who was a 21 year old student at the University of Port Elizabeth when she testified, told this court that at about midnight on 30 June 2010, she and her family were preparing to visit East London to attend to the deceased’s cash loan business. The intention was to withdraw funds in connection with cash loans using ATM cards belonging to the deceased’s clients.[63] At some stage the deceased stepped outside. She heard screaming. Acc no 2 forced the door open from the outside, and he entered with acc nos 4 and 5.[64] They had firearms. She said that acc no 2 had a scar on the right hand side of his face.[65] Acc nos 4 and 5 were holding the deceased.[66] She asked what was happening and they said: “Can’t you see we are committing a robbery?” They took the deceased to a bedroom. She ran into the room and grabbed an axe. She woke her uncles’s child, Neliswa.[67] The robbers (and particularly acc no 5) were demanding money. She initially refused but ultimately handed the sum of R6 363 over to them from her mother’s wardrobe.[68] When they were demanding money her father, the deceased, was lying in front of the bedroom on the floor. They forced her mother to open the safe from whence ammunition was removed. At some stage acc no 5 assaulted her in the face with an open hand because she was “cheeky” in refusing to hand over the money. She said that acc no 5 was a tall man. He was wearing a woollen hat. When he assaulted her, she retaliated. Acc nos 4 and 5 then went out. Acc no 2 tried to shoot the occupants of the house but the firearm would not go off. She heard a hooter blowing outside. Acc 2 ran out. The assailants left the scene, together with their spoils, in the deceased’s car. They took with them cash, “ammunition”, bank cards and about four cell phones. Both the deceased and her mother had been injured. According to Nasiphi, her mother was shot in the stomach when she opened the door. She said that the deceased had been shot three times. He died at the scene.

236. Nasiphi Ndita attended an identification parade on 25 August 2010 where she pointed out acc nos 2 and 5. She said that although she saw the scar on acc no 2’s face at the scene and again at the lineup, it was not the scar that motivated her to point him out. She identified him because he was there when the deceased was murdered. Likewise, she did not point out acc no 5 at the parade because he was taller than the others, but because he was also on the scene. She said that the entire attack took about an hour. She made a dock identification of accused no 4.[69] She readily conceded that she had seen accused no 5 at the Fort Beaufort magistrates’ court before she pointed him out at the lineup. She said her mother however, never attended the appearances of any of the accused at the magistrates’ court.

237. Nozuko Ndita (Nasiphi’s mother) told this court that she is an educator. She corroborated Nasiphi’s evidence in all material respects. She confirmed that they usually drew the cash at the end of the month when their clients got paid.[70] She said that the deceased’s file (containing the clients’ PIN codes) was kept in his car. That night, she and the deceased had just returned from Heminways Casino (in East London) where they had won some money gambling. They were at home when acc no 2 pushed open the door. Acc nos 4 and 5 entered holding the deceased. He appeared to be unconscious. The assailants were armed with firearms. Acc no 2, who was detaining her at the door, instructed those holding the deceased to “shoot the dog at once and for it to die”. She was able to say with certainty that it was acc no 2 who said this because the scene was lit with electric lighting, and because of his close proximity to her.[71] Acc no 2 was also shorter than the other assailants.[72] She testified that she heard a shot, whereafter the deceased fell face down. One of the assailants demanded the safe keys. They took coins and empty envelopes in white money bags, about R6 000 in cash, several cell phones, her seven piece wedding ring set, a watch, necklaces, their winnings from the casino, and if she remembered correctly, the deceased’s firearm. A hooter sounded outside. They fled with the spoils in the deceased’s car. It was only after they had left that she realised that she had been shot in the stomach and that she was bleeding.[73] She was hospitalised for five days. The deceased’s burnt-out car was later discovered. Some time later, her seven piece ring set and two of her cell phones were recovered.

238. She attended an identification parade on 25 August 2010. There she pointed out acc no 2 and a tall man she mistook for accused no 5. Acc no 4 was not on the parade. During her evidence, she identified acc nos 2, 4 and 5 in the dock. She said that she did not see acc no 2 from the time of the incident until she pointed him out at the lineup. In particular, she confirmed her daughter’s evidence that she did not attend the accuseds’ appearances in the lower court. Her evidence was that she had never been to Fort Beaufort magistrates’ court. She accordingly rejected the suggestion put to her during cross-examination, that she had attended proceedings at the lower court where she had said that the accused were going to rot in jail.

239. On acc no 2’s behalf, it was put to her that she saw him before the lineup when he alighted from a car driven by Warrant Officer Baartman. She denied this. She agreed that acc no 2 has a small scar on his right cheek which she could not see from the witness box but agreed that one would be inclined to see it if one was close to him.[74]

240. It was put to her that she was at Fort Beaufort magistrates’ court with her daughter when acc no 4 appeared there for the first time on 29 August 2010. She denied this. She also disputed that she took a photo of acc no 4 before the commencement of this trial or that Warrant Officer Qakala had shown her accused no 4’s identity photo.

241. Nozuko testified in some detail about her family’s connections with accused no 1. She explained that they came to know him as a traditional healer. It happened like this: Some time ago their domestic helper was suffering from a painful leg. They heard that there was someone in Dimbaza who could help. They met up with accused number one, whom she refers to as “Vido”. He gave their helper some medication and thereafter came to treat her at their home. Accused no 1 also performed healing rituals at their home. He came to know that the deceased had a passion for motorcars. To this end he performed a special ceremony at their home to protect the deceased’s cars.

242. According to Nozuko acc no 1 became a regular visitor at their home. He visited on a weekly basis. Whenever he visited, he and the deceased studied and discussed the deceased’s cash loan business and records. She said that acc no 1 showed a particularly keen interest in this business. Her evidence was not challenged on behalf of accused no 1.

243. In his statement to Maqashala, acc no 2 said that accused no 3 had reported that he had taken the deceased’s firearm during the course of the robbery. According to prosecution witnesses the deceased’s firearm, which was entered as an exhibit at the trial, was recovered under a pile of wood or planks directly outside the shack where acc nos 3 and 4 were arrested. In my view this evidence serves to corroborate that which acc no 2 said to Maqashalala.

244. Acc no 2 also told Maqashalala that acc no 4 was present during the attack on the Ndita family. Indeed, evidence which I will deal with more fully later in this judgment confirms that acc no 4’s fingerprints were found on the packaging containing the deceased’s firearm. Once again, this evidence serves as corroboration for that which acc no 2 said to Maqashalala.

245. Acc no 2 is also linked to the Fort Beaufort scene by the evidence of one Lithemba Dyosi and one Lusanda Ncoko. Dyosi testified that he knows acc nos 2 and 4 from Unit 11, Mdantsane. At some stage acc nos 2 and 4 borrowed R50 from him. He wanted some form of security for this loan. In exchange, acc no 4 handed him a seven piece gold female ring set which the police seized from him during mid 2010. The fact of acc no 4’s possession of the rings was not disputed on his behalf. It was however recorded on his behalf that acc no 4 got the rings from acc no 2. It is not in dispute that this ring set was subsequently identified by Nozuko Ndita as her ring set which was taken from the safe during the robbery. Ncoko testified that during 2010 he bought a cell phone from acc no 4 for R300. Apparently acc no 4 claimed to have obtained the phone from acc no 2. The phone, which was alleged to have been taken during the robbery, was confiscated by the police. Once again, these facts serve as corroboration not only for what acc no 2 had said to Maqashalala, but also corroborates the evidence of the Ndita family that that acc no 2 was present during the robbery and that the unique ring set and cellular phones were taken at the time.

246. Naturally, if acc no 2’s version with respect to this evidence is reasonably possibly true, he is entitled to the benefit of the doubt. Acc no 2 testified that the rings and the phone are items which just happened to have been abandoned at house in a bag by a stranger whom he never saw again. This explanation is implausible and ridiculous. It serves to be rejected as a pathetic and dishonest attempt on acc no 2’s part to explain away his possession of spoils from the robbery.

247. It has been contended on behalf of the prosecution that all this evidence which implicates acc 2 should be considered against the background of the following which militates against his credibility:

a. He has already been convicted in the high court for the contract killing of Mr Makeleni on 14 April 2010 at Quzini Village.

b. He has previous convictions for possession of unlicenced firearms and robbery dating as far back as 1998, 1999 and 2008.[75]

c. He admitted that he borrowed a firearm from one Nkondeshe for what appears to have been purposes of self defence. He borrowed the firearm on two separate occasions during 2010. The first time was during March 2010. The second time was during May. The firearm belonged to a Mr K. Bungane and bore the serial number 505020. The prosecution successfully proved that the same firearm is linked to the murder of Makeleni (for which acc no 2 has already been convicted), the murder of James Duka and the murder of Beauty Sibamba.[76]

248. Finally, acc no 2 is independently linked to the Hollywood robbery and the Ndita crime scene in the affidavit and testimony of Sakhumzi Ngele as well as in the transcribed evidence of Pumezo Halahoyi (see below).

 

ACCUSED NO. 3: ISAAC PHIRI (also known as “Jack”)

249. With respect to accused no. 3, the prosecution sought to prove the contents of a warning statement which he allegedly made to Colonel Nkosiyane and a further statement which he allegedly made to Lieutenant Colonel Adonis. Acc 3 objected to the admissibility of these statements on the grounds that his rights were not explained to him before he made them, that he was tortured and assaulted and when he was interviewed by Nkosiyane, Nkosiyane mainly asked him questions about acc 1 and then wrote certain things down of which he (acc no 3) was not the author. At the end of the trial within a trial I ruled these statements inadmissible. I am still of the same view. It suffices to say that the prosecution in this regard failed to discharge the onus which rests on it in terms of section 217 of the CPA.

250. Having ruled these statements inadmissible, it is now necessary for me to adjudicate upon the remaining evidence against acc no 3.

251. I have already dealt with the evidence of David Tenge and his eye-witness account of his sister Tozama’s murder on 22 April 2010 at Unit 2, Mdantsane.[77]

252. According to David, the deceased was shot by acc no 3, in respect of whom he maded a dock identification at this trial. It has been submitted by the prosecution, and correctly so in my view, that David had sufficient opportunity to observe the identity of his sister’s assailant. During this trial, David described the assassin as an old man. He considered this to have been a distinctive feature of the perpetrator because in his view, crimes such as this are normally committed by young men.

253. In the light of the aforesaid, the prosecution has prevailed upon me to convict acc no 3 of Tenge’s murder based on the following evidence:

a. David’s dock identification;

b. Acc no 2’s version about acc no 3’s participation in his statements to the police and to the magistrate.

 

The dock identification

254. A formal identification parade (as opposed to an identification in court commonly known as a dock identification) is not only an effective investigative procedure but also serves an important evidential purpose in that it can provide the prosecution with evidence which is of far more persuasive value than an identification in court.[78] In S v Moti[79]  the then Supreme Court of Appeal held that identification of an accused in the witness box was suspect per se (“op sigself genome verdag”).[80]

255. I have no doubt that David Tenge is an honest young man. He impressed me as a witness. I think he had sufficient opportunity to observe the person who shot his sister. Certainly, he was able to say with positive assurance that it was an older man. His description of the experience was dramatic and touching. Having said this however, I must remind myself that it has frequently been said that the positive assurance with which an honest witness will sometimes swear to the identity of the accused person is no guarantee of the correctness of that evidence.[81]

256. The difficulty which this court encounters with a dock identification seven years subsequent to the morbid event is that so much water has already flowed under the bridge. The prosecution has contended that acc no 3’s obvious age is a unique feature in that he is visibly older than his co-accused. This distinguishing feature was also pointed out by the eyewitnesses to the Hollywood robbery.

257. I agree. There are six accused persons before me. It takes no more than a cursory glance at them to see that acc no 3 stands out like a sore thumb amongst his visibly younger co-accused. His facial features are older. He is the only one with silver-grey hair. He is 75 years old. His co-accused are in their thirties and forties. His age, in these particular circumstances, is a unique but also singular identification tool. Conversely put, a witness who can say with assurance that the assailant was an old man, may be given to the temptation (albeit bona fide) to point out the only old man amongst the six accused lined up in front of him in court.

258. It is this temptation, coupled with the power of suggestion, which this court is constrained to warn itself against when dealing with proof beyond a reasonable doubt.

259. The enormity of this difficulty is not the end of the matter however.  As was stated in S v Mdlongwa[82], there is no rule of law that a dock identification must be discounted altogether, especially where it does not stand alone.

 

The confession of a co-accused

260. As I have said, the prosecution also seeks to rely on what acc no 2 had to say about acc no 3 in his confession to Maqashalala, as true, reliable and sufficient corroboration for the dock identification to justify a conviction.

261. In this regard acc no 2 told Maqashala that he and acc no 3 went to “work” in Mdantsane where accused no 3 shot a lady twice. The prosecution contends that although section 219 of the CPA states that no confession made by one person shall be admissible as evidence against another person, section 2(2) of POCA (which states that the court may receive hearsay evidence, provided such evidence would not render the trial unfair), creates an exception to section 219. This exception, so it is argued, is supported by the provisions of section 3(1)(c)of the Law of Evidence Amendement Act 45 of 1988, which allows for the reception of hearsay whenever it is in the interests of justice to permit it. Indeed, it was held in S v Ndhlovu and others[83] that an admission, which falls within a class of hearsay, may be used against a co-accused if it satisfies particular requirements set forth in section 3(1)(c) of the Law of Evidence Amendment Act. This means that if these requirements are satisfied, acc no 2’s admission that acc no 3 was present when Ms Tenge was shot, would be admissible against acc no 3.

262. However, the ratio in Ndhlovu did not meet with universal approval. In Balkwell and another v S[84], Ponnan JA expressed strong sentiments of disquiet regarding the practice whereby section 3 of the Law of Evidence Amendment Act could be invoked to receive the admissions of his co-accused against a particular accused. The objection, said the appeal judge, was that an accused, implicated by an extra-curial statement of another, was constrained to go into legal battle without the “sword of cross-examination or the shield of the cautionary rules of evidence”, a state of affairs which can hardly conduce to a fair trial.

263. In S v Litako and others [85] the Ndhlovu principle was unequivocally rejected by Navsa and Ponnan JJA, with Leach and Petse JJA and Swain AJA concurring. In that matter the Court examined the English common law position, which states that where several persons are accused of an offence, and one of them makes a confession or admission, that statement is evidence only against the party making it. The Court recognised the potential conflicts between the interests of co-accused persons, and stated that because a co-accused could not be forced to testify, fair trial rights may be hampered. Moreover, since a co-accused often disavowed his statement (as in the case before me) and often chose not to testify, the reception of such evidence effectively nullified the impugned accused’s right to challenge the truthfulness of the co-accused in terms of section 35(3)(i) of the Constitution.

264. I am mindful of the fact that section 2(2) of POCA creates a further exception. However, it seems to me that, even if the Ndhlovu principle were to be applied, the safeguards for the accused regarding the admission of hearsay evidence set forth at paragraphs 17 and 18 of that judgment have not all been met. I have in mind particularly the safeguard which states that the accused must not be ambushed by the late or unheralded admission of hearsay evidence. In other words, it is necessary for the court, at or before the closing of the case for the prosecution, to make a finding on the admissibility of any hearsay evidence permitted. The accused should, at that stage, know the case he has to meet. To ensure that the defence is not caught unawares, it would also be appropriate for the prosecutor to announce at the outset of the trial that the prosecution intends relying on hearsay evidence. The Court should then make a finding at the end of the prosecution’s case about whether the hearsay evidence is to be admitted or excluded.[86] In this regard Cameron JA said the following:

‘An accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial nor in argument, still less in the court’s judgment, nor on appeal. The prosecution before closing its case must clearly signal its intention to invoke the provisions of section 3 of the Law of Evidence Amendment Act 45 of 1988 and, before the state closes its case, the trial judge must rule on admissibility so that the accused can appreciate the full evidentiary ambit he or she faces.’

265. In this respect I am alive to the difficulties facing a prosecutor who, at the commencement of the trial, does not yet know which evidence is going to be ruled admissible. However, in the matter before me, when the statements made by accused no 2 were ruled admissible, it may well have been incumbent on the prosecution to indicate that it also intended relying on what acc no 2 had to say about his co-accused in those statements. Even if I am not correct on this aspect, I am still not satisfied that the law and the cases which follow, are at all clear on this point. None of the cases which I have referred to deal specifically with the situation where incriminating information against a co-accused set forth in a confession is tendered as persuasive and reliable evidence against that co-accused. To some extent, I am alive to the purpose of POCA’s reliance on hearsay evidence (in particularly difficult organised crime scenarios) in a situation where the deponent to the statement is no longer available for cross-examination. This however, ought to be distinguished from the scenario where the confession made by a co-accused includes damning evidence with respect to the accused against whom it is tendered.

266. In my view, if POCA legislation was intended to provide for the uncorroborated confession of one accused to be accepted against another as the sole justification for the conviction of the latter, section 2(2) of the Act would have catered for such a scenario in no uncertain terms.[87] In any event, and even if I were to find that which acc no 2 said in his statement to Maqashalala about acc no 3 admissible against accused no 3, I am of the view that very little, if any, weight can be attached to it. I say this after having carefully examined the three lengthy statements which acc no 2 deposed to. In my view, acc no 2, whilst implicating himself in the commission of a number of offences, has not always been candid or clear  regarding the extent of his participation and that of others.  For example, according to both Nozuko and Nasiphi Ndita, accused no 2 was in their home and was a primary roleplayer when they were attacked and robbed and the deceased was murdered.[88] Indeed, he was the one who forced entry into their home. He was the last one to leave. He tried to shoot them. He was face to face with Nozuko when he held her and uttered the words “shoot the dog at once and for it to die”. These independent eye-witnesses had no motive to falsely implicate acc no 2 or to implicate him in substitution of another roleplayer. Nor, as I have already found, were they mistaken. On the other hand, acc no 2 in his statement to Maqashalala, conveniently places himself outside the house and takes ownership of a far lesser degree of participation, attributing the major roles to acc nos 3, 4 and 5 instead.

267. Section 35(5) of the Constitution states that any evidence obtained in a manner that violates any right of an accused person in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. In this respect I agree with the dictum in Ferreira v Levin NO[89] where it is stated that fairness remains the ultimate benchmark. What is fair should be assessed in the light of the circumstances of each particular case. To my mind, to accept an extra-curial, potentially fatal statement made by acc no 2 as reliable evidence against acc no 3 (when acc no 2 has not repeated the statement on oath and denies both that he is the author thereof and that it is true) as corroboration for a dock identification in order to qualify as proof beyond reasonable doubt, would not meet the standard of fairness referred to in section 35(5) of the Constitution and the qualification set forth in section 2(2) of POCA. In the premises, it goes without saying that the dock identification standing alone does not pass muster as proof beyond reasonable doubt. Although I suspect that acc no 3 was involved to the extent described by David Tenge, I am constrained, due to the absence of adequate proof, to afford him the benefit of the doubt with respect to counts 4, 5 and 6.

268. I now turn to the conspiracy to murder and the murder of James Duka at 13 Frere Street, King Williams Town on 15 May 2010.

269. According to the evidence of Jabu Nodada, acc no 1 discussed certain murder and robbery “jobs” with him. Acc no 1 told him that he would arrange acc nos 2 and 3 to carry out the jobs. The terms of the jobs were to:

a. assassinate Makeleni[90];

b. assassinate James Duka[91];

c. rob Mshiceleli Ndita[92];

d. assassinate a woman at 25 Hintsa Crescent in Bhisho.

270. I have traversed Nodada’s evidence in detail and do not intend repeating it, save to confirm that he implicates acc no 3 in Duka’s murder to the following extent:

a. He (Nodada) discussed payment with acc nos 2 and 3 to carry out the “jobs” which I have just listed.

b. During April 2010 he was present when acc no 3 spoke to acc no 1 telephonically and they agreed to payment of R15 000 per job.

271. Apart from this, there is no direct or indirect evidence before me to suggest that acc no 3 participated in the actual murder. To my mind, and despite the doctrine of common purpose, the discussion of payment for certain jobs in these circumstances, at best amounts to conspiracy. The prosecution has also conceded, correctly in my view, that there is no evidence against acc no 3 with respect to counts 9 and 10.[93]

272. I now turn to the robbery at Hollywood sports book on 6 June 2010.[94] Contrary to what I have just said with respect to the other counts, the evidence against acc no 3 with respect to the Hollywood robbery is overwhelmingly strong, persuasive and reliable. In this regard it is virtually impossible for accused no 3 to ignore the finger of suspicion pointing directly at him in the CCTV footage captured in the still photos before me. One of the photos clearly depicts him walking up the stairs behind the security guard Ayanda, and holding onto Ayanda’s arm. The time captured on that photograph is 17h40 on 6 June 2010. This time dovetails perfectly with the evidence of the independent eye-witnesses. Ten minutes later, he is again clearly depicted in the cash hall of Hollywood sports book, this time with acc nos 2 and 5.

273. Tyler Jele described accused no 3 as a person of age.[95] Roxi Barendse referred to him as “the old man wearing a cap” who put a knife to Claudia’s throat. Claudia confirmed this. She described accused no 3 as the “old uncle” who held a knife to her throat and was with her all the time.

274. At the time of the commission of these offences, accused no 1 was 42, accused no 2 was 33, accused no 3 was 69, accused no 4 was 27, accused no 5 was 29 and accused no 6 was 34 years old. Acc no 3 is accordingly substantially older than his co-accused and he looks the part, both in the photos and in this court.

275. The witnesses are ad idem that he was not at the identification parade. This is common cause. All the witnesses pointed him out in court. I am satisfied however, that even if he was not pointed out in court, the evidence describing him and what he did in detail was reliably and accurately captured in the camera footage reflected in the photos. This on its own, in my view constitutes proof beyond reasonable doubt that acc no 3 actively participated in the commission of this offence. The evidence of the eyewitnesses and the footage reflected in the photos is also corroborated by the description of these events and their sequence which acc no 2 gave in his statement.

276. Acc no 3 has also been charged with robbery, murder, attempted murder and the unlawful possession of a firearm/s and ammunition with regard to what transpired at the Ndita homestead in Fort Beaufort on 1 July 2010.[96]

277. In this regard the evidence is that acc nos 3 and 4 were arrested together at a shack in George on 27 August 2010. Directly outside this structure the police found Mschiceleli Ndita’s firearm which was stolen during the robbery.

278. In view of the above, the evidence that the deceased’s firearm was hidden outside the shack where acc nos 3 and 4 were arrested, accordingly does not stand in isolation. I will deal more fully with the transcript of the evidence of one  Halahoyi’s which at the very least places acc no 3 en route to and back from the Ndita homestead on the night in question.

279. What is more, on 20 July 2010, before acc no 3 was arrested and Ndita’s firearm was seized, acc no 5 deposed to an affidavit. It is his version at this trial that what is reflected in this affidavit is the truth.

 

The affidavit and testimony of Sakhele Magasana (accused no 5)

280. Accused no 5 stated in this affidavit that on Wednesday 30 June 2010 (the day before the incidents at the Ndita homestead) at about 6pm he was at his “cousin’s” place (ostensibly the same person whom Halahoyi referred to in his previous testimony as acc no 5’s girlfriend) when he received a call from his friend, acc no 2. He was constrained to return the call and to this end used his cousin’s phone as he did not have airtime. Acc no 2, well aware of the fact that acc no 5 often used his cousin’s motor-vehicle, told acc no 5 to keep the phone at hand as acc no 2 was going to be in need of transport. Acc no 5 told acc no 2 that he did not have petrol. Acc no 2 told acc no 5 to approach a certain lady in Mdantsane who would give him R150 for petrol. Acc 5 collected the money and spent R130 on fuel and R12 on airtime. Thereafter he phoned acc no 2 who instructed him to drive towards Alice. He did so. In Alice he bought more airtime and phoned acc no 2 again. Acc 2 instructed him to wait. He waited watching soccer at a local tavern. At about midnight acc 2 phoned him and instructed him to travel towards Fort Beaufort and take the Peddie offramp where he would find “them”. He obeyed. After having taken the Peddie offramp, he travelled for some time. Acc 2 phoned him again and told him to carry on driving. He drove past a car which had a “small fire” inside. He thought the occupant was lighting a cigarette. About one kilometre from that point he met acc no 2, a person by the name of “Jack”, acc no 4 (referred to as “Chicco”) and a fourth unknown person. Acc 2 was carrying a bag. Acc 4 was carrying a plastic “Spar” bag. He later saw that the bag contained bank cards. They boarded his cousin’s vehicle. He wanted to turn back towards Alice but was instructed to continue along the gravel road towards Peddie. After some time he came across a boom manned by a security guard. He stopped. His passengers were panicking. The guard presented him with a book and instructed him to write down his name and the particulars of the car. He did not write down the correct particulars of the car. He also gave a false name. They drove for some distance until they reached the tarr road bordering the Fish River on the other side of Peddie. Thereafter he drove to Mdantsane via King Williams Town. At Mdantsane at NU11 (Jack’s place) he was given R1 000. He complained and was told that he would get more money the following day. He drove back to Beacon Bay where he slept. When he awoke, he tried to phone acc no 2 but in vain. Eventually Jack phoned him and said that acc no 2 should be contacted so that Jack and acc no 2 could give acc no 5 R500 each to buy new shocks for the vehicle as he had been complaining about the shocks when they were travelling on the gravel road earlier.

281. Acc no 5 concluded his affidavit by saying that he did not know where acc no 2 and the others were coming from when he collected them. In particular, he was not told that they had killed someone. Had he known this, he would not have associated with them.

282. It was apparently on the basis of this tale that the police initially released acc no 5.

283. In a later statement to one Captain Alexander (which I shall deal with fully in due course) accused no 5 referred  to “Jack” by the same name as that of accused no 3, that is, Isaac Phiri. Acc no 3 initially at this trial denied that he was also known as Jack. However, there have been so many instances during the trial where acc no 3 was credibly associated with this name, that I reject this denial. I accept that whenever acc no 5 referred to the person “Jack” in his affidavit and in his statement to Alexander, he was indeed referring to acc no 3, despite his deliberate attempts to now distance himself from acc no 3.

284. In my view then, the circumstantial evidence of the finding of the deceased’s firearm where acc nos 3 and 4 were arrested, corroborated by Nodada’s evidence (that acc no 1 had said that he would arrange with acc nos 2 and 3 to do the Ndita robbery “job”), corroborated by the evidence of Halahoyi (see below) as to what transpired and what was said that night (with acc no 3 having been present throughout), and further corroborated by accused no 5’s affidavit and his testimony before me, is sufficient for the inference to be drawn that acc no 3 was party to the planning of the robbery and participated therein.[97] It is furthermore significant that the statement which acc no 5 made to the police (see below) dovetails in several respects with Halahoyi’s evidence, particularly with respect to acc no 3’s presence both before and after the attack on the Ndita family. I will deal more fully with the application of the doctrine of common purpose with respect to the murder and attempted murder charges, under a separate heading.

285. Acc no 3 is also independently linked to the Hollywood robbery by by the witness Sakhumzi Ngele, whose position is traversed hereinbelow.

 

ACCUSED NO. 4: THABISO  MINI (also known as “Chicco”)

286. The prosecution sought to prove a warning statement which acc no 4 allegedly made to Colonel Nkosiyane as well as a statement made to Colonel Kwinana. The admissibility of these statements was challenged on the following grounds:

a. That the accused was assaulted in George at the time of his arrest;

b. That his rights were not explained to him;

c. That he was again assaulted and forced to sign a pre-recorded warning statement which was not read back to him;

d. That he did not make the statement to Colonel Kwinana freely and voluntarily.

287. At the end of the trial within a trial I ruled that the statements were inadmissible against the accused. I persist with this view. The prosecution has simply failed to discharge the onus which it carries to prove the admissibility of these statements beyond a reasonable doubt.

288. The prosecution has candidly conceded that there is insufficient evidence against acc no 4 for convictions to follow on counts 1, 11, 12, 13, 14 and 15. I agree. In order to press for convictions on counts 11 to 15, the prosecution would be constrained to rely solely on the uncorroborated confessions of acc no 2. In the light of what I have said before with respect to reliance on hearsay in terms of POCA and the application of this to confessions, such reliance would not, in my view, be sufficient to discharge the onus.

289. I now turn to counts 20, 21, 22, 23 and 24.[98]

290. In this regard the prosecution relies in the main on the testimony of Nozuko and Nasiphi Ndita.  I have already traversed their evidence in detail and will only emphasise  that which is pertinent to the case against acc no 4.

291. According to Nasiphi, acc nos 2, 4 and 5 entered their home. Accused nos 4 and 5 were carrying her injured father between them. They demanded money which she eventually gave to them. They were armed with firearms. They fled the scene with their spoils in the deceased’s car.[99]

292. Her mother, Nozuko, corroborated her evidence in all material respects, and particularly with regard to acc nos 4 and 5 having entered her home carrying the deceased between them. Both these eye-witnesses made a dock identification of acc no 4 in court. As I have said, it is common cause that he was not at the identification parade which they attended.

293. The Ndita women impressed me as witnesses. They did not embellish their evidence. During their testimony it was evident that they were experiencing very vivid recollections of what had transpired that night.  Having said this, and as I have mentioned before in this judgment, this court cannot rely on a dock identification standing alone for a conviction.  Reliable corroboration is required.

294. In my view, such corroboration presents itself in the evidence of Lithemba Dyosi, which I have already referred to. In particular, Dyosi told this court that he also lived at NU11 Mdantsane. He knew both acc nos 2 and 4 from that area. He was the one to whom acc no 4 ultimately gave Nozuko Ndita’s unique seven piece ring set as security for a loan.

 

Ndita’s firearm

295. Further corroboration in respect of these charges may be found in the evidence of Warrant Officer Qakala who arrested accused nos 3 and 4 in George on 27 August 2010. Qakala was working for the East London Organised Crime Unit at the time. According to him, his colleagues conducted a thorough search of the house where the accused were arrested, but found nothing. As a result of information passed on to him, they recovered a firearm in a plastic bag hidden under a pile of firewood directly in front of the shack where they arrested the accused. He said that both accused were present when the firearm was recovered.[100] Both accused were detained in George. On the following day, the firearm and its packaging were taken to the criminal record centre in George for forensic analysis.

296. Warrant Officer Snyman from this record centre deposed to an affidavit in terms of section 212 of the CPO, stating that he  received the following exhibits from Warrant Officer Qakala on 17 August 2010 at 2pm:

a. An FEG Budapest 9mm pistol with a magazine and six live rounds;

b. One black plastic bag;

c. Two “Shoprite” pamphlets.

The fingerprints

297. He identified and developed a total of 17 fingerprints which he had lifted from the pamphlets and the bag. Prints were not found on the firearm itself. He also received a set of finger and palm prints for one Thabiso Mini.[101] On 31 August 2010 he compared them with the prints which he had lifted from the bag and from the pamphlets and found that:

a. Thabiso Mini’s left and right palm prints and his right thumb print were on the pamphlets;

b. Thabiso Mini’s right thumb print, left thumb print, left index finger print and left middle finger print were all on the black plastic bag.

298. It is not in dispute that the firearm which the police found when they arrested acc nos 3 and 4 was licenced to the deceased, Mschiceleli Ndita.[102] His widow confirmed that various items were removed from their safe, and that after the robbery, his firearm was no longer there.

299. During the trial before me, both acc nos 3 and 4 initially refused to have their fingerprints re-taken for comparison purposes. When this was ultimately achieved, a court chart was prepared in order for the prosecution to conclusively prove that the fingerprints which Warrant Officer Snyman had received and found on the pamphlets and the bag, belonged to none other than acc no 4.

300. To this end Captain Raffie from the East London criminal record centre who had prepared the court chart, painstakingly and thoroughly explained how this conclusion was arrived at. Indeed, according to him there were at least eight points of similarity between one of the prints lifted from the plastic bag, and acc no 4’s left middle finger, seven points being sufficient for court purposes in criminal matters. Insofar as it may be necessary to mention, he concluded his evidence with the legally accepted statement that no two persons have the same fingerprints.

301. His forensic expertise and conclusions were not challenged, and the facts, findings and opinions reflected in the affidavit of Warrant Officer Snyman were duly admitted.

302. During the trial before me, acc no 4 tried to explain the presence of his fingerprints on the black bag in the following words:

‘If I remember well, Mr Qakala at the stage he took fingerprints on the table where he was taking these fingerprints there was a plastic on it, when one takes put his thumb on the print pad and Mr Qakala would then take my thumb and put them on the plastic bag. Again in that shack where I was arrested there is a plastic bag that was used to suffocate me, I think those plastics, my fingerprints were on one of those plastic bags because I tried to grab hold of the plastic bag when they were suffocating me with it.’

303. This explanation was not tendered at the previous uncompleted trial. Nor was it put to Qakala when he testified at the present trial. Nor was it put to any of the witnesses who testified about what had transpired during the course of acc no 4’s arrest. In my view it is nothing more than a fanciful fabrication by acc no 4 in the witness box in a feeble attempt to explain the presence of his fingerprints on the bag which was found at the place where he was arrested, with the deceased’s firearm in it.

304. I agree with the prosecution. If the police wished to falsely implicate or frame accused no 4 for the attack on the Ndita family, it would have been far easier for them to say that the firearm was either found in his physical possession or in the room in which he had been sleeping, or at the very least that his fingerprints were found on the weapon itself and not on the wrapping and some odd fliers. On this point, acc no 4 made no effort to explain the presence of his thumb and palm prints on these fliers which were with the firearm.

305. The presence of accused no 4 in the company of acc nos 2, 3 and 5 on the way back from Fort Beaufort during the early hours of the morning in question, was alluded to when the witness Pumeza Halahoyi testified at the previous trial (see below). This was confirmed by acc no 5 in the affidavit he deposed to before he was initially released and which he still maintains reflected the truth. According to what acc no 2 said in his statement to Maqashalala, accused no 4 was armed with a 7,65mm firearm.  He entered the Ndita homestead and he torched their car afterwards.  Acc no 5, in a statement made to one Cpt Alexander which I shall deal with in more detail presently, told Alexander that on the night of the attack on the Ndita’s, he, acc 3 and Halahoyi drove to Fort Beaufort in his girlfriend’s car.[103]  Acc nos 2 and 4 had to hike to the scene because they carried firearms and he did not want these weapons in his girlfriend’s car. When they arrived at the scene he initially wanted to abort the mission as acc nos 2 and 4 had got themselves drunk. They waited for Ndita (the deceased) to appear.  At about midnight acc nos 2 and 4 took it upon themselves to go and lie under the deceased’s car. When the deceased came out of the house acc nos 2 and 4 jumped the gun and grabbed him. Once inside the house, acc no 4 shot the deceased seven times, including once in the head.[104] Accused no 4 participated in torching the deceased’s car afterwards.

306. It is contended on behalf of the prosecution, that what acc nos 2 and 5 had to say in their confessions about acc no 4 should be taken into account against acc no 4 for the following reasons:

a. POCA allows for the admission of hearsay evidence;

b. The Nditas gave direct and damning evidence implicating acc no 4.

c. It is tendered as corroboration for their evidence and their dock identification as well as other independent and reliable circumstantial evidence implicating accused no 4, such as the evidence of Halahoyi, the undisputed evidence that acc no 4 was, after the robbery, in possession of Ms Ndita’s seven piece ring set, and the undisputed evidence that the deceased’s firearm was found at the place where acc no 4 was arrested, wrapped in a black bag and fliers which bore acc no 4’s fingerprints.

307. In my view, this independent and reliable circumstantial evidence has substantially reduced the risks ordinarily associated with adock identification. Once this risk is reduced, the reliability of the direct evidence tendered by the Nditas against acc no 4 is no longer a material issue. The prosecution may well be correct in its contention that it is in circumstances such as these, that some weight ought to be attached to what is reflected in the statements of acc no 4’s co-accused. Having said that, I am satisfied that the balance of the evidence and the weight thereof militates so strongly against accused no 4, that he stands to be convicted without the benefit of what is reflected in the statements of his co-accused.  This is particularly so in the light of the fact that accused no 4 has not emerged from this trial unscathed.  He has shown himself to have been an appalling witness, prone to flighty, fanciful and improbable tales contrived in the witness box.

ACCUSED NO. 5: SAKHELA MAGASANA

308. Accused no 5 is the nephew of Colonel Mboniswa from the OCU in East London. He was first arrested on 19 July 2010, after his uncle had contacted him. The very next day he deposed to an affidavit which was recorded by Detective Warrant Officer Qakala. It is accused no 5’s version at this trial that that which is reflected in the affidavit is the truth. I have already dealt with the contents of the affidavit.[105]

309. As I have said, the police, apparently satisfied that this somewhat fanciful tale was sufficiently exculpatory, and probably also because they were dealing with the nephew of the highest ranking official at their unit, released the accused.

310. His freedom was short-lived. He was re-arrested on 22 August 2010. Two days later he deposed to a statement to one Captain Alexander, the admissibility of which was disputed in a trial within a trial on the following grounds:

a. That his Constitutional rights were not explained to him;

b. That he was not given access to his attorney;

c. That he was not the author of the statement.[106]

311. At the end of the trial within a trial I ruled that the statement was admissible as evidence. I persist with this ruling. My reasons are as follows:

312. There is before me, a plethora of reliable evidence that acc no 5’s rights were explained to him. Not only was this the testimony of all the police witnesses who dealt with him, but a “Notice of Rights” was duly completed by Detective Warrant Officer Baartman and was signed by acc no 5 at 1.40pm on the afternoon of his arrest.[107]

313. This trial commenced more than a year ago. I have carefully listened to and observed all the accused before me during the protracted sittings of this court. Acc no 5 strikes me as a sophisticated and intelligent person. Indeed, the prosecution witnesses who testified about him (including the hostages in the Hollywood robbery) without exception described him as a well spoken and smartly dressed young man. His uncle is a high ranking officer of the law. In this context, I am satisfied not only that his rights were explained to him, but, with due regard to his background and his social setting, such an explanation would not have informed acc no 5 of something which he was not in any event, familiar with. He knows his rights today. He knew them then.

314. Likewise, I am of the view that the police would have been particularly sensitive to his requests. If he had asked to have access to an attorney, it is improbable that such a request would have been denied or ignored.  After all, he is the colonel’s nephew. His second arrest took place in the presence of his aunt who testified on his behalf.  She too, struck me as a confident, intelligent, sophisticated and particularly determined woman. To my mind, the probabilities are that if acc no 5 wanted an attorney at the time or at any time, she would not have hesitated to make the necessary arrangements for him.

315. That however, is not the end of the matter. In order for the prosecution to place any reliance on this statement as evidence against the accused, it must not only prove that he is the author thereof, but that the information set forth in the statement is corroborated by other independent and reliable evidence. This is particularly necessary where an accused person implicates himself in the commission of offences or makes admissions against his own interest.

 

The statement recorded by Captain Alexander

316. At the time that the statement was taken, Cpt. Alexander was working at the Fleet Street police station in East London, quiet independently from the team investigating these matters. Indeed, he was so unfamiliar with the investigating team that he could not even recall who had contacted him to take acc no 5’s statement. What he was able to recall when he testified was that acc no 5 was brought to his office. By then he had already arranged an interpreter, but it turned out that acc no 5 (whose mother tongue is isiXhosa) preferred to speak in English. They accordingly spoke to each other in English with the mutual understanding that the interpreter would remain and assist whenever called upon to do so.

317. Alexander locked the door. He took the phone off the hook. He explained to me that he is somewhat pedantic when asked to take statements from suspects. He finds it time consuming. It interferes with his regular duties. As a matter of course he over-warns subjects in the hope that they might have a change of heart and decide against making a statement. He encourages the presence of an attorney. He told acc no 5 that he was in the position to telephone the legal aid office there and then to source an attorney at state expense for the accused if he so desired. In fact, his office was right next to the legal aid office. They could even have walked there if necessary.

318. It was put to Alexander on acc no 5’s behalf that Alexander had already completed the pro-forma standard form which accompanies these statements by the time acc no 5 arrived. He rejected this. I have no reason to disbelieve him. The suggestion is, in any event, highly unlikely. Under “observations” the following is recorded:

‘No injuries noted, only old scars. Photos taken’ (emphasis added)

319. It is common cause that Alexander and acc no 5 did not know each other from before. It is common cause that acc no 5 indeed has old scars. It would, in my view, have been impossible for Alexander to record such accurate information before he met with the accused.

320. To my mind the prosecution has discharged the onus of proving that the statement met with the requirements of section 217 of the CPA. In order to deal with the accused’s further averment that he was not the author of the statement, but that it was the product of a contemporaneous telephonic discussion which Alexander was having with Baartman, it is necessary to consider the contents of this six page statement which took Alexander roughly two hours to record.

 

The Hollywood story

321. The statement commences with a detailed description of the events which took place when the Hollywood sports book was robbed. It dovetails in most respects not only with the circumstantial and identification evidence of the eyewitnesses, but also with acc no 2’s sequential explanation of what had transpired. It is also materially corroborated by the CCTV still photos.It also accounts for what transpired before and after the robbery and fills in the gaps where acc no 2’s statement is lacking in detail.

322. To my mind this on its own negates acc no 5’s accusation that what is reflected in the statement comes from the police. Rather, it appears to me to be very much the product of acc no 5’s independent recollection. I mention but a few examples by way of illustration:

a. Acc no 5 mentions six suspects: himself, acc no 2, acc no 3, acc no 6, one “Sakkie” and a person called “Mister” who told them that Ayanda[108] had tipped him off that a lot of cash was being held on the premises.

b. It was part of acc no 5’s “job” to do a reconnaissance exercise of the venue which he did while he was drinking a “Savannah”.[109]

c. Indeed, acc no 5 was sufficiently prudent to notice the CCTV camera. He reported its presence to the others. They told him that the “recorder” would be taken during the robbery.  This information could only have come from acc no 5’s own independent recollection of what he himself had experienced, particularly in that the “recorder” was ultimately left behind. The police could not possibly have known that it was the advance intention of the perpetrators to get rid of this evidence.

d. It is significant that according to the employees only three robbers entered the area where they were: acc nos 2, 3 and 5. Acc no 5 not only confirms this in his statement but offers a plausible explanation for this decision, namely, that it was because the three of them were not regular patrons at the sports book and accordingly would not be recognised by the employees and other customers.

e. Acc no 2 pointed his firearm at the guard and accompanied him up the stairs.[110]

f. They had been told in advance that the employees had panic buttons around their necks so acc no 5 removed them.[111]

g. One of the ladies showed him where the other money was kept in a safe in the strongroom.[112]

h. They put all the money in a “striped nylon bag”.[113]

i. Accused no 2 found the other security guard (Jele) in the toilet.[114]

j. With respect to Jele, acc no 5’s statement reads as follows:

‘I suspect that he might have pressed his panic button because the phone rang while we were still taking the money.’

When Tyler Jele testified, he mentioned that while the robbery was in progress, the land line telephone rang. He heard one of the robbers say:

‘You should not pick up that shit.’

What Jele did not say in his evidence is that he had activated his panic button. Nor did acc 2 mention any of this in his statement. To my mind, this could only have been an assumption which was the product of acc no 5’s independent recollection. It also explains why the CCTV equipment was left behind. It is more probable than not that the ringing phone caused them to panic and to leave in a hurry.

k. According to acc no 5 they used two vehicles that night: acc no 6’s BMW and a “bakkie” which acc no 3 had borrowed from acc no 1 (referred to by acc no 5 as “Vido”). This dovetails with the evidence of Jabu Nodada (that by then acc no 3 was making direct contact with acc no 1).

l. They shared the spoils afterwards and each got about R5 000.

323. In the light of the aforegoing, I have no hesitation in finding not only that the information reflected in the statement to Alexander came from acc no 5, but also, that it is corroborated by reliable and highly probative independent evidence.

324. In this regard I have already alluded to the statement of acc no 2 and the eyewitnesses at the Hollywood sports book robbery. Roxi Barendse testified that she noticed acc no 5 when he visited the venue for the first time at at about midday that day. Her evidence was that she knew all her patrons very well. He was not a regular visitor. He drew her attention. In her words, he looked “suspicious”. He did not place bets but sat at one of the tables for most of the time. He stayed on her mind. In this regard, she said the following:

‘When I see something suspicious, I keep an eye on that person.’

325. When the robbery commenced, it was acc no 5 who approached her directly, grabbed her hand, took her panic button and warned her that she would come to no harm as long as she complied with his instructions. He asked her to take him to the safe where the money was. She did. She gave acc no 5 a detailed explanation about the time delay function of the safe. They were in close proximity to each other and in a confined space when she did so. When the siren went off she handed the money box over to acc no 5. She handed him keys to open the box. She was able to recall both his tone and his demeanour.[115] She recalled that he was not armed with a firearm. Acc no 2 was. It was acc no 5 who asked one of his co-perpetrators if he had “the bag”.[116] It was also acc no 5 who had promised to leave her rent money behind at the door. She described accused no 5 as a tall, presentable man who was dressed “smart and decent”. He looked like an approachable person. He wore a cap.

326. The visibility was good. The electric lights were on. There were also lights shining from the slot machines. She pointed him out at an identification parade which I will deal with in due course. She also recognised him on the still photos of the CCTV footage produced in court (where he is clearly visible) and pointed him out once again in court.

327. As I have said before, Barendse was an excellent witness.

 

The CCTV footage

328. In my view the still photos of the CCTV footage seal acc no 5’s fate once and for all. Indeed, this evidence, standing alone, constitutes proof beyond a shadow of a doubt.

329. According to accused no 5, Constable Madinda, who produced the still photos testified at the previous uncompleted trial that he and acc no 5 knew each other well. Apparently, this witness further said that he did not recognise anyone in the photos, and that he could not say whether acc no 5 was on any of the photos as they were not clear. He added that he was not involved in the case, except to produce the photos.

330. Whilst I accept that this may have been an opinion expressed at the previous trial, in my view this witness’s vision was either seriously compromised or he was deliberately protecting acc no 5. In my view acc no 5 is clearly depicted on the photos. He is shown walking up the stairs of the Hollywood sports book in the company of Ayanda (the security guard) and acc no 3. He is shown in the office of the Hollywood sports book together with acc nos 2 and 3. Indeed he is standing right next to Roxi Barendse who confirmed this when she perused the photos in court.

331. Colonel Mboniswa is acc no 5’s uncle. The accused grew up in front of him. He too, had a look at the photos and, without hesitation, confirmed the presence of acc no 5 on the photos. It was only after acc no 5 had testified, and in response to questioning from the Court, that acc no 5 mentioned that his uncle has a vendetta against him arising from a particular incident.[117]

332. The existence of this vendetta was not put to Mboniswa for his comment. Nor did acc no 5 mention it during his evidence in chief or during cross examination. I reject it as a recent fabrication without substance or foundation. As I have said, Mboniswa struck me as a committed member of the force who takes his job seriously. It is highly unlikely that he would be party to a conspiracy to prosecute his blood nephew on such serious charges simply because a previous charge (long ago and puny in comparison) failed to stick.

 

The attack at the Ndita homestead

333. The statement to Alexander then continues to deal with the Ndita attack. It states that on 30 June 2010 acc nos 2 and 3 told acc no 5 that a loan shark from Fort Beaufort was going to draw about R2-million at midnight. Acc no 5 asked for details and was told that they had unsuccessfully tried to pull off this “job” on two previous occasions.[118] The idea was to rob the loan shark of his bank cards and to draw the money themselves.

334. Thereafter the statement reflects the following intimate detail:

‘At the time I had my girlfriend’s car and I was rushing to get it to her as she wanted to exchange clothes at Truworths.’[119]

According to the statement the girlfriend went off to Truworths, returned and let him have the car.At about 6pm acc no 3, acc no 5 and one Halahoyi (whose recorded evidence I will deal with fully in due course) drove to Fort Beaufort in the girlfriend’s car. Thereafter the statement reflects independent detail which is not mentioned elsewhere but which was clearly of moment to accused no 5. It states that acc nos 2 and 4 hitch-hiked to Fort Beaufort. This was because they each had a firearm and acc no 5 did not want firearms in his girlfriend’s car. At some stage acc 2 phoned them and told them to hurry as he and acc no 4 were already in Fort Beaufort.[120] When they arrived in Fort Beaufort acc no 5 drove along the street where the Nditas lived. Acc nos 2 and 4 were standing there and tried to wave him down, but he drove past and back up the next street. He stopped the car. He instructed Halahoyi to move the car to a place from where Halahoyi would be able to see them when they exited the Ndita’s premises. He phoned acc no 2 again and arranged to meet them. He noticed that acc nos 2 and 4 were drunk. He wanted to abort the mission but they denied that they were drunk and insisted on proceeding.[121] They “waited and waited”[122], expecting Mr Ndita (the deceased) to come out of his house with “the bag” containing his clients’ bank cards and their pin numbers. The plan was to force him into his car and to take him to the ATMs to draw the money. At about midnight[123] acc nos 2 and 4 decided to lie down underneath the deceased’s car. The deceased came out empty handed and went to the passenger side of his car. Acc nos 2 and 4 (instead of waiting for him to get the bag) jumped up and grabbed the deceased. The deceased was a “big guy”. He fought and screamed for help.[124] Acc nos 3 and 5 ran over and dragged the deceased into the house. There were three women inside the house.[125] According to acc no 5 the deceased grabbed at acc no 4 who shot the deceased seven times.[126] Acc no 4 then put the firearm against the deceased’s head and fired a shot but the deceased did not fall.  Acc no 2 put his firearm to the deceased’s head and fired a single shot. The deceased collapsed. He died instantly.[127] The deceased’s wife told them that the money was in the safe. Acc no 3 said that she was not to remove the money. He would do so. There was no money in the safe, only two firearms which acc no 3 took.[128] The deceased’s daughter gave acc no 5 money which she produced from a jacket. Acc no 5 asked for the keys of the deceased’s Honda and eventually found them in the car. At that stage he was with acc no 3. Acc no 5 sat in the car and hooted for acc nos 2 and 4. Eventually they came out of the house and boarded the deceased’s vehicle.[129] They fled the scene in the deceased’s car. Halahoyi followed them in the Citroen. They turned onto the gravel road in the direction of Peddie.[130] They stopped. Acc nos 3 and 4 torched the car. They drove back to East London in the Citroen. On the way acc no 5 asked the others what they thought they were doing. He dropped them at Mdantsane. About a day later acc no 3 told him that the deceased’s wife also sustained a gunshot injury during the robbery. Acording to the statement, acc no 3 had heard this from one “Vido” who was a herbalist and the deceased’s friend. The statement then mentions that it was in fact Vido[131] who had told acc no 2 and others about the deceased’s cash loan business. The statement says further that this was the same Vido who hired acc no 2 and others to perform “contract murders” on behalf of wives who wanted to get rid of their husbands. The statement concludes with the words that acc no 5 suspected that it was acc no 2 who had shot the deceased’s wife as he still had ammunition in his firearm.

335. The only inference to be drawn from this detailed statement is that acc no 5 was indeed the author thereof. Furthermore, that which is set forth in the statement is independently corroborated by the Nditas, by accused no 2, by Halahoyi (see below), by forensic evidence found at the scene and by the discoveries made by the police as a result of acc no 5’s pointing out (see immediately below).

 

Acc no 5’s pointing out of the bank cards

336. According to acc no 5, Lieutenant Colonel Nkosiyane (the investigating officer) at some stage confronted him with information that acc no 2 had told the police that he (acc 2) had given bank cards to acc no 5. Acc no 5 told the police that acc no 2 did not hand the cards over to him, but that he threw them out of the car window. He took the police to the area where acc no 2 threw the cards out of the window. The police conducted a search of the area and eventually found the cards. They were not concealed. The bag was lying in the grass amongst small bushes on the side of the road. It was torn and some of the cards were scattered about. After their arrest acc no 2 was not on good terms with him because of this pointing out. According to acc no 5, acc no 2 was of the view that acc no 5 had betrayed him and that this had to acc no 2’s arrest.

337. Acc no 5 accordingly did not dispute the fact of this pointing out, but what he allegedly said to the police in respect thereof. The evidence with respect to the pointing out was also presented in the course of a trial within a trial. In what purports to be an affidavit, Nkosiyane stated that acc no 5 had indicated to him that he (that is acc no 5) was

‘willing to point out the place where he had dumped the cards that were stolen in Fort Beaufort.’

Nkosiyane stated that acc no 5 there and then took them to a place between Mount Ruth and Mdantsane. Acc no 5 alighted from the police vehicle. He led them to a forest where he pointed out a plastic bag. Inside the bag were various cards including 557 ATM cards for a variety of banks, the deceased in count 21’s firearm licence, three credit cards, eight gambling cards and the deceased’s driver’s licence. During the course of his evidence in this regard, Nkosiyane made it clear that this bag was well concealed under foliage. He was of the opinion that, but for acc no 5 having pointed it out, the police would not have recovered it.

338. It appears that the cards had remained in situ and relatively well preserved over a substantial period of time. They were not substantially affected by the elements and other forces of nature. In my view, the probabilities favour the version of the police that the cards were carefully concealed, rather than randomly thrown out of the window of a moving vehicle. The version of the police on this point is to be preferred. The question that remains is whether acc no 5 told the police that he had dumped these cards and other items himself.

339. On the version of the police acc no 5 made this admission when he pointed out the cards. Alonbg substantially the same lines of reasoning as that which I invoked when I dealt with acc no 2’s so-called pointing out of the firearm, I cannot find that the prosecution has proved beyond a reasonable doubt that this admission was indeed made by accused no 5. There are no contemporaneous notes, photographs or video recordings. The pointing out was conducted by the investigating officer, which is undesirable and has, in the past, been considered to be highly irregular.

340. It is in any event neither here nor there whether it was acc no 2 or 5 who got rid of the cards and the deceased’s driver’s licence. To my mind, the probabilities are that it was acc no 2.[132] Regard being had to the fact that the cards and the licence were well preserved, the probabilities are also that they would have been hidden rather than randomly discarded. The fact is that it was acc no 5 who voluntarily, and by his own admission pointed out at the very least the area where cards and a licence where found which are directly and independently linked to the deceased and his shark loan business.

 

The identification parade with respect to accused no 5

341. Acc nos 2 and 5 were part of an identification parade held on 25 August 2007. Acc no 5 was pointed out by Roxi Barandse, Claudia Zeeland, Tyler Jele[133] and Nasiphi Ndita.[134]

342. According to the House Office Circular regulations for the conducting of identification parades, the construction of the lineup should comply with at least the following:

a. There must be at least eight persons.

b. If there are two suspects in the lineup (as in the case before me), there must be at least 12 persons altogether.

c. They should be more or less of the same build, height (my emphasis), age and appearance.

343. The ID parade did consist of 12 persons and in my view there was substantial compliance with respect to acc 2. Not so however, when it comes to acc no 5. He is tall. He is noticeably taller than most of his co-accused. Where acc no 3 has been described by eyewitnesses as the old man, acc no 5 is consistently described as the tall man. He is also the tall man in the photos of the ID parade. He sticks out like the proverbial sore thumb. Although he was pointed out by witnesess whom I have found to be honest and reliable, I do not intend to rely on him having been pointed out at the ID parade as the sole motivation for a conviction on counts 17, 20, 21, 22, 23 and 24. As I have said however, there is sufficient other evidence to make out a case for a conviction. I have already traversed that evidence with respect to the Hollywood robbery.

344. To my mind however, even if acc no 5’s ID parade was irregular, the Ndita women’s dock identification of him does not stand on its own. Nor is it supported only by the confession of a co-accused. It is supported by a host of reliable evidence such as acc 5’s own affidavit admitting to very suspicious conduct on the day in question, his statement to Alexander, his knowledge of where the cards were, the transcript of Halahoyi’s evidence and the fact that the deceased’s burnt out car was found at the place described by acc 5. To my mind this is sufficient proof for a conviction on counts 20, 21 and 22, particularly when the doctrine of common purpose is applied with respect to the murder of Ndita and the attempted murder of his wife.[135]

 

The torching of Ndita’s car

345. Count 25 is malicious injury to property. It refers to the torching of the deceased’s Honda motorcar after the attack on the Ndita homestead.

346. According to acc no 5’s affidavit, he says he saw a “small fire” on the side of the road and thought that it was someone lighting a cigarette. In his statement he admits that he drove the deceased’s car to a certain point where they all alighted and the car was torched.[136] Thereafter acc no 5 transported them home, once again driving the Citroen which he had driven to Fort Beaufort in the first place, and which he had instructed Halahoyi to drive to this point. I agree with the prosecution. Who struck the proverbial match is irrelevant. Accused no 5, on the proven facts, either actively participated in the torching of the car, or made common purpose with those who physically did so.

347. Acc 5 was involved in the planning and the commission of a robbery where at least two of his co-assailants were armed with loaded firearms which they used indiscriminately and unlawfully. He also knew in advance that these arms were loaded and that they were going to be taken along. That is why he did not want to transport acc nos 2 and 4, because he did not want to have unlicenced firearms in his girlfriend’s/cousin’s car, I would imagine particularly not when it is not in dispute that she was a prosecutor at Mdantsane. The possibility that these firearms would be discharged and injure and/or kill someone, was imminently foreseeable on his part.

348. In this regard the doctrine of common purpose finds application with respect to the murder and attempted murder at the Ndita homestead, and it is this court’s duty to explore whether acc no 5, on the evidence before it, made common purpose with those who carried firearms and shot the deceased and his spouse.

349. The doctrine allows for the imputation of the conduct of one party (the immediate party, which in this case would be at least acc no 2) to another party (the remote party which would be acc no 5), in either of two situations. The first is where there is an agreement or mandate, express or implied, between those parties to do the act in question and the act falls within the parameters of what has been so agreed[137]. That hypothesis cleary does not apply to this factual scenario.

350. The second is where, even if there was no actual agreement to murder, the remote party (acc 5) associates himself with the conduct of the immediate party by actually committing some act of association with the intention of associating himself with the conduct of the immediate party. Naturally, acc no 5 stands to be convicted for the robbery at the Ndita homestead based on his personal active participation in the planning and execution thereof.  I do not however intend convicting him for the firearms and ammunition which were in the possession of acc nos 2 and 4. I will return at the end of this judgment to whether acc nos 3 and 5 can be convicted of murder and attempted murder on the basis of a common purpose.

 

ACCUSED NO 6: MAKHAYA QWALA

351. Acc no 6 made an inculpatory warning statement to the investigating officer, Colonel Nkosiyane, the admissibility of which the prosecution sought to prove during a trial within a trial. I previously ruled the statement inadmissible. I still do. As I have mentioned, Nkosiyane was the head investigator in all these matters. As soon as he heard that acc no 6 was implicating himself (if this indeed happened) he ought to have arranged someone independent to take over. He did not. For this reason alone the taking of the statement does not pass Constitutional muster if it is intended to be used as evidence against the maker thereof.

352. Acc no 6’s defence is uncomplicated. His version throughout this trial has been that he is a simple taxi owner and driver. His only involvement with his co-accused was that he, at times, transported them in exchange for a fare. That is what taxi drivers do. He did not know where they were coming from, where they were going, or what they were up to.

353. Against this defence stands the version of Jabulani Nodada. According to Nodada he (Nodada), asked to be part of the robberies which Skara, Rider and Cousin had been planning. To this end Nodada visited Rider where he met up with acc no 6. This was in 2010. Acc no 6 had been known to him from as far back as 1994.

354. According to Nodada, when Rider was arrested, he Nodada and Skara decided to approach acc no 6 to substitute Rider for the commission of these offences. Acc no 6 agreed to “work on these robberies”.

355. They met up in King Williams Town. That was where acc no 6 had in his possessin the blue bag, the 9mm pistol, the revolver and the Uzzi machine rifle. They planned to scout King Williams Town for a place to rob. They could not find anything lucrative. They agreed that Nodada should be the custodian of the firearms. Thereafter Nodada also met up with acc no 1, who introduced him to several hired killing and robbery jobs which acc no 1 had had lined up. One particular weekend acc no 6 phoned Nodada asking for the revolver. They met at an Engen Garage in Bhisho. Acc no 6 happened to be in the company of acc nos 2 and 3. Acc no 6 introduced them as “Mantsiki” and “Jack”. Acc no 6 wanted the revolver for acc nos 2 and 3 to kill someone in Port Elizabeth. It was then that Nodada made up his mind to introduce acc no 6 to the “jobs” which acc no 1 was outsourcing. In Nodada’s words:

‘I wanted to bring accused no 6 into accused no 1’s loop.’

356. Nodada told acc no 6 about the “jobs” lined up. Acc no 6 said that he would organise acc nos 2 and 3 to carry out the “jobs” and to act as hitmen. These “jobs” were:

a. The murder of Makeleni;

b. The murder of James Duka;

c. The murder of a woman who lived at 25 Hintsa Crescent, Bhisho;

d. The robbery of Mschiceleli Ndita.

357. At some stage acc no 1 gave Nodada some money to assist acc no 6 with the procuring of the services of acc nos 2 and 3. Nodada phoned acc no 6 who gave him acc no 2’s telephone number, adding that he (acc no 6) had already told acc nos 2 and 3 about the “jobs”. Acc no 6 also visited Nodada to collect the balance of payment for the murder of Makeleni. To this end acc no 1 had arranged about R4 000 which Nodada handed over to accused no 6.

358. As I mentioned at the beginning of this judgment, Nodada neatly summed up the enterprise as follows:

a. Accused no 1 provided the “jobs” or the “work”.

b. Nodada himself scouted for people to carry out the jobs.

c. For the murder cases, Nodada’s contact person was acc no 6 who in turn organised acc nos 2 and 3 to be the hitmen.

d. For the robbery cases, Nodada usually organised others.

359. During cross examination by acc no 6’s counsel, Nodada testified that he had told the police everything, even about a robbery at “Dyson Kwikspar” where acc no 6 had participated. It was put to Nodada that acc no 6 knew nothing about the blue bag and that his only contact with Skara was in the form of a benefactor, to organise passengers for Skara’s transport business. It was also put to Nodada that acc no 6 never became involved in any dealings with acc nos 2 and 3.

 

The murder of James Duka[138]

360. Against that background I now turn to the conspiracy to murder, and the murder of Captain James Duka. According to Nodada, one of the “jobs” which acc no 1 had told him about was this murder. As I have said, Nodada told acc no 6 about the jobs who in turn procured the services of acc nos 2 and 3.

361. Acc no 6’s bare denials do not pass muster when held up against the particularity and the intimate detail of Nodada’s evidence in this regard. Having said that, apart from acc no 6 having procured the services of acc nos 2 and 3 after the fashion of a pattern of racketeering, there is no other persuasive evidence that he participated in the planning or the actual killing of James Duka. In his statement to Maqashalala acc no 2 went only as far as saying that they telephoned acc no 6 to collect them after they had carried out the job. Apparently he did. This, standing alone, is, as I have said, insufficient to convict accused no 6 of the conspiracy to murder or the murder itself.

 

The Hollywood robbery[139]

362. I have little doubt that acc no 6 played a pivotal role in the planning of and the procurement and conveyance of persons to carry out the robbery at the Hollywood sports book. I am also of the view that he was an accomplice or at the very least an accessory due to the role which he played in transporting the actual perpetrators. Acc no 2, when he speaks to the Hollywood robbery in his statements, specifically states that acc no 6 asked him to help with this “job”, and that acc no 6 collected him for this purpose. Acc no 2 also mentioned that acc no 6 gave him a firearm, and told him that according to one “Mister” there was a lot of cash on these premises.[140]

363. According to acc no 2, acc no 6 told him that the security guard (who by all accounts was responsible for the “inside job”), would be standing at the bottom gate and that he should not be injured. Acc no 6 explained to acc no 2 how the security guard would press a button to let them in, and that acc no 2 was then to point the gun at the second security guard.

364. According to acc no 2, acc no 6 parked around the corner while the robbery was being committed. Afterwards the perpetrators met up where acc no 6 had been waiting. [141] This is corroborated by acc no 5’s version that they used two vehicles in the Hollywood robbery, one being acc no 6’s BMW and the other a “bakkie” which acc no 3 had borrowed from acc no1. As I have said before, and despite the exceptions created by section 2(2) of POCA, it would be irresponsible and dangerous in my view to rely solely on what accused nos 2 and 5 have said about the participation of acc no 6 in their respective statements, particularly when such reliance was only heralded by the prosecution at the stage of closing argument.

365. That is not the end of the matter however. The evidence of Sakhumzi Ngele, the probative value of which I will deal with more fully under a separate heading, puts the cherry on the top with respect to acc no 6’s complicity in the Hollywood robbery.

366. Ngele testified that acc nos 2 and 6 were known to him. One day he was with acc no 6 at a taxi rank when they met up with one Makalima who told them about a proposed robbery at Hollywood sports book.[142] Before the robbery Makalima took the two of them to the Hollywood sports book. They drove in acc no 6’s BMW. At Hollywood sports book Makalima pointed out a security guard wearing a “muslim hat”.[143]

367. On the evening of the robbery (and ostensibly after it had taken place) , Ngele, acc no 6 and Makalima drove towards Mdantsane in acc 6’s BMW. Acc 6 stopped behind a bakkie and conversed with the occupants of the vehicle. It was decided to go to acc no 6’s home. During his evidence, Ngele said the following:

‘I told accused no 6 that we shouldn’t go there as he has a wife and children, and why should we share robbery money at his home?’

368. They then followed the bakkie to a certain house at NU9/10 Mdantsane. They went in. Inside were acc nos 2, 5, 6, Ngele, Makalima and others. There were firearms on a bed. There was also money. Ngele was given R1 200 by acc no 5.

 

Accused no. 6’s affidavit

369. Further corroboration for acc no 6’s conduct and the evidence of Ngele and Nodada is to be found in an affidavit deposed to by acc no 6 which he himself admitted into evidence as the truth. I digress to mention that later on in his evidence acc no 6 made an about turn in this regard, and was only prepared to concede that he had said in the affidavit that he knew Jabu Nodada through one Skara Ysterman during the beginning of 2010. The rest he said, came from the police. The contents of this statement, insofar as it purports to be self-effacing, is particularly insightful. I accept that acc no 6 is the author thereof.

370. The affidavit was deposed to on 13 August 2010.  It reads as follows:

‘2

 I know Jabu through Skara Ysterman during the beginning of this year 2010. During this year I do not recall the date, Jabu phoned me saying he wanted the two males that I dropped them in King William’s Town. These two were Ntsikelelo and Jack.

3

I then gave Jabu their contact numbers and later I met Ntsikelelo who informed me that Jabu had contacted him. Ntsikelelo informed me that Jabu had a job that they must do and they must meet Jabu in King Williams’s Town.

4

 On their return from King William’s Town Ntsikelelo informed me that the job that Jabu wanted them to do. Later Ntsikelelo informed me that Jabu does not want to pay them. Ntsikelelo informed me that the money they wanted was R20 000,00. It was at that stage that the job was for killing a person. I then phoned Jabu and enquire as to what is the problem. Jabu’s response was that I enter nowhere in the problem.

5

Since I know Jabu through Skara I went with him together with Jack and Ntsikelelo. On arrival at Skara he informed us that the person organising the job was Vido who is Vuyani Sibanda. We all drove to Dimbaza where Vido was and we dropped Skara nearby after he had showed us Vido’s place.

6

On arrival at Vido’s place I parked the car inside the yard and Jack and Ntsikelelo went to Vido who was not far from where I parked but I could hear their conversation. Vido informed them that they must deal directly with him and he gave them some money but I do not know how much. On our way back I requested them to pay for my petrol cost and I was given R600,00 and I dropped them in Mdantsane.

7

I became aware of the killing of a policeman from Ntsikelelo who was saying that he and Jack have been trying to kill a policeman without success because where ever they arrived there the said policeman was not present. I went to the vicinity of the place where the policeman as staying together with Ntsikelelo. Ntsikelelo pointed a Nissan bakkie saying this policeman is driving that bakkie and nothing happen on that day.

8

After a week later Ntsikelelo phoned me saying I must pick him up at King William’s Town where I found him between BP and Golf Course. I phoned him when I reached BP and said I must turn and drove towards Mdantsane. I turned and I stopped next to the junction to Zwelitsha and he came from the top to the tar road. I asked him what he was doing here and he said they have carried the job of the policeman him and Jack. He said they split after they have finished. Jack took another direction. In then conveyed Ntsikelelo to his place of residence in Mdantsane.

9

On onother day I conveyed Ntsikeleko and Jack to Makhiwane Hospital where they said Vido did not give them money, so this lady working at Makhiwane has a knowledge of the job they have carried out in Mdantsane. I do not know the lady but I have seen her once. This lady said they must meet her at Highway at about 16:00. We all drove to Highway where we waited for her. The lady arrived but the bank was already closed and she said they will meet tomorrow. By tomorrow I never saw them.

10

On another day Ntsikelelo and Jack requested me to take them to Bhisho. I then conveyed them and I noticed that next door there was an occasion as there were many people. On arrival I asked them what was their business in this house. The response I got from Jack was that they wanted the mother of this house. They said I must leave them there and I left them. I never met them on that day.’

371. The motivation behind introducing the statement into evidence appears to have been to illustrate that when acc no 6 enquired from Nodada why Nodada had not paid acc no 2 for the “job” of killing a person, Nodada’s response was that acc no 6 entered “nowhere in the problem”.

372. Even if Nodada expressed this sentiment, it seems to have been directed at the question of payment. Simply put, Nodada merely told acc no 6 to butt out. The sentiment is neutral at best. The rest of the statement is not. It illustrates that acc no 6, by his own admission was not just an innocent bystander as he would like this court to believe. Like his co-accused he frequently described these assasinations in exchange for payment as “jobs”. He acted as a negotiator between acc no 2 and Nodada for the payment of this blood money. He did not refer to himself in the singular, but continually used the word “we” to describe what was said and done at any given moment. He just happened to be there when Skara told Nodada and acc nos 2 and 3 that the person organising the job was acc no 1. He just happened to overhear acc no 1 telling acc nos 2 and 3 to deal directly with him[144]. He just happened to witness acc no 1 paying them some money directly. Acc no 2 also just happened to confess to him that he and acc no 3 had been trying to assassinate a policeman.[145]Notwithstanding having been told this, he drove acc no 2 to this policeman’s home.

373. It is significant that acc no 6 had such in-depth knowledge of the commission of these offences, that he was able to describe on oath in this affidavit when and where something was going to happen and when and where it did. Indeed, according to acc no 6, acc no 2 (whom he collected from the area of the commission of the offence) forthwith confessed to him that he (acc no 2) and acc no 3 had just carried out the “job” of killing the policeman.

374. It goes without saying that this affidavit deposed to in objectively corroborated chronology and detail, is hardly the version of an innocent taxi driver, who was merely transporting passengers from point A to point B without knowing what they were getting up to.[146]

 

Sakhumzi Ngele

375. Ngele was warned in terms of section 204 of the CPA with respect to the Hollywood robbery. On 23 June 2011 he deposed to an affidavit where the provisions of this section were not only explained to him, but wherein he acknowledged that only the Director of Public Prosecutions (and not the police) had the power to decide whether to use him as a witness for the prosecution. He also then acknowledged that he had not been influenced in any way to depose to the affidavit.

376. His evidence on oath at the uncompleted trial was substantially in line with the contents of this affidavit.

377. When he testified on oath before me, he was serving a 20 year sentence for robbery with aggravating circumstances.

378. He told this court that he knew acc nos 2 and 6. He said that he only met acc no 2 after he was incarcerated. He was with acc no 6 at a taxi rank when they met up with one Makhalima who told them about a proposed robbery at the Hollywood venue. He accompanied Makhalima to this venue. About a week later acc no 6 phoned him. That evening he met up with acc no 6 at the Highway taxi rank in Mdantsane.  Makhalima was also present. For some reason Makhalima wanted to show the Hollywood venue to acc no 6 as well.  They drove there in acc no 6’s BMW.  He said that at that stage he himself had no intention to rob Hollywood and that he didn’t think that acc no 6 was particularly interested either. Makhalima pointed out a security guard wearing a “Muslim hat” to acc no 6. The guard was employed at the Hollywood sports book. Ngele said that he refused Makhalima’s offer of a special position in the proposed Hollywood robbery.

379. Coincidentally, according to Ngele, the robbery just happened to be in progress when all of this transpired. Thereafter he, Makalema and acc no 6 drove towards Mdantsane. At some stage acc no 6 stopped the BMW behind a bakkie. Makalema and acc no 6 spoke to the occupants. It was decided to go to acc no 6’s home. It was then that Ngele uttered the words which I have already quoted, that they should not share the robbery money at acc no 6’s home in front of his wife and children. They accordingly followed the bakkie to a certain house at NU9/10 in Mdantsane. They went in. Ngele had a firearm. He saw firearms on a bed in this house, so he made his own arm safe and also placed it on the bed. Present were Makhalima and acc nos 2, 5 and 6. Acc no 5 was distributing cash. Acc no 5 gave him the gratuitous sum of R1 200. He did not know what for.

380. After Ngele had testified, the prosecutor submitted that he had deviated materially from his previous evidence and from his affidavit and applied for his credibility to be impeached in terms of section 190 of the CPA, and to prove his previous inconsistent statement in terms of section 190(2) of the Act. I granted the application which was not opposed in any event.

381. The affidavit reads as follows:

‘1

I am a South African adult male of about 42 years of age residing at house no 2501 NU (07) seven Mdantsane. I am unemployed and my home language is isiXhosa.

2

Some time last year 2010 I met one of my friends Makhaya Qwala together with another guy only known to me as Mister but his surname is Makhalima, the person I know better between the two gentlemen was Makhaya Qwala because he is in the taxi business where I use to have some parttime jobs at the taxi rank.

3

The two gentlemen came to me with the idea for us to commit a robbery in one of the shops known as Hollywood in East London, the information was coming through Mr Makhalima from inside the business that meant he had inside information for the robbery, and the job was going to be the easy one. According to the plan I was going to get inside during the robbery and Makhaya was going to be on the doorway and Makhalima was also not going to be inside alleging that he was an intelligence member and he is well known in that business.

4

I refused to be in the inside position also because I was also known there because I also use to visit the place and the robbery failed that week. After a week Makhaya informed me that he has now organised his other friends Mantsiki, Jack and Sakhele Magasana to be also involved in this robbery plan. I know those gentlemen because I did work in another robbery with them in Fort Beaufort where we were going to robb another businessman who used to be a taxi owner according to Makhaya but he was then a loan shark or money lender, but that Fort Beaufort robbery could not succeed that time as we arrived late.

5

I do not know their names it is better with Mantsiki because his first name is Ntsikelelo but his surname is unknown. During the week end I think it was on a Saturday evening we decided to go for the robbery and it was my self, Makhaya, Makhalima, Mantsiki, Jack, Sakhele Magasana and we were travelling in two vehicle a BMW owned by Makhaya Qwala and Mazda Drifter owned by Vuyani Sibanda who was not present during the robbery.

6

When we got near the Hollywood business there was a man sitting outside with a moslem hat he was sitting next to the stairs and one of us Makhalima identified that man to us as his contact from inside but when he did that he was only doing it to me and Makhaya as we were the only three driving in the BMW and the other vehicle the bakkie also came closer to where we were parking and he also showed that man to them because they were going to get inside according to our new plan. The three gentlemen Sakhele, Mantsiki and Jack went in for the robbery and they took something like thirty minutes inside that business and they came out back into the van they were driving with which was being driven by Sakhele Magasana.

7

After the robbery they drove off towards Mdantsane and we were just following them up until we got at NU (02) two where we stopped on the way and the debate came as to where we can go, then Makhaya decided to go to his place but the other group in the van gave us another direction to NU ten (10) in Mdantsane where I thought was the place known to Sakhele Magasana.

8

On our arrival at that place there were three male persons who left the house when we arrived and we got into the main bed room and the money was placed on the bed for the sharing. I got something like one thousand two hundred rands (R1 200-00) as my share, although later Mister Makhalina came with the information from his inside source that there was a lot of money.

9

After the sharing they dropped me on the way and I went to my girl friend for that night, I met Makhaya and Mister on the following day. There were bunch of keys that were in the bag with the money and it was decided that they must be thrown away but I decided to keep them and I think they are at my place in Mdantsane.’

382. The contents of his affidavit were put to him and he admitted that what was recorded therein was what he told the police. He added however, that it did not reflect the truth. Nor did he speak the truth when he testified previously. He explained that Captain Hanise from the OCU in East London had made certain promises to him in exchange for perjured testimony which Hanise had prescribed to him. Indeed the police knew very well that he and acc no 6 were innocent. He added that the police had shown him footage of acc no 5 at the Hollywood sports book. He told the police that acc no 5 was captured in the footage because he used to frequent that place.[147] According to Ngele he was persuaded to depose to this perjured affidavit because the investigating officer had promised him money and certain favours with respect to the robbery sentence which he is presently serving. These promises were not kept. He summed up by saying that it was in a way fortuitous that the previous judge had passed away before the matter could be completed. The event created an opportunity for him to come clean at the re-hearing of the matter.

383. In response to questioning by the prosecutor he elected “not to be put into a corner” and confirmed that he was being detained together with acc nos 1, 2, 3 and 6. When it was suggested to him that he had been influenced by the accused to perjure himself at this trial, and that his previous testimony was the truth, his reply was “I can’t dispute that”. However, he once again vascilated under cross examination by acc no 3’s counsel. He readily conceded though, that if the police had kept their promises, he would also have perjured himself at the present hearing. He then proceeded to lash out at the prosecutor as well, accusing him of having made false promises to assist him with his robbery appeal.

384. It was put to him on acc no 5’s behalf that the money which acc no 5 was distributing on the night in question was not the proceeds of a robbery. Not surprisingly, he agreed. It was also put to him that although acc no 2 was present, he was not given a share of the money. He eagerly replied that he was unable to dispute this.  He also did not dispute acc no 6’s version, that he was paid R1 200 as a taxi fare for having transported Makalema, ostensibly from the Hollywood sports book in Fleet Street, East London, to NU11 or 12 in Mdantsane. He feigned complete and utter ignorance of the person wearing the “muslim hat” in the still photos and said that he did not know anyone by the name Ayanda.

385. The prosecution tendered the evidence of Captain Hanisa to prove that Ngele had deposed to an affidavit previously which was inconsistent with his testimony. Hanisa confirmed that Ngele was the author of the statement on oath and that he had not been made any promises in exchange therefor.

386. To my mind Ngele’s situation is on all fours with that which the Supreme Court of Appeal was presented with in S v Rathumbu[148] . In that matter the appeal court confirmed the reliance by the trial court on an affidavit which the deponent had disavowed. Strictly speaking, the disavowed statement becomes hearsay by virtue of the deponent’s denial that he made it. As I have said before, section 3(1) of the Law of Evidence Amendment Act creates certain exceptions under which hearsay evidence may be admitted. I do not deem it necessary to make a finding as to whether this evidence falls within the ambit of those exceptions. In my view, the scenario which has been presented to me falls squarely within the provisions of section 2(2) of POCA, which allow for the admission of hearsay which would otherwise be inadmissible, provided it does not render the trial unfair. In this regard I have already expressed my views regarding the dangers of relying solely on the unheralded, uncorroborated confessions of co-accused persons. The hostile witness however, falls into a different category. The prosecution applied for the statement to be admitted as soon as it became clear that Ngele had turned hostile. The statement was duly admitted in terms of the laws relating to criminal procedure. In my view the only real issue is what weight this court ought to attach to what is reflected in a previous inconsistent statement of a witness who is unreliable and by his own admission, prone to dishonesty. I am not inclined to attach any weight to anything which Ngele said in his previous affidavit, which is not fortified by other independent and reliable evidence. Upon application of this type of circumspection, I am satisfied that the following evidence reflected in the affidavit does not stand alone:

a. The evidence that acc no 6 had informed Ngele that he had organised acc nos 2, 3 and 5 to be involved in the robbery plan. This is corroborated by the eye witnesses to the robbery and the still photos.

b. The evidence that they decided to commit the robbery during the weekend. It was Ngele, Makhalima, acc no 2, acc no 3, acc no 5 and acc no 6. They were travelling in acc no 6’s BMW and a Mazda Drifter owned by acc no 1. This is confirmed by the evidence of Nodada who said that he once heard acc nos 2 and 6 discussing the Hollywood robbery with Ngele.

c. The evidence that there was a man sitting outside the Hollywood sports book wearing a “Muslim hat”. Makhalima identified him as his contact from the inside. The security guard Ayanda, is clearly visible in the still photos wearing a taqiyah, ascending the stairs accompanied by acc nos 2, 3 and 5.

d. The evidence that acc nos 2, 3 and 5 went inside to commit the robbery. Once again this is corroborated by the eye witnesses and the still photos.

 

Pumezo Halahoyi

387. A transcript of the testimony of one Pumezo Halahoyi (who cannot be traced) given at the previous uncompleted trial was admitted in evidence before me on the basis that it is a true and accurate reflection of what Halahoyi was to have said at that trial. Nothing more. It is common cause that at the previous trial Halahoyi was warned as an accomplice witness in terms of section 204 of the CPA. This Court has not had the opportunity to observe his demeanour. Nor has this Court had the opportunity to satisfy itself that his evidence is honest and reliable. On a mere conspectus of his evidence, I gained the impression that it was either unnecessary to warn him as an accomplice (due to the patently exculpatory nature of his testimony), or that he was deliberately distancing himself from any direct or indirect participation in the offences. In short, that he was feigning ignorance.

388. The gist of his testimony at the previous trial may be summarised as follows:

He received a telephone call from acc no 5. Acc no 5 visited him in the company of acc no 3, whom he referred to as “Jack”. Acc no 5 said that he wanted Halahoyi to accompany him to Fort Beaufort to fetch stolen TV sets from a certain shop. Halahoyi was to drive acc no 5’s girlfriend’s black Citroen. Acc no 5 would drive a “bakkie” which he would get from a friend in King Williams Town. It was intended that the TV sets would be loaded onto the bakkie. Halahoyi described acc no 5’s girlfriend as one “Nomawethu” who is a prosecutor in Mdantsane. That same evening, at about 7pm, acc nos 3 and 5 collected him in the black Citroen. They did not stop at King Williams Town to collect the bakkie but drove straight to Alice where acc no 5 bought fuel and airtime. They then drove to Fort Beaufort. There he was instructed to wait in the car while acc nos 3 and 5 set off to ostensibly collect the TV sets.  He waited for about 30 minutes to an hour. He kept on receiving phone calls instructing him to wait longer.  Eventually he was instructed to drive the Citroen back along the same route which they had used when they entered Fort Beaufort. He did so. He received further telephonic instructions to take the Peddie off-ramp which was a gravel road. He did so after struggling for some time to locate the place. He spotted the vehicle in which acc nos 3 and 5 were, travelling ahead of him. He was instructed to follow it. The vehicle stopped. Acc nos 3 and 5 and two unknown men (who turned out to be acc nos 2 and 4) alighted.[149]  They said that the SUV (sport utility vehicle) in which they had been travelling was to be burnt. Thereafter they left in the Citroen. Acc no 5 was driving again. As they drove away, he could see smoke from the burning SUV. While they were driving, there was an argument. The other occupants of the vehicle were disagreeing about what they were supposed to have done and said. It was said that they had done “shit”. Acc nos 3 and 5 were sober. Ac 4 smelt of liquor. Acc no 2 was waving a firearm around. Acc no 5 told him to behave. Acc no 2 said that if the police arrived they would shoot at them. Acc no 2 added that he did not want to shoot the person at Fort Beaufort but that “that person caused himself to be shot”. They arrived at a boom gate where there was a security officer and a quad bike. Accused no 5 wrote in a register. They drove to NU11 Mdantsane, where they alighted at a shack that was unknown to him. They were carrying bags. There they “counted the money”. Each person, he thinks, got R2 500. He was given R500. There were also cellular phones, bank cards and four firearms. He saw blood on the clothing of acc nos 2, 3 and 4. Acc no 2 said that “should there be another job, everyone will have his own firearm”. Halahoyi then left with acc nos 3 and 5. Acc nos 2 and 4 stayed behind. On the way acc no 5 said that he would never associate himself with drunk people again. In particular, he was never again going to associate with acc nos 2 and 4. That night they slept at acc no 5’s girlfriend’s place in Beacon Bay. Acc no 5 said that if they were ever arrested, Halahoyi should deny knowing acc no 5, and that he (acc 5) would do the same for Halahoyi.[150]

389. In the early hours of the next morning acc no 5 told him what had actually transpired at Fort Beaufort. Acc no 5 said that they went to a certain house to rob. The intended victim came outside. They grabbed him and took him back inside. The intended victim went for his firearm so acc no 4 shot him in the stomach. Acc no 2 fired a shot in the air. They demanded money from the occupants of the house. Acc no 4 kept on shooting the victim in the stomach. Then acc no 2 shot him in the head. They searched the house and took whatever they wanted. That concludes his testimony of what acc no 5 allegedly told him in the early hours of the morning.

390. He continued to relate how he met up with acc nos 2, 3 and 4 the next day. They also told him what had transpired at Fort Beaufort. They warned him not to tell anyone. He was arrested on 23 August 2010.  Under the guidance of his parents, he elected to tell the police what he knew.  He was detained together with the accused.  He witnessed acc no 2 and acc no 3 quarrelling with acc no 1 about money.  Acc no 2 and acc no 3 alleged that acc no 1 was not paying them the money which he had been paid.   Acc no 1 denied this and said that he himself had not yet been paid.  Acc no 2 and acc no 3 also accused the first accused of making fools of them. T hey threatened to tell one “Nkosiyane”[151] about all of acc no 1’s “things”.  According to Halahoyi, in this context acc nos 2, 3 and 5 were discussing their “jobs” which was to kill people.

391. Halahoyi was placed in a lineup at a formal identification parade. No one pointed him out. This then concludes a summary of the recording of Halahoyi’s testimony at the previous uncompleted trial.

392. Halahoyi stated on oath at the previous trial that acc no 5 confessed to him that they had carried out a planned robbery at Fort Beaufort and that some of them were armed with firearms. According to Halahoyi, acc no 5 also proceeded to explain how the robbery went pear shaped, resulting in the death of the deceased.  According to Halahoyi, acc nos 2, 3 and 4 likewise explained to him the following day what had happened at Fort Beaufort and warned him not to tell anyone.

393. To my mind the transcript of Halahoyi’s evidence on oath at the previous trial stands on a similar footing as Ngele’s evidence on oath at the previous trial and his affidavit which I have already dealt with. The transcript of Halahoyi’s evidence is also hearsay and falls to be admitted in terms of the exception created in terms of section 2(2) of POCA. I reiterate that to attach evidential weight to what is reflected in the transcript when there is no other evidence to corroborate what is reflected therein, may well result in the accused being untreated unfairly. Differently put, the exceptions that have been created by POCA are not simply there for the taking. They should be invoked with caution, and only in my view, where other evidence exists which, taken together with this evidence minimises the chance of a wrong conviction.

394. With respect to the transcript of Halahoyi’s evidence, I intend to attach some evidentiary value only to those portions thereof which have been corroborated by other independent evidence. Those portions of the transcript which are so bolstered are the following:

a. That acc no 5 visited Halahoyi in the company of acc no 3 (this is confirmed by acc no 5 in his statement to Alexander);

b. That acc nos 3 and 5 collected Halahoyi in a black Citroen (the fact that he used someone else’s car is confirmed in acc no 5’s affidavit, his statement to Alexander and in his evidence);

c. That acc no 5 purchased fuel and air time at Alice (this is confirmed in acc no 5’s affidavit);

d. That Halahoyi was instructed to wait for acc nos 3 and 5 at a certain point (this is confirmed in acc no 5’s statement to Alexander);

e. That phone calls were exchanged (see acc no 5’s affidavit, his evidence and his statement to the police);

f. That they instructed him to take the Peddie off-ramp onto a gravel road (in his affidavit acc no 5 says that he was instructed to do so by acc no 2);

g.  That when driving away from Fort Beaufort they were ahead of him. When they alighted from the vehicle they were driving, he saw acc nos 2, 3, 4 and 5. The presence at the Fort Beaufort crime scene of accused nos 2, 4 and 5 is corroborated by the eyewitnesses. Acc no 5 himself confirmed the presence of acc nos 3 and 4 in his statement to the police although he somewhat ineffectively denied that acc no 3 is “Jack” and that acc no 4 is “Chicco”;

h. That the car acc nos 2, 3, 4 and 5 was travelling in was torched (not only is this a fact but acc no 5 said that when he was travelling in that area he saw a small fire);

i. Acc no 2 had a firearm (the eyewitnesses confirm this);

j. Acc no 2 admitted that he shot someone in Fort Beaufort (the eyewitnesses confirm this);

k. They arrived at a boom gate where acc no 5 wrote in the register (this is confirmed by acc no 5);

l. Halahoyi saw blood on the clothes of acc nos 2, 3 and 4 (the eyewitnesses confirm that the deceased already appeared injured when he was escorted into the house and acc no 5 confirms that acc nos 2 and 4 shot the deceased at close range);

m. Accused nos 2, 3, 4 and 5 were in possession of cellular phones, bank cards and four firearms. It was confirmed by the eyewitnesses that some of these items were taken during the course of the robbery. Acc no 4 was thereafter seen in possession of cell phones he was trying to sell. Acc no 5 pointed out a place to the police where bank cards, the deceased’s firearm and his ID document had been discarded. Furthermore, the deceased’s firearm was found at the place where acc nos 3 and 4 were arrested.

n.  Acc no 5 told Halahoyi that acc no 4 shot the deceased several times in the stomach and that acc no 2 shot him in the head at point black range (this is consistent with the gun shot wounds reflected in the post mortem).

o.  When they were detained he overheard acc nos 2 and 3 quarrelling with acc no 1 about money. They said that acc no 1 had not paid them the money which he had been paid for the “jobs” of killing people. Acc no 1 in response, denied that he had been paid. This ongoing problem with pyament is corroborated in detail by Ndita. It is also consistent with a pattern of racketeering.

395. In summary, the sequence of events and the times and places described by Halahoyi dovetail perfectly with the admitted statements made by accused nos 2 and 5 to commissioned officers. The testimony is also in certain respects corroborated by acc no 5’s evidence and what he described in his affidavit.

 

The application of the doctrine of common purpose

396. In my view the doctrine of common purpose applies to acc nos 3 and 5 with respect to the murder of Ndita and the attempted murder of his wife.  It also applies to acc no 1 with respect to Duka’s murder.

397. On the accepted evidence before me, the primary purpose of acc nos 2, 3, 4 and 5 was to rob Ndita of his cash loan takings. For that purpose they armed themselves with loaded firearms. The situation spiralled out of control and accused nos 2 and 4 ended up shooting the deceased. His wife was also shot in the process.

398. Based on the doctrine of common purpose, acc nos 3 and 5 also stand to be convicted on the murder and attempted murder counts. The principle behind the doctrine is that the conduct by a member of a group of persons having a common purpose which differs from the conduct envisaged in the common purpose, may not be imputed to another member of the group unless the latter knew that such conduct would be committed, or foresaw the possibility that it might be committed and reconciled himself with that possibility (in other words, common purpose in the form of dolus eventualis).

399. Acc nos 3 and 5 (as members of the group which intended to rob Nidta) knew that acc nos 2 and 4 were carrying loaded firearms. This was expressly stated by acc no 5 as the reason for not wanting them to travel in his girlfriend’s car. Based on the collective evidence, it was indeed common knowledge that at least acc nos 2 and 4 were armed before and during the robbery. According to the evidence of Nodada, acc no 3 had made a special trip to Port Elizabeth not long before this, to buy three firearms from one “Lister” so that they could carry out their jobs efficiently. At that time, one of these planned jobs was Ndita’s robbery.

400. In my view acc nos 3 and 5 foresaw the possibility that these firearms might be used during the course of the robbery, and by their conduct, reconciled themselves with this possibility. They had sufficient opportunity to withdraw. Indeed, acc no 5 contemplated such withdrawal when he saw that acc nos 2 and 4 had been drinking. But he did not. Nor did acc no 3. Both of them had further opportunities to withdraw when they saw that acc nos 2 and 4 had attacked the deceased in a manner which deviated from their plan. Again, they did not. Instead they remained steadfastly on the scene, escorted the deceased into his home where his family was, and pressed on with the robbery even after the deceased had been fatally shot by acc nos 2 and 4 in their presence. In the circumstances, I am of the view that the prosecution has acquitted itself of the onus of proving that acc nos 3 and 5 made common purpose with acc nos 1 and 4 not only to rob the deceased, but to murder him and injure his wife.

401. Accused no 1 falls into a slightly different category. He distanced himself from the coal face with respect to the physical commission of these offences. This typical situation is described by the author Snyman[152] where he says the following:

‘If there is proof of a previous agreement between the participants (something which can seldom be proven), it is relatively easy to make the inference that each participant associated himself with the others … In order to avoid the common purpose doctrine becoming too wide and thereby leading to unjust results, the following restriction to its operation should be noted. If reliance is place on a prior agreement or conspiracy between participants, it is enough to prove that X agreed with the wide and general common design of the conspirators.’

402. It is trite law that in order for the prosecution to prove common purpose, it must either prove the existence of a prior conspirary, or actual participation in the conduct for which a conviction is sought.  Nodada dealt in detail and gave a reliable account of acc no 1’s prior conspirary with respect to the offences which I have dealt with in this judgment. The prosecution is accordingly absolved from also proving active participation on his behalf and I see no reason who he should not be convicted on the basis of common purpose with respect to those offences where he has been charged with conspiracy and the actual commission of the offences.

 

The physical exhibits

403. The firearm of the deceased in count 20 which was retrieved outside the structure where acc nos 3 and 4 were arrested was handed in at the trial as exhibit one.

404. Exhibit two is a 9mm parabellum Norinco semi-automatic pistol with serial number 502020. It is common cause that it was licenced to one K.S. Bungane whose widow surrendered it to the police in terms of certain amnesty provisions on 14 June 2010. It is also the firearm which was lent to acc no 2 on two occasions during March and April 2010. The same firearm is ballistically linked to both the scenes of the Makeleni and the Tenge murders.[153]

405. Exhibit three is a 9mm short Lorcin semi-automatic pistol which was apparently retrieved from one Whitey, also known as Rasta.

406. Accused no 2 formally admitted that on 30 August 2010 the police recovered two firearms from acc no 1’s car. It is common cause that acc nos 1 and 2 were occupants of this car when they were arrested. One of the recovered firearms is a 7,65mm CZ semi-automatic pistol which was forwarded for forensic analysis and comparison on 9 September 2010. It was proved to have been ballistically linked to a cartridge and a bullet which was found on the scene where Mshiceleli Ndita was murdered.[154] It is significant that acc no 2 in the statements he made regarding the murders of James Duka and Beauty Sibamba as well as the Hollywood robbery[155], consistently mentioned that he was armed with a 7,65mm pistol when these offences were committed.

The charges of possession of firearms and ammunition

407. Accused no 2 has been charged with the unlawful possession of a firearm and ammunition with respect to all four murders scenes and also in respect of the Hollywood robbery. For the reasons which I have already mentioned when I dealt with those crime scenes, convicitions on all these counts must follow.

408. Accused no 3 was charged in respect of the Tenge, Duka and Ndita murders.[156] I have already said that there is insufficient evidence before me with respect to the Tenge murder for a conviction to follow. The prosecution has conceded, correctly in my view, that there is no evidence against accused no 3 with respect to the murder of James Duka. In my view there is also insufficient evidence to prove that acc no 3 was in possession of a loaded firearm on 1 July 2010 at Fort Beaufort where Ndita was murdered. All I have before me is the confession of accused no 2 (whose version about the extent of acc no 3’s participation on that day is questionable) and the fact that the deceased’s firearm was found outside the structure where acc no 3 was arrested, some time after the event.[157]

409. Accused no 3 must accordingly be acquitted on all these counts.

410. Accused no 4 has been charged with respect to the Sibamba and the Ndita murders.[158] The prosecution has candidly conceded that there is insufficient evidence for a conviction with respect to the day Beauty Sibamba was murdered. However, there is direct and reliable evidence before me that acc no 2 shot Nidita and that acc no 4 shot him several times. This is corroborated in the statement of accused no 5 and also by the presence of both 9mm calibre and 7,65mm calibre fired projectiles on this scene. Accused no 4 must accordingly be convicted on this count.

 

A pattern of racketeering activity

411. I now turn to deal with the first two counts in the indictment. All the accused have been charged on count 1 with contravening section 2(1)(e) read with sections 1, 2(2) and 3 of POCA. Only acc nos 2 and 3 have been charged on count 2 with contravening section 2(1)(f).

412. Section 2(1)(e) makes it an offence for any person who, whilst managing or employed by or associated with any enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s  affairs through a pattern of racketeering activity.[159]

413. In terms of section 2(1)(f) any person who manages the operation or activities of an enterprise and who knows or ought reasonably to have known that any person, whilst employed by or associated with that enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise’s affairs through a pattern of racketeering activity, shall be guilty of an offence.

414. In terms of section 3 of POCA, any person convicted of either of the above offences shall be liable to pay a fine of not more than R1 000 million or to serve up to life imprisonment.

415. In terms of the definition section of POCA the word ‘enterprise’ may be interpreted to include any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity. A “pattern of racketeering activity” means the planned, ongoing, continuous or repeated participation or involvement in any offences referred to in schedule one of POCA, one of which offences must have been committed after the commencement of POCA, and the last of the offences must have taken place within ten years (excluding any period of imprisonment) of the commission of any prior offence. In other words a person managing, employed by or associated with any enterprise who participates in the conduct of such enterprise’s affairs through a pattern of racketeering activity (ie is involved in two or more schedule one offences) is guilty of racketeering. Simply stated, the accused is guilty by virtue of (a) being involved in the enterprise (that is being part of the group of racketeers) and (b) being involved in the commission of two or more offences committed within a stipulated period of time.

416. The relevant offences referred to in schedule one of POCA are murder, robbery, assault with intent to do grievous bodily harm, malicious injury to property, theft, unlawful possession of firearms and ammunition, or any offence the punishment whereof may be for a period of imprisonment exceeding one year without the option of a fine, and any conspiracy, incitement or attempt to commit such a schedule one offence.

417. In terms of section 2(2) of POCA, the court may hear evidence, including evidence with regard to hearsay, similar facts or previous convictions relating to the aforesaid offence, notwithstanding that such evidence might otherwise be inadmissible, provided that such evidence would not render the trial unfair.

418. In considering whether such evidence should be ruled admissible against the accused, it is necessary to consider the spirit, the purports and the objects of the POCA legislation. According to its preamble, the legislature has identified a rapid growth in organised crime and criminal gang activities both nationally and internationally. Such activities infringe on the rights of the people enshrined in our Bill of Rights. It is the right of every person to be protected from the fear, intimidation and the physical harm caused by the criminal activities of violent gangs and individuals. This conduct presents a threat to public order, safety and economic stability, and has the potential to inflict social damage.

419. Indeed, POCA’s preamble recognises that South African law has failed to effectively address and eradicate organised crime and criminal gang activities, and that it has failed to keep pace with international measures aimed at dealing effectively with this problem. The preamble recognises that it is usually very difficult to prove the direct involvement of organised crime leaders in particular cases, because they invariably distance themselves from the overt criminal conduct. One of the needs for the measures embodied in POCA is accordingly to provide the criminal justice system with tools to effectively criminalise the management and related conduct in connection with enterprises which are involved in a pattern of racketeering activity and criminal gang activities, recognising that the pervasive presence of criminal gangs in many communities is harmful to the wellbeing of these communities.

420. POCA has been held by our Constitutional Court to have been introduced to ensure that the criminal justice system reaches as far and wide as possible in order to deal with the scourge of organised crime in as many of its manifestations as possible.[160] The question is whether it does so in a manner which is constitutionally permissible.

 

Similar fact evidence

421. The legal principle pertaining to similar fact evidence is in my view best set forth in Makin v Attorney General for New South Wales[161] and reads as follows:

‘It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered in the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury (emphasis added); and it may be so relevant if it bears upon the question of whether the acts alleged to constitute the crime charged in the indictment were designed or accidental (emphasis added), or to rebut a defence which would otherwise be open to the accused.’

422. The House of Lords decision in DPP v Boardman[162] is credited with having relaxed the stereotypical approach to the admission of similar fact evidence. In the words of Lord Wilberforce:

‘The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by several witnesses bear to each other such striking similarity that they must, when judged by experience and common sense, either all be true, or having arised from a cause common to the witnesses or from pure coincidence.’

423. Indeed, in my view the most striking relaxation of the English law on similar fact evidence may be found in the matter of DPP v P.[163] An unanimous judgment the House of Lords, expressly overruling Boardman on this point, held that it is not appropriate to single out “striking similarity” as an essential element in every case which allows evidence of an offence against another victim. The relevant portion of the judgment reads thus:

‘I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just (emphasis added) to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed … Restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity  between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle … Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree (emphasis added).’

424. This salutary approach is dealt with by the author Kruger as follows:

‘If in certain circumstances it appears that evidence of a tendency is highly relevant, the question is not whether the evidence indicates a tendency but what the relevant evidential value of the evidence is. In S v Banana 2000 (2) SACR 1 (Z) Gubbay CJ pointed out that the reformulation by Lord Mackay in R v P [1991] 3 All ER 337 (HL) of the test for admission of similar facts emphasises that the test concerns the evidential value of the evidence. Answering the test is thus a question of logic and sound common sense, not of legal philosophy (emphasis added). Whether the evidence has sufficient evidential value to overshadow its negative effects depends on the particular facts of each case and, of course, on the court’s balanced value judgment.’[164]

425. What emerges from the above is that not all similar fact evidence that is inadmissible according to South African law would, in any event, automatically render a trial unfair if admitted.[165]

 

Previous convictions

426. I now turn to the issue of the admissibility of previous convictions. In terms of section 211 of the CPA evidence of previous convicitions is admissible only in certain specified circumstances. Section 2(2) of POCA has not been addressed in this section. The language of section 2(2) however, declares admissible evidence of previous convictions which would otherwise be inadmissible in terms of section 211 of the CPA. As stated by Madlanga J in Savoi (supra), this is not constitutionally impermissible in terms of the rights to a fair trial set forth at section 35(3) of the Bill of Rights. The rationale for the restriction on admissibility of evidence of previous convictions is that it is prejudicial to an accused. However, evidence of previous convictions might very well be used where it would serve as relevant similar facts. Thus the debate and conclusion on similar fact evidence finds application to evidence of previous convictions as well. Kruger (supra) makes this connection with similar fact evidence in the following words:

‘It is logical that the doctrine of similar facts … will encroach on s211 because the doctrine makes previous offences, irrespective of whether there was a conviction or not (my emphasis), admissible on the basis of their relevance to the facts in dispute.’[166]

 

Application of POCA to the accused

427. According to the author Kruger[167], it is not difficult to see that it is much easier for the prosecution to establish the existence of the enterprise and the commission of two offences, than to prove that a particular accused participated in each and every one of the offences committed by other members of the group. In this way the burden of the prosecution has undoubtedly been eased to some extent as envisaged in the excerpts of POCA’s preamble which I have already referred to.

428. In contrast however to section 2(1)(e), a causal connection between the conduct constituting the offences and the enterprise’s affairs is required with respect to the offence envisaged under section 2(1)(f).[168]

429. Accordingly, the elements of a contravention of section 2(1)(e) are the following:

a. The existence of an enterprise;

b. That the accused managed, was employed by or associated with the enterprise;

c. That a pattern of racketeering activity existed;

d. That the accused directly or indirectly conducted or participated in the affairs of the enterprise through a pattern of racketeering activity.

430. It is conceded that the definition of an enterprise in POCA is particularly wide.  To my mind however, that part of the definition which best describes what acc no 1 was involved in, is that he was part of a group of individuals associated in fact.  Much earlier on in this judgment I dealt with Nodada’s very appropriate description of this association:

a. Accused no 1 provided the “jobs”.

b. Nodada scouted for people to execute them.

c. For the murder cases, Nodada usually contacted acc no 6.

d. In turn, acc no 6 organised acc nos 2 and 3 as hitmen to execute the “jobs”.

e. For the robbery cases, Nodada preferred to organise others, because acc nos 2 and 3 (whose speciality was murder) might be inclined to turn murderous during robberies.[169]

431. This to my mind is not just a close to perfect description of a typical enterprise, but it is also highly persuasive evidence that accused no 1 not only intimately associated himself with the enterprise, but also managed it.

432. It is common cause that acc no 1 has been convicted and sentenced for the murder of Makeleni which offence took place during April 2010. I am advised that his appeal in this regard is pending. The prosecution has also ltendered reliable evidence that acc no 1 conspired with, incited, instigated and procured acc nos 2 and 3 to murder James Duka and to rob Mshiceleli Ndita and that he should also be convicted of the actual murder and robbery.[170] This evidence serves to prove that acc no 1 participated in a pattern of racketeering in terms of the POCA definition in that he committed two or more schedule one offences within a period of six months.

433. The prosecution alleges that the offences are connected in that they were part of planned, ongoing, continuous or repeated participation or involvement in these schedule one offences.  It is contended that the role played by accused no 1 as well as the activities of his co-accused relate directly to an “enterprise” as defined in POCA in that the accused were a “union or group of individuals associated in fact” in that they participated in the activities set forth in the indictment. I agree.

434. Taking into account the number of offences (at least three) as well as the period over which they were committed (a maximum period of six months), as well as their nature (mainly the conspiracy to murder and to rob, the procuring of others to do so and actual murder and robbery), and the roles played by each of the accused (broadly stated acc no 1, acc no 6 and Nodada procured the services of accused nos 2 and 3 to be hitmen), a pattern of racketeering activity has been shown to exist.

435. The prosecution contends that the requirement that acc 1 be associated with the enterprise has been met in that it was accused no 1 who received and entertained clients who wanted certain people killed (in particular Makeleni and Duka).  I agree.  He was also the one who infiltrated the Ndita family and made it his business to familiarise himself with their cash loan business. He shared a common goal with at least acc nos 2, 3, 6 and Nodada to enrich himself through a pattern of racketeering. They all participated either directly or indirectly in the unlawful activities for monetary gain.

436. This court would accordingly be justified, in terms of the exceptions created in section 2(2), of POCA not only to hear this similar fact evidence and evidence of the previous conviction for the Makeleni murder but also to take it into account in convicting acc no 1 on count 1.

437. The prosecution has furthermore, successfully proved a pattern of racketeering activity. Nodada testified in detail about how he and acc nos 1, 2, 3 and 6 planned the jobs and their ongoing, continuous and repeated involvement in several schedule one offences committed over a short period of not more than six months.

438. Nodada described in detail how he and acc no 1 planned:

a. The robbery of Ndita.

b. The murder of Makeleni (for which acc no 1 already has a previous conviction).

c. The murder of James Duka.

d. The murder of the victim who lived at 25 Hintsa Crescent in Bhisho.

439. Not only did they plan these offences verbally.  Accused no 1 took Ndita to show him the prospective scenes, the prospective victims and their vehicles.  In short, between the two of them they set up an entire modus operandi to carry out what was referred to throughout the trial as “the jobs” or “the work” of the enterprise.

440. The same applies to acc nos 2, 3 and 6. Nodada testified that at some stage he decided to “bring acc no 6 into acc no 1’s loop”. Once acc no 6 was ensconsced in the loop, acc 6 said that he would organise acc nos 2 and 3 to carry out the “jobs”. He did so.

441. There is direct evidence against acc no 2 with respect to the robbery and the murder of Ndita. Acc no 2 has been convicted of the murder of Makeleni and for the unlawful possession of a firearm and ammunition with respect to that offence. The similar fact evidence and that of previous convictions presented at this trial about that offence is, to my mind, what is envisaged in section 2(2) of POCA. It is highly relevant to the facts in dispute, namely, whether the accused was part of a pattern of racketeering activities. Acc no 2 said in his statement to Buys that Nodada had told him that they were doing the jobs for “a man from Dimbaza who has a lot of businesses.”  This was before acc nos 2 and 3 liased directly with acc no 1 and Nodada was excluded.  The probabilities are overwhelming that this man from Dimbaza is none other than acc no 1.  Accused no 2 confessed that he had been involved in Duka’s murder and that he had received payment in part for that job from acc no 1.  Acc no 2 also confessed that he was involved in the murder of the deceased at 25 Hintsa Crescent.  To my mind this similar fact evidence has been properly and necessarily received by virtue of the exceptions created by section 2(2) of POCA.  Its probative value (to illustrate a pattern of racketeering activies) in my view far outweighs any prejudicial effect there may be perceived to be to the accused’s case and does not render his trial unfair.  The prosecution has likewise successfully proved acc no 2’s involvement in the Hollywood sports book robbery and the murder of Beauty Sibamba.  All in all this court has before it evidence of no less than nine schedule one offences committed by accused no 2 over a period of no more than six months. It goes without saying that accused no 2 is likewise guilty with respect to count 1.

442. The evidence regarding planning similarly applies to acc no 3. The prosecution has tendered reliable evidence regarding his direct participation in the Hollywood robbery and the conspiracy to kill James Duka. Acc no 3 has likewise been convicted for the murder of Makeleni and the possession of a firearm and ammunition with respect to that incident. What I have said about similar fact evidence and previous convictions before applies similarly to acc no 3. All in all there is before me reliable evidence regarding the commission of at least five schedule one offences by acc no 3. He, likewise, stands to be convicted with respect to count 1.

443. There is overwhelmingly strong evidence against acc no 6 with respect to his participation with Nodada in the planning of certain offences and the procuring of the services of acc nos 2 and 3. He has likewise been convicted for Makeleni’s murder which offence took place in April 2010. He also has a previous conviction for robbery committed on 27 July 2010. A pattern of racketeering has been established and acc 6 likewise, must be convicted on count 1.

444. With respect to acc nos 4 and 5, I am of the view that there is insufficient evidence against them on count 1 for a conviction to follow. There are other inferences which may be drawn with respect to their participation in these offences, such as sporadic joining in for self enrichment.[171]

445. I now turn to count 2.  Here the charges of contravening section 2(1)(f) have, for some reason, only been preferred against acc nos 2 and 3. To evaluate their position in this regard, it is necessary to distinguish between the two subsections referred to in counts 1 and 2. Subsection (e) refers to the conduct of managers, employees and associates of enterprises. The essence of the offence in ss(e) is that the accused must conduct, or participate in the conduct of an enterprise’s affairs. Actual participation is required, whether it be direct or indirect.

446. In that respect the subsection differs from ss(f), the essence of which is that the accused must know (or ought reasonably to have known) that another person participated in the affairs of the enterprise. As stated by Cloete J in Eyssen, knowledge, not participation, is required.[172] Whereas ss(e) covers practically anyone associated directly or indirectly with the enterprise, ss(f) which is much narrower, refers to the knowledge of managers (only) regarding illegal activities on the part of their employees or associates.  As stated by the author Kruger,[173] here the target is the manager. It is incumbent on the prosecution to show that the accused charged under ss(f) occupies some kind of management position in the enterprise. The word “manage” is not specifically defined in POCA. It accordingly bears the ordinary meaning. In the South African Legal Dictionary[174] a manager is described as a person charged with the direction or control of a business or undertaking.  It is a noun used to describe a person responsible for controlling an organization. The Concise Oxford English Dictionary defines the word “manage” as follows:

‘1 be in charge of; run.

2 supervise (staff).

3 be the manager of (a sports team or a performer).’[175]

The obvious difference then between subsections (e) and (f) is that in ss(e) the accused must be shown to have participated in the racketeering activity, whereas under ss(f) it must be shown that the accused:

a. Managed the affairs of an enterprise (this could be any enterprise whether legal or not);

b. Knew or ought reasonably to have known that the employees of that enterprise were linked with the planned, ongoing, continuous or repeated participation in at least two schedule one offences occurring after 21 January 1999[176], and within ten years of each other.

447. As I have said, there is no requirement that the enterprise be legal or illegal. It is the pattern of racketeering activity, through which the accused must participate in the affairs of the enterprise that brings in the illegal element. The concepts of “enterprise” and “pattern of racketeering” are discrete.[177] To my mind the evidence does not support the prosecution’s contention that acc nos 2 and 3 were the managers of this enterprise.  The mere fact that they managed to do the jobs allocated to them (which seems to be the prosecution’s contention) does not make them managers in the sense envisaged in the Statute.  I have already expressed my views on this question.  If Nodada’s evidence is to be relied on (which I do) it is clear that the managers were acc no 1 and Nodada, and to some extent acc no 6 who sourced acc nos 2 and 3 as “workers” or employees (in terms of the section) to do the “jobs”. As so aptly described by the prosecution at the commencement of this trial, accused no 1 and Nodada were managers, acc no 6 was a contractor, and accused nos 2 and 3 were sub-contractors.  Acc nos 2 and 3 accordingly stand to be acquitted on count 2.

The accused as witnesses

448. As I have said, all six accused testified in their defence.  I have, from time to time, commenting on specific areas of their defence where comment has been due.  As for the rest, their joint defence has been nothing more than a conspiracy theory of massive and detailed collusion by the police and civilians against them. I listened carefully to their evidence when they took the stand.  The fact that they have done so in an attempt to verbalise the theory, has had no effect on my judgment with respect to what the prosecution has proved against them, and that which it has not.

 

Orders

I make the following orders with respect to the charges remaining against the accused:

 

ACCUSED NO. 1:

Count 1: guilty as charged.

Count 7: not guilty and discharged.

Count 8: guilty as charged.

Count 19: not guilty and discharged.

Count 20: guilty as charged.

 

ACCUSED NO. 2

Count 1: guilty as charged.

Counts 2 and 3: not guilty and discharged.

Counts 4, 5, 6, 8, 9 and 10: guilty as charged.

Count 11: not guilty and discharged.

Counts 12, 13, 14, 15, 17, 18, 20, 21, 22, 23, 24 and 25: guilty as charged.

 

ACCUSED NO. 3:

Count 1: guilty as charged.

Counts 2, 4, 5, 6, 7, 8, 9 and 10: not guilty and discharged.

Counts 17, 20, 21 and 22: guilty as charged.

Counts 23 and 24: not guilty and discharged.

 

ACCUSED NO. 4:

Counts 1, 11, 12, 13, 14 and 15: not guilty and discharged.

Counts 20, 21, 22, 23 and 24: guilty.

 

ACCUSED NO. 5:

Count 1: not guilty and discharged.

Counts 17, 20, 21 and 22: guilty.

Counts 23, 24 and 25: not guilty.

 

ACCUSED NO. 6:

Counts 1 and 7: guilty.

Counts 8 and 16: not guilty and discharged.

Count 17: guilty.

 

Additional order:

In terms of section 204(2(a) of the Criminal Procedure Act 51 of 1977, the witness Jabulani Nodada is discharged from prosecution with respect to the offences listed in counts 1, 2, 7, 16 and 19 of the indictment, and with respect to any offences for which verdicts of guilty would be competent upon these charges. The enquiry into whether the witness Sakhumzi Ngele is likewise entitled to indemnity will be held on a date to be arranged between the Director of Public Prosecutions and the Registrar, and after which Mr Ngele has been afforded sufficient opportunity to obtain the services of a legal representative if he so wishes.

 

 

_____________________

I.T.STRETCH

JUDGE OF THE HIGH COURT

 

 

Appearances:

For the State:  Mr Mdolomba

For accused no. 1: Mr Kalimashe

For accused no 2: Mr Mphokela

For accused nos 3 and 5: Mr Stamper

For accused no 4: Mr Giqwa

For accused no 6: Mr Mhlaba

 

Postea: This is a lengthy judgment dealing mainly with the facts. For purposes of reporting the application of POCA is dealt with at pages 93 to 99, 129 to 146 and 150 to 163 thereof.

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