---

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CIRCUIT

CASE NO: CC70/2010

Delivered: 22 May 2012

THE STATE

versus

CHRIS MAHLANGU …........................Accused 1

PEMBI PATRICK NDLOVU ….......................Accused 2

JUDGMENT

Horn J:

The two accused are charged with housebreaking with intent to rob and robbery with aggravating circumstances, murder and attempted robbery with aggravating circumstances. It is alleged that on 3 April 2010 and at or near Witrandjiesfontein Farm, Ratzegaai, District Ventersdorp, the two accused broke into the house of the deceased, Eugène Ney Terre’blanche, robbed him of his Nokia cell phone, murdered him and attempted to rob him of his white, Opel Corsa motor-vehicle. The state alleges that at all material times the accused acted with a common purpose. The accused pleaded not guilty to all the charges.

The trial was conducted in camera by reason thereof that accused 2 was a minor. He has since attained the age of majority. The trial has attracted immense media interest, both locally and abroad by virtue of the deceased’s close connections with the Afrikaanse Weerstandsbeweging. The cause of death contained in the post mortem report was described as “blunt force head, chest and neck trauma”.

Mr Klaas Mxathule (Mxathule) stated that he was employed by the South African Police Service as a data typist. He is a civilian, not a policeman. He had been employed as a data typist since 21 September 2009 and performed his duties as a radio operator at the Client Service Centre, Ventersdorp. He stated that on 3 April 2010 at approximately 5:55 p.m. while he was on duty he received a telephone call from a person who introduced himself by name as accused 2. He stated that he had not met accused 2 before. He could however hear that the person who spoke to him was a young person and he asked him how old he was. This person replied that he was 16 years old. This person proceeded to tell Mxathule that he and Chris Mahlangu, accused 1, killed the deceased. The person explained that he and accused 1 were hiding near a farm. They were afraid that the white people would find and kill them. Mxathule stated that he asked this person why they killed the deceased and he answered, and I quote: “Because we worked for him and he did not pay us for the days we worked for him.” Mxathule transmitted the message to a police vehicle on patrol and the policemen on patrol later confirmed that the report made by the person about the killing of the deceased was indeed correct, the deceased was found dead in his house. Mxathule stated that the information was passed on to the emergency services and investigators. He stated that this person spoke freely and voluntarily to him and was in no way influenced to make the report.

Zaaron Selani (Selani) stated that he was employed at Kotze’s farm, Ratzegaai. He lived in the employees’ quarters on the farm. He knew both accused and had seen them at the quarters before. On 3 April 2010 in the afternoon while he was at home, the two accused arrived. Accused 1 carried a bag in his left hand. Accused 1 told Selani that they had stabbed the deceased. They wanted to borrow Selani’s cell phone so they could telephone the police and report the incident. Selani stated that he handed his cell phone to accused 1 who in turn handed it to accused 2 who then phoned the police. Accused 2 moved away when he spoke to the police, therefore Selani could not hear what was being said. Accused 1 and 2 were approximately 8 to 10 metres from each other when accused 2 spoke on the cell phone. Once accused 2 had spoken on the cell phone the two accused left but returned moments later in order to retrieve the bag accused 1 had been carrying. They said to Selani that the police will find them along the way.

When the accused arrived at Selani’s place, he noticed that the khaki overall (exhibit 1) which accused 1 was wearing had blood on the front of the overall, on the upper body area. When accused 1 told Selani that they had stabbed the deceased he gave no reason. Accused 1’s admissions were made freely, voluntarily and spontaneously. As far as Selani could see he was in his sound and sober senses. Selani confirmed that the cell phone calls recorded to have been made from his cell phone in terms of exhibit “C” accorded with the time accused 2 borrowed his cell phone and phoned the police to report the incident. Selani stated that he did not smell alcohol on the accused and neither of them appeared to have been drinking.

Ms Ennie Matsietsa stated that she worked and lived on Kotze’s farm Ratzegaai. The two accused were known to her by sight. On 3 April 2010 she, her boyfriend, Enoch, and her father were at home. It was during the afternoon. Accused 1 and 2 arrived. Accused 2 was carrying a bag. Accused 1 said to them and I quote: “Today I am your boss.” They asked accused 1 what he meant by that and he replied and I quote: “I killed Eugene Terre’Blanche”.Ms Ennie Matsietsa stated that they did not want to believe accused 1. Accused 1 then took a cell phone from his pocket, threw it on the ground and said: “Here is his cell phone” and he then said: “You do not want to believe me, come with me and I will show you.” Later in re-examination Ms Ennie Matsietsa stated that accused 2 was asked by Enoch if what accused 1 had told them was true and accused 2 nodded his head in agreement. Accused 1 asked to borrow a cell phone as he wanted to phone the police. However, they refused to lend him a cell phone and Ms Ennie Matsietsa’s father chased the accused away. She stated that accused 2 appeared quiet and frightened. She further stated that accused 1 made the utterances about killing the deceased freely, voluntarily and without being unduly influenced thereto. He was in his sound and sober senses.

Const. Mbiphi is stationed at the Ventersdorp Client Services Centre. Some of his duties includedattending to clients’ complaints. On 3 April 2010 at approximately 5:55 p.m. he was on duty with Mr Klaas Mxathule. Mxathule was a data typist – he would register complaints and would then pass them on toConst. Mbiphi to deal with. They worked in separate offices but in the same vicinity. Const. Mbiphi was called over by Mxathule. Mr Mxathule handed the telephone to Mbiphi and said: “You would not believe what I have just heard.” Const. Mbiphi took the telephone and introduced himself to the person on the line. He asked the person who was speaking and this person identified himself by name as accused 2. Accused 2 told Const. Mbiphi that they were on the Ratzegaai Road. They had had an argument with Eugene Terre’Blanche and they wanted the police to meet them on the gravel road near the gate.

Const. Mbiphi radioed Sgt Ramonyani who was on patrol duty and informed him of the message he received from accused 2. Later Sgt Ramonyani advised Const. Mbiphi that he had found accused 1 and 2 and asked Const. Mbiphi to come with a closed van so that the accused could be safely transported. Const. Mbiphi stated that he proceeded to the place where he met Sgt Ramonyani. The two accused were transferred to his police vehicle. With the help of a map, Exhibit “G”, Const. Mbiphi explained how he drove to the area. After the accused climbed into the police van and upon a question posed by Const. Mbiphi, accused 2 identified himself to Const. Mbiphi by name. Const. Mbiphi stated that he was convinced that it was indeed accused 2 he had spoken to over the phone. Detective Const. Modise took possession of a khaki overall worn by accused 1 (exhibit 1). Accused 1 explained that the deceased was stabbed after they fought with him about money owed for work done. When it was put to Const. Mbiphi that it was in fact accused 1 who told him over the phone about the incident he denied it. It was also put to Const. Mbiphi that accused 2 will say that he only spoke to Const. Mbiphi over the phone about what they were wearing and where they were and not about the incident itself.

Sgt Ramonyani stated that on 3 April 2010 he was patrolling with his crew, Sgt Morewa and Const. Londt in a marked open police van. At approximately 6:00 p.m. Const. Mbiphi called in on the radio and reported that he had received a telephone call from a person who identified himself by name as accused 2, who had told them that they requiredapolice presence at Ratzegaai. Accused 2 said that he was with accused 1, they had fought with their employer and they had killed him. Their employer was the deceased.Sgt Ramonyani and his crew proceeded to the area where they met the two accused. Sgt Ramonyani spoke with accused 1 who told him that they had argued with the deceased about money he owed them being approximately two months’ wages. He asked accused 1 how seriously the deceased had been injured and accused 1 replied that they had killed him. Accused 1 told Sgt Ramonyani that he was in possession of the deceased’s cell phone (exhibit 2) and said that he had taken the cell phone so he could sell it and get his money. Accused 2 was carrying a bag. Sgt Ramonyani told Mr Mxathule to informConst. Mbiphi to fetch the accused with a closed van.

While they were waiting for Const. Mbiphi accused 1 told Sgt Ramonyani that he had not gone home for some time because the deceased had failed to pay him and they had had enough. Const. Mbiphi arrived and they proceeded to the deceased’s farm. When they arrived there they found a white Corsa bakkie parked in the yard, facing the farm house. The driver’s door was open. The bonnet was also open. At that stage an emergency vehicle arrived at the scene. Sgt Ramonyani stated that when he looked inside the cab of the Corsa bakkie he noticed that the ignition cover had been removed and the ignition wires had been tampered with. He asked the accused about the bakkie and accused 1 told him that their main objective was to take some of the deceased’s goods and sell them so that they could get their money. The person from the emergency services, a Mr Van Heerden, had a torch and Sgt Ramonyani and his crew accompanied Van Heerden to the house. Initially Van Heerden went into the house alone. He could hear Van Heerden calling the deceased’s name. After a short period Van Heerden came out and said to them that they better come and look inside. They proceeded through the kitchen and dining-room areas on their way to a bedroom. Sgt Ramonyani noticed that various items were strewn around. In the bedroom they found the deceased lying on his back. There was a lot of blood, particularly around the facial area. A panga type weapon (exhibit 3) lay on the deceased’s chest and a steel pipe (exhibit 4) lay on the floor not far from the bed on which the body was lying.

Sgt Ramonyani returned to the police van where the accused were being detained. He was accompanied byDetective Const. Modise who had arrived in the meantime. DetectiveConst. Modise opened the door of the van and shone his torch on accused 1. The khaki overall (exhibit 1) that accused 1 was wearing had blood stains on the front, stomach and lower chest area. Sgt Ramonyani asked accused 1 whose blood it was and he answered that it was the deceased’s blood. Sgt Ramonyani explained the accuseds’ rights to them and he arrested them for the murder of the deceased. Sgt Ramonyani stated that he later entered the cell phone in the SAP13 register. The cell phone worked but had no sim card. He asked accused 1 about the sim card and accused 1 told Sgt Ramonyani that he threw the sim card away. He confirmed that all the utterances made by accused 1 were made freely and voluntarily and in his sound and sober senses.

Const. Londt was one of the crew members on duty with Sgt Ramonyani on the evening of 3 April 2010. A call came over the radio from Const. Mbiphi saying that accused 2 (mentioned by name) and a Chris Mahlango reported that they had killed their employer, the deceased, and wanted the police to attend. They met the two accused on the Ratzegaai Road where the accused repeated the allegation that they killed their employer because he did not pay them money owing to them. The admissions were made freely and voluntarily and they were in their sound and sober senses. They were not influenced to make the admissions.

Const. Londt stated that Sgt Ramonyani called Const. Mbiphi over the radio and asked him to drive out to meet them with a closed police van. Later Const. Mbiphi arrived and they all drove to the deceased’s farm, the two accused now safely locked in Const. Mbiphi’s van.At the farm they found a white Corsa bakkie parked facing the farm house. The bonnet and driver’s door were open and the ignition wires had been interfered with. Not far from the bakkie lay a horse saddle. When Van Heerden arrived they went into the farm house. Van Heerden had a torch and they followed the light of the torch. The body of the deceased was lying on a bed. His face was covered in blood and there was blood on the upper part of the body. A panga-like weapon lay on the deceased’s chest. On the floor near the wall lay a steel pipe (exhibit 4). He stated that he went to wait for Sgt Ramonyani outside the house. Detective Const. Modise had in the meantime arrived. Const. Londt stated that he saw Sgt Ramonyani and Detective Const. Modise talking to the accused in Const. Mbiphi’s van but he could not hear what the conversation was about. Const. Londt further stated that the deceased’s cell phone was found in possession of accused 1.

Mr Robert van Heerden was employed by the Department of Emergency Services. On 3 April 2010 at approximately 6:55 p.m. he received a report that someone might have been seriously injured on the deceased’s farm. Van Heerden stated that he had known the deceased for some 25 years. He proceeded to the farm. He arrived there at approximately 7:15 p.m. There were two police vehicles and four policemen on the scene. Outside the farm house there was a white Corsa bakkie with the driver’s door open and the bonnet open. A horse saddle lay nearby. He proceeded to the house accompanied by one of the policemen. He initially entered the house alone in order to calm the dogs that were in the house. He entered the house and called out the deceased’s name but there was no response. He moved through the kitchen and dining-room areas and in a bedroom adjacent to the dining-room he found the body of the deceased lying on a bed. His face had been mutilated, almost beyond recognition. There was a lot of blood. The deceased’s shirt was open and his trousers had been pulled down and zipped open, exposing his private parts. He was lying with his arms by his sides. Rigor mortis had not set in, but the body was already cold. Van Heerden stated that he advised the policemen who by then had entered the bedroom that the deceased was dead.Van Heerden stated further that on the deceased’s chest lay a panga (exhibit 3). The deceased’s dog was alive and lying on the floor near the foot end of the bed. He observed a lot of blood. There was blood against the walls, and there was blood on the door and curtains. There was also a metal pipe (exhibit 4), lying nearby on the floor next to the bed.

Detective Const. Modise stated that on 3 April 2010 he was on duty. At approximately 6:00 p.m. he heard a discussion on the police radio between Mxathule and Sgt Ramonyani that there had been a problem at the deceased’s farm. He went to the station and spoke to Mxathule who told him to meet with Sgt Ramonyani. He could however not make contact with Sgt Ramonyani and he then telephoned his commanding officer, Capt. Rautenbach. He told Detective Const. Modise to proceed to the farm to see what was going on. He proceeded to the farm and upon arriving there found Sgt Ramonyani, Sgt Morewa, Const. Londt and Const. Mbiphi already there. Mr Robert van Heerden of the Emergency Services was also present.He noticed a white Corsa bakkie parked in the yard. The driver’s door was open and the light in the cab was on. Nearby lay a horse saddle. DetectiveConst. Modise was told that two people had been arrested and he asked Sgt Ramonyani to show him the people. They proceeded to the closed police van and opened the door. DetectiveConst. Modise stated that he shone his torch light on the two people who it is common cause were the two accused. He introduced himself to them and obtained their names and residential particulars.

He asked the two accused what had happened. Accused 1 told him that they had had a fight with the deceased about their money. During the struggle they overpowered the deceased and when they realized that the deceased was dead they went to a neighbouring farm to report the incident to the police. Const. Modise stated that he noticed what appeared to be blood on the overalls accused 1 was wearing. He asked the accused whether they would be willing to provide the clothes they were wearing for DNA purposes and both agreed. Const. Modise stated that the accused spoke freely and voluntarily to him without being influenced. They were in their sound and sober senses. He spoke inSetswana to the two accused and there was no room for misunderstanding. Const. Modise stated that he entered the farm house together with Van Heerden. He noticed that in the one room things were strewn around. He inspected the other rooms and in one of the rooms he noticed that the window pane where the latch is located had been broken. The window was ajar. Glass was strewn inside the room. He proceeded to a room where the deceased’s body was lying on a bed. His face hadbeen badly injured and there was a lot of blood. On his chest lay an instrument like a panga (Exhibit 3). There was blood on the walls and ceiling. He noticed an iron pipe (Exhibit 4) lying next to the bed near the wall.

He and Van Heerden went out of the house where he met Capt. Rautenbach and Warrant Officer Coetzee and reported to them what he had found. Sgt Ramonyani told DetectiveConst. Modise that he took possession of a cell phone found in possession of accused 1 who told him that the phone belonged to the deceased. Const. Modise placed the cell phone (exhibit 2) in an evidence bag. He went back to the police station where he, with the accuseds’ consent, took possession of the clothes they were wearing for DNA analysis. He entered the clothes in the SAP13. The clothes were packed in evidence bags. The cell phone likewise was entered in the SAP13. The evidence bags were properly sealed and sent for DNA analysis.

Col Van der Nest is a police forensic expert, particularly in respect of blood spatter and the interpretation of crime scenes. His expertise was not challenged. He was attached to the South African Biology Forensic Science Laboratory. He stated that where the blood spatter took the shape of exclamation marks it indicated that the blood was on its way down when it struck the wall. There was also blood spatter indicative ofan upward trajectory. This showed that the source of the blood was at a lower level than the blood travelling upwards. Blood spatter extended to the ceiling. There were indications that some blood splatter emanated from the weapon which was used by the attacker as he flung the instrument back over his shoulder in order to bring it down to administer the next blow.

He stated that in all probability there must have been more than one blow. There was a lot of blood from the source also extracting bone fragments. He concluded that there were several blows and the force that was used must have been considerable. Looking at the photographs contained in Exhibit J1 depicting the deceased lying on his back on the bed Col Van der Nest concluded that the first blow to the head, which left an indented scull, must have rendered the victim incapacitated. All further blows would have been struck while the deceased was lying down. The striking of the blows would have been similar to wielding a baseball bat at an angle. He stated that Exhibit 4, the iron pipe, would be consistent with the weapon used to attack the deceased on the day in question. He further concluded that the attacker must have stood next to the bed on the deceased’s right hand side. Having regard to the blood patterns and blood pools around the bed and bed post he concluded that the deceased must have been stationary when the blows were struck. He stated that there were no signs of self-defence on the part of the deceased – i.e. there was no gravitational blood flow and no signs of avoidance as there were no injuries to the deceased’s arms or hands which one would have expected had the deceased tried to palm off the blows. Col Van der Nest stated that he was of the view that the deceased’s trousers were unzipped and pulled down before the blows were administered and probably while he was lying down as there were no blood patterns in that region.

Capt. Rautenbach stated that he went to the scene on the evening of 3 April 2010 and remained there until 3:30 a.m. The crime scene was taken over by Capt. Louw. Capt. Rautenbach in essence corroborated the evidence of Mr Van Heerden, Sgt Ramonyani and DetectiveConst. Modise as to what was found at the scene. He also stated that the lights of the house were not working. He found that a window pane had been broken where the latch was situated. The windowwas ajar and there wasan electrical box from which it was apparent that the electrical main switch had been turned off. The body was removed by the mortuary vehicle at approximately 11:30 p.m. The body sustained no further injuries while it was in his care. This witness was recalled by the legal representatives appearing on behalf of accused 2 mainly to answer questions around the Child Justice Act. I shall deal in more detail with this aspect later in this judgment.

Capt. Louw confirmed that he took over the crime scene after he arrived at approximately 8:10 p.m. He in essence corroborated the evidence of Capt. Rautenbach as to what was found at the scene. He stated that the body of the deceased sustained no further injuries while in his care.

Warrant Officer Siphipi is stationed at the Local Criminal Record Centre (LCRC). He stated that on 3 April 2010 at approximately 7:30 p.m. he attended the scene where the deceased’s body was recovered. When he arrived he noticed a white Corsa bakkie parked in the yard. The bonnet was open, the driver’s door was open and the headlights were on. Nearby lay a horse saddle. He entered the house and noticed that equipment and other items were strewn all over. In a bedroom adjacent to the dining-room he found the body of the deceased. The deceased was lying on his back with his arms by his sides. His face and head had been badly damaged and there was a lot of blood. A panga lay on the deceased’s chest, his shirt was open and his jeans had been pulled down and zipped open exposing his private parts. There was a substance near the deceased’s penis resembling semen.

Warrant Officer Siphipi confirmed that he took photographs of the crime scene as depicted in the photo albums, and he also took photographs of the post-mortem examination. He obtained swabs from the accused’s finger-nails. He submitted the various exhibits, including the swabs for forensic analysis. This evidence was not disputed and Warrant Officer Dippenaar, also from the LCRC, confirmed that he personally conveyed the exhibits for analysis to the forensic laboratory. Warrant Officer Siphipi further confirmed that he prepared a sketch plan and key which were tied in with the photographic exhibits.

Dr Moorad is a forensic medical specialist. On 6 April 2010 at approximately 8:00 a.m. she received the body of the deceased and conducted an autopsy on the body. She prepared a medico legal report, Exhibit ”T”, which she read into the record. She dealt with the injuries of which there were many. She stated that having regard to the wounds inflicted on the deceased it was highly likely that the first blow was the crushing blow to the front left forehead which fractured and indented the skull. This injury would have incapacitated the deceased and the rest of the blows which followed were in all likelihood administered while the deceased was lying down. The injuries could have been inflicted by either Exhibit 3 (panga) or Exhibit 4 (iron rod). There were no visible or typical defensive wounds. The injuries were severe and extensive. Inter alia, the mandible and jawbone had been broken. There was extensive swelling of the facial area and the ribs and sternum were fractured. The injuries were consistent with extreme force being administered by the attacker. She stated when questioned that at the time of her examination there was no sperm-like substance observable in the genital area. She also stated that the presence of sperm in the genital area would not be uncommon as ejaculation post mortem frequently occurred in male cadavers in all types of deaths.

Captain Joubert is the commander of the Provincial Criminal Record Centre, North West Province. He attended the scene and his evidence in essence corroborated that of Capt Louw and Warrant Officer Siphipi.

Mrs Martha Terre’blanche stated that she and the deceased were married for 43 years. They had a home in Ventersdorp, and a farm, Witrandjiesfontein. It was not uncommon for the deceased to spend a few days a week at the farm. He would sometimes sleep at the farm. The two accused were employed by the deceased. Accused 1 was a permanent employee. He worked at the farm and sometimes at the Roth Street home in Ventersdorp. He was paid R650 per month which was later increased to R700 per month.

Mrs Terre’blanche stated that there were no problems between the accused and the deceased. They all got on well with each other. Indeed the deceased described accused 1 as a good worker. Whereas accused 1 was a permanent employee, accused 2 was employed more on a temporary basis. He had been employed by the deceased for approximately 6 weeks at R50 per week. She did not know accused 2 all that well. She stated that she regularly paid the accuseds’ wages, and they never expressed any unhappiness regarding their wages.

On 1 April 2010 the deceased stayed at the farm. He also stayed at the farm on the Friday night, 2 April 2010. On Saturday morning, 3 April 2010, accused 1 came to the house at Roth Street and asked for money. She said that she will phone the deceased, but accused 1 said the deceased was in Pretoria. This statement appeared to be incorrect because later when she spoke to the deceased, he said that she must not believe accused 1, he was drunk. Indeed Mrs Terre’blanche stated that when she spoke to accused 1 that morning, he appeared to be under the influence of alcohol. In the meantime the deceased returned to the farm, saying he will come back and have something to eat later.Later that day, in the afternoon, she was telephoned by the deceased’s sister, who lives on the farm next to Witrandjiesfontein. The deceased’s sistertold her that they had noticed the deceased’s horse acting strangely. Mrs Terre’blanche repeatedly telephoned the deceased’s cell phone number but there was no response. Later that evening she was told that the deceased had been murdered.

Mrs Terre’blanchestated that the deceased walked with a slight limp because of a previous injury to an ankle. She later visited the farm and noticed the deceased’s Corsa bakkie parked. The dashboard had been damaged and it appeared that the wires had been tampered with. She later found the deceased’s keys to the bakkie near the tap at the side of the barn. She assumed that the keys must have fallen out of the deceased’s pocket while he was filling the water trough from which the animals drank.Mrs Terre’blanche stated that it was not uncommon for the deceased to remove his underpants, especially when horse-riding. The elastic irritated and hurt him between the legs. Also when it had been very hot, he would remove his underpants because of excess eczema forming between the legs. The fact that the deceased’s underpants were found hanging on the bedpost of the deceased’s bed therefore came as no surprise to her.

Capt Nkosi gave evidence regarding the formal handing in of Exhibit “HH”. He read the full contents of the pointing out statement into the record. According to this statement accused 1 admitted his direct involvement in the robbing and killing of the deceased. I should mention that after a trial within a trial, I ruled that the pointing out statement made by accused 1 was admissible. I shall deal in more detail with this aspect later in this judgment.

Shereen Adams is a sergeant in the South African police. She has been stationed at Ventersdorp the whole of her police career. She stated that she did not know accused 1. She could not remember whether accused 1 previously reported a matter to her or laid a complaint with her. She stated further that she at no stage turned people away or refused to accept complaints relating to the deceased. She stated that she at one stage visited the farm of the deceased when there was a complaint by a parent who wanted his son to return home who was at the time working for the deceased on his farm. The deceased was friendly and co-operated fully with the police and the son returned to the parent. She statedfurther that had accused 1complained to her concerning assaults by the deceased she would have attended to the complaint in accordance with her normal police duties. Upon being recalled for further questioning by counsel for accused 1 she produced documentation confirming that in 2005 she in fact attended a complaint on the farm of the deceased (Exhibit QQ).

Lt Col Mano testified in respect of the merits after the completion of the trial within a trial. He stated that he was initially the investigating officer. His evidence dealt mainly with certain admissions accused 1 made to him. He made notes of these admissions and later prepared a statement in which he incorporated the admissions made by accused 1 (Exhibit PP). In essence accused 1 admitted his involvement in the killing of the deceased. The admissions largely corroborated the statement accused 1 made during his pointing out (Exhibit HH). His admissions also corroborated the evidence of Ms Ennie Matsietsa and Zaaron Selani.Lt Col Mano further stated that he did ask Dr Moorad about the alleged semen-like substance which was seen in the vicinity of the genitalia of the deceased. She informed him that she had not seen the substance on the deceased’s body prior to performing the autopsy. During cross-examination by counsel for accused 1 it was put to Lt Col Mano that accused 1 struck the deceased with an iron rod in self-defence and the deceased fell onto the bed. It was also put to Lt Col Mano that the deceased sodomised accused 1 in the house when accused 1 had gone into the house to retrieve his suitcase.

Gladys Mesenyego is employedby the Government Mortuary. She stated that on 3 April 2010 she was summoned to the scene where the deceased’s body was found. When she arrived at the scene, she was told to wait while the Local Criminal Record Centre officials completed their investigation. She was eventually permitted to remove the body at approximately 11.30 p.m.She stated that the deceased was lying on a bed on his back. His shirt was open, his trousers had been unzipped and pulled down, exposing his private parts. She saw no semen-like substance in the genital region of the body. The body was loaded onto a stretcher and placed in a body bag. It was transported to the mortuary where it was placed in a mortuary refrigerator.

This concluded the evidence for the state. The accused did not give evidence in their defence and called no witnesses.

In assessing the evidence the court looks at all the evidence, i.e. the evidence presented by the state on the one hand and the evidence by the accused on the other hand (S v Van der Meyden 1999 (1) SACR 447 (W) at 450).In applying this principle the probabilities will also be important (S v Singh 1975 (1) SA 227 (N) at 228G). The court does not base its findings on the evidence of the state alone. Even where the accused elects not to give evidence, the court should still consider whether the state proved its case beyond a reasonable doubt. Should the court, after considering all the evidence, be satisfied that the state proved its case beyond a reasonable doubt, only then will the court be in a position to bring out its verdict (S v Jochems 1991 (1) SACR 208 (A) at 211j).

Looking at the evidence as a whole I must say that the state has amassed a formidable case against accused 1. He readily led the police to the scene of the crime. He declared his involvement in the killing of the deceased to anyone who cared to listen and openly admitted to Selani and Ms Ennie Matsietsa that he killed the deceased and took his cell phone. To Ms Ennie Matsietsa he brazenly boasted: “I killed Eugene Terre’blanche – I am now your boss.” He threw the deceased’s cell phone, which he had in his possession, on the ground in front of her and said to Ms Ennie Matsietsa: “You do not believe me, come with me and I will show you”. Blood was found on the clothing worn by accused 1 and forensically it was proved that the blood belonged to the deceased. At some stage during the trial, accused 1, through his counsel, apologised in open court for what he had done. In addition to all this accused 1 freely and voluntarily admitted his involvement in the killing and robbing of the deceased in a pointing out statement and in a statement made to Lt Col Mano.

Accused 1 was found in possession of the deceased’s cell phone. He admitted that he attacked and killed the deceased in the deceased’s house while he was asleep on a bed.He admitted that he intended robbing the deceased and to sell his property. He admitted that he attempted to steal the deceased’s motor-vehicle. The undisputed evidence of Capt Rautenbach and DetectiveConst. Modise was that a window pane in one of the rooms had been broken where the latch is situated and glass was lying inside the house. The electrical mains had been switched off. This corroborated the admissions made by accused 1 in his pointing out statement and the statement he made to Lt Col Mano as to how he gained entry to the deceased’s home.

The uncontradicted evidence of Col. Van der Nest was that the deceased in all probability was lying on his back more or less in the position depicted in photographs 9 and 10 of Exhibit J1 when the attack occurred. This evidence was, in essence, supported by Dr Moorad. There were no injuries or marks on the deceased’s forearms or hands which normally would have accompanied warding off motions, which one would have expected had the deceased tried to defend himself. This evidence in my view clearly establishes that the attack on the deceased was brutal, deliberate and without warning. The iron rod which was shown in court as exhibit 4 was in all probability the instrument used to attack the deceased. The first blow literally crushed the frontal area of the deceased’s skull. It disabled him immediately. He would have been powerless thereafter and completely at the mercy of his attacker. There were many blows and the photographs as well as the medical evidence show that the deceased’s face was literally beaten to a pulp. There can be no other conclusion that the intention was to kill the deceased.

Faced with this overwhelming body of evidence, accused 1 failed to give any explanation. He chose not to rebut any of the evidence presented by the state.

Nothing came of the allegations of assaults, sodomy and self-defence which were put to witnesses by counsel on accused 1’s behalf. Indeed, in my view these allegations were, in the face of the unchallenged forensic evidence and the admissions made by accused 1, unfounded and plainly spurious. It is remarkable that at no stage during or after his arrest, during his bail application or even in his pointing out statement were any of these allegations about wrongdoing by the deceased mentioned by accused 1. There was some kind of self-defence plea raised in the bail hearing, but that was all. Accused 1 wanted to create the impression that the deceased was so dangerous, that even the police were not prepared to confront the deceased. There was no evidence of that. Indeed Shereen Adams, a sergeant in the South African Police, stationed at Ventersdorp, stated that she encountered no problems with the deceased when she attended to a complaint on the deceased’s farm. On the contrary, she was treated in a friendly manner and with courtesy by the deceased and the complaint was amicably resolved. She denied that she ever turned any person away who wished to lay a complaint at the police station. In my view accused 1 belatedly conjured up these stories of assaults on him by the deceased. Mrs Terre’blanche stated, and this evidence was not controverted, that the deceased was kind to accused 1, praised him as a good worker and they got on well with each other. She stated that the deceased employed accused 1 after accused 1 pleaded with the deceased to give him work as he needed the money. She statedthat the deceased did not have to employ accused 1 but did so out of the goodness of his heart.Not at any stage did accused 1 consult a doctor for any injuries or report to Mrs Terre’blanche that he was beaten or injured or ill-treated by the deceased. In my view these allegations of assaults raised by accused 1 were false.

There is no evidence that the deceased was killed because of his political affiliation or his alleged dislike of black people. He was revered by some, but despised by others. He was perhaps somewhat of a firebrand and did not mince his words. For these reasons the deceased was conceivably not a popular person, particularly amongst those people who considered his viewpoint on racial issues especially abhorrent. Enemies the deceased in all probability had. However, neither accused testified about these matters. There was an attempt by accused 1 to portray the deceased as a violent and arrogant person when allegations of assaults by the deceased on accused 1 were put to some of the witnesses. Accused 2, in his statement made on his behalf by Mr Arendse at the commencement of the trial, intimated that the deceased’s motor-vehicle keys were thrown away out of fear for him even after the deceased had already been attacked. The unchallenged evidence of Mrs Terblanche was, that the deceased over the years, had mellowed and had generally become less disparaging and confrontational towards others, including black people. Be that as it may, none of these things could justify the brutal and vicious attack on the deceased. According to what was put to some of the witnesses on behalf of the accused, the dispute with the deceased was about money, not about his political beliefs or alleged aversion for black people.

Sodomy is such a personal intrusion that I cannot believe that accused 1 would not have raised this issue almost immediately upon his arrest. It is an attack on one’s dignity which would be in the forefront of one’s innate perceptions and emotions. It is demeaning, particularly where the sodomy was forced onto the victim which is what was being alleged on behalf of accused 1. It is the equivalent to rape. Yet, no word of sodomy was spoken by accused 1 until it was virtually slipped in through the backdoor, almost as an afterthought when Mrs Terre’blanche was testifying. By that time much had been said in the trial about a semen typesubstance which was found around the deceased’s genital area. In my view accused 1 saw this as an opportunity to introduce the false allegation of sodomy. In any event there is a problem for accused 1 as far as this aspect is concerned. Firstly, it has not been proved whether the substance was indeed semen and if indeed it was semen, whose semen it was. Secondly, the uncontroverted evidence of Dr Moorad was that ejaculation often occurs post mortem in male deceased persons. I therefore reject any suggestion that accused 1 was sodomised by the deceased.

I also reject any insinuation that the sperm-like substance was deliberately removed by any of the policemen who attended the scene, or for that matter anyone who handled the deceased’s body prior to the autopsy. The scene was attended by Sgt Ramonyane, Const.Londt, Sgt Morewa, DetectiveConst. Modise, Capt Rautenbach, Capt Louw, Const. Mbiphi, Warrant Officer Coetzee, Warrant Officer Siphiphi, Capt Joubert and the emergency official, Van Heerden. Some of these witnesses confirmed that they saw the semen-like substance in the genital area of the deceased. That being the case, it would be utterly foolish for them to be party to some obscure cover up by removing the substance. It simply does not make sense. Therefore, to suggest that any of these officials deliberately removed the semen-like substance from the deceased’s body is, in my view, specious. There was no earthly reason for any of them to lay their careers on the line by acting in such a manner. They had nothing to gain by doing so. At that stage accused 1 had not mentioned sodomy at all. Indeed he only raised sodomy in court when it was put for the first time to some of the witnesses. There is no saying what happened to the semen-like substance. It is quite possible, in my view, that in the course of the handling of the body by the people who removed the body or the mortuary officials the substance could have been accidentally removed. This proposition was certainly not excluded by Gladys Mesenyego. It all remains speculation. But to suggest that the substance wasdeliberately removed, for what seems to be no apparent reason, is, in my view, absurd.

It was put to some of the witnesses on behalf of accused 1, that the deceased attacked him with the panga, exhibit 3. This suggestion is however not borne out by the evidence. Col Van der Nest stated that having regard to the blood spatter in the room, the way the deceased’s body was found on the bed and the nature of the injuries inflicted on the deceased, it was highly likely that the deceased was lying down when he was attacked. This evidence was supported by Dr Moorad. Accused 1 himself confirmed this version in his pointing out statement. The first blow was a crushing blow to the forehead, which blow would have completely disabled the deceased. There were no signs of a struggle and the deceased’s arms and hands disclosed no warding off injuries – there was no sign that the deceased defended himself during the attack. Dr Moorad confirmed that the deceased’s body bore no defensive wounds. This evidence was not gainsaid. On the acceptableevidence therefore there was no opportunity for the deceased to defend himself. In any event, the alleged dispute about money which the deceased purportedly owed accused 1, could at most have constituted a misguided right, but in the circumstances of this case it could not found a ground for self-defence.

A person may rely on self-defence, or as it is now commonly referred to, private defence. The plea of private defence, if successful, will have the result that the person who relies on the defence did not act unlawfully. This is a trite common law principle. However for this defence to succeed it must be shown:

1. that the attack against which the person defended himself was unlawful (S v Ndara 1955 (4) SA 182 A at 184; S v Goliath 1972 (3) SA 1 (A) at 10).

2. that the attack was directed at the defender or his direct interests.

3. that the attack was imminent, i.e. it is not permissible to pre-empt an attack (Ex Parte Minister van Justisie; In reS v Van Wyk 1967 (1) SA 488 (A) at 504 E – F).

Even where a person defends himself within the aforesaid parameters, he cannot rely on private defence where his defensive action exceeds the bounds of reasonableness, for example, if the attacker attacks with his bare hands it would be unreasonable for the victim to retaliate by beating his attacker to a pulp with an iron rod. Also where the attacker’s attack is neutralised so that he no longer constitutes a danger it would be wrong for the defender to continue with his attack. That would be exceeding the bounds of self-defence. Moreover, the victim must cease his attack once the attacker ceases the assault or is no longer a threat to the victim. If the victim can evade the attack by running away, he should do so.

There is no evidence, other than what was put on behalf of accused 1 that the deceased attacked him. There is no indication that accused 1 complied with any of the aforesaid criteria. There was no evidence that the deceased was armed at any stage. According to the medical evidence the blow to the deceased’s head in all probability disabled him, rendering him unconscious, completely incapacitating him. Thenceforth he would have been at the mercy of accused 1. All indications are that accused 1 continued the attack after the deceased had been rendered harmless. That is not self-defence. Objectively viewed, the only conclusion one can come to is that accused 1 was the initial attacker or at least exceeded the bounds of reasonableness as a result whereof his self-defence action became the primary attack.In any event, in the absence of evidence from accused 1 to support the allegation of self-defence the reliance on self-defence by accused 1 is not sustainable.

The evidence shows, including the admissions made by accused 1, that accused 1 went to the farm of the deceased and entered his home with the intention to rob and kill him. To that end he armed himself with an iron rod. He broke into the deceased’s house and there attacked and killed him. Accused 1 told witnesses that he took the deceased’s cell phone in order to sell it. Indeed according to various admissions made by accused 1 the intention was to rob the deceased of his property, including his motor-vehicle. There were clear indications that the deceased’s Corsa bakkie had been tampered with and the ignition wires had been laid bare - probably in an attempt to start the vehicle.

The failure by an accused to give evidence does not necessarily mean that he is guilty of the crime or crimes with which he has been charged. It is an accused’s constitutional right to remain silent (S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC)). However, where the evidence against an accused is so overwhelming, an accused’s failure to answer those allegations can be a factor that may weigh against the accused when the court considers his guilt or innocence. The state of mind of the accused when he committed the crime can be important and thus the accused’s silence may be more weighty against him(S v Theron 1968 (4) SA 61 (T) at 63 D-G).The present matter is, in my view, such a case. The case against accused 1 is arguablyunanswerable and one would have expected a response from accused 1. It may very well be that because of the convincing case against accused 1 he considered it futile to give evidence. Be that as it may, his failure to proffer any explanation leads to no other conclusion that he committed the crimes attributed to him.

At some stage a trial within a trial was held in order to determine the admissibility of pointing out statements made by accused 1 and accused 2. After hearing evidence I ruled that the pointing out statement made by accused 1 was admissible. I further ruled that the pointing out statement and any admissions made by accused 2 were inadmissible. I now provide my reasons for these rulings.

Insofar as accused 2 is concerned, the courts will always strive to act in the best interests of minor children. Since a child is inexperienced in the ways of life, is often over-zealous, impressionable and thoughtless, he is more likely to do and say things which in the eyes of adults are simply unacceptable. A child often has to be protected from himself lest he says or does things which may land him in hot water. For these reasons the courts have gone out of their way to protect children, not only from their own callowness but also from the clutches of those who may want to take advantage of their naivety. Indeed the concept “in the best interests of the child” is a principle which has found application in our law for decades. Hence there is nothing new insofar as this principle is concerned. The Child Justice Act (75 of 2008) which came into operation on 1 April 2010, can claim no exclusivity to the principle “in the best interests of the child”.

In terms of the common law the defamatory laws protected a person’s dignity, reputation and good name. Slander has never been allowed, be the recipient of such abuse an adult or a child. The so-called “judges’ rules” which for decades found application in our pre-constitution criminal procedure protected accused persons from self-incrimination. It entitled all accused persons to a fair and speedy trial, the right to be informed, and ensured legal representation for all.All these rights, and perhaps one or two additional ones, have now been embodied in a codified decree of rights in terms of the Constitution. Therefore, not only children, but adults, every inhabitant of this country, enjoy those rights and are entitled to be treated with respect, dignity and temperance. The Child Justice Act holds no exclusive claim to the aforementioned privileges. So, in my view, it is wrong to elevate the rights of a child to something more than the rights already embodied in the Constitution. Those rights are applicable to everyone,notwithstanding that the Child Justice Act has been promulgated.

A study of the Child Justice Act shows that the Act deals not so much with entrenched constitutional rights, but rather serves to enhance the welfare and special needs of children who have come into conflict with the law. It is of an administrative nature. In essence, the Criminal Procedure Act (51 of 1977), the Constitution and the common law have not been superseded or altered by the Child Justice Act (save perhaps in respect of the age of criminal capacity). Those laws still apply to all citizens – children and adults alike.

There is nothing in the Child Justice Act which can be construed to have imposed any special obligations on the police when investigating a crime where a minor is involved other than those obligations which already existed prior to its promulgation, such as informing the child of his constitutional rights, securing the presence of his parent or guardian, and so forth. There is for example, no requirement that a probation officer has to attend a pointing out or must be present when a minor makes a confession or an admission, or that the pointing out is subject to a probation officer’s assessment. The appointment of a probation officer is an administrative act which has nothing to do with the duty of the police to investigate crimes. Indeed it would have been surprising had the Child Justice Act made such drastic inroads into police methods of investigating crimes. In any event it is clear from the provisions dealing with the assessment of a child in terms of Chapter 5 of the Child Justice Act that the enquiry has nothing to do with the child’s constitutional rights or the methodology of the investigative procedures of the police. The assessment deals with questions of age determination, whether the child is in need of care, placement of the child, previous convictions, and so forth. The emphasis is on the welfare of the minor accused.

Under the duties and powers of the probation officer set out in section 39(1)(b) of the Child Justice Act it is said that the probation officer must, inter alia, inform the minor of his rights. What those rights might be is not stated. It could be the child’s constitutional rights or his rights in terms of the Child Justice Act. I cannot see that the Legislature would have intended that a probation officer, who generally is not a legal person, would have been tasked to deal in any depth with the Constitutional rights of children. Neither can I see that the Legislature would have intended that a probation officer should be in a position to thwart or frustrate police investigations which would be the case should he be expected to become embroiled ininvestigative procedures. There is no special magic in the Child Justice Act. It is not supposed to turn juvenile offenders into untouchables. Experience has shown that some of the worst crimes are committed by youthful offenders. They should not be permitted to hide behind their youthfulness when they make themselves guilty of violent crimes. Young offenders must be held accountable otherwise the situation could arise where they infringe upon the rights of others with impunity. The Child Justice Act was enacted to ensure the well-being of the youthful offender, not to shield him from prosecution.

The evidence of Lt Col Jacobs, who indeed, was an impressive witness, was that he informed accused 2, in the presence of his mother, twice of his constitutional rights, Sgt Kutumela informed accused 2 of his rights, Lt Col Mano also informed him of his rights and for what it is worth, Const. Mokwele as well. How many times must an accused be informed of his rights? Surely, it cannot be expected that the police investigation should be held in abeyance so as to allow a probation officer to do what he has to do in terms of the Child Justice Act. Such an approach would be untenable. Consequently, I find that the absence of a probation officer’s report or assessment had no bearing on the legitimacy or regularity of the pointing out procedure.

Lt Col Jacobs stated that he explained the contents of the pointing out document to accused 2 and his mother and they both intimated that they understood the proceedings. He stated, and this was not challenged, that accused 2 presented as quite mature and he gained the impression that accused 2 was reasonably advanced for his age. Accused 2 at the time was some 19 days from his 16th birthday. The details which Lt Col Jacobs supplied to accused 2 and his mother were interpreted to them in Setswana. The undisputed evidence of Lt Col Jacobs was that where the wording was somewhat complicated he explained the meaning and import thereof in broader terms. This was confirmed by Reserve/Const. Mtembu, the interpreter. Reserve/Const. Mtembu stated that he interpreted from Afrikaans to Setswana and vice versa. At no stage did either accused 2 or his mother complain that they did not understand him or that they did not understand the proceedings. Indeed, the mother told Lt Col Jacobs and Reserve/Const. Mtembu that she understood Afrikaans well. This was not challenged.

The impromptu examination conducted by Mr Majavu, who at that stage handled the cross-examination on behalf of accused 2, supposedly to gauge the interpretational skills of Reserve/Const. Mtembu, must be viewed in its proper perspective. Firstly, althoughMr Majavu is adept in the use of the Afrikaans language, I truly at times, had difficulty grasping Mr Majavu’s Afrikaans pronunciation. No wonder Reserve/Const. Mtembu had difficulty understanding him. Secondly, having regard to the fact that the impromptu test was performed in the tense atmosphere of a court, Reserve/Const. Mtembu in fact did relatively well in the circumstances. Reserve/Const. Mtembu’s evidence was not that his interpretation would be flawless, but that he will interpret to the best of his ability. And that, I believe, he succeeded in doing.

The test really is: Did accused 2 and his mother understand the proceedings as interpreted? They both confirmed verbally and in writing that they did, accused 2 by signing the document and his mother by placing her thumb print on the document. In my view the interpretation of the pointing out proceedings was proper and the proceedings were regular.

The same can be said for Sgt Kutumela’s interpretation of the rights certificate. There is no prescribed formula as to how an interpreter must go about his business. Again, the real test is whether the accused and his mother understood what they were told. They both confirmed that they understood what was interpreted to them and they signed to that effect. Sgt Kutumela explained that he would read the contents of the certificate of rights and then convey the meaning thereof to the accused and his mother. To my mind this was more than adequate, bearing in mind Sgt Kutumela’s evidence that he has read out hundreds of these forms during his police career. Sgt Kutumela stated in evidence that he explained the contents of the rights document to the accused and his mother and they acknowledged that they understood his explanation. I do not believe that Sgt Kutumela could have done more than that.

Lt Col Mano stated that he interviewed both accused during the early hours of the morning of 4 April 2010. He informed them of their constitutional rights and they both indicated that they understood. Both made certain admissions to him and expressed their willingness to take the police to the scene of the crime and show them what had happened there. Much was made of Lt Col Mano’s alleged “apartheid style” methods of compelling accused persons to make statements against their will. There was no sign of that in this case. In my view what happened in the past as far as Lt Col Mano is concerned, for the purpose of this case, was irrelevant. At no stage was it the case of either accused 1 or accused 2 that they had been assaulted or coerced by the police to make a pointing out. In the trial within a trial proceedings Lt Col Mano made a good impression and there was no evidence that he showed any aggression or animosity towards the accused. If anything, he showed them courtesy and respect. He spoke openly and calmly with them and there can be no suggestion that he misled them.

Much was made of the alleged haste with which the pointings out were made. In my view there can be no reason why the policecould not obtain pointing out statements and even arrange for confessions from accused as soon as possible after their arrest. There is nothing sinister about that. No doubt the police would have wanted to strike while the iron was hot. As Lt Col Mano pointed out, obtaining a pointing out statement forms an important and integral part of the police’s duty to gather evidence. They have to do this as soon as possible lest evidence disappears or becomes contaminated. A person who today says that he will be prepared to point out could change his mind twelve hours later. It is therefore not uncommon for the police to obtain pointing out statements or confessions as soon as possible after the commission of the offence. There can be nothing wrong with that. I also have no difficulty with the removal of the accused to different police cells. There is certainly no law that I am aware of which prohibits such a transfer. Provided the removal is done without an ulterior motive there can be nothing wrong with it. Lt Col Mano denied that there was any such ulterior motive and his evidence was not gainsaid.

There was however a number of aspects which troubled me insofar as accused 2 was concerned. It is evident that when Lt Col Mano initially interviewed accused 2, he did so without his mother being present. It was in fact during this time that Lt Col Mano elicited from accused 2 certain admissions and his willingness to do a pointing out. Explaining such procedure and particularly the possible implications thereof to a practically illiterate boy of not quite 16 years of age is meaningless. This is such a serious case and the implications for accused 2 so crucial, that surely his ability to understand and appreciate what he was in for should have received more consideration and attention from the police. Moreover, to talk to his mother about these things, a woman who allegedly is illiterate and afflicted with a serious drinking problem, certainly did not help matters. Did accused 2 and his mother really understand what was going on? I seriously doubt it.

But even worse, according to Lt Col Mano the interview with accused 2 was conducted during the early hours of the morning of 4 April 2010. The boy had not slept up to that time. One does not know whether he had been fed. At some stage he was clad only in his underpants with a blanket wrapped around him. He must have been exhausted and afraid. He was shunted from pillar to post. He was accused and questioned, even at that time of the morning about the death of the deceased. He was given no opportunity to rest. By 8 o ‘clock that morning he was taken to do a pointing out which held serious implications for him. This is not the way to deal with a young child accused of such a serious crime.

In my view the police could have handled the child’s situation with more circumspection and solicitude. They could have allowed him to rest, at least for a day or so. They could have allowed accused 2’s mother or other guardian for example, his uncle who assisted the child throughout the trial, to spend more time with him in order to discuss with him his involvement in the matter. In that way accused 2, refreshed, fed and clothed and accompanied by his guardian, properly pre-cognised about the matter, could have given more informed answers to the police as to what had happened on the night in question. An uninformed accused, particularly a minor, could be seriously prejudiced should he incriminate himself without appreciating the gravity thereof. In S v Mphalaand another 1998 (1) SACR 388 (W), Cloete J (as he then was) at p 399e said:

“In addition it seems plain to me that when the accused were for practical purposes asked to waive their constitutional rights, the consent to do so had to be an informed consent. They were as entitled to be informed of facts obviously relevant to the exercise of their election as they were of the express provisions of the Constitution itself.”

A failure to properly inform an accused of his constitutional rights can give rise to an unfair trial. Evidence obtained in violation of an accused’s fundamental constitutional rights, can lead to such evidence being ruled inadmissible(S v Mkhize 2011 (1) SACR 554 (KZD at 564 para [50])).In this respect I believe that accused 2’s constitutional rights to be properly informed of the right not to incriminate himself, of the right to fair administration, to be fairly treated and of his right to dignity were seriously infringed. These shortcomings must have impacted on the child’s state of mind when he decided to make those admissions to Lt Col Mano and to do the pointing out. Whereas I have found that the pointing out procedure per se was regular I do believe that the failure to have regard to accused 2’s fundamental rights as mentioned above was so serious that it impinged on his right to a fair trial. Consequently I ruled that the pointing out statement by accused 2, and any admissions made by him to Lt Col Mano on 4 April 2010 were improperly obtained and were inadmissible.

The position of accused 1 was materially different. Accused 1 was 27 years old at the time of the murder. He was well able to fend for himself when questioned by the police. It has to be borne in mind that accused 1 had given himself up to the police and admitted to Ms Ennie Matsietsa and her boyfriend that he had killed the deceased. It is therefore not surprising that he saw no need to be defensive and he consequently co-operated fully with the police. In my view there was nothing untoward in the fact that accused 1 that morning made the admissions and intimated to Lt Col Mano that he was prepared to do the pointing out.

I am satisfied that Capt Nkosi properly dealt with the pointing out procedure and that accused 1 understood the ambit and implications thereof. Capt Nkosi communicated with accused 1 in North-Sotho and they clearly understood each other. Capt Nkosi could only have obtained the details in the pointing out statement from accused 1. The alternative would be that he would have had to fabricate that information.This, in my view, was highly unlikely. At no stage did accused 1 intimate that he was unhappy with the procedure or that he did not understand the procedure or that he did not want to continue with the procedure. I further find that accused 1 was properly informed of his rights, not only by Capt Nkosi, twice, but also by Lt Col Mano early on the morning of 4 April 2010. Accused 1 did not testify in the trial within a trial, and did not refute the evidence of either Capt Nkosi or Lt Col Mano. I was consequently satisfied that the pointing out was properly done by accused 1 and I ruled that the pointing out statement made by him was admissible as evidence.

According to accused 1’s pointing out statement he admitted that he went to the deceased’s home with the intention to rob him. He broke a window of the house, opened it and gained access to the house. He found the deceased sleeping on a bed. He armed himself with a steal pole or “yster” as he put it and proceeded to assault the deceased with it. He took the deceased’s cell phone. When one reads the statement it is clear that it coincides with the evidence as a whole. So for example, it confirms the evidence that the deceased was beaten with probably exhibit 4 while he was lying on the bed and that he was struck with this instrument on his head. That was in fact how the deceased was found. The version as to how accused 1 gained entry to the house and the taking of the deceased’s cell phone, was likewise in line with the evidence. The same can be said for the verbal admissions accused 1 made to Lt Col Mano, which confirmed his direct involvement in the killing of the deceased. These admissions on the part of accused 1 were also in line with the medical evidence. On accused 1’s own version, in terms of the pointing out statement, he purposely went to the house to attack and rob the deceased. Not only did accused 1 admit to witnesses that the intention was to rob the deceased of his property, including the motor-vehicle, he also confirmed this when he made the admissions to Lt. Col Mano. It was undisputed that the deceased’s cell phone was found in the possession of accused 1, and that there were clear signs that the ignition wires of the deceased’s Corsa bakkie had been tampered with.

The point was made by counsel for the defence that the pointing out statement by accused 1 amounted to a confession and was inadmissible because it did not comply with the provisions of section 217 of the Criminal Procedure Act and section 4 of the Justices of Peace and Commissioner of Oaths Act (16 of 1963). Section 218(2) of the Criminal Procedure Act entitles the prosecution to adduce evidence of the pointing out of a thing or the discovery of a fact, and to that end an accused is precluded from objecting to such evidence on the ground that the pointing out or information forms part of an inadmissible confession. The inadmissible confession of course will be excluded by reason thereof that it does not comply with the requirements set out in section 217 (S v Nkwanyana 1978 (3) SA 404 (N) at 405F). However, once it is shown that the statement contained in the pointing out document, even if it could be construed as a confession, complies with the provisions of section 217, then that statement, like the pointing out, is admissible as evidence.

I have already found that the pointing out was proper. The statement contained in the pointing out statement complies with the requirements specified in section 217, in that:

1. it was freely and voluntarily made (that was never an issue);

2. it was confirmed and reduced to writing (Exhibit “HH”); and

3. it was made before a justice of the peace (Captain Nkosi is an ex officiojustice of the peace in terms of section 4 of the Justices of Peace and Commissioner of Oaths Act).

Consequently the pointing out statement by accused 1 set out in Exhibit “HH” was properly received in evidence. The pointing out document, Exhibit “HH”, is neither an affidavit nor a declaration. The heading clearly states that it comprises notes regarding the pointing out. There is therefore, no requirement for the document to be attested before a commissioner of oaths. In fact, in practice, these documents are not affidavits, neither are they attested to. They are statements consisting of notes by the justice of the peace of what he was told by the accused and what the accused did during the pointing out.

There is no law, no convention, no rule of court or rule of practice that requires the justice of the peace to make use of an interpreter. As long as the justice of the peace and the accused understand each other the purpose of the pointing out would have been achieved. The evidence of Capt Nkosi was clear; he and accused 1 communicated in North-Sotho and they understood each other – that evidence was not refuted.

Before closing the state’s case, Mr Baloyi, on behalf of the state, applied in terms of section 3(1)(c) of the Law of Evidence Amendment Act (45 of 1988) to declare the hearsay evidence contained in the written pointing out statement of accused 1, admissible against accused 2. I ruled against the application.

In my view, the present case is distinguishable from S v Ndlovu and others 2002 (2) SACR 325 (SCA). In Ndlovu’s case all four the accused were adults. There were no issues regarding the rights of a minor accused or the implications of the Child Justice Act present in that case. The statements made by accused 3 and 4 in Ndlovu’s case were, after a trial within a trial, admitted on the basis that they were made freely and voluntarily. In the present matter I specifically ruled, after hearing evidence in a trial within a trial, that the pointing out statement made to the police, as well as any admissions made by accused 2 were inadmissible. As I intimated earlier in my judgment, my ruling was based on the fact that the minor was unfairly treated and his constitutional rights were infringed. It would, I believe, be quite extraordinary to now allow admissions by accused 1, to be admissible against accused 2, which in effect would circumvent the very reason for ruling the statement and admissions made by accused 2 inadmissible. This would be grossly unfair and prejudicial to accused 2.

In any event, the Supreme Court of Appeal has since expressed its disquiet as to the grave implications the ruling in Ndlovu’s casewill have on the right of an accused to be presumed innocent until the contrary is proved and on his right to remain silent. In criminal law the fundamental principle that the state must prove its case beyond a reasonable doubt is entrenched. Permitting a pointing out statement by one accused to be admissible against his co-accused undermines this principle and impacts on the right of an accused to a fair trial (Balkwell v S [2007] 3 All SA 465 (SCA) at 475 at para [34]). The decision in Ndlovusupra, has also come under scrutiny in S v Libazi and Another 2010 (2) SACR 233 (SCA) where strong judicial discontent for the Ndlovu approach was expressed.

There is another reason why I believe the hearsay should be excluded. In terms of section 219 of the Criminal Procedure Act, an accused’s confession is not admissible against a co-accused. Reading Exhibit HH, i.e. the pointing out statement of accused 1, I am not convinced that that statement cannot be regarded as a confession. Accused 1 in the pointing out statement specifically states that the intention was to confront the deceased, and kill him – indeed the word “murder” is randomly used by accused 1 in his pointing out statement. The reference to murder by accused 1, in my view, excludes any defence and the statement would therefore constitute a confession. That being the case, the pointing out statement by accused 1, probably amounts to a confession and will consequently be hit by the provisions of section 219. For the aforegoing reasons, I found that it would not be in the interests of justice to declare the hearsay evidence admissible against accused 2.

One thing the police and investigators are sure to have learned from this case, is that there is no such thing as an open and shut case. All cases shouldreceive the appropriate attention irrespective of the strength or weakness of the case. The police and investigators should not let their guard down because a case appears to be simple and straight forward. They do so at their peril as this case has no doubt proved.

Also the police authorities should seriously consider having all pointing out documents drafted in the language of the person who is pointing out. Not only will it be fair to that person but it will obviate much criticism and to a large extent curtail lengthy cross-examination of police officials when these documents are tendered as evidence. In fact, the interpretation of documents and writing of statements are important components of police work. How can a police official who is expected to interpret an accused’s constitutional rights, explain those rights to the accused when the policeman concerned does not understand the language, or worse, displays inadequate reading or writing skills. It makes a mockery of the legal process, undermines the administration of justice and is demeaning of not only the policeman concerned, but the police force as a whole. The courts have often complained about the lack of skill and ability on the part of police officials who are tasked to obtain statements from witnesses or who are required to interpret for witnesses. It is really time that these shortcomings be addressed by the police authorities.

Accused 2 likewise elected not to testify in his defence. In his case, a considerable amount of cross-examination revolved around (a) whether it was accused 2 who made the initial telephone call concerning the incident and (b) what in fact was said by accused 2. The evidence in this regard can in my view be conveniently divided into two components. The first component concerns the evidence of Mxathule and Const. Mbiphi, supported in essence by the evidence of Selani. The second component would be the evidence of Sgt Ramonyani and Const. Londt, to the effect that they heard from Const. Mbiphi that it was accused 2 who made the initial phone call.

The evidence of Mxathule and Const.Mbiphi and to a degree Selani’s evidence,was based on discussions between them and the caller who introduced himself asaccused 2. On their evidence it was accused 2 who contacted them and reported how and why they attacked and killed the deceased. Bear in mind that accused 2 did not deny that he spoke to Const.Mbiphi over the phone. The difference is that it was put on behalf of accused 2 that he told Const. Mbiphi where he and accused 1 could be found and what they were wearing – accused 2 did not say anything about the incident itself. That would mean that in accordance with what was put on behalf of accused 2, it must have been accused 1 who made the initial phone call concerning the incident. However, this is doubtful. It would mean that there would have had to be two initial telephone calls to Const.Mbiphi and Mxathule reporting the attack on the deceased. That was not the evidence and it is against the probabilities. Why two phone calls by each accused in essence concerning the same subject matter? The undisputed evidence of Selani was that only accused 2 made the phone call. Clearly therefore it was accused 2 who made that initial phone call to the police. Following on accused 2’s report to the police, the police responded and later the deceased was found dead in his home, beaten to death. Furthermore, Mxathule stated that he could hear the caller was a young person and when he asked the age of this person he told him that he was 16 years old (although factually this was incorrect as accused 2 was not yet 16).

The evidence in this regard by Sgt Ramonyani and Const. Londt must be considered in the light of what they were told by Const.Mbiphi – their evidence on that issue was hearsay and carries no evidential weight. Both these witnesses made statements, rightly or wrongly, correcting their initial statements, confirming that Const. Mbiphi reported that the caller was accused 2, not accused 1. They were heavily criticised by counsel appearing for accused 2 for in essence changing their statements. Insofar as it may be relevant, I will for the purpose of this judgment attach no value to these witnesses’ evidence insofar as it concerns the question as to whether the initial report was made by accused 2. I do however on the facts accept the evidence of Mxathule, Const. Mbiphi and Selani that it was accused 2 who made the initial phone call. However, the record keeping by the police was poor. It was admitted by Mxathule that no record was kept of the call made by accused 2. There is therefore no official record as to what accused 2 told the police. Moreover, we do not know the circumstances under which accused 2 purportedly reported the incident to the police. Selani stated that he stood some distance from accused 2 when he made the phone call and he could not hear what was being said.

The significance of this initial phone call evidently lies in the alleged admission made by accused 2 that “they” killed the deceased. However, there is a lack of clarity in that regard. Firstly, the police kept no record of what was actually said by accused 2. Secondly, at no stage did any of the policemen confront accused 2 and specifically obtained from him his confirmation that it was indeed he who told them that “they” had killed the deceased. Thirdly, initially Sgt Ramonyani and Const. Londt had said in their statements that it was accused 1 who made the initial phone call. Only, after being prompted during cross-examination, did they concede that they later changed their statements to the effect that it was accused 2 who made the initial phone call. They clearly were not in a position to say what was allegedly said by accused 2 when he made the phone call. On the evidence I am therefore not in a position to conclude with certainty that accused 2, when he made that initial phone call, made the admission that “they” had killed the deceased.

On the other hand, there is, in my view, sufficient evidence to show that on the day in question accused 2 was in the company of accused 1 and at some stage was in the deceased’s home, either at the time he was killed or soon thereafter. After all accused 2, together with accused 1, gave himself up to the police. This conduct by accused 2 speaks volumes abouthisassociation with accused 1 and accused 2’spresence in the deceased’s home on the day in question. Moreover, when accused 1 admitted to Ms Ennie Matsietsa that he had killed the deceased, accused 2 was present and nodded his head in agreement when asked by Enoch whether what accused 1 had said was true.Accused 2 would not have known whether this was true unless he too at some stage was in the house.

At the commencement of the trial, accused 2, through his counsel, provided a plea explanation which in effect confirmed that accused 2 entered the deceased’s home on the day in question where he found the deceased lying on a bed. Accused 2 was, according to his plea explanation, unable to say whether the deceased had already been killed. Accused 2 did not give evidence and therefore did not explain this statement made on his behalf. Consequently, according to accused 2’s plea explanation he places himself in the deceased’s house approximately at the time he was killed. It has now authoritatively been settled that an accused’s plea explanation in terms of section 115 of the Criminal Procedure Act has evidentiary value and can be taken into account when the evidence in its totality is being considered (S v Cloete 1994(1) SACR 420 (A) at 582f-g; S v Mjoli and Another 1981 (3) SA 1233 (A) at 1246-1247). Accused 2 in effect did not refute any of the aforegoing evidence neither did he distance himself from his plea explanation.

Mr Arendse, who appeared on behalf of accused 2, submitted that what he intended was to make an opening statement in terms of section 151 of the Criminal Procedure Act. It was not intended to be a plea explanation in terms of section 115. The difficulty I have with this is, firstly, the Criminal Procedure Act does not make provision for an opening statement by the defence at the commencement of the trial. That is reserved for when the state has closed its case and the defence is about to present its case. Secondly, Mr Arendse gave the statement immediately after Mr Tlouane informed the court that accused 1, on whose behalf Mr Tlouane appeared, would not give a plea explanation and he reserved his right to remain silent. What Mr Arendse said is that, on behalf of accused 2, he confirmed the plea of not guilty and “he wished to place on record” – and then followed the explanation by Mr Arendse which to all appearances was an explanation tendered on behalf of accused 2. When Mr Arendse rose to give the statement, as he put it: “on behalf of accused 2”, I certainly was under the impression that Mr Arendse was giving the statement on behalf of accused 2 in terms of section 115.

In any event, when a legal representative, whether acting in terms of section 115 (the plea explanation) or 151 (the opening statement), specifically declares that what he says is said on behalf of his client, and then proceeds to make admissions or gives an outline of what the accused will in all probability say, it forms part of the record and cannot simply be ignored. What was said on behalf of accused 2 in effect placed him inside the house of the deceased on the day in question – that evidently was an important aspect of his case. Surely in those circumstances it forms part of the record and must be taken into account in the overall analysis. What weight the court will place on such a statement depends on the circumstances of each case. Here we have a situation where on the evidence accused 2 was at all material times in the company of accused 1 and gave himself up to the police as one of the perpetrators in regard to the attack on the deceased in his house on the day in question. Consequently, what was said on behalf of accused 2 by Mr Arendse at the commencement of the trial, in my view, forms part of the record which should be taken into account in the final weighing up of the evidence.

In R v Hepworth 1928 AD 265 at 277, Curlewis JA said the following:

“A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge’s position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure, but to see that justice is done.”

(See also S v Gerber 1997 (2) SACR 601 (SCA) at 606a-c).

Where evidence is or becomes available to the court which can lead to a just resolution of the case, a court will be entitled to have regard to such evidence. In essence the interests of justice must prevail. This was not a case where one was dealing with an unrepresented accused. Accused 2 was availed by a senior advocate with many years experience who was assisted by an equally proficient and experienced attorney. In these circumstances the court would be justified in accepting that statements made on behalf of accused 2 by his counsel were in accordance with his instructions and were meant to form part of the record. The rule that an accused stands or falls with what his legal representative says or does on his behalf, is a principle embedded in our law, and will only be deviated from in exceptional circumstances (S v Louw [1990] ZASCA 43; 1990 (3) SA 116 (A) at 124C-G).

Much cross-examination was directed at contradictions in police statements. Some of the police witnesses were heavily criticized for the manner they recorded the statements and the lack of detail in those statements. Although some statements lacked clarity and precision, it cannot be said that the police witnesses deliberately set out to mislead the court. Neither can it be said that their evidence was tainted. That some of the policemen can be criticised for the way they changed their statements goes without saying. That is something the police authorities may want to look into, but to say that the police witnesses were devious or conniving is unfair. Mistakes were made and some of the police witnesses did waver under relentless cross-examination. However, I do not believe that the police witnesses were dishonest.There was simply no reason for the policemen to fudge their evidence or to falsely implicate the accused. After all, the accused gave themselves up to the police – there was, therefore no reason for the police to conspire against them. If the police wanted to conspire against the accused they could have made it much worse for them, particularly insofar as accused 2 is concerned. So, for example, the police could have said that property belonging to the deceased was found in possession of accused 2 or that they found items belonging to accused 2 inside the house, and so forth. The fact that they did not do so, serves to contradict any conspiracy theory.

Lt Col Mano was branded an unsatisfactory witness who should not be believed. I can find no basis for this accusation. On the contrary, I found Lt Col Mano to be candid and a helpful witness, for which he was actually complimented by counsel. He, in my view, gave his evidence in an exemplary manner and there can be no suggestion that he endeavoured to mislead the court. As an investigating officer, Lt Col Mano was entitled to obtain statements from witnesses and he was duty bound to answer queries, or comply with queries raised by the prosecuting authority. That is exactly what he did. Cross-examination of the police witnesses was thorough and lengthy. No stone was left unturned by the defence. Notwithstanding testing cross-examination, the police witnesses in the circumstances stood up relatively well; perhaps not the best witnesses I have ever heard, but also not the worst. As it were the controversy surrounding the semen-like fluid around the genital area of the deceased was effectively neutralised by Dr Moorad who stated that ejaculation, post mortem, can and does occur in all kinds of male deaths – it certainly could have happened in this case. There was simply no conspiracy, there was no political intrigue, no racial undertones and no hidden agendas. There was no evidence to show any of this.

By reason of the criticism levelled at police witness statements, I find it necessary to re-state the principles relating to written statements by witnesses. In order to discredit a witness who made a previously inconsistent statement it must be shown that the deviation was material (S v Bruiners en ‘n Ander1998 (2) SACR 432 (SE) at 437e; S v Mafaladiso en andere 2003 (1) SACR 583 (SCA) at 593e). Deviations which are not material will not discredit the witness. Police statements and statements obtained from witnesses by the police, are notoriously lacking in detail, are inaccurate and often incomplete. A witness statement is in the main required to enable the prosecuting authority to determine whether a prosecution is called for, on what charge and to consider which witnesses to call on which issues. It would be absurd to expect a witness to say exactly in his statement what he will eventually say in court. There will have to be indications other than a mere lack of detail in the witness’ statement to conclude that what the witness said in court was unsatisfactory or untruthful.

There is no law that compels a witness what to say and what not to say in his statement. The witness tells it as he sees it. He is not expected to relate in his statement what he saw in the minutest detail. Should a witness through a lapse of memory or any other valid reasonomit some detail which later could become important, he should not as a matter of course be branded asbeing untruthful. Moreover the mere fact that a witness deviates in a material respect from what he said in his statement does not necessarily render all his evidence defective. The court will in the final analysis consider the evidence as a whole in order to determine in what respects the witness’ evidence may be accepted and in what respects it should be rejected. Counsel who act on behalf of accused persons, are wont to pounce on any differences, no matter how insignificant, which may arise between an extra curial statement of a witness and the witness’ testimony in court (See S v Govender and Others 2006 (1) SACR 322 (E) from 326c,where Nepgen J gives aninsightful discourse on this topic.)The witness is often lambasted where his testimony in court gives more detail than what appears in his written statement. The more differences that can be found between the statement and the testimony in court, the more successful counsel feels his cross-examination has been. However, as has been pointed out, that is not the correct approach. The test is: were the differences material, always bearing in mind that a witness’ testimony in court will almost without exception be more detailed than what the witness said in his written statement.

It is so that there were differences between the police witnesses’ statements and their testimony, that was to be expected, but the underlying theme remained the same, namely, a report was received that the deceased was killed in his house and the accused took the police to the scene. There, the body of the deceased was found and the accused, particularly accused 1, admitted that he killed the deceased. Any differences there might have been in the witnesses’ statements could not change or influence these crucial facts. In material respects, therefore, the witnesses were consistent and only deviated from their statements in respect of non-essential issues.

Having regard to the evidence as a whole, I am not convinced that accused 2 took any real or active part in the assault on the deceased. No evidence, physical or forensic, links accused 2 to the murder of the deceased. Indeed the evidence as to the amount of blood spatter that was found around the deceased’s body and all over the room, the walls, even the roof, serves to nullify any suggestion that accused 2 was in that room when the deceased was being battered to death. It is inconceivable, indeed, highly unlikely that blood from the deceased would not have gotten onto the clothes or person of accused 2 had he been party to the assault on the deceased. It is common cause that no blood was found on accused 2. Accused 1 said to Ms Ennie Matsietsa: “I killed Eugène Terre’blanche.” There was no suggestion by accused 1, when he made this admission to Ms Ennie Matsietsa, that accused 2 was a party to the attack on the deceased. There is no evidence that accused 2 at any stage during the attack associated himself with the killing of the deceased. He can perhaps be described as a passive bystander – but whether he was an active participant or associate in the murder, was not proved.

Accused 2 was 15 years old at the time. It would not be farfetched to suggest that he merely followed the whims of accused 1 who was much older. I cannot find, on the evidence that accused 2 was subjectively or physically an active participant in the killing of the deceased. The uncontested evidence of Ms Ennie Matsietsa was that accused 2 appeared frightened and quiet. He hardly spoke at all. This seems to strengthen the impression I gained that accused 2 did not, certainly not in a legal sense, associate himself with the murder of the deceased. That accused 2 unlawfully entered the house of the deceased is confirmed by accused 2 himself. He probably intended, with or without accused 1, to commit some or other crime inside the deceased’s house. But to say that accused 2 intended to kill the deceased does not accord with the proven facts. Insofar as the murder is concerned, there is reasonable doubt and accused 2 must therefore get the benefit of such doubt.

The same can be said for the robbery charges. There is no evidence that accused 2 played any role in the robbing of the deceased. Accused 2 did not appear to take any active part in taking the deceased’s cell phone or attempting to steal his motor-vehicle. Common purpose requires more than mere presence when a crime is committed (S v Mgedezi and Others 1989 (1) SA 687(A) at 705I – 706C; S v Petersen 1989 (3) SA 420 (A) at 425A). There must be some positive association which subjectively brings that person within the realms of all the elements of that crime – he must be seen as a co-conspirator, a socius, or co-perpetrator (S v Memani and Others 1990(2) SACR 4 (TkA) at 8c-g). His actions or conduct must be seen to be the actions or conduct of the main perpetrator. I must say when looking at the evidence as a whole, it cannot be said that the conduct of accused 2 fell within that category.

What the evidence does show is that on the day in question accused 2 entered the home of the deceased through a window which had been broken and was opened. The evidence does not show that accused 2 broke into the deceased’s house with the intention to rob him. That would imply knowledge on the part of accused 2 that the deceased was present in the house which, in my view, has not been proved. However, the evidence showsthat accused 2 broke into the deceased’s house to commit a crime (see e.g. section 262 of the Criminal Procedure Act). I believe that on the probabilities it can be found that accused 2 broke into the deceased’s house to steal from him. He could not have been there for any other purpose. The unchallenged evidence was that a window pane in the deceased’s house had been broken where the latch is situated and the window stood ajar. The glass from the broken window was lying inside the house confirming that the window was broken from the outside. Accused 1 admitted in his statements that entry to the deceased’s house was gained through a window. The undisputed evidence was that at material times accused 2 was in the company of accused 1. The inference is therefore irresistible that accused 2 was present when the window was broken and opened and that both accused 1 and 2 gained entry to the deceased’s house by that means There was a fresh smudged palm print on the window. On accused 2’s own admission in accordance with his plea explanation, he entered the deceased’s house through a window. It cannot be argued with any conviction that accused 2 entered the house through any other window thanthe one which was found to have been broken. Moreover, it cannot be said that accused 2 entered the house lawfully. It is inconceivable that one would enter a person’s home through a window merely to have a conversation with him. A burglar normally breaks into another’s home to commit a crime. Accused 2 could only have wanted to gain access to the deceased’s house for some surreptitious purpose.This proposition is strengthened by the fact that accused 1 had stolen the deceased’s cell phone. According to the plea explanation of accused 2 the keys to the deceased’s Corsa bakkie were disposed of. Accused 2 did not give evidence to refute any of this. Indeed accused 2 failed to explain his presence in the deceased’s house on the day in question.

Where a person uses another purely as a tool to obtain entry to a house, that person will be guilty of breaking into the house (R v Tusi and Another 1957 (4) SA 553 (N) at 555-556; S v Maelangwe 1999 (1) SACR 133 (NC) at 146i). In my view the same considerations will apply where one person breaks the window so that he and another person can gain entry to the house. Both will be guilty of house-breaking. That, I believe, is what happened here. I am satisfied that on the proven facts, the only reasonable inference to be drawn is that accused 2, on the day in question, broke into the house of the deceased with the intention to steal from him (R v Blom 1939 AD 188 at 202-203).

In the result I make the following order:

Accused 1 is found guilty as charged.

In respect of accused 2:

Count 1: Housebreaking with intent to rob and robbery - accused 2 is found not guilty but accused 2 is found guilty of housebreaking with intent to steal;

Count 2: Murder - accused 2 is found not guilty.

Count 3: Attempted robbery – accused 2 is found not guilty.

_____________________

J P HORN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

SOUTH GAUTENG

APPEARANCES:

For the state: Adv GD Baloyi

Adv Ms E du Preez

For accused 1:Adv KPTlouane

For accused 2: Adv N Arendse SC

Mr Z Majavu

Instructed by:

Majavu Incorporated

82 Reitz Street

Kroonstad

---