REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT
JOHANNESBURG

CASE NO:   SS 85/12
DPP REF NO:  JPV 2011/86
DATE:  05 MARCH 2013

(1)	REPORTABLE: YES 
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

In the matter between:

THE STATE

and

ELONGO, TEDDY TADEO						  Accused

______________________________________________________________ 

J U D G M E N T
______________________________________________________________ 

MUDAU, AJ:

[1] 	The accused, Mr Elongo Teddy Tadeo, has been arraigned for trial on an indictment consisting four (4) charges. The charges are:  murder (read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 (counts 1 and 2); as well as robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 (counts 3 and 4).The indictment alleges in reference to these charges: that during the period between 28 and 29 September 2010 at or near Ferndale in the district of Randburg, the accused intentionally and unlawfully killed the two deceased brothers (Hugues Utsha and Deo Mombe Elongo); and that he robbed them of various personal possessions that include a Mercedes Benz 350 ML. 

[2]	Adv A Smith represents the State whereas the accused is represented by Adv Nkuna.  The accused pleaded not guilty to the charges.  In terms of section 115 of the Criminal Procedure Act, the accused in essence, denies the allegations contained in the various charges.  On 28 September 2010 (the date of the alleged incidents), he went to the two deceased’s place of abode, to ask the deceased for the use of a car.  Afterwards, the deceased in respect of count 1 brought the car (a Mercedes Benz motorcar), the subject matter in respect of counts 3 and 4 together with the various items (except for a TV set) referred to in the charges, to where he (the accused) was staying at a Bed and Breakfast facility.

[3] 	The charges preferred against the accused arise from a single incident.  The two deceased brothers were originally from the Democratic Republic of Congo (DRC). They came to the Republic of South Africa to pursue their studies. At the time of their horrific murders, they were registered students at the University of Johannesburg. They lived in Ferndale, Randburg in a 3-bedroom apartment bought for them by their parents who at that stage, lived in the DRC. The two deceased (brothers), went missing from 28 September 2010, until they were found murdered inside their place of residence on 29 September 2010.

[4] 	Also missing, were various items that are the subject of the charges in respect of counts 3 and 4.
[5] 	It will become apparent from the evidence that I shall deal with below        that the primary issue for determination is whether the accused is implicated in this matter, by circumstantial evidence.  There is no eye witness’s account of how the two brothers were murdered, or how the property that is the subject of the allegations in counts 3 and 4, was stolen. In the prelude to their discussion of R v Blom  and the rules of inferential reasoning, Zeffertt, Paizes and Skeen: The South African Law of Evidence rightly at page 94 say:

“Circumstantial evidence is popularly supposed by laymen to be less cogent than direct evidence. This is, of course, not true as a general proposition. In some cases, as the courts have pointed out, circumstantial evidence may be the more convincing form of evidence. Circumstantial identification by a fingerprint will, for instance, tend to be more reliable than the direct evidence of a witness who identifies the accused as the person he or she saw. But obviously there are cases in which the inference will be less compelling and direct evidence more trustworthy. It is therefore impossible to lay down any general rule in this regard. All one can do is to keep in mind the different sources of potential error that are presented by the two forms of evidence and attempt, as far as this is possible, to evaluate and guard against the dangers they raise.” 

[6] 	From the onset, the accused made formal admissions (exhibit “A”) that are recorded in terms of section 220 of the CPA. The formal admissions inter alia are with regard to the identity of the two deceased; the date and place of the deceased’s death; the cause of their death, this being as a result of strangulation; that the bodies of the deceased sustained no further injuries from the time of their respective deaths until post mortems were conducted by Dr Robert Gabriel Ngude as recorded on exhibit “B”; the depiction of the scene of crimes as well as the key thereto.

[7]	 In his post-mortem reports, Dr Ngude recorded the following in regard to the external appearance of the two bodies. “External appearance On Hugues‘s body (exhibit “B”): there is hand cuffing of the upper limbs associated with friction…also noted are severe friction abrasions at the side of the handcuffs. Injuries noted include contusions of the strap muscles of the neck, subplueral petechial haemorrhages”. 

[8]	On Deo’s body (exhibit “C”), Dr Ngude noted:” bilateral peri-orbital haematoma and hand cuffing of both legs which have been positioned behind the body. Also noted are friction abrasions due to the friction from the hand cuffs.” Reference to cuffing of the legs in the post mortem is quite clearly, an error. He further concluded that pressure in the form of a ligature had been applied to the neck of the deceased, which had the effect of asphyxiating them through the interruption of both the passage of air and the blood circulation. In his opinion, death would have resulted within 4 minutes.

[9] 	It was also formally admitted for purposes of section 220, through the defence counsel, which the accused thereafter confirmed, that on the day of his arrest (on the 29th/09/2010), the accused was in possession of the various items that are the subject matter in respect of the robbery charges, except for the television set.

[10] 	In casu, it has not been disputed or seriously challenged in respect of the murder charges that the State was successful in proving all the essential elements of the said crimes. 

The circumstances surrounding the murder of the two deceased brothers.

[11] 	What follows hereunder, are summarised versions by witnesses who testified about the missing deceased brothers, as well the subsequent discovery of their remains. I shall conveniently refer to the deceased brothers by their first names as Hugues (the deceased in count 1) and Deo (the deceased in count 2), respectively.

11.1 	Fabienne Lisasi (“Lisasi”), was the first deceased (Hugues)’s girlfriend. She recounted the version of events from the time the two deceased brothers disappeared, to the time their bodies were discovered. It is her version that she last saw the first deceased (Hugues), on Monday, 27 September 2010 at about 06h00.  The first deceased came over to her house to see her parents and also to apologise to her about the differences he and she had.  She again saw him the same day (27 September 2010) at about 17h00. On this occasion, the deceased came over to make an appointment with her father for the two to meet in church at 14h00 the next day (28 September 2010). It turned out to be the last time, that the two young lovers saw each other in real life.

11.2 	Still on the same day, (Monday 27 September 2010) she had asked her boyfriend to drop her off at school for her last Grade 12 examination paper. He instead, confirmed that he will pick her up after she would have finished writing her examination.  On Tuesday (28 September 2010), she took a taxi to school.  Shortly after 10h00 she called him as arranged, but his cell- phone was off.  She kept on calling until about 11h00, but his cell- phone was still off. This was so unlike her boyfriend.

11.3 	She decided at about 11h00 to call her boyfriend’s younger brother, Deo (the second deceased). Deo answered the call.  He (Deo) was in his room studying, he said. She requested Deo to check on her boyfriend as her calls went unanswered.  He promised to do so. About 5 minutes later, she called Deo (the second deceased) but this time, his cell- phone too was off.  She tried calling at intervals but Deo’s number remained off.

11.4 	She and a friend eventually took a taxi home only to establish from her father that the first deceased did not pitch up for their church appointment. When she phoned Deo’s cell-phone number at about 15h00 on 28 September 2010, the cell- phone was ringing but no one answered the call. Her sms’s to the same cell- phone were ignored. She kept on trying to call until midnight on 28 September 2010, without any response.

11.5 	At about 16h00 on Wednesday 29 September 2010, she asked three other friends to drive her to the deceased’s place of residence. From her place of residence, it is about 7 minutes’ drive. Upon arrival, when they buzzed the house unit from the security gate, there was no response. Someone in the same complex opened the gate for them to enter the yard.  It was all quiet at the deceased’s house.  The security door was open but the main door was closed and locked. Other friends (including the deceased’s “guardian”- Mr. Etoja) in the meantime, joined them. 

11.6 	ADT security also arrived.  Eventually it was decided that a locksmith be called to open the premises. When the house was opened, the second deceased’s body (Deo), was discovered first in the passage upstairs.  Police were contacted and her boyfriend’s body (Hughues) was found next inside his room.

11.7 	She identified exhibit “1” the N97 Nokia cell-phone as the second deceased’s (Deo) phone, which he got as a birthday present from his parents shortly before his death. Deo’s (the second deceased) cell-phone number was 076 470 7793 (the subject of records from Vodacom marked exhibit “P”).

[12] 	Before this Court, after exhibit “1” (the Nokia 97)’s battery was charged,                she managed, after entering the standard 0000 security pin to demonstrate how the said cell-phone worked. Under cross examination, she confirmed that there was an sms message from the accused’s brother (Wilson) sent on the date the brothers were found murdered. In the message, the accused was requested to go to the house and see what was going on. Also stored was a contact number of the accused’s friend, Mbela Stevie Kinengi. However, none of her call details and messages were registered.  She attributed this to another Sim-card that must have been inserted on Deo’s cell-phone at the time. She disputed a suggestion that the N97 belonged to the accused which he left upon his return to the DRC in April 2010.

[13] 	Another friend, Mbela Stevie Kinengi (“Kinengi”) who grew up with the accused in the DRC, before he too came to South Africa to pursue his studies, also testified, and repeated the gist of Lissasi’s testimony.  He last saw the first deceased on Monday, 27 September 2010. He too was unsuccessful to communicate with the two deceased via cell- phone until they were discovered murdered on Wednesday, 29 September 2010.  The deceased’s black Mercedes Benz, a Plasma TV, and a play station were missing, amongst other things.  Shortly thereafter, after the deceased’s motor vehicle was traced   to No 236 Oak Avenue Ferndale, Randburg. He went along together with others, to identify it.  In one of the rooms at the above mentioned address, he saw and identified the accused.  He also saw and identified Hugues (the 1st deceased)‘s wallet, as well as an N97 Nokia cell-phone that Deo (the second deceased), was using.  Inside deceased’s motor vehicle he saw and recognised the deceased laptop as well as their play station 3.  He also identified the deceased’s flip files (exhibits “F” and “G”). Under cross examination, he further testified that the deceased brothers and the accused sometimes would fight, which was normal for siblings. Some days however, were normal without any fighting. They sometimes had parties in the house.  On one occasion some white Syrian neighbours came and intimidated them.  The accused, as a result, called the police who intervened.

[14] 	Another witness Mr Richard Mbengete Etoja’s (“Etoja”) testimony is that he was considered as the two deceased’s “guardian” when they first arrived in SA.

[15] 	Later on, the accused joined his deceased brothers in South Africa. The idea was for the accused to pursue his studies in Canada or the UK.  Initially, monies to support the deceased were sent by their parents through him (Etoja).  Their father registered a close corporation, namely Novel Époque Trading Enterprise (CC).  This was a house which was let in order to generate additional income to support the siblings. Since the accused was the eldest, he was placed in charge of the of the CC’s account, but on behalf of his siblings i.e. the Tracker account was debited from this (CC) account.  In time, the accused abused the funds. As a result, the father took the accused back to the DRC in April of 2010.  That was after securing the accused a job at a local bank.

[16] 	Mr Etoja was present when the bodies of the two deceased were found. The police were promptly given the registration number of the deceased’s missing motor vehicle. Tracker was also notified.

[17] 	Shortly thereafter, the deceased’s motor vehicle was traced to an address as testified to by Kiningi.

[18] 	He saw and recognised one of the deceased’s brother’s remote control gadgets to the university and other items including one of the deceased’s student cards. He identified the accused as the deceased’s brother to the police.  He was surprised to see the accused as he (the accused) was supposed to be in the DRC.

[19] 	Ruddy Mukwamu is the accused’s childhood friend. His evidence is that he received the accused’s cell-phone contact number from his (Mukwamu) wife on Saturday 25 September 2010.  The accused had requested that Mukwamu should not share the number with other people nor disclose the accused’s presence in South Africa. Mukwamu’s wife (Tania) also testified and confirmed this evidence. She added however, that the accused did not want his deceased brothers to know that he was back in SA.

[20] 	After he (Mukwamu) had received a call about the two deceased’s death, he immediately contacted the accused on the number provided (079 328 2209) by his wife.

[21] 	Upon breaking the news of his brothers’ death the accused’s said:  “First get there, find out what is going on and call me back”.  The accused then also asked:  “Whom did they bring to the house this time?”  Since he (Mukwamu) knew that the accused was around town he asked the accused what time he (the accused), would be coming over to the place of incident.  But the accused replied that he “was in Durban”. He still has to get his stuff together. He will let him (Mukwamu) know when he will be coming.

[22] 	When he (Mukwamu) asked the accused, what was going on and who probably killed the deceased, accused said “it was possible the neighbours with whom they used to have problems with”. The accused said he wanted to compose himself and would call later.  Later when the accused called him (Mukwamu), the accused told him “not to tell the people who were gathered at the place of incident that he was around as he feared for his life. The murderer could be amongst the people gathered at the scene”.

[23] 	The accused further said perhaps “the deceased were not killed by the neighbours, but by their father’s political enemies in the DRC”.

[24] 	Finally, the accused asked him (Mukwamu), “not to call him but he (the accused) would be the one to call him (Mukwamu), if necessary”.  He (Mukwamu) asked the accused to catch the first available flight from Durban to Johannesburg.
THE RECOVERY OF THE DECEASED’S MERCEDES BENZ 350 ML 

[25] 	Ms Jane Eleanor Morrison (“Morrison”) testified to the effect that she is employed by Tracker (a motor vehicle recovery company) as an investigator.  In this case, after the deceased’s motor vehicle was reported stolen, the tracking device fitted in the said motor vehicle was activated.  The request for activation was done by a Mr Etoja (witness) on 29 September 2010 at 21h42. The motor vehicle was traced and recovered at 23h30 later the same day.

[26] 	According to the records to which she had access to, the Tracker account was debited from an account with ABSA bank in the name of Novel Opaque Enterprises. The accused (with cell-phone number 079 328 2209), was the registered owner.

[27] 	The records (exhibits “J1”-“J3”), further show that on 28 September 2010; the accused had initiated a call to Tracker. There was a return call from the recorded conversation with an operator from Tracker (which was played back in court). In the recorded conversation (a transcript of which was admitted and marked exhibit “P”), the accused had requested the cancellation of Tracker in respect of the Mercedes Benz in question. The deceased (Hugues) was however, the registered owner of the Mercedes Benz car.  The accused had explained that he wanted to sell the Mercedes Benz and buy another car. In this case, the accused was informed he would have to pay the balance of R355-00 in order to cancel the contract.

[28] 	On the 29th/10/2010, although the tracking contract had been cancelled a day before, since in this  case, a  robbery incident had been reported and the unit was still active, Tracker initiated the recovery process as Tracker has a standing agreement with SAPS to render assistance in cases of this magnitude.                              

[29] 	Sgt Lefate Johannes Makunyane (“Sgt Makunyane”) of the Randburg Police testified that he was on duty on the night of 29 September 2010 in the Ferndale (Randburg) area.  Since his patrol car is fitted with a tracking device he tracked the Mercedes Benz ML XTZ 197 GP to the address at No 236 Oak Avenue.  As soon as he stopped at the gate two (white) officials from Tracker also stopped.  He used a pedestrian gate which was not locked to access the premises as they scaled the parameter wall. At the back of the property, he spotted the motor vehicle in question. He felt the bonnet and realised that the engine was still hot.  There were outside rooms. From one of the said rooms, the lights inside were on. He went to the window and peeped inside. He saw a man he later recognised as the accused standing inside next to a fridge. The accused was on a cell-phone. He knocked on the door and announced “police!”  He requested the accused to open. The accused would not open the door. They had to force the door open.  As he entered the room, he saw the accused pushing a paper file underneath a fridge.

[30] 	The accused was asked what he was doing but refused to answer.  Upon retrieving the file, it contained the two deceased’s RSA ID books; the registration documents of the Mercedes Benz; as well as a Tracker Manual (see exhibit “H”, photo 13-16). The accused refused to answer to whom the ID books belonged to.

[31] 	On top of the refrigerator was a bunch of keys as well as keys to the Mercedes Benz (photo 12 - exhibit “H”).  The accused had in his possession a black N97 Nokia cell phone (exhibit 1), which he (the accused) threw on the couch. It is the same cell- phone that Lisasi identified as Deo’s. 
 
[32] 	The accused was warned of his rights regarding arrest. Accused stated that the N97 cell-phone belongs to his brother Nombe (Deo). Further that he kept his brother’s cell phone for safekeeping. 

[33] 	Next to the refrigerator was a Pick n Pay shopping bag which contained (see exhibit “H” photos 17-18) documents as well as an Absa bank card that belonged to one of the deceased.

[34] 	After being searched, the accused was found to have                                  two more cell-phones in his trousers pockets (a Sony Erickson and a Vodaphone), which he claimed to be his.

[35] 	The motor vehicle was searched and various other items (i.e. two school bags, two laptops, a play station 3) were found, which the accused indicated that they belong to his brothers. All the abovementioned goods found by Sgt Makunyane were entered on an SAP 13 register, and later admitted in court as exhibit “R1) and “R2”. 

[36] 	A police photographer arrived and took photos of the scene (exhibit “H”1 to “H19”).

[37] 	Under cross-examination, Sgt Makunyane testified that, initially he was alone besides the two officials from Tracker but was later joined by other SAPS members for back-up.  It was pointed out to him (Sgt Makunyane) that he was not responsible for arresting the accused.  Makunyane dismissed the suggestion. He also denied that he witnessed any assault on the accused by other members of SAPS.

[38] 	Police Officer John Kaiser (Kaiser), who at all time was based in Randburg Police Station, testified that he initiated investigations in this matter. He was placed in possession of the accused’s Congolese passport no. OB0188354.  The passport had been issued on 14 September 2010. From the said passport; he established that the accused arrived in South Africa via OR Tambo International Airport on 17 September 2010.

[39] 	Investigations further revealed that the accused checked into the Inside Bed and Breakfast guesthouse at 216B Surrey Avenue, Ferndale, in Randburg on the 26th of September 2010. The accused was a guest at this Bed and Breakfast facility until he checked out on the morning of 29 September 2010. This was a day after the two deceased’s went missing.  

[40] 	It was at this address that Warrant Officer Kaiser was handed over a bag by a member staff (Mrs Van Tonder), that contained a total of 27 items (exhibit “M”). The goods included the late Hughues Elongo (first deceased’s Congolese passport No C0505622), two flip files with various academic reports and certificates that belonged to the two deceased brothers, a wallet with several store, bank, medical aid (in Hugues’s name) and movie cards; two blue remote gadgets, 15 house keys, clothing’s and 1 Nokia N95 cell-phone with serial No 356996013146559.  All these items were found inside a refuse bag.  The refuse bag had been left inside a dustbin in a court yard directly opposite room No 4 where accused had stayed.  When he went to deceased’s house, one of the same remote controls opened the garage door.  One of the keys could open the security door. He however, did not get inside the house (for unknown reasons).

[41] 	Under cross-examination, it was suggested to Mr Kaiser that the passport (exhibit “L”) and remote control devices were recovered at the time the accused was arrested.  Kaiser disputed this suggestion.

[42] 	Mrs Van Tonder, who at the time worked at Inside Bed and Breakfast No 216 Surrey Avenue, confirmed that the accused checked in on the 26th of  September 2010.The accused stayed there for 3 nights and checked out on the morning of the 29th September 2010 at about 10 a.m.

[43] 	Her attention was brought to a dustbin situated outside where the accused stayed by her then cleaner, Carol. Carol has since died. It is her evidence that inside the dustbin were various items (exhibit “M”) referred to by W/O Kaiser including a passport (exhibit “L”), a broken cell-phone (exhibit 2), flip files (exhibits “F” and “G”). As a result, she contacted the Randburg police, as she suspected that these goods might have been stolen and later discarded. She placed the items in a refuse bag which W/O Kaiser, later collected.

[44] 	The N97 Nokia cell-phone referred to by Lisasi, Sgt Makunyane, which the State alleges belongs to the late Deo, was subjected to a forensic report. Ms Heyneke, Vodacom’s Manager: Forensic Liaison Services, testified and introduced exhibit “P” (data in respect of the usage of the N97).  It is her evidence that the data is in PDF (portable document format) and therefore cannot be manipulated.

[45] 	In essence, it is Ms Heyneke’s evidence, that the second deceased (Deo) registered his cell-phone No 076 470 7793 for purposes of RICA with Vodacom, on the 5th January 2010.

[46] 	Significantly, a Sim-card with cell-phone No 076 470 7793, was used for the first time on exhibit “1” (N97) identified by its unique IMEI No 35937403246118 on 10 August 2010 at 09:01:10 and lastly on 28 September 2010 at 12:48:47. Deo had received a call from Lisasi dialled from her cell-phone No 072 113 3423 at that time. That was to be his last received call.

[47] 	On the 29th September 2010 and at 23:38:09 Deo’s Sim-card on the Nokia N97 had been replaced by a Congolese Vodacom cell-phone with Sim-card No 00243 810 761, when it received an incoming message. The significance of this incoming message will be dealt with below in the testimony by Wilson Elongo (the accused’s brother).  

[48] 	Wilson’s testimony is to the effect that the accused was unhappy to return to the DRC as he had job interviews in South Africa as well as a girlfriend. The accused blamed the two deceased brothers for influencing their parents to force his return to the DRC. In addition, the accused had two items of clothing missing, a jacket and a pair of shoes in respect of which he declared: “his two brothers (Hugues and Deo) will pay even if they were to move to Europe or Asia”.

[49]	Wilson reported this remarks to their father who, as a result, summoned the two of them. At their father’s request, Wilson had to repeat the alleged “threats”. The accused never commented, but kept quite. 

[50] 	Later on, he was unaware that the accused had left the DRC.  Upon hearing of the murder of their siblings, and further that the accused had returned to South Africa he sent him an sms (short message service) on the 29th September 2010 via the accused cell-phone no 00243 810 761(referred to by Ms Heneke) at 23.38.09. (The call was received via the Nokia N97 – exhibit “1” referred to above at Para 46). In the message, he had asked accused to go to no 46 Bond St to check what was going on. He identified exhibit “4” (the bunch of 15 keys) as keys they used to access no 46 Bond St. Significantly, these are the keys found in a dustbin outside the room where the accused stayed at the B/B on the morning of the 29th September 2010, and shortly after the accused had checked out. From these keys, W/O Kaiser it must be recalled, used a remote to open the garage door at no 46 Bond St. 

[51]	The accused’s father (Mr. Jean Elongo Ongoma)’s testimony can briefly be summarised as follows. As at the time of the two deceased’s death, he was the father to 13 children. He held senior positions in the civil service of the DRC.The accused is his eldest child. The accused and the two deceased were born of the same mother. Their mother sadly, passed on in the nineties.

[52] 	When the accused finished his schooling, he allowed him to further his university studies in the USA in 2002.  Whilst the accused was in the USA, he (Ongona) bought a house in respect of which he instructed the accused to register in the name of another minor son (David).

[53] 	He later found out that the accused never carried out his instructions. In 2007 the accused returned to the DRC.  Once more, the accused requested for permission to further his studies by enrolling for a Master’s programme in the UK. This would, according to the accused, have required that he (the accused) writes a pre-admission examination in South Africa. Indeed, permission was granted.  The accused travelled to South Africa and joined the two deceased, as he waited to write the examination and to obtain the necessary visa.

[54] 	On one occasion, he received a complaint from Deo via telephone that the accused had assaulted him (Deo) for allegedly calling the accused an empty tank (stupid). The accused apologised for his conduct.

[55] 	There were two houses he owned in South Africa.  The first being No. 46 Bond St where the accused and the two deceased lived. The second one was leased out under a business entity he had registered styled Novel Époque Trading Enterprise CC.

[56] 	The money generated from the rental of the said house was channelled
to a bank account held at Absa that was largely used for the maintenance of his children.

[57] 	Initially his now deceased sons used a Toyota Rav motor vehicle, which he had bought for their transport.  The car was registered in Hugues’s name. Later, the motor vehicle was used as a deposit for the purchase of the Mercedes Benz ML.  He paid the balance   due for the purchase of the Mercedes.  The Mercedes Benz was bought in the region of US $25 000 to $35 000.  

[58] 	Upon realising by April 2010, that the accused was not employed or studying, he brought the accused back to the DRC after securing him a job at a local bank.  The accused had a car and a renovated house available for his personal use.

[59] 	Travel and passport arrangements were usually dealt with                       by his personal assistant for all family members. When Wilson made a report about the accused’s missing jacket and shoes, he undertook to replace the missing item to the accused. In this case, upon hearing of the death of his two sons, it came as a shock to him that the accused, unbeknown to him, was in South Africa.

[60]	Accused’s new passport was in the DRC.  Accused had obtained for himself another passport which was issued on 14 September 2010 and he travelled to South Africa on 17 September 2010.

[61] 	The accused had no authority to try and sell the Mercedes Benz, as the car was not his.  Neither was the accused personally responsible for the upkeep, insurance and maintenance of the said car.

[62] 	Under cross-examination, it was put to him that the accused was married whilst in the US and after the divorce, received a settlement of US $80 000,00.This was news to him.  It was further put to him, that the accused was at the time he was recalled to the DRC, employed at Liberty Life. This was news to him. He responded that as an adult, the accused was free to do as he pleases.  However, he would not have                                    provided financial support to the accused during his stay in South Africa, had he known that the accused was employed.

[63] 	Neither was he aware that his children were threatened                            in the past as a result of which, the accused moved out. If                                 there were indeed such threats, he expected the accused to inform him.  He least expected the accused to move out of their house in Randburg leaving the two deceased to fend for themselves. Had he known of the threats, he would have moved them out, if the allegations had any basis. 

[64] 	Lastly, the N97 (exhibit “1”) was a gift for his son, Deo. The cell-phone similar to the one he was using, was bought in Sweden shortly before the second deceased’s birthday. With this evidence, the state closed its case.

THE VERSION OF THE ACCUSED

[66]	In his defence, the accused testified and repeated the gist of the state’s version with regard to the circumstances that led to his stay in SA. It is the accused’s version that he studied in the USA between the years 2002-2006.During his stay in the USA, his father had bought a house in which he and his American wife lived. The house was in the accused’s names. His father had wanted the house in America to be registered in his step-brother (David)’s names. David was still a minor. This would have entailed the assistance of their father to effect the changes. The changes were never effected as their father travelled to the USA, without notifying him during which time, the accused was back in the DRC in 2007.

[67]	For a short period in the DRC, the accused worked for a bank after his return from the USA between December 2007 and May 2008. In the meantime, he was waiting for his VISA (for a study permit) to be approved by the Canadian authorities, to further his studies in Canada. His application to study in Canada had been submitted via the Canadian embassy in South Africa. With the due date to register at a Canadian University having elapsed by the 1st September 2008 without a student Visa having been issued, he withdrew his application from the Canadian embassy in October 2008.Since then; he decided to remain in SA, moved in with his deceased brothers and pursue employment opportunities. Unbeknown to his father, he found a job with Liberty Life. He also registered for a B. Com degree with Unisa, and during the same period, for a Masters degree with the University of Johannesburg. In the meantime, his American wife divorced him. He received $80,000,00 as settlement. It is from these funds held in his American account that he contributed R100,000-00 towards the purchase of the Mercedes Benz. His contribution was in cash drawn in R5000,00 (maximum of a daily limit) over a period of 20 days, consecutively. He clarified to this court upon being asked that he has no access to his bank statements as his bank card was not renewed. However, he never disclosed these facts to his father who continued to support him financially.

[68]	In April 2010, his father recalled him to the DRC. For six month prior to this period, he was no longer living with his brothers, but at a separate apartment. He took up employment at a local bank until he returned to SA after being offered a job at Accenture, Woodmead. On the 28th September 2010 and at about 7:30am, he went to pay his brothers a visit at the family house (46 Bond St).There he borrowed his brother (Hugues)’s Mercedes to attend job interviews and to look for an apartment. The arrangement was that he will return it on the 30th September 2010. He also asked Hugues to pack “his latest books and belongings”. They also arranged that the younger brother Deo will deliver the Mercedes at the guest house where he was staying together with his belongings as Hugues was sick. He also told Hugues that the Mercedes Benz has to be sold within a week. Hugues had to inform their father. This was because he (accused) had contributed R100 000, 00 towards its purchase. He needed the money to buy another car as he was moving to Woodmead to be close to his new job. 

[69]	Later, he passed by Deo’s bedroom. He found Deo busy studying. He realised that Deo had a new laptop. He offered to load movies in Deo’s laptop. In addition, he borrowed a play station 3 machine, which was not being used at the time as the two deceased were busy with their studies.

[70]	At about 1:40 pm later that afternoon, he was making his way back to his guesthouse from a nearby garage when Deo, brought the Mercedes Benz car and the other items. He drove Deo back home, dropped him off at the gate and went his separate way. That was the last day he saw the two deceased alive.

[71]	On Wednesday morning, the 29th October 2010, before he could check out, he “sorted” the items that Hugues had packed for him. He noticed that his brother had also packed old books and house keys (exhibit “4”) that he did not need any more. After they had been threatened by their Syrian neighbours, he had caused to be replaced every lock at no 46 Bond St, except for the security door lock. These were the old keys they did not need any more.  He also mistook the flip files that contained various certificates (exhibits “F” and “G”) for children’s books. Previously, these certificates and records were in an arch lever file. He threw away all these items in a bin before he left the guest house. On the 29th September 2010, he checked into a second guesthouse where he was later arrested, as the previous guest house was no longer available.

[72]	At the time of his arrest, he was in the 2nd bedroom (of a two bedroom apartment) and the lights were off. A police officer shined a torch through the bedroom window. Shortly thereafter, 5 white uniformed police officers broke into his apartment through the living room door that was at that stage locked. They came to the bedroom where he was on the phone. He put his cell-phone on the shelf. They started to kick, punch and covered him with a plastic shopping bag they found as he had been shopping earlier. They wanted him to confess to the murder of his brothers. It was only then that he became aware of the murders. However, he did not confess to any crime.

[73]	As the assault on him continued, he pushed against a fridge in the living room. In the process, the police saw and retrieved, the registration papers of the car, his passports (old and new), a tracker manual, the two deceased‘s passports and SA identity documents. Sgt Makunyane and two other police officers only arrived some 30 minutes later. The police only photographed documents (exhibit “H”) that they could easily identify, and put aside the passports, which explains why the passports are not depicted in the photos.  The reason why he had hidden the said documents under the fridge was because he had walked in on the cleaner cleaning his apartment shortly after he checked into the 2nd guest house on the 29th. He did not want her to steal any of the documents. It is the accused version that Hugues’s passport (exhibit “L”), was not found in a dustbin at the previous guest house as alleged by state witnesses. After conducting a search on him, they took his wallet and 3 cell phones (including exhibit “1”, the N97 cell-phone), which they placed on a table. In the process, the police stole his clothing as well as R4000-00 in cash.

[74]	It is the accused‘s version that the deceased’s passports, car registration papers and ID documents, were always left hidden in Mercedes car. These, they would always present to the police as they were often harassed for being foreigners and to prove ownership of the car. Finally, it is the accused‘s version that he never told Tania that his presence in S A should not be disclosed to his deceased brothers. This was pointless as he frequented the usual areas, which they too frequented. He denies the allegations of murdering his brothers.

[75]	Under cross examination by the state, he further testified as follows. His American wife fraudulently sold the house his father had bought in the USA. It was for this reason that he received a settlement of $80, 000-00, which he never disclosed to his father. He conceded that he had acted dishonestly in this regard. He moved out from the family house at no 46 Bond St. In the meantime, he lived with his girlfriend and her child. He rented an apartment for this purpose for he did not want his girlfriend and her child to move into the family house. Unaware of these developments, his father continued to support him financially. He was asked again for his reasons to move. He replied that he did so for safety reasons. Of the two Syrian brothers who threatened them, one had in the meantime died, but the remaining one threatened to get them. These were his brothers’ enemies and not his. Before moving out however, he warned the deceased to ask their father to also move them for safety reasons. He also left behind some of his goods and some Unisa books.

[76]	As regard the allegations of threats that his deceased brothers will pay, upon being confronted by his father, he does not remember making those threats. He however decided to apologise to his father in case he “accidentally” made such a comment. He also wanted to “keep peace” in the family. On his return to SA on 17th September 2010, he rented a 1 room cottage (which had no shower or a toilet) at the same address where he lived with his girlfriend and her child before returning to the DRC. He remained at this address until he had money to move into the first guest house. He decided not to move in with his brothers as he did not want them to see him in a worse state than he was before he left. He sometimes went for days without a change of clothing. Neither did he make them aware he was in SA until the 28th September, as he had no reason to do so at the time. He conceded that he never informed his father of his decision to return to SA. As for the reason to take another passport whereas there was another valid one kept by his father‘s assistant, its his version that he did so as he felt his father was interfering with his rights of movement. However, he conceded that his father had testified truthfully before this court.

[77]	With regard to the items allegedly found in the dustbin at the guesthouse where he first stayed, he disputed this. It is his version that Hugues had two wallets. The one referred to by the witnesses was always kept in the cabby hole of the Mercedes Benz. It contained old cards to impress girls. Hugues always kept the one with cash and a standard bank card on his person.

[78]	It was put to him that it is strange that he never disclosed how he came to be in possession of the Nokia N97 (exhibit “1”) in his evidence in chief. It’s his version that he “did not consider this aspect as important as he owned several cell-phones”. Deo returned this phone when he brought the Mercedes Benz on the 28th. Besides, Deo had his own N97 cell phone bought for him as a present as the state witnesses had testified. He saw this N97 cell-phone before he left for the DRC. When it was put to him that there was never a suggestion to state witnesses that there were two N97 cell -phones, the accused response was: “I did not want to put a question that  I assumed she (Fabienne) did not have an answer”. 

[79]	He also conceded that, he never told the defence counsel about the two similar N97 cell-phones. To quote the accused: “my explanation (to counsel) seemed complicated that counsel chose that I explain about all the cell-phones myself”. When asked what the complication was, the accused said he meant that they bought the same brand, model, and the same colour. The accused was asked why this was not in his evidence- in -chief to which he replied: “it was not addressed to me in a direct question”. The state reminded him that he offered to explain himself about the cell-phones to which he replied thus: “I did not think of it at the time”.

[80]	With regard to the keys and flip files thrown into the dustbin, it is the accused version that he did not do it intentionally. He did not go through every single item or key as these items were amongst his old books, which he discarded. He disputes that the remote keys for the gate and garage door for the house at no 46 Bond St, were amongst the goods discarded, but were confiscated from him by the police upon his arrest at the 2nd guest house.

[81]	With regard to his employment at Accenture, he clarified to this court that the application and the offer was all done on line. He did not print out the acceptance letter from his email account, which is now lost due to the passage of time. Neither did he have any proof of registration at the universities referred to above. As a matter of fact (the accused added), he had failed his studies the previous year at Unisa, but was waiting to register in the new semester.
[82]	Sgt Sithole (the current investigating officer in this case), testified at the instance of the defence. It is her evidence that from the police docket, finger prints experts were assigned to the scene. Apparently, there were other prints lifted from the scene that were not linked to the accused. That concluded the defence case.

[83]	At my discretion, Ms Nicollette Morris, who is the Director: Human Resources from Accenture, Woodmead, was subpoenaed to testify. It is her version that Accenture is a company with business interests in 40 countries. In this country, she heads a team of 66 people who deal with all employment related matters in respect of which she has direct access. Records pertaining to employment and recruitment of staff are kept in an electronic database which is archived for at least 5 years. It is her evidence that, there are no records that the person with the name: Elongo Teddy Tadeo was ever offered employment at her company. If that was the case, all the supporting documents would still be available in their archives. In this case, she searched on their data base and can confirm that the accused’s names do not appear in any of their records in the last 5 years.

[84]	Regarding the probabilities, it is so that this court has to test the evidence against the inherent probabilities and improbabilities. There is nothing wrong with this approach. This issue was considered in S v Chabalala, where Heher AJA held at para 15 that:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.”

[85]	It is trite that that the state bears the onus of establishing the accused‘s guilt beyond a reasonable doubt regard being had to the totality of the evidence. On the question of having regard to all the evidence Nugent J remarked as follows in S v Van der Meyden: 

“The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached . . . must account for all the evidence.” (See also S v Van Aswegen).

EVALUATION OF THE EVIDENCE

[86]	It remains for me to evaluate the evidence tendered before court. It is common cause that the two deceased disappeared from the 28th September 2010, until they were discovered strangled late the following day on the 29th September 2010. The accused admits in his testimony that he last saw Deo alive when he dropped him off shortly after 1:40 pm, at the family house at no 46 Bond St. This is consistent with the state version that Lisasi called Deo on the latter’s cell-phone between 12 and 1 pm on the same day. The evidence by the various state witnesses including that of Mr Elongo senior therefore, with regard to the circumstances leading to the two deceased’s disappearance, is accepted and requires no serious evaluation. 

[87]	The evidence by the arresting officer (Sgt Makunyane), a single witness, which I have been asked to treat cautiously as I hereby do, largely remains unchallenged in all material respects. Sgt Makunyane, it must be recalled, responded to a signal by tracker to follow up on the Mercedes Benz. The defence conceded that his testimony is above reproach, save for one aspect relating to the goods found at the time of the accused’s arrest and registered in the SAP 13 register exhibits “R1” and “R2” as well as exhibit “H” (photos 1-18). I shall deal with this aspect below.

[88]	It is common cause that(except for Hugues’s passport and remotes), the accused had thrown into the dustbin at the first guest house various items (exhibit “M”) that were later retrieved and handed over to Warrant Officer Kaiser. This includes 9 items of clothing, a medical aid, bank and store cards that belonged to Hugues. It is the accused‘s version however, that he never intended to throw valuables away, which I shall deal with in the evaluation of his evidence.  In this regard I find that the evidence by Kaiser was in all material respects corroborated by the evidence of Ms van Tonder. Ms Van Tonder was singled out by the defence as a witness, who tendered credible evidence albeit for entirely different reasons, which I shall deal with in the evaluation of the accused’s evidence. It is my judgement that the evidence of the several state witnesses - is in all material respects credible.

[89]	It is trite law that the acceptance of the state’s version does not mean that the accused’s version need not be considered. It is my judgment that the evidence of the accused affords no credence. It is riddled with inherent improbabilities that it can safely be rejected. To state all the reasons would be an unnecessary burden on this record. However, some examples follow here under. With regards to the allegations that the accused threatened that the two deceased brothers “will pay”, the accused gave conflicting statements in this regard: (a) that he apologised to his father to maintain peace (b) he does not remember uttering those threats and (c) if he did, it must have been accidental. The threats were recited by Wilson in front of their father who in turn, tendered to replace the missing pair of shoes and jacket. The accused conceded that his father was a credible witness. I find it more probable that the threats were uttered. Mr Elongo senior, had no reason to mislead the court in this regard.
[90]	The accused would have this court believe that his father restricted his rights of movement by withholding his passport; hence he found the need, to take another passport. Not only was Mr Elongo senior never confronted about this aspect during cross examination, the suggestion is not supported by the objective facts in this case. It is common cause that the accused was at all material times financially maintained and supported by his father. It is difficult to believe that their father restricted his movements whereas by the accused’s own version, he took as trans-Atlantic flight from the USA, during the same period that the father travelled to the USA, to have the house referred to above registered in David‘s names. I find it inconceivable that the accused did not know about his father’s visit in advance. On the contrary, it proves that the accused often travelled at his father’s expense without any hindrance. Besides, it was quite clearly the father’s evidence that the family passports were kept by his assistant or secretary conveniently, to make travel arrangements. After all, this was always at the father’s cost. This aspect was never challenged. The probabilities are that the accused wanted to keep the property in the USA in his own name. His concession that he had been dishonest to his father about financial matters is in this regard, well grounded.

[91]	The accused’s travel to South Africa on the 17th September 2010 until his arrest on the 29th is shrouded in mystery. To start with, no one in the family, least of all his father who has always maintained him, knew about it. The accused went AWOL from his current job, which his father had secured him. One might be inclined to ask a rhetorical question, why the secrecy to his father who has always been so supportive? Isn’t that the father wanted the accused to be a success story?

[92]	Upon the accused’s arrival in South Africa, it is strange that he did not want his contact details to be given away by the Mukwamu’s. It is obvious that the accused wanted his stay in SA to remain a secret. I find it bizarre, that he made no attempts to contact his brothers to share with them the good news of having secured a better paying job in SA. It is evident that the accused had no desire to contact his brothers whereas and by his own version, he went by some days in unchanged clothes whilst living in a room which had no shower or toilet facility. From his description other than this being a decent cottage, this was more of a typical South African backroom without any running water or toilet. By his own admission, he was living in worse off conditions than before and certainly, worse off than his brothers.

[93] 	The accused’s assertion that he enjoyed good relation with his brothers is not supported by objective facts. It is common cause that he had assaulted Deo in the past. It makes no sense therefore, that he chose to stay in worse off conditions than join his brothers where he had no reason to pay for lodging. 

[94]	It is inconceivable that the accused would have left the DRC for a job in SA, without a hard copy of the written proof thereof.

[95]	The evidence of the accused is highly unconvincing as to how he came into possession of many of the deceased’s belongings. I find it highly improbable that Hugues and Deo’s most important documents i.e. their SA identity books, registration papers of the Mercedes, Congolese passports and tracker documents, would have been kept in the car for the reasons advanced by the accused. The inference is inescapable that the accused kept these documents in order to change ownership or dispose of the car as evidenced by his recorded phone call to Tracker (as per exhibit “T”). In addition, the accused probably cancelled the tracking service to avoid early detection. 

[96]	By his own admission, he was not a registered student with Unisa at the time, contrary to what he made this court believe. There was therefore no urgency for him to have asked the sickly Hugues to pack these books. He had left the goods some 6 months before, what was the urgency then? I am inclined to believe that the two bags of books that can be seen on the photo in the back of the Mercedes Benz belonged to the deceased brothers and not the accused.

[97]	By his own version, the accused “sorted” the goods that were brought by Deo on the morning of the 29th. He had wanted these goods urgently the day before, and yet was in no hurry to sort them out before he went to bed on the 28th. If he truly “sorted” the goods, I find it mind-boggling that two flip files with 30 pages each full of important academic records would end up in a dust bin.This include 15 or more keys as some were bunched together as well as the various other goods as supported by the SAP 13 (exhibit “M”). Mrs Van Tonder, who was described by the defence as a credible witness, confirmed that Hugues’ passport was amongst the goods recovered from the dust bin. This is, contrary to the accused‘s evidence, supported by an entry in the SAP 13 register regarding exhibit “L” (Hugues passport.)

[98]	In his evidence-in-chief, the accused astonishingly remained silent with regard to how he came in possession of the Nokia N97. Yet when he was confronted about this aspect, he volunteered to his own counsel to deal with this evidence. It’s only under cross-examination that the court heard for the first time, that Deo gave him back the said cell-phone on the afternoon of the 28th together with the other goods. The worst was still to come. For the first time, this court heard that Deo had a similar N97 cell-phone bought as a present from abroad, which the accused saw before he left for the DRC in April 2010.This evidence is in stark contrast to that of Lisasi and Mr. Elongo snr. If the accused‘s version is correct, it implies that the father’s version is incorrect in this regard. This is not supported by the forensic report (exhibit “P”) from Vodacom, which detailed the history of the cell-phones used with Deo’s Sim-card. Of particular significance is the date on which exhibit “1” (the N97 cell phone was first used by Deo as evidenced by exhibit “P”. That date is the 10th of August 2010 and long after the accused had left for the DRC. By implication, the accused was not in SA when Deo received that particular phone as a birthday gift.
[99]	I find it unlikely that the accused would have checked into an unclean room on the 29th at the 2nd guest house as he would like this court to believe, which made him to hide valuables under the fridge. By his own version, the police found him in a bedroom, yet he failed to explain how he ended up in the living room. His version that he was in a dark room is highly improbable. It does not explain how the police guessed that he was in that particular room. The fact that these documents were found hidden under the fridge is consistent with Sgt Makunyane‘s version that he had seen the accused hiding some documents under the fridge when he peeped through the window where there was illuminating light. I reject the accused‘s version that he fell against the fridge as he was being beaten, which resulted in the fridge being shifted and thus, exposing these documents. I reject the accused‘s version that the police had mixed up the goods found at both guest houses. Shortly after the accused was arrested by Sgt Makunyane, an official photographer was dispatched to the scene of arrest at the 2nd guesthouse. Pictures were taken. An entry was made of the various items on exhibits “R 1”and “R2”. Similarly, a separate entry was made in exhibit “M” (the SAPS 13 register) of the goods found discarded in a dustbin at the first guest house. Both entries were made by different police officers under different circumstances. The suggestion that Makunyane separated the access remote to the house at no 46 Bond St for no apparent reason, can safely be rejected. The reason why the accused would insist the two blue remotes were not found inside a dustbin is most probably because he would have had to explain why he discarded them.

[100]	The accused‘s reaction to the news of his brothers’ death was to say the least, unnatural. Not only did he lie to his friend (Mukwamu), that he was in Durban, he was quick to offer numerous theories with regard to what could have happened. Amongst other theories, it has to be recalled, was a suggestion that those involved could be his father’s political enemies. Well, his father denied that he was involved in politics. The father has been a highly successful civil servant in the Congolese civil service, and now a businessman. In this regard, the accused obviously lied. The accused was not keen to be where his brothers were murdered, although he was in the vicinity. It is evident that those gathered at the scene, were close friends and compatriots who posed no danger to him. The accused’s version that he came to SA after being offered a job by Accenture was dealt a serious blow by the evidence of Ms Morris from Accenture. Ms Morris’s evidence that the accused was never offered employment stands as it was never challenged. He must have known that his brothers Hugues and Deo were already dead when he cancelled the Tracker contract as per exhibit “T” on Wednesday, the 28th September 2010. The accused probably cancelled the tracking service to avoid early detection. To the extent that the accused’s evidence is contradicted by the evidence of the state, his evidence is rejected as false.

[101]	Contrary to the accused ‘s version, I find that on Tuesday, 28th September 2010, the accused made his way to no 46 Bond St where his brothers lived. I find that the accused gained access into the premises by either using one of the remote pair of keys he had in his possession or one of the deceased opened the gate and door for him. From the objective facts, I find that Hugues was attacked and thereafter killed first, followed by Deo, who was killed after speaking to Lisasi on the cell-phone. I safely conclude that the various goods which are the subject of counts 3 and 4 were taken from the two deceased brothers before, or some during or after their murders. I also find that the accused had no job offer from Accenture which made him travel to SA on the 17th September 2010.It follows that he had no reason to look for accommodation in Woodmead. His main reason for borrowing the car as he suggested therefore, falls away.

[102]	The accused told so many lies that little, if any, credence could be attached to his version of what happened on the day of the murders. The question however, is whether the evidence adduced by the State is sufficient to discharge the onus the state has in proving the accused‘s guilt beyond a reasonable doubt. 

[103]	In S v Mtsweni, Smalberger JA urged a cautious approach in these circumstances. The headnote reads as follows:
 
“Although the untruthful evidence or denial of an accused is of importance when it comes to the drawing of conclusions and the determination of guilt, caution must be exercised against attaching too much weight thereto. The conclusion that, because an accused is untruthful, he therefore is probably guilty must especially be guarded against. Untruthful evidence or a false statement does not always justify the most extreme conclusion. The weight to be attached thereto must be related to the circumstances of each case. In considering false testimony by an accused the following matters should, inter alia, be taken into account: (a) the nature, extent and materiality of the lies and whether they necessarily point to a realisation of guilt; (b) the accused’s age, level of development and cultural and social background and standing insofar as they might provide an explanation for his lies; (c) possible reasons why people might turn to lying, eg, because, in a given case, a lie might sound more acceptable than the truth; (d) the tendency which might arise in some people to deny the truth out of fear of being held to be involved in a crime, or because they fear that an admission of their involvement in an incident or crime, however trivial the involvement, would lead to the danger of an inference of participation and guilt out of proportion to the truth.” 

In this case, the accused is without any shred of doubt a particularly clever man. His lies in my view are intended to mislead the court to gain an acquittal.
[104]	The rules of reasoning by inference are well documented. In the classic case of R v Blom ,  Watermeyer JA said the following: 

“In reasoning by inference there are two cardinal rules of logic which cannot be ignored:

1.	The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. 
2.	The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct”. 

[105]	In this matter, with the unconverted evidence pointing to one direction, the proved facts exclude every reasonable inference from them save that the accused (Elongo Teddy Tadeo), was complicit in the murder of his deceased brothers ( Hugues and Deo).It is not necessary to decide whether he did so alone or with the help of another or other persons.
Deo was robbed of his cell phone, before, or during or after the attack on him. In Dlamini v S (27 March 2012), by a majority decision, the SCA held, at para 53 that “…in the case of robbery, the fact that the perpetrator takes property belonging to and in possession of three different persons clearly constitutes three counts of robbery”. I find that there is no duplication of the robbery charges as the killer (or killers formed a separate intention to rob Deo of at least, his cell-phone after his phone conversation with Fabienne. 

[106]	It is my judgment that the accused (Elogo Teddy Tadeo) is guilty of: 
Count 1: the murder of Hugues Utsha Elongo.
Count 2: the murder of Deo Mombe Elongo.
Count 3: robbery with aggravating circumstances.
Count 4; robbery with aggravating circumstances.

_____________________________________
                           T P MUDAU
ACTING JUDGE OF THE SOUTH GAUTENG
          HIGH COURT, JOHANNESBURG

POSTEA: (7TH MARCH 2013)

SENTENCE

[107]	These offences fall squarely within the purview of s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act). The relevant part of this section provides:

Sections 51 of the Criminal Law Amendment Act 105 of 1997 provide:

“51. Minimum sentences for certain serious offences.   
(1) Notwithstanding any other law but subject to ss (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life.
(2) Notwithstanding any other law but subject to ss (3) and (6), a regional court or a High Court shall -   
(a)	If it has convicted a person of an offence referred to in Part II of Schedule 2, sentence the person in the case of -
(i)	a first offender, to imprisonment for a period not less than 15 years;
(3)(a) If any court referred to in ss (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence.”

[108]	 Part 1 of Schedule 2 stipulate as follows:   

“PART I
Murder, when -
	(a)	it was planned or premeditated;
	(b)	……………………………………
(c)	the death of the victim was caused by the accused in     committing or attempting to commit or after having committed or attempted to commit one of the following offences:
		(i)	………………
The relevant Part II of Schedule 2 is as follows:
	(i) 	………………
		(ii)	robbery with aggravating circumstances; ………………

[109]	“Aggravating circumstances” are defined in s 1 of the Criminal    Procedure Act 51 of 1977, in relation to 'robbery', to mean —
	
“(i)	the wielding of a fire-arm or any other dangerous weapon;
	(ii)	the infliction of grievous bodily harm; or
	(iii)	a threat to inflict grievous bodily harm,
by the offender or an accomplice on the occasion when the offence is     committed, whether before or during or after the commission of the offence.”

 [110]	In this case, the brutality and callousness of the murders were such that the two deceased young men, handcuffed and defenceless, were not only strangled to death, but also robbed of their possessions. Both suffered, what must have been, agonising and painful deaths at the hands of a brother upon whom, they should have relied for protection. Thus, the evidence supports a further finding that the murders were pre-meditated .The circumstances in which the crimes were committed are undoubtedly such as to render it necessary to impose a sentence of imprisonment for life unless substantial and compelling circumstances justify a lesser sentence.

[111]	Ponnan JA pointed out in S v Matyityi para 11 as follows:   

“S v Malgas is where one must start . . . . Malgas, which has since been followed in a long line of cases, set out how the minimum sentencing regime should be approached, and in particular how the enquiry into substantial and compelling circumstances is to be conducted by a court. To paraphrase from Malgas: the fact that Parliament had enacted the minimum sentencing legislation was an indication that it was no longer business as usual. A court no longer had a clean slate to inscribe whatever sentence it thought fit for the specified crimes. It had to approach the question of sentencing, conscious of the fact that the minimum sentence had been ordained as the sentence which ordinarily should be imposed, unless substantial and compelling circumstances were found to be present.”

[112] 	However, as was pointed out by Nugent JA in S v Swart, 

“In our law retribution and deterrence are proper purposes of punishment and they must be accorded due weight in any sentence that is imposed. Each of the elements of punishment is not required to be accorded equal weight, but instead proper weight must be accorded to each according to the circumstances. Serious crimes will usually require that retribution and deterrence should come to the fore and that the rehabilitation of the offender will consequently play a relatively smaller role.”

[113] 	The accused’s personal circumstances are as follows. When the accused committed the offences, he was a first offender aged 28 years. He is currently 30 years of age. After completing high school, he studied and completed a BA degree in economics in the USA in 2006.He worked for short periods within the banking industry in the USA and the DRC. In 2004, he got married whilst studying in the USA to gain citizenship or at the very least resident status and to reap all the attendant benefits and privileges by marrying an American woman. They divorced in 2008 after their marriage had failed. After his arrived in SA, he registered for a commercial degree with Unisa, but soon dropped out .He is a father to a baby girl born outside marriage to a live-in girlfriend. His father unknowingly, continued to pay for the accused’s high standard of living in SA. The child is currently 2 years and 3 months of age. The child is in the care and custody of the biological mother. At the time of the commission of these offences, the accused was not employed.

[114]	Undoubtedly, the accused has been reared in a loving and protected environment. The conditions of his upbringing, his travels and studies abroad, all at the expense of his caring and loving parents are what many in his native country and in Africa generally, can only dream about. The accused had everything going for him i.e. a house registered in his name in the USA, another house and a car in the DRC, as well as a job all secured by his well connected father. All these wealth was not enough. His greed did not stop him, it would seem, to abandon it all in the DRC and pursue whatever little his brothers had in in South Africa. 

[115]	The two deceased’s lives were terminated at a tender age of 23 and 24 years respectively. Their father did not on the main, provide for them any differently than what was provided to the accused. As a matter of fact, the father testified that, he loved and provided more for the accused who is the eldest, than to any of his other children.

[116]	I have been requested to find in the accused’s favour, that substantial and compelling circumstances exist in that the accused’s family is the real victim in this matter, further that the accused has prospects to be rehabilitated. In Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others, Navsa JA stated para 22 that:	“…In my view, when weighed against the objective gravity of these offences, their prevalence in South Africa and the legitimate expectations of society that such crimes must be severely punished, neither the youthfulness of the respondents nor their prospects of rehabilitation tip the balance in their favour.”

[117]	The offence of murder in particular, is a reprehensible crime. The bill of rights in our Constitution stipulates that: “Everyone has a right to life.” It is because of this provision in our Constitution, as well as an amendment to the CPA, which outlaws the death sentence that the accused’s life is guaranteed (see S v Makwanyane and Another. In the past, unless there were extenuating circumstances found to be present, the accused would be facing a death sentence. It is this basic right to life as enshrined in our bill of rights meant for citizens, permanent residents and foreigners within our shores, which the accused denied his brothers to claim. Our laws recognise that life is a God given gift, which must be protected. The right to life is not, in my view only intended for those found guilty of serious crimes, but to victims of crime as well. The life of any human being regardless of age, status, condition, religious beliefs, creed or sexual orientation, needed to be celebrated and not destroyed.

[118]	I have carefully considered the accused person's actions before, and what can reasonably be inferred during and after the events. In my view, his conduct in general, had been planned, goal-directed and well-focused.
[119]	At no stage during the proceedings, did the accused advance any explanation for the killing of the two deceased brothers; neither did he express any remorse for what he has done. He showed little if any emotions during the course of this trial, except for the time when a description was given by Mr Etoja how the two deceased’s bodies were found inside the house. On the contrary, he relied on his constitutional right to be innocent until proven guilty, thereby obliging the State to prove its case against him, despite overwhelming evidence. The accused however, cannot be faulted for the course he has chosen, as it is his right enshrined in our bill of rights. Whereas the accused did not take the Court into his confidence and come clean as to what led to the incidents during which the two deceased were killed and robbed, the only conclusion to reach is that these were senseless killings and crimes perpetrated on younger  and defenceless persons.

[120]	It need hardly be said that in the case of the crimes as heinous as the present ones, the deterrent and preventive objectives of punishment predominate. This is an inescapable consequence of crime and one which usually brings about more hardship to the offender’s family than what is hoped for. Unfortunately, one cannot allow one’s sympathy for the accused’s family to deter one from imposing the kind of sentence dictated by the interests of justice and society. In recent years the protection of the community and the purpose of prevention of future offences have received greater emphasis by our courts, particularly in cases of violent crime. 
[121]	In the Makwanyane case, the late Chaskalson P (as he then was), said the following about the interests of society.
"The level of violent crime in our country has reached alarming proportions. It poses a threat to the transition to democracy, and the creation of development opportunities for all, which are primary goals of the constitution. The high level of violent crime is a matter of common knowledge...... It is of fundamental importance to the future of our country that respect for the law should be restored, and that dangerous criminals should be apprehended and dealt with firmly." (at para 117).

These remarks are as relevant today, as they were then. The two deceased brothers were in this country to study and better their lives. This, in time, would have benefitted communities wherever they would have chosen to live their lives.

[122]	The fact that the accused is a first offender, has robbed (and murdered) his own brothers and been in custody since his arrest, cannot in my view, constitute substantial and compelling circumstances justifying lesser sentences than those prescribed. In this matter none such circumstances exist. The accused has not only proved to be a danger to his family, and but is a threat to the larger community and in particular, to all peace loving people. It is not only the Elongo family who were affected by these crimes, but the community too. The image of this country in the eyes of the global community as a result of this incident was to my mind, tarnished. The accused was in my view, driven by greed. In this matter, the accused’s personal circumstances, pales in comparison to the interest of the larger community.

[123]	After giving due consideration to the personal circumstances of the accused, the gravity of the offences the accused was convicted of, the legitimate interests of society and the need to emphasise deterrence, specific and general, as well as retribution as the main objectives of punishment, I consider the following sentences to be appropriate.

Count 1: A life term of imprisonment.
Count 2: A life term of imprisonment.
Count 3: Fifteen (15) years of imprisonment.
Count 4: fifteen (15) years of imprisonment.
In terms of section 103 (1) Act 60 of 2000 the accused is declared unfit to possess an arm.

______________________________________				
    T P MUDAU 
ACTING JUDGE OF THE SOUTH GAUTENG
          HIGH COURT, JOHANNESBURG

APPEARANCES:

FOR THE STATE:	ADV A SMITH

ON BEHALF OF THE ACCUSED: ADV LS NKUNA