WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: SS19/2008

In the matter between:

THE STATE

and

JUDGMENT DELIVERED ON 17 MARCH 2009
INTRODUCTION

1.	Perry Page, a 60-year old retired businessman and an American citizen from Los Angeles loved South Africa and more particularly the holiday destination, Hermanus, where he spent memorable holidays since his marriage to his South African-born wife, Sally-Anne, more than 25 years ago. According to the community newspaper, the Hermanus Times, Perry loved Hermanus so much that he wanted to have his ashes scattered in the sea bordering the family holiday home.

4. Sally-Anne is a small-framed, mild-mannered, dignified lady. The horrific trauma that she suffered is too ghastly to contemplate. Despite his offer to give anything, her husband was brutally stabbed to death. During her evidence she was not asked for a detailed description of the murderers. She merely described them as "black men". She was also not asked to identify any of the accused. In the circumstances it is not at all surprising and one assumes that she was too traumatised to remember any details.
5. Apart from the motorcar and the FNB card, R700.00 cash, two watches, a digital camera, a Samsung cell phone, a gold neck chain and a cashmere shawl were robbed.
6. Members of ADT, paramedics and members of the SAPS arrived at the crime scene in no time. It appears as if they professionally took control of and secured the crime scene.

7. An expert forensic pathologist, Dr. Dempers, arrived at the scene of the crime at approximately 06h30 on 15 March 2007. He gave the necessary instructions to preserve any possible forensic evidence. A cyanoacrylate test was for example envisaged to be performed in order to detect any latent fingerprints on the body and instructions were given that minimal disturbance of the skin should occur.
8. On 15 March 2007 at approximately 16h30 a post-mortem examination was performed by Dr. Dempers and the necessary forensic samples were secured. The chief post-mortem findings include an observation of eight stab wounds, an incised wound, as well as some abrasions. The cause of death was a loss of blood. One of the wounds in the abdomen was, in the opinion of Dr. Dempers, either peri- or post-mortem as it did not appear to have bled. He also expressed the view that the deceased was probably prone when stabbed in the liver. Trace evidence was collected from the clothing and both hands of the deceased.
9. An employee of the security company, ADT, Mr. Jacques de Villiers, returned to the crime scene in order to establish where the perpetrators gained access to the house. In the cliff path, adjacent to the garden wall and under a bush, he noticed a small piece of folded paper, lying partly under a bush. He examined it and discovered that it was an ATM-slip for a cash withdrawal of R50.00 at 19h45 on 14 March 2007. Mr. de Villiers handed this withdrawal slip to the SAPS.

10. This withdrawal slip was forwarded to the forensic laboratory for fingerprinting but was misplaced. Only a photostatic copy of this document was handed in as evidence during the trial. Adv. Loots, acting on behalf of Accused No. 1, Mr. Eric Dutywa, objected to the admissibility of this photostatic copy. For the reasons stated hereunder this objection was overruled and the evidence allowed.
11. The sister of Mr. Eric Dutywa, Accused No. 1, Ms Madonna Ndumo, was the holder of the account in respect of which the withdrawal of R50.00 was made shortly before the murder. The said amount was withdrawn at an autobank situated at the Gateway Shopping Centre (also known as the Spar Centre) on 14 March 2007 at 19h45. This ATM is about 5 to 6km from the crime scene.
12. The account in respect of which the FNB card was stolen, is a non-resident bank account held by the deceased and his wife at the First National Bank in Hermanus. On 14 March 2007 six withdrawals of R500.00 each, was made from this account at the same autoteller machine from 21h39 to 21h43.
13. On 15 March 2007 a cash deposit of R2 500.00 was made into the bank account of Ms Ndumo at Standard Bank.
14. On Friday, 16 March 2007, Ms. Ndumo was arrested and her brother, Accused No. 1, was arrested the following day.

15. The Hermanus Times of 23 March 2007 extensively reported on the senseless killing. The following information was conveyed:
15.1. Mr Eric Dutywa (Accused No. 1) and his sister Ms Madonna Ndumo both of 1501 White City, Zwelihle, appeared in court as suspects.
15.2. An ATM deposit slip found at the scene showed that Accused No. 1 and his sister, who share the same pin number, withdrew R50.00 at Gateway Spar an hour before the robbery.
15.3. They used a bank card stolen from the Page's residence and the pin number they had demanded to withdraw R3 000.00 cash at the same Gateway Spar ATM.
15.4. Accused No. 1 and his sister then deposited the money into their account.
15.5. The stolen items were a few personal items including a purse with cash, a cell phone, a camera and a bank card.
15.6. Anyone with information that could lead to the arrest of the other two suspects were asked to contact the investigating officer at certain telephone numbers supplied.

16. In the 30 March 2007-edition of the Hermanus Times, it was stated that two other suspects were identified and would probably also apply for bail during the next hearing.
17. The Hermanus Times of 6 April 2007 reported that all the suspects involved in the murder had by then been arrested. It was specifically reported that Senzo Sikele (Accused No. 3) and Bongani Pokolo (Accused No. 2) had been arrested.
18. It is not clear when Accused No. 4, Mr. Thembalethu Khameni, was arrested but Accused No. 5, Mr Joseph Matlabe, was arrested on 22 May 2007. This arrest took place after the state witness, Ms Sibisi, disclosed to the police on 21 May 2007, that Accused No. 1 was involved in the murder.

20. The facts outlined above are either facts admitted by the accused or evidence which are not in dispute that emerged during the trial.

THE CASE FOR THE STATE
21. The five accused were indicted to appear in this court on 2 February 2009. They pleaded not guilty. Accused No. 1 gave no explanation of plea. Accused No. 2 and 3 both raised alibis as defences. Accused No. 4, and Accused No. 5, Mr. Joseph Matlabe, elected to exercise their right to remain silent. Subsequently it appeared that Accused No. 5 in fact denied all the allegations against him and maintained that he was at home on 14 March 2007 in the normal course of events. All the accused made certain formal admissions in terms of section 220 of the Criminal Procedure Act, Act 51 of 1977. Certain additional admissions were made about the banking transactions referred to above.
22. The decisive evidence in considering this case, is the evidence of Ms Sibisi, Mr Mpuma and Ms Ndumo and we will deal with their evidence in some detail.

MS MAPASEKA SIBISI

24. Ms Sibisi's evidence was that she arrived home from work on 14 March 2007 between 16h00 and 17h00. There was a meeting of Accused No. 5 with some of his friends in the yard outside. He was drawing a map and explaining something to these friends. Ms Sibisi was asked whether she remembered any faces or names. Her reply was that she could not be sure about names as Accused No. 5 was not using "real names".
25. Later that day, at about 20h00, one of Accused No. 5's friends knocked at the door and asked to speak to him outside. Ms Sibisi remained at the door and was ordered by Accused No. 5 to go inside. He was talking to his friends outside. There was also a young lady in their company. When asked whether she recognised anyone outside with Accused No. 5 when she stood at the door, she responded by saying that it was night and that they were wearing caps. She said that she knew one of them as "Eric". She however said that she could not put names to faces. Names were however mentioned, more particularly the names "Bongani" and "Senzo". Ms Sibisi also stated that the persons at the door were preparing to go somewhere. Mention was made that when they leave they must go past the Spar Mall to withdraw money for petrol. Accused No. 5 had earlier arranged with somebody on the phone to pick him up. Accused No. 5 thereafter entered the shack to fetch his bag and then left by car.
26. She also stated that Accused No. 5's friends came to their shack earlier that day, apparently before the second meeting referred to in paragraph 25 above, to enquire about the whereabouts of Accused No. 5. They left a message with her to tell him that they were looking for him.
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27. According to Ms Sibisi Accused No. 5 returned alone at approximately 22h30. He had blood on him and was breathing heavily as if frightened. Ms Sibisi asked him what had happened and he said that he met somebody in the street who owed him money and that he stabbed this person. The jacket Accused No. 5 had on was not the jacket he was wearing earlier on when he left, it was the first time that the witness saw the particular jacket. Accused No. 5 also had a bag not belonging to him. He then left the house and locked the door from outside. Ms Sibisi searched the jacket and found a digital camera and a Siemens cell phone. She checked the bag and found a white towel with blood on it and rolls of notes and coins. There were R20.00- and R100.00 notes and the witness estimated the total amount to be about R3 000.00.
28. On 15 March 2007 early in the morning Ms Sibisi and Accused No. 5 had to appear in the Magistrate's Court in Hermanus. Accused No. 5 wrote a letter to the Magistrate explaining that he is working out of Hermanus. Ms Sibisi returned from Court with an order that they must vacate the shack where they were living before 12h00. The witness found Accused No. 5 drunk and with blood on him as if he had been involved in a fight. He had already arranged for another place for them to stay. From then on Accused No. 5 never stayed at home. He would return home late, at about 03h00. He would also phone her on occasion and ask whether anybody had been looking for him. Ms Sibisi said she was told to say that he went to Cape Town.

29. After the 14 of March 2007 Accused No. 5 regularly requested Ms Sibisi to buy the local newspaper, the Hermanus Times. She read in this newspaper that Eric's sister had been arrested. That very same afternoon Accused No. 5 said that they must go to Eric's place. On arrival Accused No. 1 confirmed that his sister had been arrested. Accused No. 5 wanted to know what they must do and Accused No. 1 responded by saying that there was nothing he could do except wait for the police to arrest him.
30. The witness was asked whether she knew why Ms Ndumo was arrested and she answered that it was said that a white person had been killed.
31. Soon thereafter Accused No. 5 told her that he was going home to Odendaalsrus. He later phoned to say that he was home. She asked him to go to her grandmother who also lives in Odendaalsrus. It was reported to her that he never went there.
32. Ms Sibisi testified that when Accused No. 5 left for Odendaalsrus, she was under virtual house arrest. She was closely watched by one of Accused No. 5's friends, a certain Pule. Her cell phone was taken away from her and Accused No. 5 phoned her on Pule's cell phone.
33. When Accused No. 5 returned on 18 May 2001, they had an argument and he told her to leave their house. He also assaulted her. He would not return her belongings and arranged for her to be followed. Later he sent a friend to apologise on his behalf and to say that he had been under stress. On Sunday, 20 May 2007, she returned to his place of abode to recover her belongings which he still refused to give to her.
34. Ms Sibisi explained that she went to the police on Monday, 21 May 2007 in order to recover her clothes and personal effects from Accused No. 5. She was questioned by the police and in the end had no choice and had no choice but to tell the police what had happened. She said that "I had to tell the whole truth".
35. Under cross-examination by Mr. Loots for Accused No. 1, Ms Sibisi specifically said that when she went to the police on 21 May 2007 she spoke to a female Xhosa interpreter and that she told the interpreter about the meeting on 14 May. She specifically told her that Eric, Senzo and Bongani were involved.

JOSEPH MPUMA
42. Mr Joseph Mpuma testified in chief that in the early morning on Thursday, 15 March 2007 he attended a meeting in Tambo square. The purpose of the meeting was to make burial arrangements for a certain deceased and also for community members to contribute to the funeral expenses. Mr. Mpuma said that he met Accused No. 2 at this funeral meeting. He indicated that he had known Accused No. 2 for some time. When he was asked in chief whether he had a conversation with Accused No. 2 at the funeral meeting, he explained that after he left, he again met Accused No. 2, not far from where the funeral meeting had taken place.

43. At this subsequent meeting Mr. Mpuma saw that Accused No. 2 had a silver watch and two cell phones as well as money on him. He estimated the amount of money in folded new notes to be about R1500.00 to R2 000.00. Mr Mpuma testified that he asked Accused No. 2 about the items in his possession. Accused No. 2 appeared to be sober and spoke freely to the witness. According to Mr Mpuma Accused No. 2 told him that "they went to rob downtown". Accused No. 2 allegedly said that he and Accused No. 3 found a white man in his house and stabbed and murdered him, whereupon they placed the body in the victim's car and dumped the body at a refuse dump. Accused No. 2 also said that he took possession of the watch during the robbery. Mr Mpuma described the watch as a silver-goldish watch. Mr Mpuma confirmed that Accused No. 2 contributed R100.00 towards the funeral expenses.

MS MADONNA NDUMO
44. Ms Ndumo testified that she was the sister of Accused No. 1. In the early part of 2007 she had been living with her brother (Accused No. 1) and his girlfriend as subtenants in White City, Zwelihle, Hermanus. She was unemployed at the time and was and still is a grade 12 pupil at night school. She attended lectures from Monday to Friday between 18h00 and 20h00. The witness testified that Accused No. 1, worked at a guest house in Hermanus at that time. According to Ms Ndumo she had no income of her own and was maintained by Accused No. 1.
45. She stated that she had a bank account at Standard Bank which she opened on behalf of her brother as he did not have an identity document. She was not in a position to provide the account number as the police confiscated "everything" at the time.

46. The witness was referred to a printout of certain banking transactions in respect of her account. She acknowledged that she made a deposit of R2500 into the account and that she received the cash from her brother on the same day that she made the deposit. She could not recall the date of the transaction. It was put to her that the transaction is reflected on the printout as being made on Thursday 15 March 2007. She confirmed that she received the money from her brother on the same day that she made the deposit. She deposited the money at the bank by completing a deposit slip. Ms Ndumo did not know the source of the money and was not given an explanation by her brother nor did she ask for an explanation. She had been given money by her brother from time to time.

48. Ms Ndumo further testified that she had been issued with an ATM card and pin code and that she was the only person to use the card as her brother could not operate the machine.
49. During cross-examination Ms Ndumo specifically stated that she did not know Accused No. 5. Accused No. 2 did not live far from where she stayed and she had seen him pass by in the street. She also know his name. She knew the names of Accused No. 3 and 4 as "Senzo" and "Thembalethu" respectively. She also knew Accused No. 3 by sight but had not spoken to either Accused No. 3 or 4.
50. Ms Ndumo was asked by the Court whether she had her ATM card in her possession when she made the deposit of R2500. She responded that she did not have the card with her at the time as she did not need it to deposit the money at the bank and that the card was at home at that time.

52. She was requested whether she could explain how it came about that the withdrawal slip was found outside the house where the murder was committed the following day. Her response was that she did not know. Ms Ndumo could not recall what she did with the withdrawal slip produced by the machine, whether she left it at the machine or left it on the table at home.
53. Finally it was put to her that she had said previously that she made a deposit at the bank into the account the following day, the 15 March 2007 and that on that occasion she did not have the ATM card with her and had left it at home. Responding to a question by the Court where precisely at home she left this card, she said in a jacket behind the door where she normally keeps it.

APPLICATIONS FOR DISCHARGE AND THE ADMISSIBILITY OF CERTAIN EVIDENCE
55. At the end of the State case, all the accused applied for discharge in terms of section 174 of the Criminal Procedure Act. Before the applications were heard two issues concerning the admissibility of evidence were determined.
56. It was ruled that the copy of the withdrawal slip was admissible despite the fact that the original went missing. All the accused made formal admissions in terms of section 220 of the Criminal Procedure Act concerning the contents of the withdrawal slip. The information contained in this document is therefore not in dispute. The relevant dispute is whether the original withdrawal slip was discovered near the crime scene on the morning after the murder. In the circumstances the copy of the original was admitted as evidence.

THE DEFENCE CASES
58. All the accused gave evidence of their non-involvement in the crime. They all testified about what they were doing on the evening of 14 March 2007 when the crime was committed.
59. Accused No. 1 admitted that he handed over an amount of R2 500.00 to his sister to bank for him on Thursday, 15 March 2007. Mr Franco Scott testified that he was the manager of the guesthouse where Accused No. 1 was working at the time of the murder. Accused No. 1 was earning R1 860.00 per month. He also borrowed R300.00 against his salary during February 2007.
60. Accused No. 1 explained his possession of this amount of R2 500.00 by alleging that he was involved in a money-lending business. He lent an amount of R1 250.00 to a certain couple at the end of February 2007 and was repaid an amount of R2 500.00 on 14 March 2007.

62. Accused No. 2 went further and called three witnesses to confirm that neither he or Mr Mpuma attended any of the two funeral meetings held at that time, more particularly meetings held on 13 March and 16 March 2007. The evidence of all these witnesses were that Mr Mpuma in fact never attended any funeral meeting.
63. The two funeral meetings in question relate to the death of the brother of the witness, Mr Nobobo. Mr Nobobo specifically remembers that the body of the deceased was transported to the Eastern Cape on 16 March 2007. All the witnesses agreed that the first meeting took place on a Tuesday and the second meeting on a Friday.

64. Accused No. 3's evidence entailed that he was planning to leave for the Eastern Cape with Accused No. 2 on 13 March 2007. However, he was delayed, missed his taxi and could only leave for the Transkei the following day on 15 March 2007.

THE LEGAL POSITION CONCERNING THE EVALUATION OF EVIDENCE AND OTHER RELEVANT LEGAL ASPECTS

"The proven facts should be such that they exclude every reasonable inference from them safe 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.

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

proved facts. If it is not, the inference cannot be drawn.

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."

"1. The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt."

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69. Adv. Giyose for Accused No. 3 persisted with the argument that Accused No. 3 should be found not guilty, since Accused No. 3 was entitled to be discharged at the end of the State's case. He submitted that the Court erred in dismissing Accused No. 3's application for discharge at that time. He pointed out that the evidence of Mr Mpuma concerning the confession/admission was vicarious hearsay or double hearsay as far as Accused No. 3 is concerned. Since there was also the evidence of Ms Sibisi implicating Accused No. 3 in the meetings prior to the crime being committed. It is however not necessary to re-assess the admissibility of the alleged confession/admission made by Accused No. 2, to Mr Mpuma, as against Accused No. 3, because of the conclusion reached hereunder.

EVALUTATION OF THE EVIDENCE
73. I agree with adv. Stephen SC, who appeared for the State, that Accused No. 1's explanation that he was involved in a money-lending business as a sideline and that the amount of R2 500.00 was a repayment on a loan, was obviously false. He was not able to describe the nature and extent of his business in a credible manner nor could he properly explain where he obtained the funds from for his business. He could not do the most simple calculations that a moneylender should be able to do. The fact that he was forced to borrow R300.00 from his employee in February 2007, is also a factor mitigating against his version. I therefore conclude that Accused No. 1 was lying in this respect.

75. The evidence of Accused No. 2 and his witnesses therefore overwhelmingly establishes that the first funeral meeting was held on Tuesday 13 March 2007 and the second meeting on 16 March 2007. It is also clear that neither Accused No. 2 or Mr Joseph Mpuma attended any of these occasions. Mr Mpuma's evidence was that the meeting attended by both him and Accused No. 2 was held on 15 March 2007. The evidence by and on behalf of Accused No. 2 establishes that Accused No. 2 was not present in Hermanus from 18h00 onwards on 14th March 2007. This rules out any possibility of Accused No. 2's complicity in the murder. This conclusion is corroborated by the fact that Accused No. 2, despite minor contradictions between what he said in his evidence and what was stated in his explanation of plea and in statements made by his counsel in cross-examination, was a confident and impressive witness. All the witnesses furthermore testified that Mr. Mpuma never attended a funeral meeting. The evidence of Mr. Mpuma must therefore be rejected.
76. As far as Accused No. 3 is concerned, once the evidence of Mr Mpuma is excluded, the only remaining evidence against Accused 3, is that of Ms Sibisi that he was present at the meeting or meetings on the afternoon of 13 and 14 March 2007 and that his name was mentioned at the further meeting at 20h00. Accused No. 3 was also a persuasive witness. His version is corroborated by Accused No. 2 and his travel companion, Mr. Lulama Ngwebo.   As stated above, Accused No. 3 also presented the evidence of a friend and girlfriend to confirm his alibi. There is no reason to doubt the veracity of the evidence of these two witnesses.
77. In our opinion, adv. Stephen, was correct in arguing that much of the State's case against the accused rests on the evidence of Ms Sibisi. His submission that she could not have known that the police had or would acquire other evidence against Accused No. 2 and 3 which emanated from Joseph Mpuma is however obviously not correct. All the salient aspects of her version of the crime, including the names of Accused No. 2 and 3, appeared in the editions of 23 and 30 March 2007 of the Hermanus Times. Her evidence was that she read about the incident in the Hermanus Times.
78. As stated above, she averred in her evidence in chief that she concluded on 16 March 2007 that Accused No. 1 was involved after reading about his involvement in the Hermanus Times on 15 March 2007. She was recalled and confronted with the fact that the Hermanus Times did not report the name of Accused No. 1 before the edition of 30 March 2007 appeared. She then responded by stating that she must have read about these particulars somewhere else, but could not supply an plausible explanation in this respect.
79. It is significant to note that the items allegedly discovered by Ms Sibisi when she examined the jacket and bag brought home by Accused No. 5 corresponds to the items listed in the Hermanus Times.
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81. Ms Sibisi's evidence is compromised by the fact that she mentions the names of Accused No. 2, 3 and 4 as being involved in what she perceived as a conspiracy to commit the murder under investigation. Once it is accepted that they are not guilty, the question arises why Ms Sibisi involved them. Her evidence was furthermore not convincing in a number of other respects.

83. Her estimation of the cash in Accused No. 5's possession when he returned to their residence on 14 March 2007 is also suspect. An amount of R3 000.00 was withdrawn from the bank account of the Page's. Ms Sibisi estimated without comment that the amount in the possession of Accused No. 5 was R3 000.00.

84. The State did not offer any evidence of the identity parade that was conducted. The question arises whether Ms Sibisi attended this parade and whether she attempted to identify the accused. On the other hand her dock identification of the accused was not convincing.
85. She clearly had a motive for testifying against Accused No. 5. She furthermore only approached the police more than two months after the incident when Accused No. 5 ended their relationship and assaulted her.
86. Ms Sibisi allegedly handed a towel with blood marks that she took from Accused No. 5 to the investigating officer. No forensic evidence was presented about this towel and the investigating officer, Inspector Payne, did not refer to this towel in his evidence. Ms Sibisi's evidence about the towel was therefore not corroborated in this respect, as it easily could have been done.
87. The State was not assisted by the fact that none of the items stolen were ever recovered. Ms Sibisi furthermore mentioned a Siemens cell phone found in the possession of Accused No. 5, whereas a Samsung cell phone was in fact stolen from the Pages.
88. Ms Ndumo was originally charged. For some or other reason unknown to this court the charges were withdrawn. It is also not clear why her evidence was at all presented by the prosecution. She did not further the case of the State but rather that of the accused.

89. Ms Ndumo's evidence was that only she knows the pin number of the Standard Bank account where the withdrawal of R50.00 was made shortly before the murder. She also specifically stated that Accused No. 1 cannot operate an ATM. Her explanation that she cannot remember whether she left the withdrawal slip at the ATM or took it home, is not convincing at all. The fact of the matter is that this slip was found at the crime scene soon after she made the withdrawal. There was also a contradiction whether she utilised the withdrawal of R50.00 to buy something to eat or groceries. We conclude that her evidence concerning the withdrawal slip is false. A reason for this false evidence is possibly to protect her brother, Accused No. 1. This however is not the only reasonable inference. The possibility that Ms Sibisi herself lost the withdrawal slip near the crime scene, can certainly not be excluded as a reasonable possibility.
90. The fact that Accused No. 1 was telling a lie about where he obtained the R2 500.00 from is also not conclusive. The fact of the matter is that Accused No. 1 could have been lying to protect his sister. He could also have been lying to conceal the fact that he had acquired the amount of R2 500.00 from another illegal source.

CONCLUSION

92. It is also disconcerting that the apparently thorough and professional examination of the investigating officer, Inspector Payne, and the other members of the SAPS involved could not secure a conviction. There is no direct evidence before this Court of the result of the forensic testings. It is disconcerting to think that the perpetrators of this horrendous crime are still at large.

93.	In all the circumstances we are unanimous in our conclusion that the accused must receive the benefit of the doubt. All the accused are found not guilty of all the charges.
				WH VAN STADEN, AJ
				17 MARCH 2009