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S v Mabenu and Others (SS32/2010) [2011] ZAWCHC 506 (6 June 2011)

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She testified that Thembalethu was known to her, even though they were not very close. She first met him in 2008 at the shebeen called Chippa's Place. She was having drinks there in the company of other friends. Accused 2 came over to her and introduced himself. It turned out that the two of them, she and accused 2, were from the same village in the Eastern Cape. They both were from Mqanduli in the Eastern Cape. After this encounter, the witness did not have any further dealings with accused 2, although before her arrest, she heard from family members that accused 2 once came over to her place looking for her. She also used to see him on a number of occasions walking in the street.

During cross-examination the witness corrected herself and said that it was not in 2008 when she first met accused 2 for the first time at Chippa's Place, but it was in fact in 2009, a month before May. She testified that on 17 May 2009 she knocked off at work and went to her place. When she arrived there she found her sister and three other girls in her house. While they were there, police officers arrived and one of them was Constable Owen Matini. Amongst them was a female, a white officer. Owen then wanted to know who the owner of the house was and she responded that she was the owner. He asked her where the firearm was that was brought by Thembalethu. She testified that in the process, she was assaulted by the female officer. The police officers searched under the mattresses that were in her room and could not find it. They then searched her cosmetic bag and inside they found the plastic bag containing a firearm. This was the same plastic bag that accused 2 left at her place earlier on.

When questioned by the police why she was keeping a firearm at the house, she said that she did not know about the firearm which was kept at her house. She was then arrested and taken to the police station. She recalled that the police officers came in three cars, one being a sedan, while the others were vans. Accused 2 was inside one of these vans. Under cross-examination she testified that she appeared alone approximately three to four times in court and not with accused 2, since she was told that accused 2 had absconded. The case against her was finally withdrawn.

She also testified that she noticed that accused 2 had been assaulted, because his face was swollen and he was bleeding, especially above his eyes. When asked by counsel for accused 2 during cross-examination whether she told the police that the firearm was brought to her place by accused 2, she said no. Counsel then informed the witness that her instructions were that accused 2 does not know her and that the first time that he saw her was when they made their first court appearance for unlawful possession of a firearm. The witness replied that accused 2 is lying. Furthermore it was put to the witness that accused 2 denies ever meeting her and introducing himself there at Chippa's Place. He also denied that he ever came to the witness' house and that he left a firearm there.

The witness did not agree with that statement and was adamant that it was accused 2 who came to her place and left the firearm there. Counsel for accused 2 put it to this witness that no one knows accused 2 by the name of Thembalethu. He is known by the name of Phatisizwe or Skulu. The witness did not deny this, but said that when he introduced himself to her, he used the name Thembalethu. Even when the police officers came to her place, they used the name Thembalethu.

Fundile Mavatha was the next state witness. He is a constable and was involved in the investigation in the matter under CAS 352/05/09, together with Constable Coetzee. On 17 May 2009 at around two o'clock while on duty, they attended to a complaint at house number 8654 in Zwelihle township. The complainant had reported that someone had pointed a firearm at them. On arrival at this address, they found two other police officers also there, as well as accused 2. Accused 2 was identified by the complainant as the person who had pointed a firearm at him.

According to Constable Mavatha, the reason why accused 2 was there, as he understood it, was because he, accused 2, wanted to apologise to the complainant. He testified that an empty cartridge was picked up in front of this yard just in front of the gate by one Inspector Du Toit, one of the officers that he found there on the scene. This was entered in to the police register. Mawatha then inquired from accused 2 where the firearm was that he used when pointing it at the complainant and accused 2 answered by saying that it was with a friend who left for Cape Town and accused 2 gave them a telephone number of this friend. When they telephoned this number, the person who answered happened to be Zulu speaking and indicated that he was in Gauteng.

Accused 2 was then taken into a police vehicle with Mavatha and Coetzee and on further questioning about this firearm, he indicated that it was at his sister's place. They, the police, including accused 2, then went there. When they got there, his sister told the police, that he, accused 2, did not spend the night there but went to his girlfriend's place at Mandela Square. They then drove to Mandela Square. When they stopped the vehicle outside the girlfriend's place, she came out and ran away. She was chased by Mawatha, who caught up with her. When questioned about the firearm, she answered that accused 2 left with it, when he left her place.

Accused 2 thereafter directed them to another address in Peach House, but when they got there, there was no one. On their way to the police station, they met Constable Matini next to the library. Accused 2 then asked to speak to Matini in private. They then drove to Nokothula's house at number 8730. Mawatha's evidence regarding what transpired at Nokothula's house corroborates Matini's evidence, as well as that of Coetzee in material respects and it is not necessary to repeat that, save to state that Mavatha confirmed that on arrival at Nokothula's place, that Nokothula was questioned about the firearm and it was discovered. She took it out next to her bed.

Warrant Officer Hilgaardt Brummer was the next witness who testified. She is a criminal scene investigator attached to the Provincial CSI Western Cape. She testified that her only function in relation to this case, Hermanus CAS 484/04/2009, was to transport and/or forward the exhibits found at the crime scene for ballistic tests and analysis at the SAP Ballistics, which is currently situated at Faure in the Western Cape.

On 30 April 2009 she received a cartridge case and a bullet from a colleague, Inspector Joubert, who was also the photographer attending to the crime scene in Hermanus. She sealed these exhibits individually and put it together with a forensic report which, was sealed separately, in an exhibit bag which was marked FSD 128663. She transported this sealed bag containing these exhibits from their offices in Cape Town to the ballistic section which is based in Faure. The evidence of Brummer is and was confirmed by Captain Elsie Joubert, who testified that on 24 April 2009 she (Joubert) went to the crime scene, the house of Mr and Ms Kleynhans, situated at number 23 Contour Road, Fernkloof, Hermanus and at approximately seven minutes past seven the evening found a cartridge case in front of the couch in the main bedroom study, which she sealed and marked as Exhibit 1 FSCC 1004117, which is also depicted in photos 117, 118, 120 of the photo album, Exhibit C.

On 24 April 2009 she returned to this crime scene for a second time and found further Exhibits 2 to 4 and on 26 April she placed all the exhibits in their provincial office in Cape Town in the SAP 459, registration number 28/2009 (SAP459/28/2009). The latter is an exhibit register kept at their office to control and regulate the handling and safekeeping of exhibits found on crime scenes. On 28 April 2009 she returned yet again to this crime scene and collected two more Exhibits marked 7 and 8. Of importance for purposes of this case is Exhibit marked 8, which was a bullet point found on the scene in the carpet in the study of the main bedroom. This was sealed and marked FSCC 1052420, also depicted on photos 127 to 130 of Exhibit C. This Exhibit 8 was handed in, together with Exhibit 5, 6 and 7 at the exhibit room at the provincial office with reference number SAP 459/28/2009 for safekeeping.

On 28 April 2009, the cartridge, Exhibit 1, was handed in at the fingerprint laboratory, which yielded no results and was received back on 29 April 2009 from the fingerprints laboratory, resealed and marked FSCC 10524176. On 30 April 2009 the cartridge, Exhibit 1 and the bullet point, Exhibit 8, were sealed and placed in an exhibit bag marked FSD 128663 and kept at the exhibit office from where, on the same day, it was taken to the ballistics section by Warrant Officer Brummer for ballistic testing and analysis.

Constable Eldine Coetzee of the Crime Prevention Unit of the South African Police in Hermanus testified that on 17 May 2009, she, accompanied by Constable Mavatha and Matini, were directed by accused 2 to a certain house, number 8730, Kwasa-Kwasa, Hermanus, which turned out to be the house of

Nokothula Mxhonywa. This house was one of several, she testified, between five and six, which accused 2 had pointed out to them previously just to be told afterwards by him that that is the wrong house. As it turned out, she, Coetzee, and her colleagues entered the premises of this house and found Nokothula, who identified herself as the owner of the house, together with a few other ladies in the house. After they explained their purpose of their visit that they were looking for a firearm that was hidden in the house, Nokothula pointed out the firearm which was hidden under the bed.

She, Constable Coetzee, then put her hand underneath the bed and pulled out the plastic carrier bag, which was orange and on which was written York Cash & Carry. She then opened the bag and showed the contents thereof to Nokothula. Inside the bag she saw a 9 mm pistol, which she took out and found that it was with a magazine loaded with eight rounds of live ammunition, as well as one round in the chamber of the pistol. The serial number, as well as the name of the firearm was filed off. She then seized the bag with the firearm and arrested Nokothula for unlawful possession of an unlicensed firearm and ammunition, and she, together with her other colleagues, then left the premises.

At that stage accused 2 was in a police vehicle outside the premises. Upon their return, all of them, including Nokothula, left for the Hermanus Police station where she, Coetzee, booked in this firearm in a forensic bag with seal number FSC 709901 and thereafter in the exhibit register under SAP13/844/09. She then locked it in the safe of the police station.

We now proceed to deal with the evidence of Warrant Officer Nathan Cyrano Pullen, the ballistics expert who testified on 9 May 2011. The evidence of Nathan Cyrano Pullen is unchallenged before this court. His examinations and the result thereof in respect of the exhibits which he had received from Warrant Officer Brummer of the Provincial CSI office in Cape Town are contained and summarised in his reports handed in and received as Exhibits K1, K2 and K3. It is evident from these reports and as forcefully demonstrated by this witness that:

(a) The exhibits that he tested, compared and analysed indicated that:

(i) The firearm that was found at the house of Nokothula Mxhonywa on 17 May 2009, in the presence of and by the police, fired the cartridge, Exhibit 1, and the projectile, the bullet, Exhibit 8, which he received, sealed and marked FSD 128663, which are the exhibits found in the house of the deceased, Mr Kleynhans, on 24 April 2009 and 28 April 2009 respectively.

(ii) The above stated firearm was a 9 mm Parabellum
pistol with serial number 44015397, which he
discovered scientifically, despite this number being
filed off the side of the pistol.

(iii) That this firearm was, therefore, the same firearm
that fired the cartridge and the bullet which was
found in the bedroom of the deceased after these
crimes had been committed in the house of the
deceased and Ms Kleynhans on 24 April 2009.

The evidence of this witness, which this court found to be a very good witness, therefore, established beyond a doubt a forensic and ballistic nexus between this firearm and the fired cartridge and bullet found at the deceased's house. It is accordingly the finding of this court that the said firearm was used by the intruders at and in the house of the deceased on 24 April 2009 and that the cartridge and bullet referred to above were indeed discharged by that firearm. The deceased was shot with that firearm on 24 April 2009.

The post-mortem report handed in as Exhibit B through Dr Sindisa Potelwa, a specialist forensic pathologist, who testified on 16 March 2011, indicates that the cause of death of the deceased was a gunshot wound to the groin. Dr Potelwa also testified that because of the fact that the main arteries are located in the groin area, this wound, which was caused by a person standing in front of the deceased at the time when the wound was inflicted, caused a lot of blood loss. This explains why the body organs of the deceased became and was found to be very pale, including the kidneys and the liver of the deceased. This also explains the presence of the blood all over the house where the deceased was at the time that he was shot and where he was dragged after he had been shot. This is evident from the pictures in the photo album, Exhibit C. Dr Potelwa's evidence similarly stands unchallenged before this court.

The court proceeds now to deal with the evidence of Warrant Officer Paine. Warrant Officer Paine's evidence consisted largely of a narrative regarding his investigation of this crime and the results of that investigation. There is not much evidence of Mr Paine which has a bearing, if any, on the eventual findings of the court. Where it consisted of hearsay evidence, which had been provisionally allowed on the basis that it will be confirmed by the source of that hearsay evidence and that source did not testify to confirm such evidence, same is inadmissible and consequently not allowed. I may add that such evidence had not been taken into account by this court and does not play any role in the eventual findings of and by this court.

An example hereof relates to the evidence of Mr Paine regarding his discussions and interviews with one Xolani Nduma and what the said Mr Nduma allegedly told him. Mr Nduma was the erstwhile accused 1 in this case, before his trial was separated from these accused persons before court. For the rest of Mr Paine's evidence, it is corroborated by the other state witnesses in material respects and it corroborates the evidence of such state witnesses in material respects insofar as it refers and relates to him. In this regard the court refers to the evidence of Constable Owen Matini, Deon Methu, Ms Jean Kleynhans, Luleka Mpalwani, the domestic worker of Mr and Ms Kleynhans at the time, Thembekile Elias Ndaliso, who was the gardener of Ms Kleynhans at the time and Mr Norman Mathengwa. No useful purposes would, therefore, be served to repeat the evidence of Mr Paine in that regard in great detail, save to refer to the most salient aspects thereof.

With regards to Norman Mathengwa, the state witness referred to earlier in our judgment, Mr Paine's evidence is essentially as follows. On the day of the crime, while he, that is Paine, was still on the crime scene conducting interviews with the victims, including Ms Kleynhans, he instructed Constable Matini and Mavatha to get the fingerprints of approximately 20 known suspects for elimination purposes. Later on that day, Constable Matini phoned him and advised him telephonically that he had arrested one Joseph Motlophe and Xolani Ndumo, also known as Eric Dutywa, also known as Laixo, for illegal possession of dagga. Whilst at the police station processing this arrested person, he, Matini, had seized the cellular phone of the said Eric Dutywa, which cell phone was still on.

The next day while they, the police, were still busy with this investigation, the said cellular phone rang, whereupon he, Matini, decided to and indeed answered it, i.e. to the phone of Mr Eric Dutywa, also known as Xolani Ndumo. The person who phoned, a male, thus spoke to Constable Matini, obviously under the impression that he was speaking to Eric Dutywa and said something to the effect that the police were there at his (the caller's) house and that the police were looking for footprints. This person also told Constable Matini, thinking he was speaking to Xolani, that he, Xolani, must come and fetch his stuff from his house and thereupon ended the phone call. The name that appeared on the screen of the cellular phone was Mzala.

Mr Paine, having been advised of this, considered it to be a breakthrough in his investigation and subsequently took the cell phone from Constable Matini and applied for a warrant in terms of section 205 of the Criminal Procedure Act 51 of 1977, which would enable him to obtain the particulars of the caller from the service provider of this phone. As it turned out, and before this application for the said warrant was finalised, Constable Matini advised him that he, Matini, had established who this caller, Mzala, was. It was Norman Mathengwa. The police, including Matini, also upon visiting the premises of this person, namely Norman Mathengwa, discovered certain jewellery, wedding rings and other rings, which ostensibly and allegedly, were robbed from Ms Kleynhans on the day of the crime, which was pointed out by Norman Mathengwa. This was the second major breakthrough in his investigation of these crimes.

Mr Paine then sent the forensic people, referring to the crime scene investigators, to these premises and it was later established that these rings pointed out by Norman Mathengwa and found there at the latter's premises, were indeed those that were robbed from Ms Kleynhans on the day of the crime. These rings were handed in as exhibits in this trial and Ms Kleynhans, as already pointed out, identified it without any hesitation to be her property which was robbed from her on the day of the crime by these intruders. Warrant Officer Paine then subsequently had an interview with Norman Mathengwa and took a warning statement from him. From this information he learnt that Norman Mathengwa received these rings from Xolani Dutywa also known as Eric Dutywa, for safekeeping and/or to find a suitable buyer. Paine also followed up on the information received from Norman Mathengwa to verify the latter's alibi and also in an attempt to find the shoes which were said to be bloodstained and worn by Xolani Dutywa at the relevant time.

Despite all his efforts, he could not find these old shoes, but did establish at which shop Norman Mathengwa and Xolani Dutywa went to on this particular day to buy new shoes for Xolani Dutywa. He thereafter, having obtained all this information, had a consultation with Xolani Dutywa, who was in custody at the time on another charge and confronted the latter with all this information. It was on this basis, and in the face of all this information, that Xolani eventually made certain admissions to him and provided information which led him, amongst other things, to Deon Methu. He subsequently arrested Deon Methu. It is common cause by now that Deon Methu made certain admissions to him and provided him with crucial information in relation to this case, as a result whereof, eventually, Deon Methu testified in this court as a witness in terms of section 204 of the Criminal Procedure Act. This court has already referred to the evidence of Deon Methu, which corroborated and is corroborated by the evidence of Mr Paine in all relevant and material respects. I return to the evidence of Deon Methu hereunder.

Mr Paine also testified about the day and manner of the arrest of accused 1 and 3 in Gansbaai by his colleague, one Captain Van der Spuy, both of whom, that is accused 1 and 3, were then kept and detained at Gansbaai Police Station. That was on 2 July 2009. The fact that accused 1 was in the taxi of accused 3 in Gansbaai on this day and date, namely 2 July 2009, in fact constituted a breach of accused 1's bail conditions and was in violation thereof. Accused 1 was supposed to be under house arrest in respect of another offence he allegedly had committed and for which he was out on bail subject to certain conditions. Mr Paine was also the investigation officer in that case.

Accused 1 never asked him for permission to travel to Gansbaai with his taxi on that day, nor did Paine give accused 1 any such permission. After Paine had his consultation with Deon Methu and armed with the information that he received from the said Methu, Paine then went to Gansbaai Police station where, as pointed out, accused 1 and 3 were kept at the time, where he had a brief interview with both accused 1 and 3. He put to them the information that he had gathered at that stage, including and crucially, the information received from Deon Methu and the allegations made by the said Deon Methu against them. Despite the fact that they were afforded an opportunity to give an explanation in rebuttal of these allegations, both of them refused to give any explanation. They also never told him about their alibi. In fact they bluntly refused to co-operate in this regard, they simply denied everything.

Accused 2 adopted a similar approach. He was also in custody at the time for unlawful pointing of a firearm and was kept at Caledon Prison. Accused 2 was then fetched and brought to Gansbaai Police station by Constable Matini and the captain of Warrant Officer Paine. Paine, then also interviewed accused 2 at Gansbaai Police Station. That was on the same day that he had interviewed accused 1 and 3. Accused 2 never gave him, Paine, any explanation with regards to these allegations made against him by Deon Methu and also never advised him of any alibi in respect of the day of this crime on 24 April 2009. Had these accused given him their respective alibis, he would have followed it up, just as he did in respect of the alibi furnished to him by Norman Mathengwa.

Cross-examination of this witness, Paine, by defence counsel for all three accused, which was extensive, stretched from Tuesday 24 May until and including Wednesday 25 May 2011, did not produce anything new or any material deviation from or contradictions in the essence of the evidence of and by Mr Paine. In the light of the purported application for a special entry by counsel for accused 3, Mr Colenso, it is perhaps appropriate to refer to, and deal with the relevant evidence of Mr Paine in that regard, albeit it briefly. According to my notes and that of my assessor, the relevant evidence was as follows:

"MR COLENSO: Do you know about a shooting incident involved accused 3 and Dumisani Mzalwana? — Yes.

Mzalwana shot him in the arm and leg? — Yes.

He explained to the police that he was shot? — Yes.

To date Mr Mzalwana was not prosecuted? — That is correct. COURT: Why was he not prosecuted? — That case is still pending. The investigation will resume. Accused 2 and 3 escaped from the truck, a police

van, en route to Caledon, that's Caledon Prison, and we looked for them for more than a year. They were eventually found and taken to Rustenberg where they were also arrested for armed robbery."

It was at this point that Mr Colenso indicated that he wants to apply for a special entry, ostensibly in the light of this evidence by Paine. The court then indicated to him that the court is not inclined to entertain such an application at that point, that was in the middle of cross-examination. Mr Colenso then proceeded with his cross-examination. Mr Colenso then subsequently dealt with the aspect relating to the special entry during his submissions and argument on behalf of accused 3 at the end of the case. I return to this aspect hereunder.

The other witness the state also called was Xolani Dutywa or also known as Xolani Ndumo. The court briefly deals with Xolani Ndumo as a witness. The state attempted to lead the evidence of Mr Ndumo in this trial. However, it became very clear from the onset, the first day when he was called, that he is unwilling to testify against the three accused. The matter had to stand down until the next day, that was notwithstanding whatever "agreement" existed at the time between the state and Mr Xolani Ndumo, which was never placed before this court. It is common cause that Mr Ndumo on the next day, and after having been sworn in and admitted that he knew the accused before court, reneged on whatever agreement there was between him and the state, to such an extent that the state then applied to have him discredited and declared as a hostile witness.

There being no questions from defence counsel and that no useful purpose would have been served by that, namely the application by the state to have him declared as a hostile witness, the state wisely decided not to pursue that option and Mr Xolani Ndumo was excused from the witness stand and from these proceedings. It was demonstrably clear to this court, and from the whole demeanour of Mr Xolani Ndumo, that he is and was not going to testify against the three accused before court. In the circumstances there is no evidence, certainly no reliable evidence from him before this court to take into consideration for and in the adjudication of the issues before this court.

The state closed its case after the evidence of Mr Paine. Counsel on behalf of accused 1 and 3 subsequently brought an application respectively for the discharge of those accused at the end of the state's case in terms of section 174 of the Criminal Procedure Act 51 of 1977 as amended, which application was opposed by the state. No such application was brought by and/or on behalf of accused 2. Both applications were refused after counsel made their respective submissions and after careful consideration thereof by this court. All three accused thereafter elected to testify in their own defence. Only accused 1 elected to call a witness to testify in his defence in addition to this testimony. I deal with their evidence hereunder.

Mawanda Mabenu, Accused 1, during his evidence in chief, testified that he was 23 years old and at the time of his arrest he was employed as a cashier at number 1578 White City and the spaza shop, that was being run by accused 3. The owner of the spaza shop was accused 3's mother, who was based in the Eastern Cape. He had been working in this spaza shop for a period of five years. Accused 1 and 3 are related to each other, they are cousins. They also live on the same property. Accused 1 occupies the RDP house which is built at the back, while accused 3 occupies the main house where the spaza shop is. They live with two minors, one Sphelele, who was 16 at the time, that is in 2009, and Asalinto, who was 14 at the time.

He testified that on 24 April 2009 he was at his home working at the spaza shop. He then gave a description of his daily routine at the spaza shop, which he said involved the following. He would wake up in he morning around four o'clock and start selling items to customers. Accused 3 would also wake up and help him to cut the bread. The deliveries by three bakeries would then arrive. Belmont would arrive first, they are based in Hermanus, then followed by two other bakeries, Albany and Blue Ribbon. These latter two normally arrived just before seven in the morning. They come all the way from Cape Town. After this, he will then continue serving customers and selling items to them. Accused 1 could not recall specifically what he did on 24 April 2009. He mentioned that he was under house arrest at the time for 24 hours as he had strict bail conditions.

Counsel for Accused 1 put it to him that Inspector Paine testified that on 2 July 2009, when he was arrested, accused 1 could not say where he was on 24 April 2009. Accused 1 denied this and said Paine was lying, he did tell him where he was. During cross-examination, accused 1 said that accused 3 did not own a taxi, he was a taxi driver only. He drives a Toyota Quantum which belonged to someone else. He testified that he knows Deon Methu and that they were once arrested together on suspicion of dealing with abalone, but were acquitted. He said though he knew Deon Methu, he did not know where his house was.

Accused 1 confirmed that ordinarily people in Zwelihle know accused 3 by the name Mekelele, but that he, accused 3, is now known as Gwebinkundla, a name he was given after his initiation. The name Mekelele is most used by those who have known him for a long time. Counsel for the state asked accused 1 whether he and Deon Methu had ill feelings for each other, to which he responded that he, accused 1, did not have any ill feelings towards Deon Methu, but could not speak for Deon and went on to say that he did not know Deon that well after all. He testified that he did not know Xolani Ndumo, he just knew him from seeing him in the street. He said that when they were detained in Gansbaai, Xolani came to them, that is accused 1, 2 and 3 and told them that the three of them had nothing to do with the robbery and murder of Mr Kleynhans. He, Xolani, was promised some money by Inspector Paine.

Xolani told them that he got their names from Inspector Paine, who came to him with a list of names. Accused 3's name was written in red at the bottom of the page. Furthermore that if he (Paine) can arrest accused 3, Xolani would not work for the rest of his life. Accused 1 furthermore testified that he was very cross when he heard Xolani saying that. Furthermore, Xolani said the names of accused 2 and 1 were just added to the list since three people were involved in the robbery and murder of Mr Kleynhans. He said that Xolani did not tell them that he, Xolani, was personally involved in the case. All he (Xolani) said was that he had a deal with Inspector Paine. Accused 1 said that Xolani did not mention whether or not Deon, referring to Deon Methu, was involved in this case or this deal.

Accused 1 denied that he was in the car that was driven by Deon. He said that he did confront Xolani to ask him why he falsely implicated him in the case. He testified that Xolani told him the reason he did it was because he wanted money since he was promised payment by Inspector Paine. Accused 1 was asked by counsel for the state why he never alerted the authorities to the fact that Inspector Paine and Xolani had falsely implicated him in a crime which he did not commit. He responded by saying the police would not have done anything about it. He went on to say that Xolani did inform the magistrate that accused 1, 2 and 3 had nothing to do with the case and furthermore, that he was waiting for his day in court to explain to the court that he was innocent.

When asked why this crucial part of his evidence was not put to Inspector Paine by his counsel, his response was that it was not written in the statement. She, referring to his counsel, was asking Paine things that were in the statement. When asked why he did not interrupt his counsel during her cross­examination of Inspector Paine so that she can ask him about the deal that he had with Xolani, his response was again that he was going to tell the court himself during his testimony and that maybe he missed it out, maybe he had forgotten to tell her. Accused 1 testified that Deon Methu had falsely implicated him and accused 3, because he was their competitor. He testified that when he was arrested, Inspector Paine had told him the reason for his arrest and asked him whether he knew anything about the robbery. His response was that he knew nothing. Paine also informed him that he was going to charge him, that is accused 1. He told Inspector Paine that he knew nothing about what happened on 24 April 2009, he was at home and Inspector Paine knew that he was under house arrest.

He said that he was arrested in Gansbaai on 2 July 2009 and at that time he was on his way to drop off people. He was with Vuyisani, that's accused 3, in the car. He said that he had asked Inspector Paine for permission. He had asked Inspector Paine for permission to assist accused 3 to go on a trip to Gansbaai, because accused 3 was injured at the time as a result of the shooting that he, accused 3, was involved in. He could not recall what time he had called Inspector Paine on his cell phone when he was seeking such permission. He went on to say that it was not the first time that he had sought such permission from Inspector Paine. Counsel for the state then put it to accused 1 that Paine had not given him permission on 2 July 2009 to go to Gansbaai, if he did, he would have remembered it, that is why Paine told the court that he, accused 1, breached his bail conditions.

I now deal with the evidence of accused 2, Thembalethu Khameni. He testified that he is 32 years old and lives in Tsepetsepe, Hermanus. Accused 2 denied having been involved in the robbery and murder of Mr Kleynhans on 24 April 2009. He testified that he does not know Deon Methu, that he met him for the first time in prison during July 2009 and that they never spoke to each other. He denied further that he was among the people who drove with Deon to Fernkloof, that he was instructed by accused 3 to fetch the firearms, that he was dropped off by Deon, together with the others at Fernkloof, that he was amongst the people that Deon picked up later in a place called Northcliff and that they were carrying black plastic bags and firearms.

He told the court that he was arrested in May 2009 on a charge of possession of a firearm. At the time of his arrest, he was assaulted by Constable Matini, Constable Mavatha and Constable Coetzee. The arrest took place at accused 2's house. Matini had put a plastic bag over his head and assaulted him. He was taken to a mountain and assaulted further and was later taken to Zwelihle Police Station, and they continued assaulting him. He was later taken to the Hermanus Police Station. Accused 2 denied that he asked to speak to Matini in front of the library and that he told Matini where the firearm was. He told the court he never took the police to Nokothula's place. He told the court further that he did not know Nokothula prior to his arrest for the alleged possession of a firearm. He met her for the first time at the police station.

He denied that Nokothula knows him and that he was the one who took the firearm that was inside the plastic bag to Nokothula's house. He denied further that he met Nokothula for the first time at the shebeen in Chippa's Place. He told the court that he does not take any alcohol and therefore does not go to shebeens. He denied what Nokothula had told the court that when the firearm was discovered at her place, he was inside the police van outside her yard. He told the court about his whereabouts on 24 April 2009. He testified that he is self-employed and works in the sea by diving for perlemoen. He said that on that day he came back from the sea at Simon's Town at five o'clock in the morning.

The night before 24 April 2009, he was in Simon's Town. He had gone to sea with his fellow divers, about five of them.

These people are known to him as Skhulus, this is a name that is commonly used for divers. He did not know their names or where they live. He used to phone them on their cell phones whenever they had to go on a trip to Simon's Town. When they came back, he was dropped off at his place. They had travelled in a Toyota Condor. He lived alone at the time. On arrival at his place, he took off his diving clothes, hung them out on a washing line and then went to bed. He woke up in the afternoon. It must have been before four o'clock in the afternoon and got ready to leave for the sea.

When asked during cross-examination by state counsel how it was possible for him to recall what he did on that particular day, his response was that it was because the police came to his place and took his fingerprints. He said the police told him something happened on that day. He testified that he heard Xolani's testimony in the Magistrate's Court, that he, Xolani, had a deal with Inspector Paine to falsely implicate him, accused 1 and accused 3. He testified that he came to know about that deal in court on that day. Later on he said that Xolani had told them about the deal when they were all in the cells. When asked by counsel for the state why he had previously stated that he heard this for the first time in court, his reply was that he did not hear the question properly, because he has a hearing problem. When asked if he ever did anything about this information in order to secure his release, his reply was that he did not.

He testified that the police, together with Nokothula had conspired to falsely implicate him. The police had told Nokothula to say that she received a firearm from him. He was asked during cross-examination whether he ever inquired from Nokothula why they appeared in court, his reply was that he did not have the time to talk to her since they were kept in separate cells. Even in court they were not seated together in the dock. Accused 2 was asked whether he did inquire from the police why he was charged with Nokothula and his response was that he did not. Accused 2 told the court that when he was arrested in July 2009, Inspector Paine asked him where the firearms were and that he must tell the truth. He was taken to a magistrate to make a confession. He was informed by the magistrate that what he was going to say must come from his heart. Ultimately the confession was never taken, since he, accused 2 told the magistrate that he was assaulted and this was evident from his bleeding and bloodstained clothes.

Accused 2 was asked whether he knew accused 1, accused 3 and Deon Methu. He said that he used to see accused 1 selling things at the shop. He knew accused 3, because he was previously his co-accused and he also used to see him, accused 3, at the taxi rank. As for Deon Methu, he only met him in prison, they did not know each other prior to their arrest.

We now deal with the evidence of Vuyisani Mfundeni, accused 3. Accused 3, during his evidence in chief, testified that he was born in the Eastern Cape and moved to Hermanus when he was about one and a half years old. He resides at 1578 White City in Zwelihle. He is married and he is a father to a five year old child. He testified that he is running a spaza shop that belongs to his mother, who has since retired to the Eastern Cape. He has been running this spaza shop for seven years. Besides running the spaza shop, he is a taxi driver. He is a member of a taxi association known as Uncedo. This association is based in the Eastern Cape. There is another taxi association in Hermanus that is called CATA. Both these associations operate in Hermanus.

He testified that there are tensions between these two associations. CATA members despise members of Uncedo. They regard them as migrant labourers who come to Hermanus to make money and then use this money to build houses in the Eastern Cape. This tension resulted in the two associations being rivals and this in turn resulted in murders and taxi violence. Even police officers and traffic officers are biased against members of Uncedo. They always stop them and accuse them of driving without licences. He testified further that in 2009 he was assaulted by Dumse Mzalwana, a taxi owner who is a prominent member of CATA. He was also shot at by this Mzalwana while pulling out of a parking lot in town (Hermanus) near Absa Bank. He was hit on his left arm, lower leg, the right-hand side thereof and on his hip bone. He lost a lot of blood as a result.

He fled into Absa Bank and was later taken to an ambulance outside Absa. While in the ambulance, before receiving medical attention, a Superintendent Cetwayo came to interview him about the incident. He was later, after about 30 minutes, taken to the hospital in Hermanus. He was discharged eventually from hospital and after three weeks, while recuperating at home, Inspector Paine paid him a visit and inquired about the shooting incident. Accused 3 did inform Inspector Paine that he wanted to lay a charge in relation to the shooting. He could not recall Inspector Paine taking a statement from him. As a result of his injuries, he was walking with crutches. He had a plaster cast on his right leg and left arm and was bandaged on his waist side. He testified that Mzalwana was never charged for what he did to him. He also said that Inspector Paine is not telling the truth when he testified that he, accused 3, assaulted accused 2 with crutches in Gansbaai on or about 2 July 2009.

He testified that while in custody, Xolani told them about the deal that he had with Inspector Paine. Accused 3 denied the following. That he and Deon Methu knew each other before the incident of 24 April 2009. That Deon saw him in Peach House before the incident. He said that if Deon had known him, he would have mentioned his full names, that is Mekelele Gwebinkundla Mfundeni in his statement. Deon Methu would also have mentioned his residential address, as well as his parents' names. He denied that he hired Deon Methu, because he, himself, had several motor vehicles available at his disposal, amongst other things, an Open Kadett, an Iveco and the Quantum. He said Deon was possibly involved in the commission of the robbery, together with other people that he is now protecting and instead implicates him, that is accused 3. He testified further that it is possible that Deon Methu conspired with Paine, together with Xolani.

He said the community, the police, CATA are all against him, as well as other shop owners who want to make sure that he is dead or out of Hermanus. He testified that on 24 April 2009 at around four o'clock in the morning he was at home and he was carrying on with his daily duties of waiting for deliveries by the bakery, cutting loaves of bread and slicing polony and serving customers. Afterwards he went to drive his taxi. He mentioned that several people in the township owned spaza shops, in fact almost every street has a spaza shop. He mentioned that he would return from driving the taxi at sunset and thereafter count his money in his bedroom and then place it in the safe.

Under cross-examination, accused 3 insisted that he is innocent of the crimes that he is accused of and that the three people as mentioned, namely Paine, Methu and Xolani, plotted to have him removed from society. He indicated that even though he does not hold any position in Uncedo, he suspects that members of CATA were also involved in the conspiracy, although he cannot prove it. He mentioned that neither Xolani nor Deon Methu are involved in the taxi business. He conceded that he made a mistake during his evidence in chief when he said he was shot before 24 April 2009 and also that he did not make a statement after this shooting incident.

Counsel for the state put it to him that the fact that no progress was made in prosecuting Mzalwana was due to the fact that he, accused 3 had escaped while in custody, therefore, the case was temporarily withdrawn. Accused 3 conceded that he escaped while in custody and gave an explanation why escaped, inter alia, that he wanted to kill himself. Accused 3 could not dispute the fact that it was possible that Deon Methu frequented his spaza shop to buy cigarettes and that Deon could have seen him driving a taxi and offloading passengers in the main road in front of Peach House. He explained to the court the procedure of the secretary at the taxi rank, who records the activities of taxis operating in that rank. He mentioned that the secretary keeps a roster of taxis that are going out and coming in with passengers.

When questioned further about the particulars of the secretary and the records that were being kept, he replied that this is done informally. There is no proper recordkeeping. A cardboard box is used sometimes. He then said that on 24 April 2009, he did come in and out of the taxi rank. When he was asked what he did on 1 June 2009, he was adamant that he carried on with his normal duties of taxi driving. Counsel for the state then put it to him that it was not possible, since he was in hospital on that day. He later admitted that he made a mistake. When he was asked whether during his arrest he explained to Inspector Paine his alibi, he said no there was no time, because Paine was busy and was interested in finding out where the jewellery and firearms were.

after Matini had found a stop of dagga.

The witness could not explain why Matini had to phone for backup when he was already in the company of Thalo. He testified further that he knew Eric Dutywa and that Eric Dutywa did arrive at his house that day, but after Matini had discovered the dagga. Eric Dutywa is also known as Xolani Ndumo. He admitted that Eric Dutywa was searched and that they were both arrested, but were taken to different police stations and charged separately. That constituted the evidence before this court.

We now refer to the applicable and guiding legal principles which have a bearing on this case. It is trite that the state bears the onus to prove its case against an accused beyond reasonable doubt and that there is no obligation on an accused to assist the state in proving its case against him or her. See in this regard R v Difford 1937 AD 370 at 373 and S v Texeira 1980 (3) SA 755 AD at 764E-F. It is also trite that a trial court's finding in respect of which facts are proven, must also be consistent with, and be based on the objective and admissible evidence, as well as with any inferences which a court could draw from the available evidence, including circumstantial evidence. See in this regard, Schmidt, Bewysreg, 3^rd Edition page 92-93 and pages 113-114, Hoffman

He said that Inspector Paine never told him why he was arrested, i.e. he is arresting him for the murder of Mr Kleynhans. He only heard about it in court after being kept in the cells. He said that Matini knew about his alibi, he did tell him. When asked if he did make a follow up with Matini regarding his alibi, he responded that Matini and the other police officers were not interested in his explanation, they were keen on finding out where the firearms were. He never saw Matini after that. We may add at this stage that this aspect was never put to Constable Matini during the latter's cross-examination.

We finally deal with the evidence of the witness called on behalf of accused 1, Joseph Mohabe Matlabe. Joseph testified that he was arrested by Constable Matini on 24 April 2009 for possession of dagga. He testified that at about 7 p.m. while walking in the street, he met up with Matini, who was in the company of another police officer known to him as Thalo. Matini then asked him to get into his vehicle and that he must show him, Matini, where he stays. On arrival at his place, Matini started searching the house and found a stop of dagga under a pillow. He testified that it is not true what Matini said that he was arrested at home after he, Matini, had smelt dagga. He testified that while at his house, Matini telephoned police officers for backup and a lot of them arrived. That was

& Zeffert, Law of Evidence, 4 Edition, page 574-575 and 585. R v Blom 1939 AD at 202-203. S v Artman 1968 (3) SA 339 AD at 340-341. The inferences which the trial court draw in a particular case must also be consistent with all the proven facts and it must exclude any other possible inference, otherwise it will amount to mere speculation. See Schmidt supra, Hoffman & Zeffert supra, R v Blom supra, the references which we have already referred to.

When deciding whether or not the state has proven its case beyond a reasonable doubt, the trial court is obliged to evaluate the totality of the evidence and any defects in the defence case is of no material assistance to the state in discharging its onus, especially in cases where the state witnesses, and the evidence, are open for serious criticism. See S v Jochems 1991 (1) SACR 208 (AD) at 211f-j, as well as S v V 2000 (1) SACR 453 (SCA) at 455. In S v V. (supra) that principle is crisply summarised as follows:

"It is trite that there is no obligation upon an accused person where the state bears the onus to convince the court. If his version is reasonably possibly true, he is entitled to his acquittal, even though his explanation is improbable. A court is not entitled to convict, unless it is satisfied, not only that the explanation is improbable, but that beyond reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused's version is reasonably possibly true. But whether one subjectively believes him, is not the test. As pointed out in many judgments of this courts and other courts, the test is whether there is a reasonable possibility that the accused's evidence may be true."

Even in cases where an accused person or any witness for that matter was found not to be a perfect witness and even if such a person's evidence were to be rejected as untruthful, the question remains as to what inferences, if any, could be drawn from such untruthfulness. It is true, of course, that an inference of guilt may, in suitable circumstances, be drawn from the fact that an accused gives false evidence. See in this regard S v Mstweni 1985 (1) SA 590 (A). This court is guided by these principles and duly took it into consideration in adjudicating this case before us.

Dealing with the evaluation of the evidence, it is evident that the case of all three accused is one of denial in respect of having committed these offences, as well as an alibi. On the evidence in its totality before this court, all three accused are linked with these offences committed on 24 April 2009. Accused 1 is linked by the evidence of Deon Methu, according to whom they know each other. He, Methu, was the driver on that day. They spent plus/minus eight hours together on that day. He drove with him, that is accused 1. They then dropped of certain people. The two of them, accused 1 and Deon Methu picked them up again later after accused 1 received a phone call. He, Methu, gave accused 1 his car keys. He saw stolen items, including a laptop and guns and a black bag that day. He drove the persons, including accused 1, to his home that day, after he and accused 1 had picked them up. This witness, Deon Methu, was adamant that he did not make a mistake in respect of the identity of accused 1.

Accused 3 is also linked to these offences by this witness, Deon Methu, in that; 1) he knows him; 2) he, Deon Methu, saw him, accused 3, on this day with blue overalls; 3) he, Methu, drove him, accused 3, and the other accused persons, as well as one Xolani Dutywa, on this day; 4) they had a discussion in a Quantum taxi; 5) He dropped them; 6) He picked them up; 7) He saw stolen items, including a laptop and guns with a black bag which they, accused 3 and 2, loaded from the Mercedes vehicle into his car. The evidence before this court, indicates beyond a doubt that the robbers took the Mercedes Benz motor car belonging to the Kleynhans couple on that specific day. According to Deon Methu's evidence, he did not make a mistake in respect of the identity of all these accused, including that of accused 3.

Accused 2 is linked to these offences, firstly by the evidence of Deon Methu, secondly by the evidence of Nokothula and thirdly by the ballistic evidence, which I shall deal with shortly. According to Deon Methu's evidence, he, Deon Methu, saw him on this day 24 April 2009, accused 2 came out with guns. He, the witness, drove the accused to Voelklip, including accused 2. This witness, Methu, dropped them at the back of this house depicted in the photos in Exhibit C, which is the Kleynhans' residence, where the robbery and the murder took place on this day. This witness picked them up later, where they emerged from under a tree, where this witness also saw the Mercedes Benz vehicle. Accused 2 and 3 had goods with them, two rifles and two black bags which they carried with them. This witness also noticed that accused 2, 3 and Xolani Dutywa were covered in blood. He, Methu, took all the accused, including Xolani Dutywa to his house. He knew accused 2 as Skhulu, since it was not the first time that he saw accused 2, he saw him before. He similarly did not make a mistake with regard to the identity of accused 2.

Accused 2 is also linked, as said earlier, to these offences by the evidence of Nokothula, who testified that she knows him. He came to her house. He had a bag with him. It was an orange York Cash & Carry bag. The police came to her house, found this bag and in this bag was a gun. This was the bag that accused 2 brought there. She was arrested and charged with accused 2 for unlawful possession of this firearm and ammunition. This firearm was found by Constable Coetzee, who was with Constable Matini at Nokothula's house at the time. The evidence indicates overwhelmingly that it was accused 2 who took the police to this house where this firearm was found after he gave them various false and wrong addresses and names. Nokothula saw accused 2 there in front of her house, in one of the police vehicles after the gun was found in her house and she was arrested and led out of her house to the police vehicle. The evidence of the other witnesses, particularly Coetzee, Mavatha and Matini confirms and corroborates Nokothula's evidence in this regard that accused 2 was indeed outside her residence at that time in one of the police vehicles where Nokothula saw him.

There is, as we have indicated, a further link of accused 2 with these offences, which is the ballistic reports and evidence in respect of this firearm. The cartridge and projectile found at the murder scene, in the house, as the evidence demonstrates, were ballistically tested, analysed and compared with this firearm, which accused 2 took to Nokothula's house. It was established beyond a doubt that that was the firearm that discharged the cartridge and projectile at the crime scene on 24 April 2009.

Ms Kleynhans saw one of the intruders with a gun, so did her two employees. Ms Kleynhans heard a gun-shot. She saw her husband was shot. The post-mortem report, as referred to earlier, indicates that the deceased died of a gunshot wound.

All three these accused are also linked with the offences by the evidence of Norman Mathengwa, albeit indirectly so. He testified that he received jewellery, rings from Xolani on 24 April 2009. These rings were subsequently found by the police at the residence of this witness, Mathengwa, where it was pointed out by him. These rings were handed in as exhibits in this court and identified by Ms Kleynhans as her property. It was robbed of her on this day of the crimes by these intruders. Norman Mathengwa's evidence, which largely stood unchallenged before this court, was very clear that he also saw Xolani Dutywa on 24 April 2009 with bloodstained tekkies.

Mr Methu, in his evidence, confirmed that he also saw Xolani on this day, together with accused 1, 2 and 3 and furthermore, that the clothing of Xolani Dutywa, accused 2 and 3, were bloodstained when he and accused 1 picked them up later that day. This constitutes important corroboration of these two witnesses' evidence and is in fact an important safeguard and guarantee for the reliability of their respective evidence, especially in the light of the fact that both of them were and are single witnesses, as well as witnesses called in terms of section 204 of the Criminal Procedure Act and they were called by the state.

This court has been reminded of the cautionary rules applicable to single witnesses and more particularly to witnesses called to testify on behalf of the state in terms of section 204 of the Criminal Procedure Act. The court is mindful of those cautionary rules and have applied that in the evaluation of, and the approach to evidence of especially Deon Methu and Norman Mathengwa. It is in that context that their evidence must be weighed up against the evidence tendered by and on behalf of these accused. The court will firstly examine the response of accused 1 in the face of this evidence which we have referred to above, having regard to the cautionary rules referred to before.

According to accused 1, he was not with Deon Methu and the other accused on 24 April 2009. He was at his home in the spaza shop where he works every day. He knows Deon Methu and Deon Methu knows him. Deon Methu also lives in Peach House, Zwelihle township of Hermanus. He cannot dispute that Deon Methu lives plus/minus 20 to 30 minutes walk from accused 3's spaza shop, where accused 1 was working at all relevant times. According to accused 1, Deon Methu is, however, lying when he said that on 24 April 2009 he, Deon Methu, drove his car with accused 1, accused 2, accused 3 and Xolani Dutywa to Voelklip. Deon Methu also lied that he dropped off the other people at the house of the deceased that day. He also lied that they, accused 1 and Methu, were together that whole day from the morning until the afternoon.

He also lied if he said that accused 1 received a telephone call that day a plus/minus one o'clock that afternoon to tell them to come and fetch the others. He also lied that he, Deon Methu, and accused 1 then drove to fetch the others at a place not far from the crime scene. He also lied, referring to Deon Methu, when he testified that they got to the others, that accused 3 and the others had black plastic bags containing, inter alia, a computer and long guns, that they loaded this from the Mercedes in Deon Methu's car and that he, Deon Methu, then drove them to his house and that Deon Methu later gave him his car keys to take the stuff away and in which car accused 1, 2 and 3 also drove away on that day.

This begs the question why would Deon Methu lie in all these respects with regards accused 1? The only reason he, accused 1, could give was that Deon Methu also had a spaza shop and that by implicating him, that is accused 1, and the other accused in this offence, that their spaza shop, belonging to accused 3, as competition would be weakened or wiped out. He admitted, however, that firstly this is only what he, accused 1, thinks and secondly, that he, accused 1, does not own a spaza shop. The spaza shop belongs to accused 3. He, accused 1, is merely working there.

On the question of why Xolani Dutywa would implicate him, accused 1, his reply was, as we understood it, that it was because Xolani and the investigating officer, Warrant Officer Paine, had a deal: Xolani would give Paine the names of other people allegedly involved in this robbery of Mr Kleynhans' house on 24 April 2009. In return Xolani would receive some gain in the form of money so that Xolani would not have to work for the rest of his life. Accused 1 does not know why Xolani gave his name. According to him, he asked Xolani and what he understood from Xolani is that the latter gave his name as an accomplice in the context of this deal, the conspiracy, for which he, Xolani, would be paid or would get money from Warrant Officer Paine. It is common cause that this was never confirmed or referred to or surfaced in the evidence by Xolani in this court.

On the question of why he did not tell his counsel about this deal, why was it not put to Warrant Officer Paine when he testified, his only reply to this was that he did not want to disturb his counsel while she was busy with cross-examination. He also did not want to disturb the court proceedings. He would also get his opportunity to tell his story to the court. However, he conceded that this version was only revealed during cross-examination by the state. If the state did not cross-examine him about that, that version would never have surfaced. He conceded furthermore that it is, and indeed was, important information because that would point to his innocence, the fact that there was a conspiracy to implicate him and that it would possibly secure his release if that was indeed so.

It is common cause that this aspect about the so called deal with Xolani was never put to Warrant Officer Paine, nor did Warrant Officer Paine ever refer to such a deal between him and Xolani. According to Warrant Officer Paine he got the names of the co-perpetrators firstly from Xolani and thereafter, independently, from Deon Methu, who specifically named accused 1. In the circumstances this court finds that this evidence as tendered on behalf and by accused 1 of this so called deal, is nothing but a recent fabrication and as such is rejected as false.

We deal now with the alibi of accused 1. It is trite that where an accused's defence is also one of an alibi, that the state is burdened with the onus to disprove or negative that alibi beyond a reasonable doubt as part of its overall burden of proving an accused's guilt beyond a reasonable doubt. It is trite, furthermore, in accordance with common law principles that where an alibi defence is raised for the first time at trial, then the court, in determining whether the alibi is reasonably possibly true, may take into account that there has been no opportunity for the state to investigate the alibi properly. See generally in this regard R v Mashole 1944 AD 571, S v Zwavi

3. (2) SACR 772 (CK), S v Mhlonqo 1991 (2) SACR (A) at 210, S v Tandwa 2008 (1) SACR 613 (SCA) at 665, S v Malefu

4. (1) SACR 127 (W) at 158a-e.

According to accused 1 he was as usual at his home at the spaza shop on this day and time when this alleged offence took place on 24 April 2009 between four o'clock in the morning and two o'clock in the afternoon. Usually the bread deliveries from the respective bakeries would take place from around 3:30 and 04:00 in the morning. He and accused 3 would then cut up the bread in halves, ready to be served to the people who would come in the morning to buy bread, some who would buy half loaves. In support hereof, he also contended that he was in any event under house arrest in terms of his bail conditions in respect of another case that he was allegedly involved in at the time. He would adhere to his bail conditions and would, therefore, had been at his house.

That, however, flies in the face of two objective facts. Firstly, on the day of his arrest, 2 July 2009, when he was supposedly still subject to these bail restrictions, he was found in the vehicle of Mr Mfundeni, accused 3, together with accused 3, in Gansbaai, clearly in violation of his bail conditions which were still applicable to him at the time and which restricted him to his house. He was subsequently formally arrested on 4 July 2009 on these charges before the court. Secondly, he also never told Warrant Officer Paine upon his arrest, that he was at his home on 24 April 2009 on the day of these alleged offences. According to Warrant Officer Paine the first time that he heard about this alibi was on the day of his testimony here in court. Would he, Paine, have known about it, he would certainly have followed it up.

According to accused 1 he told Warrant Officer Paine "not in so many words" about his alibi. By that he meant that he told Warrant Officer Paine that he was not involved in this robbery and murder on that day. That also meant, according to accused 1, that he was at his home. Warrant Officer Paine told the court that accused 1 did not tell him that he was at home at that time. Accused 1, together accused 3 and 2 were in fact kept together in Gansbaai following their arrest by Warrant Officer Van der Spuy on 2 July 2009. Accused 1, therefore, had ample opportunity to tell him about his alibi that he was at home. He did not. Accused 1 also conceded during cross-examination that there was nothing that precluded him from telling the police at any stage after his arrest about this so called deal between Xolani and Warrant Officer Paine. He elected not to do so. There was likewise nothing that precluded from telling the investigating officer, Warrant Officer Paine, about the fact that he was at home at this time. He did not do so.

The final blow and the nail in the coffin of that alibi is the evidence of Mr Deon Methu, who testified that on that day accused 1 was with him in his car when they took the other accused to the house of Mr Kleynhans. Accused 1 conceded that Deon Methu could not and would not have made a mistake with regards to his, accused 1's, identity. What accused 1 said was that Deon Methu was or is lying. On the facts of this case and in the context of the evidence in its totality, this court finds that the evidence of accused 1 in respect of his alibi defence is not reasonably possibly true.

We now turn to accused 2. What is the evidence of accused 2, Thembalethu Khameni in response to the evidence linking and implicating him in these offices? Accused 2 did not impress as a witness. According to him, as indicated above, his daily routine is as follows. He would leave his house, he stays alone there, round about four o'clock in the afternoon to travel all the way from Hermanus to Muizenberg, apparently to dive for perlemoen. He would be there, that is in Muizenberg, diving for perlemoen, throughout the night until the next morning. He would then return in the early hours of the morning, plus/minus four o'clock from Muizenberg to Hermanus. He would then hang out his wetsuit, whereafter he would then go to sleep. He would wake up around three o'clock, four o'clock in the afternoon, and he would then leave for Muizenberg again to follow the same routine.

He did this and would do this despite the fact that he did not, or does not as far as the evidence reflects, have a car of his own. He is dependent on and travel with his fellow divers. It would be a different vehicle every day, depending on who would go to Muizenberg. He would ordinarily not even eat, he or they, his fellow divers, would get something to eat along the way to Muizenberg. He could not name the name or names of any of these fellow divers. According to him all of them is known as Skhulus, since all of them are working together. That is how they are known in their community. They are five persons all together, all men. His nickname is Skhulu, people in Zwelihle know him also by that name.

According to him, he would also have followed this routine on the day of 24 April 2009 when these crimes were committed. Therefore, he could not have been, and was not involved in this crime on 24 April 2009. Therefore, Deon Methu, insofar as he referred to him, accused 2, is or was lying. Although he could ostensibly clearly remember that to be his routine on 24 April 2009, that is the day that these crimes were committed, he could not remember specifically what he did the day before, i.e. on 23 April 2009. His answer to this question was, "it depends on what time I woke up, then I would go to sea". He could not remember whether he had complained in this court on 18 May 2011 about a headache. The objective fact, of course, is that this court did not sit on 18 May 2011. The matter was postponed from 12 May 2011 to 19 May 2011. When he realised that he could not remember, he attempted to give different explanations and tried to avoid answering the question directly.

He conceded that he did not tell the investigating officer about this daily routine, it being his alibi, since the day of his arrest on 17 May until his testimony in court. It is evident from the evidence also that no such alibi, including such routine, was disclosed on behalf of accused 2 (a) in his plea-explanation, (b) to the witness Deon Methu and (c) to the investigating officer, Warrant Officer Paine. Accused 2 also conceded that he had ample opportunity to tell the investigating officer about his alibi. One such opportunity was, of course, when he told the investigating officer he was not involved in this crime. The evidence also demonstrates that he was fetched from Caledon Prison and brought to Gansbaai on or about 2 July 2009. He had an interview with the investigating officer on that day. He could have told him about this alibi on that occasion. It is clear from the evidence that he did not tell the investigating officer about this alibi on that occasion.

What he in fact did was to tell them, that is the police, that he would go and show them where the firearms were hidden in the Eastern Cape. He would accompany them to the Eastern Cape. He did that, but he did not point out any firearms. No firearms were found. He took them, the police, for a ride which he conceded. In other words, and according to him, he blatantly lied to them. Throughout this whole excursion from the Western Cape to the Eastern Cape, he could have told the police about his alibi. He did not. Upon his return from the

Eastern Cape, he saw the investigating officer, Warrant Officer Paine, again. He could have told the investigating officer about his alibi at that stage. He did not. He could not tell the court with which vehicle they travelled on any particular day from Hermanus to Muizenberg. He could not tell who the owner was of the vehicle that they drove on any particular day, despite the fact that there were only five men whom he knew, and with whom, according to himself, he dived together almost daily ostensibly for perlemoen. According to him the names of all five men, including his name was Skhulu.

On his own version furthermore, he had on occasion been taken by the investigating officer to a magistrate, at his own request, to make a confession. It is to be noted that this aspect also surfaced for the first time during cross-examination. According to him, at this time before he was taken to the magistrate for this confession, his bloodied clothes were replaced by clean clothes, which was given to him by Constable Matini. He saw the magistrate, he spoke to the magistrate, the magistrate could see that he was assaulted, that he was bleeding. He did not make a confession. The magistrate sent him away. On this version also he was afforded an opportunity to tell the magistrate of his alibi which, if true, could have pointed to his innocence. It was a crucial opportunity to completely exonerate himself from this offence. Yet he did not use this opportunity to tell the magistrate that he was innocent, that he knew nothing about this murder and robbery in respect of Mr Kleynhans, that he was not even at that house, that he was diving for perlemoen.

It must be pointed out that this aspect was not put to Constable Matini during cross-examination, neither was it put to Mr Paine during his cross-examination. This is despite the fact that accused 2 had all the opportunity, not only to attract the attention of this court by raising his hand to speak to his lawyer, which he had done on a number of occasions, but also to tell his legal representative about this important aspect. As pointed out, he had no hesitation in the course of this trial to raise his hand to draw our attention so as to enable him to convey something to his legal representative. At all those occasions, he was duly afforded an opportunity to confer with his counsel, Ms Mahlasela. with regards to this aspect. He did not do this.

He could not tell the court who the magistrate was or when it was. According to him he told his lawyer about this. We have no doubt in our minds that had this indeed been told to his legal representative as he alleged, it would have been put to the respective witnesses. In the circumstances and on the totality of the evidence before this court, this court has no hesitation in finding that this alibi of accused 2 is a recent fabrication, it is not reasonably possibly true and it is in fact rejected by this court as false.

His evidence with regards to the firearm, is as follows. On his version he does not know Nokothula. They have never met, not in the township of Zwelihle, Hermanus or at the shebeen called Chippa's. He did not and does not know where she stayed in Zwelihle. He was never at her residence ever. He did not take the police to her residence, neither did he tell the police that he had a gun which he had given to Nokothula to keep. He did not give her a gun to keep. He did not go to her house with an orange plastic bag which contained a gun. He did not leave an orange plastic bag containing a gun at Nokothula's place. He did not show the police where Nokothula stays and where he had kept or hidden the gun. In other words Nokothula, insofar as she was testifying, was lying to this court, so were the police. He denied all of this.

In other words it is not accused 2's case that the discovery of the firearm at Nokothula's place on 17 May 2009 was as a result of a pointing out by him which was extracted or achieved by force, exerted on him by the police, i.e. that it was as a result of an inadmissible pointing out or an inadmissible confession. His defence was a total denial of all of this. In stark contrast to this denial is the evidence of Nokothula as was summarised above. She was adamant that she knew accused 2. She met him in 2009. It must be pointed out that she made a mistake initially in respect of the year, which she corrected by pointing out that it was not 2008 that she met him, it was in 2009. They met at the shebeen not far from where she stays. They had spoken to each other on that occasion and on other occasions. On the day in question and while she was on her way to work, accused 2 arrived at her place, when she was at the point of locking up her house. Accused 2 had an orange plastic bag with something in it, which he said he wanted her to keep at her place. She allowed him entry into the house and left him there. The police came and found this gun in the orange plastic bag. Accused 2 brought this plastic bag with the gun there.

Inspector Coetzee found the firearm with the plastic bag in her house. She was arrested on charges of unlawful possession of a firearm pursuant to the police finding this firearm at her place. She saw accused 2 on that day outside her house with the police. She appeared in court on this charge, together with accused 2 on a few occasions. Accused 2 had subsequently absconded and she appeared alone on this charge. This charge was subsequently withdrawn against her. Accused 2 is just as she is, also from Mqanduli in the Eastern

Cape. They are therefore from the same village. This she learnt from him at the shebeen. Although accused 2 denied that he met her, that he knows her, that he spoke to her at this shebeen, he conceded that he is in fact form Mqanduli in the Eastern Cape.

We find that this is a material confirmation of the reliability of Nokothula's evidence. She could not have known this if accused 2 did not tell her about that and did not give her that information. Accused's 2 suggestion that she could have received this vital piece of personal information from the police, simply does not hold water and does not withstand careful scrutiny. The information which he gave to the police, including where he stayed at the time, did not include any reference to his hometown of Mqanduli. Nokothula could only have received this information from him. He is the person that arrived there early in the morning with an orange plastic bag. In this bag was a firearm. It was this firearm that the police discovered there after accused 2 took them to Nokothula's place. This version of Nokothula is furthermore confirmed by Constable Coetzee, Constable Matini and Constable Mavatha, who all testified that they went to Nokothula's place based on the information received from accused 2. How else would they have known of a firearm at Nokothula's place if accused 2 did not volunteer that information to them?

Furthermore, all of them (the police witnesses) confirmed Nokothula's version that accused 2 was in fact with the police when they arrived at and searched Nokothula's place and found this firearm. Accused 2 was outside in one of the police vehicles. That is where Nokothula saw him after the gun was found and that is why she was subsequently arrested. This court found Nokothula to be a credible witness, whose evidence was confirmed in these material respects by the other witnesses, as well by accused 2 himself, especially in relation to their origin. Both of them came from the same place in the Eastern Cape, an aspect that Nokothula could only have known and learnt from accused 2. The evidence furthermore demonstrates that here too, with regards to the searching and eventual discovery of this firearm, accused 2 also deliberately and blatantly took the police for a ride, as was the case with the Eastern Cape adventure.

According to Constable Coetzee, accused 2 had given them several false addresses and information which they followed up, just to find out that he had lied to them. That this is true, is borne out by accused 2's own concession what he did with the police by misleading them into believing that he would take them to the Eastern Cape and show them the weapons that was buried somewhere in the Eastern Cape. As it turned out that was not the case. It also points to the fact that accused 2 is a self-confessed liar. Accused 2's version insofar as it is contradicted by Nokothula, Constable Coetzee, Constable Matini, Constable Mavatha, Warrant Officer Paine and Deon Methu, is rejected as false.

It brings us to the evidence of accused 3, Vuyisani Mfundeni. The evidence of accused 3 in reply to the overwhelming incriminating evidence, was simply a denial of all the allegations made against him, more particularly those made by Deon Methu. In addition, and as indicated above, his case was also one of an alibi defence, that he was at home at the time when these offences were committed. Lastly, it was also contended by his counsel that certain evidence of Mr Paine specifically, was irregularly tendered by the state and admitted, which warranted a special entry to be noted in these proceedings, I shall deal with that later.

The essence of his defence in respect of the merits of this case, and hence of his denial, seemed to be two pronged. On the one hand he alleges a general conspiracy in Hermanus driven by a rival taxi association, CATA and supported by the Hermanus police against him, with the objective of driving him out of Hermanus and/or killing him. It is difficult to understand how this has any bearing and relevance to this case, and more particularly accused 3's guilt or innocence in this case. Insofar as he wanted to create the impression that the police actively associated themselves, or do associate themselves or support this rival taxi association, CATA, in Hermanus, the facts of this case and the evidence before this court simply do not support such an allegation.

I deal with this aspect to a certain extent with reference to the special entry later. What is of relevance is his evidence and concession that neither Deon Methu nor Xolani Dutywa are or were involved in the taxi business. In fact when this allegation of a conspiracy was put to Mr Methu during cross-examination and that he, Mr Methu, was allegedly part of that, it was flatly denied by this witness Methu. Accused 3 also alleges that there is a specific deal that existed between Deon Methu, Xolani Dutywa and Warrant Officer Paine. The evidence with regard to this so called deal, is not only untenable, but also unreliable and ultimately falls to be rejected as false.

This is so for the following reasons, amongst others. Accused 3 relied on something that was allegedly told to him by one Xolani Dutywa. It was, therefore, something that he heard, the veracity whereof could not be confirmed, and it was not confirmed by any witness and more particularly by the source thereof, namely Xolani Ndumo (Dutywa), in evidence before this court. Deon Methu was never confronted pertinently during cross-examination about the existence of such a plot or deal between him, that is Methu, Xolani and Paine. Warrant Officer Paine was also never specifically confronted with this allegation of a plot or deal between him, Xolani Ndumo and Deon Methu.

The relevant part of the evidence which was elicited during cross-examination of Mr Paine by Mr Colenso on behalf of accused 3, was to the following effect:

Question by Mr Colenso: Xolani Ndumo told the magistrate (during the bail proceedings in the lower court) that accused 3 had nothing to do with this offence. Answer: I don't know about that. Question: Mr Ndumo told the court (i.e. the Magistrate's Court) that you wished to put him, accused 3, in prison and that you offered the benefit to him, Ndumo to testify against accused 3. Answer: That was indeed so i.e. that Ndumo testified that in that court. Xolani told the court that I forced him to make a confession, that I promised him a lot of money, that he would not have to work for the rest of his life.

Question: That you promised him money to do what with

regards to accused 3?

Answer: No not with regards to accused 3. He said (referring to Xolani Ndumo's evidence in the magistrate's court) if I gave him the names of people who were involved (in the commission of these crimes) not specifically accused 3.

It is, therefore, clear from the evidence of Mr Paine that the reference to, and the allegations of, the benefit and/or money was made by Xolani Ndumo in the lower court, that it was not with specific reference to accused 3 and it was in any event untruthful. Hence Paine's denials of these allegations made by Xolani Ndumo. It is also clear from this evidence that there was no allegation of such an alleged deal that existed between Xolani Ndumo, Deon Methu and Warrant Officer Paine. This evidence also demonstrates the fact that the existence of such a deal amongst Xolani Ndumo, Deon Methu and Warrant Officer Paine was never pertinently put on behalf of accused 3 to Warrant Officer Paine during cross-examination.

We turn briefly to the alibi defence of accused 3. According to him he was at home and driving his taxi on the day when these crimes were committed, that is on 24 April 2009. This evidence is, however, tempered with and ultimately refuted by the following, having regard to the evidence in its totality before this court. In his evidence in chief he testified and created the impression that he was shot and wounded before 24 April 2009, that is the day that these crimes were committed. During cross-examination, he was driven to concede that the shooting incident involving himself and Mzalwana, in fact happened after these crimes were committed, that is after 24 April 2009. According to him, he made a mistake. It was not a mistake, it was a lie.

During his evidence he created the impression that in accordance with his daily routine, he would have gone to the taxi rank after he was done with his duties at the shop, from where he would then be busy commuting passengers along particular and approved taxi routes. He would have done this also on 24 April 2009. There is a secretary posted at the taxi rank that follows a standard procedure of recording the taxis and the particulars of the taxis that come to and leave the taxi rank. In other words, not only would there be a secretary who would be able to confirm that he was at the taxi rank on this particular day, but also a record book or register kept by the said secretary which would also confirm this fact. That was the clear impression created by this accused during his testimony.

When, however, he realised during cross-examination that the state would and could follow up that information pertaining to the day in question with regards to the secretary and/or the register, everything suddenly became vague and suddenly things were done there informally. When it, therefore, became clear that this evidence regarding his alibi could be investigated and followed up the state, he became vague, evasive, things were or are done informally, there are or were no proper record keeping, with information recorded on a cardboard box sometimes. When he was asked during cross-examination what he did on 1 June 2009, he was adamant that he carried on with his normal duties of taxi driving. Again he was driven to concede that he made a mistake, because objectively and on his own evidence, he was in hospital on that day pursuant to the shooting incident to which he, himself, had referred to. It was not a mistake, it was a lie.

Just as in the case of the other two accused 1 and 2, he also had ample opportunities to disclose his alibi to the police and more particularly, to Warrant Officer Paine after his arrest and before the commencement of this trial. He did not do that. Warrant Officer Paine testified that had he been advised of the alibis of these accused, including accused 3, he would have followed it up. Warrant Officer Paine was never told about that until his testimony in court. Finally, the evidence regarding the alibi defence of accused 3, flies in the face of the evidence of Deon Methu, as pointed out earlier. In the circumstances and on the facts of this case, the court finds that this evidence of accused 3 relating to his alibi defence, is not reasonably possibly true.

We deal with the evidence of Deon Methu next. We have already dealt and referred to the evidence of Mr Methu. We have taken into consideration the fact that he is a single witness, that he is an accomplice and that his evidence was tendered in terms of section 204 of the Criminal Procedure Act, 51 of 1977. In the circumstances his evidence must be approached with the necessary caution pertaining to, and applicable to such a witness. We have done so. Our overall impression is that his evidence was clear, consistent and reliable, despite minor discrepancies, which do not, and which did not affect his credibility and the reliability of his evidence. For example the impression of the court was that Mr Methu tried to minimise his role and knowledge of the offence and so to exculpate him from any wrongdoing. But despite that, his evidence was clear, consistent and ultimately reliable.

He is from Zwelihle in Hermanus just like accused 2 and also accused 1 and 3. He knows accused 2 by his name and his nickname Skhulu. Accused 2 confirmed that he is known in the township by that name. Deon Methu was in the presence of accused 1, 2, 3 and Xolani Ndumo when they discussed this robbery. He saw accused 2 with guns before he drove and dropped them at the house of Mr Kleynhans where the robbery and murder eventually took place. Accused 2 was later, on 17 May 2009, arrested, together with Nokothula for unlawful possession of a firearm. Accused 2 took this firearm to Nokothula's place, where it was hidden. This firearm was used at the crime scene where Mr Kleynhans was shot and as a result whereof he died. This constitutes objective confirmation of the evidence of Mr Deon Methu regarding his observations on the day that he saw accused 2 with firearms.

We have already referred to the evidence of Mr Norman Mathengwa with regards to the bloodstained tekkies that he saw Mr Xolani Dutywa was wearing on this particular day of 24 April 2009, which provides further objective confirmation for the reliability of Mr Deon Methu's evidence. Mr Methu has testified, as the evidence would reflect, that after they have arrived at the place where they were directed to, to fetch the other accused, he saw accused 2, 3 and Xolani Dutywa and that they were covered in blood. In addition, Mr Methu was referred to the statements which he had made. These were handed in as exhibits. He confirmed that he had made those statements.

Despite the purported discrepancies in those statements, there is a golden thread permeating these statements:

(a) That he was the driver of his vehicle on this day of 24 April 2009.

(b) His passengers were accused 1, 2, 3 and Xolani.

(c) That he dropped them off at Fernkloof, that is except for the present accused 1, at the house of Mr Kleynhans which, as it turned out, was the crime scene.

(d) That he later collected them with accused 1 at a place called Voelklip, not far from Fernkloof.

(e) That they had black bags, containing, inter alia, a laptop and rifles.

(f) That he saw blood on them, on accused 2, 3 and Xolani.

(g) That they loaded the stuff in his vehicle and that they drove to his place.

(h) He also knows Xolani Ndumo, the latter was also in his
vehicle on this day, 24 April 2009.

(i) Xolani Ndumo gave jewellery to Norman Mathengwa, that jewellery was robbed from Mr and Ms Kleynhans on 24 April 2009. It was identified by Ms Kleynhans as her property which the robbers took from her violently on 24 April 2009.

(j) Xolani Ndumo was identified by Deon Methu as one of the passengers, together with accused 1, 2 and 3 on this day in his car, which he dropped at the house of Mr Kleynhans, except accused 1.

We have been reminded and we are mindful of the cautionary

rules relating to such witnesses and the court wants to refer

specifically to the Artman case which had been referred to

already, where Holmes. JA said in relation to the cautionary
rules (at p341B-C):

"[W]hile there is always need for caution in such cases, the ultimate requirement is proof beyond reasonable doubt and courts must guard against their reasoning, tending to become stifled by formalism. In other words the exercise of caution must not be allowed to displace the exercise of common sense." wearing a blue overall on this specific day.

Deon Methu testified that accused 2 handed over a 9 mm pistol to accused 3. The deceased was shot by a 9 mm Parabellum pistol. This pistol was pointed out by accused 2. The ballistic evidence had established beyond a doubt that the deceased was shot by a 9 mm pistol. Nokothula's evidence confirms and corroborates the fact that the police found a pistol at her house, which accused 2 brought there. This pistol was ballistically analysed. This pistol was proved to be the firearm that was used on the crime scene on the day when these crimes were committed. The deceased was shot with this pistol.

We have already referred to the fact that Mr Mathengwa saw blood on the tekkies of Xolani Dutywa. Deon Methu testified that accused 2, 3 and Xolani were covered in blood when he saw them afterwards and went to fetch them. Ms Kleynhans testified that the robbers took her Mercedes Benz vehicle after she was forced to assist them to start it. Deon Methu testified that after they had been directed to come and fetch the other accused, there was a Mercedes Benz vehicle from which accused 2 and 3 loaded their loot into his vehicle. Lastly, and in summary, we have already referred to the jewellery that was found as a result of Mr Mathengwa's pointing out. This

If this approach is indeed applied to the facts and circumstances of this case and more particularly the evidence of Mr Methu, then one can summarise the instances and guarantees of reliability and truthfulness of Mr Methu's evidence as follows. The evidence of Thembekile Elias Ndaliso, Luleka Mpalwani, also Precious, and Ms Lelina Kleynhans corroborated one another on how the incident took place. All of them testified that they did not identify the perpetrators because their faces were covered. These witnesses were adamant and corroborated each other that the intruders were three in number and that they were males.

Deon Methu's testimony is clear in this respect. On the day of this offence he dropped off accused 2, 3 and Xolani Dutywa, they were all males, and three in number. Secondly, they testified that two of the intruders had firearms in their possession and the third man was armed with a long knife. Deon Methu saw accused 2, who fetched firearms and brought it into his vehicle. Deon Methu saw two firearms in the possession of accused 2, one whereof accused 2 gave to accused 3. Thirdly, Mr Ndaliso and Ms Mpalwani testified that one of the men was wearing blue overalls. According to them, this man was one of the two men armed with a firearm. Deon Methu's testimony is clear in that respect. Accused 3 was jewellery was positively identified by Ms Kleynhans as her property. This jewellery was given to Mr Mathengwa by Xolani Ndumo. Deon Methu's evidence is clear that Xolani Ndumo was one of the people that he drove to the crime scene on this day and that he fetched afterwards.

These examples are not only important safeguards in our approach towards the evidence of Mr Deon Methu, but also provides important and crucial corroboration for the evidence of Mr Methu. In the circumstances we cannot agree with the submissions and suggestions by defence counsel that Deon Methu's evidence is unreliable, untrustworthy and his implication of these accused is false, based on the conspiracy between him, Xolani and Warrant Officer Paine to put the blame for this offence on these three accused before us. These submissions and suggestions are simply not borne out or supported by the objective facts and the evidence in its totality before us. We accordingly find the evidence of Deon Methu to be reliable and trustworthy in all material respects. In the circumstances we accept his evidence above that of all three accused and find, insofar as the evidence of Mr Methu is contradicted by those of accused 1, 2 and 3, that the evidence of accused 1, 2 and 3 is not reasonably possible true and ultimately falls to be rejected as false.

It now brings us to the point raised on behalf of accused 1, the provisional admission of the evidence regarding the cell phone with which this court will deal briefly. The objection as we understood Ms Arnot, who appeared on behalf of accused 1, was based on the provisions of section 35 of the Constitution and more particularly section 35(5) thereof which reads as follows:

"Evidence obtained in a manner that violates any right in the Bill of Rights, must be excluded if the admission of that evidence would render the trial unfair or otherwise being detrimental to the administration of justice."

Mr Xolani Ndumo was arrested as pointed out above for being in unlawful possession of dagga by Constable Matini and subsequently taken to the local police station. It is common cause, at least on the facts of this case, that arrested persons are searched before the official detention in the cells of the police station or a police service centre as it is now called. Since he was not allowed to be detained with a cell phone in his possession, it was taken and kept by Constable Matini whilst the said Ndumo was being processed through the relevant police registers. As the evidence demonstrate, it was during this time, while the cell phone was in the possession of

Constable Matini, that it rang and Constable Matini answered the phone. It was also during this telephone conversation that the caller said something to the effect that the police were there, they were looking for footprints and guns and that the owner of the phone, which in this case was Xolani Ndumo, must come and fetch his stuff to take it away.

The caller as it turned out was subsequently discovered by Constable Matini in the course of his investigations and it was discovered that it was Norman Mathengwa, who also testified in this case. We have already referred to and dealt with that evidence in extenso. The information so obtained through this telephone call and the investigation pursuant to that, led the police to discover, firstly, the caller's identity whose name was Mzala, and secondly that Norman Mathengwa, who was Mzala, and Xolani Ndumo knew each other. Norman Mathengwa could and did provide the police with invaluable information relating to the movements and actions of himself and Xolani Ndumo on the day of the offence, namely on 24 April 2009, including, inter alia, the information, and as his evidence also reflect, relating to the bloodstained tekkies that he observed being worn by Xolani Ndumo. He also provided information regarding his trip with Xolani Ndumo to town to the shoe shop where the latter bought new shoes, and the bloodstained tekkies that Xolani Ndumo eventually threw away.

Importantly the jewellery, the rings which turned out to be the property belonging to Ms Kleynhans, which were robbed off her on 24 April were found at the house of this witness, Norman Mathengwa and these rings were given to him, Norman Mathengwa by Xolani Ndumo for safekeeping and/or to find a buyer. The evidence of Mr Mathengwa, was cogent, it was chronological, it was coherent. The explanation which he gave to the investigating officer, Warrant Officer Paine, subsequent to his arrest, including his movements and actions on the day of this crime 24 April 2009, were followed up by Mr Paine and it was verified. We also find that his evidence was reliable in all material respects, and crucially, it is unchallenged and uncontradicted in this court. His evidence is, therefore, accepted by this court as reliable and truthful. Consequently we find that he complies and had complied with the provisions of section 204 of the Criminal Procedure Act 51 of 1977 as amended and is hereby indemnified from criminal prosecution.

The point is neither this witness, Norman Mathengwa, nor anybody else, including Xolani Ndumo complained or led any evidence of any constitutional violation of any of their rights in this court regarding this incident. In addition, none of these two witnesses were prompted and/or confronted by defence counsel with regard to any alleged violation of their respective rights in relation to the incident referred to above, despite them having had ample opportunity to do so. In the circumstances and based on the facts before us, this court finds that no violation of any constitutional rights of these two witnesses had occurred or was established and consequently none of any, or all of the accused's rights were violated. Thus on the evidence before us, no evidence which was obtained by the police from either Norman Mathengwa or Xolani Ndumo, on the facts, was obtained unconstitutionally in violation of any constitutional rights of these witnesses.

This finding is buttressed by the fact that on the evidence of Constable Matini, it was coincidental at the time that the suspect, Xolani Ndumo, had his cell phone on him, that it was on and not switched off, that it rang at the time when it did, that the caller volunteered that information when he, Matini, answered the call. It was not pre-planned, premeditated action on the part of Matini. The information so obtained and the subsequent evidence that it uncovered, were obtained in a bona fide manner in the course of bona fide police investigations. In the circumstances the evidence regarding the cell phone is admissible evidence, same not being obtained unconstitutionally. The admission thereof would also not render the trial of the persons before court, that is the accused, unfair nor would it bring the administration of justice into disrepute. Moreover the admission of this evidence is certainly in the interest of justice, more particularly the public interest. See in this regard Nico Steytler, Constitutional Criminal Procedure 1998, page 38-40, paragraph 7.5.6.2 and the case references therein.

We finally have to deal with the special entry on behalf of accused 3. We have already referred to the evidence, as well as the context which purportedly gave rise to the "special entry" as argued for by Mr Colenso who appeared on behalf of this accused. It is appropriate to refer to the section dealing with special entry, section 317 of the Criminal Procedure Act, 51 Of 1977, as amended. It reads as follows:

"(1) If an accused is of the view that any of the proceedings in connection with or during his or her trial before a High Court are irregular or not according to law, he or she may, either during his or her trial or within a period of 14 days after his or her conviction or within such extended period as may upon application (in this section referred to as an application for condonation) on good cause be allowed, apply for a special entry to be made on the record (in this section referred to as an application for a special entry) stating in what respect the proceedings are alleged to be irregular or not according to law, and such a special entry shall, upon such application for a special entry, be made unless the court to which or the judge to whom the application for a special entry is made is of the opinion that the application is not made bona fide or that it is frivolous or absurd or that the granting of the application would be an abuse of the process of court."

Subsection 4 thereof states that:

"[4] The terms of a special entry shall be settled by the court which, or the judge, who grants the application for a special entry."

It should be clear from a plain reading of the evidence of Mr Paine that we have referred to, that it was elicited in the context of accused 3, firstly trying to create the impression to this court that he was shot and wounded by one Mr Mzalwana before this crime for which he is now being tried was committed. As the evidence overwhelmingly demonstrates, and as was subsequently conceded by accused 3, this shooting incident happened sometime after these crimes were committed. Secondly, this evidence was elicited in the context of accused 3 trying to demonstrate that the police in Hermanus generally and the Warrant Officer Paine in particular, did nothing in respect of this Mzalwana, who shot and wounded him, accused 3, and that he, Mzalwana, was not even charged or prosecuted for that.

As the evidence of Mr Paine demonstrates, the fact and reason why this person, Mzalwana, could not be prosecuted, were that accused 3 escaped from custody and was subsequently also arrested and charged for robbery in Rustenberg. This evidence was, therefore, not intended to cast aspersions on the character of accused 3 nor to show him to be of bad character. It was elicited and intended merely to explain the reason why the case relating to the shooting of accused 3, which he, through his counsel, introduced as evidence, could not proceed. Moreover Mr Colenso was invited by this court after he had indicated his intention to proceed with his application for a special entry to be noted, to make and launch his application formally and properly and to ensure that it is properly before the court should he elect to proceed with it. Mr Colenso's reply to this was "indeed M'Lord".

Yet to date no formal application for the noting of a special entry was filed, served or submitted to this court by, or on behalf of accused 3. What we were presented with after the trial was the heads of argument on behalf of accused 3, drafted and submitted by Mr Colenso, which contained, inter alia, arguments and/or submissions wherein he averred to certain irregularities. These so called irregularities were not and are not on the facts of this case irregularities warranting any special entry. As pointed out above, this so called irregular evidence was elicited in response to and in the context of evidence introduced by and on behalf of accused 3 himself.

Mr Paine's evidence in this regard was in response to a question posed by this court to get clarity why, in the face of the allegations made by accused 3 as stated above, that person was not prosecuted. In addition, and as correctly conceded by counsel for the state, Mr Sebelebele. that evidence had no relevance and certainly played nd role in this court's eventual findings and judgment in respect of any of these three accused persons, including accused 3. This application is, therefore, without any merit, it was frivolous and the granting thereof would undoubtedly amount to an abuse of the process of court. For these reasons, this court would dismiss the application by, and on behalf of accused 3 for the noting of a special entry, if indeed it could be said that there was such an application properly before the court. As we have pointed out, there is seemingly no such application before this court.

In conclusion, by way of summarising all these evidence, the golden thread permeating the evidence of Mr Methu is the nexus that it established between these offences committed on 24 April 2009 and accused 1, 2 and 3 and Xolani Dutywa. In addition accused 2 is linked with a firearm, which according to the ballistic examination was the firearm that was used on that day, at that scene, with which Mr Kleynhans was shot and killed. We have already referred to and dealt with the corroborating evidence for Mr Methu. If all these threads are pulled together, it forms a composite and clear picture of what had transpired that day.

Deon Methu was hired by these accused to take them to this house of Mr Kleynhans, where he, together with accused 1, dropped off Xolani, accused 2 and accused 3. He and accused 1 then drove off. They spent the next few hours waiting for the others to call them. After accused 1 received a phone call, they, that is Methu and accused 1, went back to fetch the others. They loaded their loot from the Mercedes Benz vehicle, the car of Mr and Ms Kleynhans, to Deon Methu's car. They left with Mr Methu's car for Mr Methu's house. We, therefore, find that accused 2 and 3 were on the scene of these crimes on 24 April 2009. There they robbed, assaulted and locked up the inhabitants, including the gardener, the cleaner and Ms Kleynhans. They shot Mr Kleynhans, as a result whereof he died. The gun which was used to shoot him, was found in the house of Nokothula. Accused 2 brought that gun there.

In the circumstances, based on the totality of the evidence and facts before us, this court finds that the versions of all three these accused, including the evidence regarding their respective alibi defences are not reasonably possibly true. Their evidence is rejected as false. We find that the state has proven beyond a reasonable doubt that:

1. All three the accused were involved in the planning of the crimes committed at the house of Mr and Ms Kleynhans, which resulted in the murder of Mr Kleynhans and the robbery that took place on the premises of Mr and Ms Kleynhans on 24 April 2009.

2. That accused 2 and 3 were in this house, together with Xolani Ndumo on this date, where they shot Mr Kleynhans and robbed him and Ms Kleynhans of, amongst other things, the rings belonging to Ms Kleynhans, certain rifles which belonged to the deceased and their Mercedes Benz vehicle.

3. Accused 1, who was not physically on the scene of these crimes, not only actively associated himself with the other accused 2 and 3 and Xolani in the commission of these offences, but also foresaw the real possibility of these accused being armed with weapons and knives, using these weapons and using violence in the commission of these crimes, yet he recklessly continued to associate himself with them, which is demonstrated by the role he played subsequent to the murder and robbery that took place in the Kleynhans residence at the hands of accused 2, 3 and Xolani Ndumo.

4. That the firearm that was found at Nokothula's house was brought there by accused 2 and that this firearm was used to shoot Mr Kleynhans.

5. That Mr Kleynhans died as a result of this gunshot wound inflicted upon him by these intruders.

In the circumstances we find that the state has proven beyond a reasonable doubt the guilt of all the accused in respect of count 1, murder, Accused 1 as an accomplice, accused 2 and 3 as perpetrators, and on count 2, robbery with aggravating circumstances, Accused 1 as an accomplice, accused 2 and 3 as main perpetrators. In respect of counts 3 and 4, we find that the state has proven beyond reasonable doubt that accused 2 took the firearm and ammunition to Nokothula's house where it was hidden and eventually found by the police.

In the result accused 1, 2 and 3 are FOUND GUILTY AS CHARGED IN RESPECT OF COUNTS 1 AND 2. Accused 2 is FOUND GUILTY AS CHARGED ON COUNTS 3 AND 4. Accused 1 and 3 ARE FOUND NOT GUILTY IN RESPECT OF COUNTS 3 AND 4. Deon Methu and Norman Mathengwa are indemnified from prosecution in terms of section 204 of the Criminal Procedure Act 51 of 1977 as amended.

MOSES, AJ