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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: SS07/2011

DATE; 9 FEBRUARY 2012

In the matter between:

THE STATE

and

TAMARA MAPEYI ............................................................................................................Accused 1

LUKHANYO DIBEKILE ....................................................................................................Accused 2

THANDA KRWECE ..........................................................................................................Accused 3

JUDGMENT

STEYN, J:

I am grateful for the assistance of my assessors, Adv R Berg and Mr S Collins.

The three accused were charged with:

1. Murder, alternatively incitement to murder, alternatively conspiracy to murder.

2. Housebreaking with the intention to steal and theft.

3. Possession of an unlicensed firearm.

4. Possession of ammunition in contravention of the Firearms Control Act.

5. Accused 1 was also charged with attempted murder.

The state alleged that the three accused, as a group with a common purpose in a premeditated murder, killed a male person, Mr Msuthwana (“the deceased”), the husband of accused 1, by shooting him with a firearm on 28 October 2009 in Makhaza, Khayelitsha, Cape. In the first alternative, it is alleged that the accused conspired with one another and/or Sivenatha Gxotha and Siyasanga Mngese to aid or procure the commission of, or to commit the offence of conspiracy to murder, alternatively incited, instigated, commanded or procured each other and/or Sivenatha Gxotha and Siyasanga Mngese to commit murder.

It is further alleged that the three accused broke open and entered the premises belonging to Mr Massimo Caverni in Newlands, Cape, on 27 October 2009 and stole a firearm, being a 7.65 mm pistol, a camera and cash to the value of R4 500,00, the property of Mr Caverni, who was the employer of accused 1 at the time. It is alleged that the accused were in illegal possession of a firearm, a 7.65 mm pistol and ammunition for such firearm. Finally, it was alleged that the first accused (“number 1”) attempted to murder the deceased by poisoning him with rat poison.

The three accused pleaded not guilty to all charges without explaining their pleas. Admissions in terms of section 220 of Act 51 of 1977 were handed up on behalf of each of the accused (Exhibits A, B and C). Apart from some formal admissions by all the accused, accused 2, also known as Lucks, admitted that he appeared on a properly constituted identity parade with accused 3 on 7 March 2010 at Harare Police Station in Khayelitsha, where he was positively identified. (It was later established that he was identified by Sivenatha Gxotha). He also admitted that he was the owner of a Nokia 1200 cell phone with number 0735073106 and that this phone was found on him on 19 November 2009 when he was arrested in Mitchells Plain. He admitted that the cell phone records pertaining to the mentioned cell phone are true and correct; that he new number 1 as in “Mamzy”, who resided in Khayelitsha and that she phoned him several times during October 2009 and November 2009 on this cell phone. He admitted that during October and November 2009, he contacted accused 3 on his cell phone with number 0747814518. Accused 3 admitted that he was arrested and found in possession of a cell phone with number 0747814518.

It is not disputed that the deceased died of a gunshot wound to

the head on 28 October 2009. Undisputed ballistic analises (Exhibit G), established that the fired cartridge case found at the murder scene was that of 7.65 millimetre calibre firearm (the same calibre firearm stolen from accused 1’s employer the day before).

State witnesses:

Nomonde Nofemele passed Grade 12, is 48 years old and lives in Makhaza, Khayelitsha. She was acquainted with Tamara Mapeyi (“number 1”), who lived in the same area. She, number 1 and the husband of number 1 (now the deceased) sometimes walked to the taxi rank in the mornings on their way to work. She occasionally ordered vegetables from the deceased, who worked at Fruit & Veg City. It was later testified that the deceased sometimes used a truck from his employment to travel to and from work.

Ms Nofemele visited number 1 in her house. On a few occasions, when they were alone, number 1 told Ms Nofemele that she wanted to kill her husband as he was abusing her. Ms Nofemele warned her to be careful, because she could be arrested.

Later number 1 also told her that she had put rat poison in her husband’s food in order to kill him. The attempt was

unsuccessful. This shocked Ms Nofemele, who stopped visiting so frequently. Number 1 told her that there had been an incident where her house was robbed and mentioned that if her husband had been killed in the robbery, she would not have minded. Ms Nofemele was scared. She thought accused 1 was a nice person and she did not know if she was only talking when she made these statements.

Number 1 did not tell Ms Nofemele in what way she had been abused by her husband and no injuries were visible. It seemed that number 1 and her husband lived in a friendly environment. She denied the proposition by the advocate for number 1 that there was any special relationship between herself and the deceased and there is no reason to doubt her evidence in this regard.

On the morning of 28 October 2009, Ms Nofemele was at her home preparing to go to work, when she heard that the deceased had been shot.

It was put to her that it is strange that accused 1, knowing that she was friendly with her husband, told her that she wanted to kill him. She could not say what accused 1 was thinking. It was denied that accused 1 told her these stories or told her she had poisoned her husband, but the witness was adamant.

After these statements were made to her, she avoided going to number 1’s house.

Ms Nofemele did not think about warning the deceased or going to the police, as she was not sure whether accused 1 was serious. She denied any reason to fabricate her version and no reason was shown. She was surprised and shocked when she heard what had happened. Ms Nofemele was a good, intelligent witness, whose testimony remained consistent.

Kholeka Makhosi was the next door neighbour of accused 1. On 28 October 2009, just before six in the morning on her way to work, she met the deceased and they walked together towards the taxi rank. When they turned a corner, they saw two young black males standing there, not doing anything. She estimated their ages at between 19 to 20 years. As they walked closer towards the two men, one passed them. Ms Makhosi looked back and saw that the person who had passed them, was standing behind the deceased, holding a firearm to the deceased’s head. She heard a shot being fired and started running.

The two men were unknown to her and she could not identify them in court or at an identity parade. She did not see

accused 1 that morning. She thought the deceased and accused 1 were nice people. Although she visited accused 1’s house, they were not close neighbours. She is not aware of any problems between accused 1 and the deceased, nor of any fighting, physical or verbally, between them. It was evident that she had been traumatised by the incident.

During cross-examination she said she did not see anyone else outside when she and the deceased were walking to the taxi rank. It was only her .and the deceased and the two young people in the side street. She did not see them leave, as she ran away. She and the deceased were only one metre away from each other. There was no problem to see as the area was lit and it was already light. Ms Makhosi testified that the deceased did not often walk with her to the taxi rank, as he sometimes used the truck from his place of employment, Fruit & Veg City, to travel to work.

Massimo Caverni and Elona du Toit lived in Newlands Estate, Claremont in the Cape. Accused 1 had been working for Mr Caverni as a domestic two days a week from 2002. There were no problems between them. On 27 October 2009, at about 09:00 in the morning, accused 1 telephoned Mr Caverni at his work to inform him about a break-in at his home. He went home and noticed that a window had been broken of the main bedroom. There was glass on the floor and clothes all over the floor. Accused 1 told him that she had found the break-in when she arrived at the home. He noticed that his handgun, a Browning, 7.65 millimetre, the cartridge of the firearm and bullets that had been next to the firearm, as well as a Sony camera and cash, notes to the value of R4 000,00, were missing from the safe in the main bedroom, which was built into a clothes cupboard.

There are two sets of keys to open the safe. Mr Caverni normally has the one set of keys in his pocket. The spare key hung behind a painting in the spare bedroom that he thought only he knew about. The safe had been opened with the spare key. Cupboard doors and the safe door were opened in the main bedroom. The spare key was on the floor. In the spare bedroom belongings were strewn around and paintings were on the floor. The painting behind which the safe key had been hanging was on the bed. Nothing, apart from the mentioned items, was missing. This included jewellery of Ms Du Toit in the spare bedroom.

On the particular day, Mr Caverni went to work at 07:00. Ms Du Toit left just before eight o’clock in the morning. They did not know how the burglar/s gained entry to the premises. There is a wall, a locked gate and an alarm system that was activated by Ms Du Toit when she left, with the home neat and tidy, doors and windows closed and everything locked. Accused 1 was expected to arrive at work at about nine and had a spare key to the gate and the front door. She knew how to deactivate the alarm, which is positioned next to the front door by pressing the relevant buttons.

The police were called. The properly functioning alarm had not been activated by the burglary and the alarm company had not been called. Mr Caverni and Ms Du Toit do not know accused 2 and 3. Mr Caverni thought accused 1 seemed afraid, uneasy and edgy, but did not think she was involved in the break-in. Accused 1 and Ms Du Toit did not discuss the matter, or the setting of the alarm. Accused 1 informed her that she had found the house in that state when she arrived at work.

Ms Du Toit knew that there was a safe, but she did not know where the key to the safe was. Ms Du Toit testified that accused 1 stopped working for them after this particular day and they never saw her again. She could not understand why accused 1 did not arrive for work on the next occasion and she did not telephone or send a text message. Ms Du Toit phoned accused 1 on her cell phone, but she never answered. This aspect was not denied or explained on behalf of accused 1.

Siyasanga Mngese. who occasionally seemed very reluctant to testify and sometimes mumbled under his breath, testified that he left school in Grade 11. He is 24 years of age. He lived in Makhaza and knew accused 1 as "Mamsy”, the wife of Taturabi, the deceased. He used to borrow small amounts of money from her between 2008 and 2009. (The testimony in court indicated that both accused 1 and the deceased were money lenders). He had been going to accused 1’s house over a long period of time. The last time he borrowed money was before Taturabi was killed. He borrowed R30.00.

She then asked him how one would be able to see if a firearm had been used. He told her he did not have any knowledge about firearms and was shocked at the question. He did not ask why she wanted to know. By the time that he was asked about the firearm by number 1, he had already been told by Sivenatha Gxotha, a friend who also lives in Makhaza and who was familiar with accused 1, that he had been approached by accused 1 to kill her husband. Siyasanga and Sivenatha discussed this matter. It was in 2009. Siyasanga told Sivenatha that accused 1 had asked him about a firearm.

Sivenatha wanted Siyasanga’s cell phone and he gave it to him. When he later returned with the phone, a Cell C SIM card had been inserted into the phone. Sivenatha told Siyasanga that he had received the SIM card from accused 1. He said he inserted the SIM card for communication purposes between himself and accused 1. Shortly thereafter Sivenatha went to the Strand with a friend, Amos Wana, because he was trying to avoid accused 1. Siyasanga kept the cell phone with the SIM card for the free airtime. It kept on ringing and he answered it, because he was curious about the arrangements between Sivenatha and number 1 relating to the killing of her husband. Sivenatha had told him that accused 1 would phone and he concluded that it was accused 1 who spoke on the phone, but he later also testified, repeatedly, that he recognised her voice. She said: “come, I have left the door open”, or “come, I have left the door unlocked”.

He was scared and switched the phone off. When he later saw Sivenatha, he told him about the call. They ignored it. He had no further contact with accused 1. The only times he saw her again was at a distance. When she came in their direction, they avoided her. Siyasanga does not know of any reason why accused 1 wanted her husband dead. On the day of the shooting, he was sleeping when he heard a commotion outside. He found out that the deceased had been shot. He saw the body covered with a blanket. He later saw accused 1 on the scene when the police had arrived. Then he went to

Sivenatha’s house to talk briefly about what had happened. Amos Wana was there as well, but he did not talk to him. Sivenatha told Siyasanga that he had been on the scene and that he had told the detectives that accused 1 had asked him to kill her husband and that she had also spoken to Siyasanga about a firearm.

Siyasanga thought accused 1 probably asked Sivenatha to kill her husband, as she may have thought that they were “thugs” due to the fact that they were using marijuana. He does not know either accused 2 or 3. The deceased was a kind man and troubled nobody. Accused 1 also never troubled anyone prior to the cell phone and firearm problems. He never heard how much accused 1 offered for the job she wanted done and he was never present when accused 1 asked Sivenatha to kill her husband. Sivenatha did not tell Siyasanga what he responded to accused 1 ’s request that he should kill her husband. He only knew that he fetched a SIM card to use in the phone to continue discussions with number 1.

According to Siyasanga, accused 1 once told Sivenatha that he was a coward and she said that since he could not accomplish the mission, she had to find someone else.

Siyasanga was reluctant to speak at times and explained that he did not like speaking in front of a lot of people. To the court he seemed scared. He repeated that he knew about accused 1’s request to Sivenatha before he went to ask for money. After her inquiry to him about firearms, he gathered that accused 1 was really planning to have her husband killed. He did not consider telling the police or the deceased of these matters, as he was scared. He does not know exactly when accused 1 gave the SIM card to Sivenatha as it happened long ago, but Sivenatha told him that accused 1 wanted to kill her husband and that he must organise it.

When Sivenatha returned the phone to him, the SIM card (allegedly given to Sivenatha by accused 1), was in the phone. It was less than a week before Sivenatha took the SIM card and told him that he had given it back to Mamzy, accused 1. He does not know if Sivenatha had reached an agreement to commit a murder. The only person he, himself, told about the firearm discussion with number 1 was Sivenatha. The police questioned Siyasanga about the shooting of the deceased, which took place in front of his home, after Sivenatha told them that accused 1 had asked him about firearms. It was denied on behalf of accused 1 that she asked him about the firearm and she denied that she gave a SIM card to Sivenatha for the purposes as testified. He confirmed his version, which was the same version that he told the police when they questioned him about the murder. Throughout his testimony, his version never altered. Siyasanga stated that he knew nothing about firearms. He did not know why accused 1 would want to get rid of her husband. The deceased was killed more than two months after the incident involving Sivenatha, the cell phone and SIM card.

Sivenatha Gxotha is 24 years old and passed Standard 4 at school. He is very unsophisticated, appeared to be unwell, was yawning, ill-dressed and sick or tired. At one stage the court adjourned to give him the opportunity to recover, subsequent to which his testimony was more coherent. He was unemployed in 2009 and stayed in Makhaza with two aunts. He knew accused 1 as “Mums” and he was a friend of the son of the deceased, whom he had known for a long time. He was approached by accused 1 and told that she wanted Taturabi to be killed. He was shocked. He did not reply to the request, but told some people, including his aunts. He decided he was not going to do what she asked. The first time when he was approached he was alone and the second time he was standing with Siyasanga. She then called him aside and asked him if he had involved Siyasanga as well, which he denied. On that day she gave himself and Siyasanga her phone number.

He said he did not have a phone and accused 1 normally phoned him on Siyasanga’s phone. He did not want to be involved in the matter with Mumsi. While he was in the Strand, he had Siyasanga’s phone. He did not receive any calls on the phone while he was in the Strand, but he received from an SMS from Mumsi that read: “come, I did not lock the door.”

When he returned to Cape Town, he returned Siyasanga’s phone and told him about the SMS that Mumsi had sent about the unlocked door. Siyasanga was shocked. He saw Mumsi after his return from the Strand. She told him and Siyasanga that they were cowards or fools. She had found young men to do the job. She added a comment about finding money, which testimony was not canvassed or explained. Accused 1 had previously offered Sivenatha R7 000,00 for the job.

Sivenatha said that there was airtime on Siyasanga’s cell phone, because Sivenatha obtained a SIM card from one of the boys in the area. He had the SIM card for a short time and kept it because of the airtime. This was the phone that he took with him to the Strand. He could not remember the time periods between the approaches of accused 1 to him. He thought that accused 1 was angry when she asked him to have her husband killed.

On 28 October 2009, Sivenatha and Amos went to buy electricity early in the morning, but the machine was out of order and they had to return. On their way back they saw two young males, who passed them, running, chatting and laughing. They ignored each other. He could not estimate their ages. When Sivenatha and Amos went around the corner, an agitated woman “Dubs”, who was standing in her yard, inquired from them about two guys, referring to the two young men who had just passed them. They told her that they had seen them and they could still see them in the distance and pointed towards them. She made a report to them. It was between 5 a.m. and 6 a.m. They could see and did not need a light, as it was just getting light. The one man was wearing something on his head, but not the other. He recognised the person who was not wearing a “beanie”. He does not know his name. He identified him at an identity parade on 7 March 2010 and in court as accused 2.

There was a man called Lanele, who usually transported school children, who was listening to the report by Dubs. They drove with him to the scene of the crime and discovered that it was Taturabi who had been shot. Sivenatha said to the people gathered there that the “lady” really meant what she wanted them to do. The people in the area were asking questions about accused 1. He told them to wake Siyasanga, who would

confirm what he was telling them. That was how Siyasanga was woken up. The police were not on the scene yet, as it had just happened. Sivenatha was only there for 15 minutes before he went home and told his aunt that the lady who had asked them to do something, had done it by sending other people. He could not recall seeing Siyasanga again that day, which does not mean that he did not see him. Siyasanga said it was a brief visit.

The first day when accused 1 asked him to kill her husband, she asked him specifically to kill him and that she was offering R7 000,00. She said that her husband chased them out of the house when he was drunk. Sivenatha did not know the deceased as a person who got drunk. He told his aunts about the request. Later accused 1 called him aside while he was standing with Siyasanga and asked him if he had involved Siyasanga. That was when she left her phone number and took Siyasanga’s number, after she had asked for someone with a phone. Mumsy asked himself and Siyasanga if someone had used a firearm before and how does it happen that it can be untraceable to the police. They did not know the answer. It was after this incident that he went to the Strand where she sent him an SMS.

He never had any personal problems with Mumsy. He denied

that there had been problems to get him to come to court or that he had been running away from the police. He admitted that he smoked marijuana with Siyasanga, but not other drugs. It was put to him that there were many instances that his evidence was contradictory to the evidence of Siyasanga. He was questioned regarding the differences between their versions, including the version relating to the SIM card, which according to Siyasanga was given to Sivenatha by accused 1, while Sivenatha himself said the SIM card was given by boys in the area. He denied that he received the SIM card from accused 1. Siyasanga had said the SIM card was provided to organise the killing of her husband, which Sivenatha did not agree with. He did not explain why he acquired the SIM card.

The version relating to him going to the Strand, differed between the two men, in that he denied that he went away to get away from accused 1 and he said he kept the phone in his possession, contrary to Siyasanga’s version, who said that he kept the phone and was telephoned by accused 1 and informed by her that the door was not locked. According to Sivenatha, these words were text to him in an SMS by accused 1. He told Siyasanga about this SMS later. Sivenatha wanted to warn the deceased, but Siyasanga warned that such a story would break up the marriage. He also did not think that number 1 would continue to ask somebody else to do the deed. He denied that he and Siyasanga had fabricated the version to court, but there were aspects where he could not explain discrepancies.

Despite some differences, I do not believe Siyasanga and Sivenatha’s evidence can be rejected. The incident happened sometime previously and must have been shocking to them. Considering their obvious lack of sophistication and cognitive ability, I think their evidence on materia! issues and relevant important aspects corroborate each other. The discrepancies indicate to us that the version was not fabricated together, but rather recalled differently.

Sivenatha was adamant that he specifically recalled that he saw accused 2 passing him and laughing just before they saw the crime scene. When he was told that number 2 denies that he saw him at all he replied that he did not know him, but he saw him. It was then put to him that number 2 frequents the Makhaza area, where he sells bags and clothes at the taxi rank. It was never put to him by any counsel that number 1 was a client of accused 2, as later alleged. It was also never put where accused 2 was on that morning, if he was not on the scene.

Accused 1 denied that she asked him or anyone to kill her husband, or that she exchanged phone numbers with him and

Siyasanga, or that she sent any SMS.

During further cross-examination, Sivenatha testified that after accused 1’s request, he did not want anything further to do with her. He did not want to do what she required and did not have an agreement with her. Her SMS surprised him, because there was no agreement.

As regards the text message from accused 1, he indicated that her name was recorded as Mumsy on the phone, so when she sent an SMS, it was written Mumsy. This was written at the end of the SMS as well. Siyasanga had the phone for a few days with free airtime, but he disagreed that Siyasanga received a call from accused 1, as Siyasanga had testified. He says he, personally, received such an SMS. There is, of course, a possibility that a call, as well as an SMS were sent on two different occasions, or that the one man told the other about the SMS or call, as testified by both men, and that they then recalled that he had himself received the message.

Amos Wana also lives in Makhaza and he is friends with Sivenatha Gxotha. He knows accused 1 from seeing her in the street and he knew her husband, to whom he referred as Taturabi, by sight. He knows Taturabi was killed on 28 October 2009. On that morning he and Sivenatha were

together. He repeated the exact same version of Sivenatha relating to how they attempted to buy electricity, but returned home when there was no electricity available and how, as they were about to turn a corner they saw two men running around the corner. He confirmed that the shocked “Dubs” called Sivenatha and asked him if he knew the guys who had just passed them. Sivenatha replied then that one of them seemed familiar. Amos did not know the two guys who were chatting and laughing. The men were young men, about the same age as himself.

They went to the place where a person had been shot and Sivenatha said it was Taturabi. Amos confirmed that Sivenatha said to the people present: “this lady has really done what she wanted me to do”. They were not on the scene for very long before they left. He knows Siyasanga Mngese, but did not see him that day. He does not know accused 2 or accused 3. He knows Lanele, the man who transports children, and he saw him there that morning in his car outside Dubs’ house and later at the scene where the dead person was, but he recalled that he and Sivenatha walked to the crime scene, they did not drive there. He thought Sivenatha was mistaken.

He and Sivenatha visited his brother at Strand once. As they

were on their way before they reached the Strand, Sivenatha received a call. Amos asked him what it was about and he was told by Sivenatha that it was a lady residing in his area, who wants him to be part of the deal. She was not going to lock the door. He did not hear the voice of the caller, but he was told that it was the lady of Taturabi. Later Sivenatha received an SMS, but he did not inform Amos of the contents thereof. The testimony of Sivenatha that he only received an SMS was put to Amos, but he stuck to his version. He and Sivenatha went to their place after the crime, but he did not recall that Siysanga arrived. (Siysanga did recall seeing Amos there).

Elethu Mapeyi is the 21 year old daughter of accused 1. She previously lived with her mother and the deceased, her stepfather, in Makhaza in Khayeiitsha. She came to stay with them in about 2007. She enjoyed a good relationship with her mother and the deceased. The deceased was good to her and she liked him. She was not aware of any problems between her mother and the deceased. When the deceased passed away on 28 October 2009, she was sleeping. She was in Grade 12 and it was just before the end of year exams began. She was woken by a neighbour who told her what had happened. She went to look, cried and was very shocked. Her mother, accused 1, was at the clinic. The previous evening she had told them that she was going to the clinic in Athlone.

Later that morning she saw her mother at the house. She could not remember times and she said she did not speak to her, which we found strange. She stayed in her room.

Ms Nofemele often visited both her parents at their home and spoke in general to the two of them. She does not know accused 2 or accused 3. She knows Siysanga and Sivenatha as people she used to see in the street. She said her stepfather had injured his arm the weekend before the murder when he fell on a coffee table and received treatment for the injury. This aspect is confirmed in the post-mortem report, Exhibit D. The truck was not at home on the evening before or the day of the murder. The court concluded that it may have been as a result of the injury that the deceased did not drive on the day of the murder.

In the two weeks after the murder, before the funeral in the Eastern Cape, Elethu stayed with her mother in the house. They were in the Eastern Cape for about a week before they returned to Makhaza. She was present when accused 1 was arrested shortly after their return and was taken away by a detective. She went to live with her aunt, as members of the community demanded the key of the home. She said her mother was not informed of her rights when she was arrested.

In 2009, her mother used a Nokia cell phone and the service provider was Cell C. She heard about the burglary in the house while she was not there. Nothing was broken, but the door was opened and people entered. She was told by accused 1 that a cell phone had been taken. The burglary at their house had been a few months earlier. She visited her mother in Pollsmoor a few times and her mother denied the charges. Elethu avoided answering questions relating to her mother’s demeanour after the incident. She could not explain why she and her mother had not discussed what had happened to her father. She does not know of any reason why her mother would have wanted to kill her stepfather. Elethu is aware that members of the community are accusing her mother of killing her father. It was apparent to us that Elethu was sad and very upset about the death of her stepfather.

Detective Sergeant Andries Hlako (“Hlako”) testified that he was stationed at Harare Police Station in Khayelitsha in October 2009. He had been the investigating officer in the murder docket in this matter since November 2009. He also took over the investigation into the Caverni break-in case in Claremont in the beginning of 2010. It was never indicated how the two cases became linked. Hlako perused the documentation and the witness statements in the murder docket and concluded that accused 1, the wife of the

deceased, might possibly be involved in the killing of her husband.

On 19 November 2009, a Thursday afternoon, Hlako and Constable Kutwana (“Kutwana”) went to the house of accused 1 at about 15:00. Her daughter was present. After introducing himself, he asked her to accompany him to the police station at Harare for an interview. She accompanied him voluntarily. At his office she agreed to be interviewed. She was relaxed and the interview proceeded in Xhosa, her language. Accused

1. relayed some crucial information. Hlako then warned her of her constitutional rights. She still wanted to tell him all the information and indicated that she would assist him to get the people who killed her husband. He warned her of her rights again and he repeated these rights in court. She was not forced, threatened or assaulted, was willing and co-operative and elected to point out to him the people who were involved. She did not know the full details of these people and Hlako tried to figure out how to get hold of them.

Fortunately accused 1 knew accused 2’s cell phone number by heart. He requested her to contact number 2 in his presence on her cell phone and suggested that they should arrange a meeting with the people where Hlako and she would be present. She agreed and in his presence arranged to meet the

people at Promenade Mall in Mitchells Plain in front of the FNB Branch at 16:00 the same day. Hlako arranged with other members of the police station to accompany them to the meeting place. The purpose of the meeting was to arrest the suspects involved in the killing of the deceased. These suspects were unknown to him and the other detectives, but accused 1 was willing to point out the people responsible for the death of her husband.

Hlako and the other detectives who accompanied him were in civilian clothing. They drove to the meeting place in different unmarked police vehicles. Number 1, himself and Kutwana were in one vehicle. Before they left for the mall, and at the mall, accused 1 was warned of her rights again, which she understood and she was still willing to co-operate. On their way to the mall, accused 1 received a telephone call, presumably from accused 2, to say where he was. They took up position in front of the FNB Bank on a bench and waited for the suspects to arrive. Phone calls were coming and according to accused 1 the calls were from accused 2, indicating where he was. The other detectives were in the area. Kutwana was behind them.

They sat there for about an hour. Eventually accused 1 received another phone call and then put the phone off. She

signalled with her eyes and said: “there are those children”. Hlako stood up and approached the two men that number 1 had indicated. He produced his appointment certificate and warned them of their constitutional rights before they were lawfully arrested. He explained the charges against them and they were taken to the waiting vehicles. Both had a cell phone. The two accused said that they knew nothing of the charges after they were told that the charge was murder that occurred at Makhaza on 28 October 2009. Hlako did not give them the name of the deceased.

Number 1 was called and made a report, from which it was concluded that the correct people had been arrested. The three cell phones of the three accused were seized and sealed in a numbered forensic bag in front of the. Their cell numbers were recorded in Hlako’s statement, which he used to refresh his memory. Accused 1 had a black Nokia cell phone with number 0721729829. She also gave Hlako the number of a spare SIM card that she had been using with the number 0747632865. Accused 2 had a Nokia cell phone with number 0735073106 and accused 3 had a Samsung cell phone with number 0747814518. Accused 1 and 2 confirmed to him that the phones belonged to them. Accused 3 denied that the phone that he had with him belonged to him. He said he was using it.

Hlako took the three accused to Harare Police station, where they were detained. He took the cell phones to the war-room in Cape Town to have the information on the cell phones and of the extra SIM card number of accused 1 downloaded. At the police station, the three accused were each given a SAP14A form, setting out their constitutional rights, which they signed. They were then detained in the cells as recorded in the occurrence book. Hlako did not interview the accused at this stage, it was late and he wanted to go to Cape Town to the war-room to attend to the phones, whereafter he went home. The other detectives also went home.

Early on 20 November 2009, Hlako interviewed the three accused and they all indicated that they were willing to give statements, which he realised were incriminating. He explained their rights to them and they understood (it was not disputed that accused 1 and 2 wanted to make incriminating statements at one stage). Hlako testified that accused 3 made an incriminating statement that was recorded to a senior police officer. The admissibility of the statement was disputed by the representative of accused 3 on the basis that it was not freely and voluntarily made, that he had been assaulted and was influenced by an unknown white police officer at the police station to make the statement. The court heard evidence in a triai-within-a-trial to determine the admissibility of this statement of accused 3 to Captain Van Wyk.

Trial-within-a-trial: Accused 3:

On 20 November 2009, after Hlako interviewed the three accused separately early in the morning in Harare Police Station Cellblock’s office, he explained their rights to them, which they said they understood. Accused 3 was willing to make a statement. During the interview he gave information that was incriminating. He was stopped and warned of his constitutional rights. He was relaxed and free of visible injuries and not threatened. Hlako called Captain Van Wyk (“Van Wyk”) of Elsies River Police Station, a neutral person, who had no involvement in this matter and arranged that he would hear the statement at the Harare Police Station. Hlako also arranged with Sergeant James, from the Mitchells Plain Police Station, a neutral person and photographer, to video the statement. Hlako was not further involved with the taking of the statement.

At 09:30, Kutwana booked number 3 from the cells to be interviewed by Van Wyk in the office that had been made available for him. Hlako inquired with a doctor at a nearby hospital before the interview was conducted about an examination of the accused, but he was informed that they were short staffed and he would have to wait long hours. In addition, all arrangements had already been made with Van Wyk, an interpreter, Mr Nzimane, also from Elsies River Police Station and the photographer. Waiting in a queue at the hospital presented a flight risk.

After the statement had been finalised, Kutwana booked number 3 back into the cells. Hlako saw him later. He had no complaints, was free from visible injuries, was relaxed and in a good mood. Hlako said he asked him and the reply was nobody assaulted him, influenced him or pressurised him and that he had made the statement out of his own free will. The accused all appeared in Khayelitsha court on Monday 23 November. Hlako was present. Number 3 was free of visible injuries. The magistrate asked some questions and number 3 did not compiain.

As regards the allegation on behalf of accused 3 that he had been influenced by an unknown person, HSako testified that he did not know anything about such a person. An investigating officer normally left a note in the cell that nobody may interview the accused. He left such a note with the cell guard. The accused would be his accused and he must be left alone. Accused 3 never told him that anyone had interviewed him aside from himself. It would be indicated on the occurrence

book if anybody else booked him out for an interview and there was no such indication.

Sergeant Hlako was not aware of any injuries to accused 3 before or after he gave the statement. He confirmed that they arrived at Harare Police Station after the arrest of the three accused at about 17:45. The accused were booked into the cells after documentation and administration details were attended to, including the completion of SAP14A forms, setting out the constitutional rights of the three accused, which documents were signed by them. Copies of these documents were handed in. After he booked in the accused, Hlako took their cell phones and SIM cards to the war-room in Cape Town.

He did not interview accused 3 that evening, as he was tired and went home to sleep. The first time he was interviewed was early on the morning of 20 November. He interviewed accused 3 in a section of the cellblock and did not book him out. Accused 3 wanted to make a statement. He was busy with him for about an hour. He also interviewed accused 1 and

2. the same morning. He could recall that there were other people in the cell with accused 2 and 3.

When Hlako interviewed number 3, he was very relaxed. Hlako thought he had a good relationship with him. He never complained despite being given the opportunity and told Hlako that he was “more than happy”. On the day of the arrest, the assisting detectives waited in the mall with Hlako and accused 1. When accused 1 spotted accused 2 and 3, she signalled and Hlako approached them. He informed them who he was and produced his appointment certificate. It was put to him that accused 3 will say he was grabbed by the belt by the other detectives and shouted at and that guns were pointed at them. Hlako replied that these were malicious allegations and lies. The area was full of people, including children, and there was no need to shout or point firearms. He also denied that he pushed number 3 into the motor vehicle and shouted and screamed at him then, as was alleged at one stage.

At the police station, the other detectives went home. Hlako travelled in a car with accused 1 and Kutwana and the other two accused travelled in a car in front of them. It was put to Hlako that there was an Officer Bobotjana on duty at the prison cells and that the police officers were calling his name to unlock the cell door, which is how accused 3 knew his name. Hlako agreed that there was a Warrant Officer Bobotjana employed at the police station, but he was not on duty and was not seen at the time when the accused were detained. Officer Jacobs was on duty and received the accused.

According to Hlako nobody visited accused 3 after he had been put in the cells on 19 November 2009. Hlako saw him again on 20 November. Number 3 did not report to him that anybody had seen him. The only person who had contact with him was the cell guard on duty. If somebody wanted to see the person in the cell, the procedure is that they will talk to him, Hlako, about the matter as the investigating officer. It was put to Hlako that number 3 would say that Hlako did not leave the cells immediately after the accused were booked in, but that Hlako and three other detectives, in plain clothes, stayed behind with accused 2 and 3 and assaulted them by slapping number 3 in the face, by tightening the handcuffs on the accused and by putting a bag filled with pepper spray over their heads and that they shouted at the accused and asked where the gun was that they used. Hlako denied these allegations categorically and added that the accused was not asked about a firearm at that stage.

It was put to him that he kept on asking where Lwandile was. Hlako said that he only heard about Lwandile later and he was charged later. (In due course it was shown that the charges against Lwandile, based on allegations made by accused 3, were dropped due to a lack of evidence). When Hlako was asked why accused 1 was taken to the magistrate’s court and not accused 3, he replied that police officers can take

statements, as well as magistrates. Accused 1 had taken tablets that day and there was a concern that she had tried to commit suicide. There is a shortage of magistrates at the Magistrate’s Court and he arranged to take accused 3 to a police captain instead. Accused 3 particularly wanted to make a statement at that stage and told him so. He was warned of his rights, but he wanted to continue.

On behalf of accused 3, who was 18 years old at the time of his arrest, it was alleged that he was in Grade 11 at school at the time of his arrest. Hlako said this was not certain. The accused was not at school on that day. He behaved like a reasonable man during the interview and was mature and relaxed. He never told Hlako that he was at school. It was then put to Hlako that on the Thursday, 19 November, after the accused had been booked into the cells, and after Hlako and the three other officers had left, three more police officers, part of the team of Hlako, came to the cell of accused 3. They came to ask about a gun. Hlako said the allegations of assault and police intruders were lies. It was the first time he heard these allegations that were never related to any of his seniors for investigating purposes and neither did number 3 mention these allegations at his appearance at the Magistrate’s Court.

Other people did not have access to his docket and could, therefore, not ask about a gun. He suggested that the accused should point out the alleged detectives that were involved. This the accused was not able to do. Hlako repeated several times that about 10 minutes after the accused had been detained, he came to Cape Town to the war-room with the cell phones. The other detectives went home. It was after 18:00. He denied the two incidents of assault, or that any part of his team entered the cells and asked the accused about the gun. The cell guard, Jacobs, would have told him if other people had been involved. He had been assisted by plus/minus seven officials during the arrest and named Sergeants Davids and Petersen, Constable Kutwana, Sergeant Neethling, Colonial Tobias and Constable Gojo. (It was later testified that there was also a Warrant Officer Scheepers).

It was put to Hlako, and denied, that accused 3 has marks where Hlako put handcuffs on him that he tightened so much that it hurt. He was asked to look at the hand of accused 3 in court and it was noticed that there was a mark on the top of the right hand that looked like a small scar. Hlako denied that he caused this mark, that did not look like a mark left by handcuffs. It was just a scar on the top of the one hand. It was then put to Hlako that accused 3 will say that at 18:30, he was visited by an unknown white police officer, a tall blond man in his 30’s. Hlako said he did not have any clue about

such a person. No young white officers were at the Harare offices and no such officer was involved in the investigation. He doubted that number 3 would know the time as he had no watch. Hlako was not there at that time and had left a note that no one was allowed to visit the accused.

It was noticed throughout the trial that the legal representatives of the accused frequently obtained instructions from them by speaking to them in English and they were apparently able to understand.

It was put to Hlako that according to the accused, men came into the cells at half past six that evening and that they questioned him. He was told that he was involved in a very serious case that carried a life sentence and he was advised that if he makes a statement, he may be used as a state witness. The accused then told the men that he was still at school and he was told that if he made a statement, he would go back to school and would only need to come to court when it was needed to testify.

Hlako said he had not been informed of such an interview and did not know who the accused was talking about. Hlako would have been contacted and involved if others had arrived. It was further alleged that accused 3 was influenced and advised by a white man a day before he gave his statement. He told Van Wyk about this incident in the statement that he made to him. Some uncontentious parts of the contents of the statement of number 3 to Van Wyk were put to Hlako, indicating that number 3 expected benefits from talking, namely that he would like to be a state witness. Hlako responded that if the accused wanted any benefits from making a statement, it was his hope only.

It was alleged that number 3 would say that on the evening of 19 November, a few minutes after the interview with the white person, Hlako entered the cell again and addressed the accused in a civil manner, wanting to know if it was true what the white detective told him, namely that number 3 wanted to make a statement. Hlako denied this allegation and repeated the version of his whereabouts after the accused were detained. Hlako said that the next morning, 20 November 2009, accused 3 asked to make a statement and could not wait to make a statement, which was denied on behalf of the accused.

Hlako also denied that he told number 3 not to take a legal representative and said he was warned of his rights relating to legal representation. The same morning, Hlako called Captain Van Wyk to come to Harare Police Station to take the

statement of number 3. He denied the version of accused 3 that Hlako visited him again on the 19^th and made arrangements with Van Wyk to take the statement the next day, being the 20^th. Hlako testified that the cell phones of the accused were booked in at the war-room sometime before 19:00 on 19 November. There is no blond white detective at Harare Police station.

Sergeant Neethlinq is stationed at Harare Police Station. He is one of several detectives who assisted Hlako with his duties on 19 November 2009, after the station commander, Captain Tobias, called them together and asked them to assist Hlako to arrest suspects in a murder case. He said the suspects would be at Promenade Mall in Mitchells Plain. A transaction was going to take place where money would be handed to the suspect by accused 1. The other detectives who accompanied them were Davids, Scheepers, April, Gojo, Kutswana and Tobias.

Neethling was posted outside with Davids in the parking area to observe. They were dressed in civilian clothes and used unmarked cars. He drove a blue Honda Civic, with Davids as a passenger. They arrived after 03:30. All the people were deployed to different areas. Scheepers, Tobias, Kutwana, Gojo and Hlako were inside the building. April was outside.

They waited more than an hour. The men at the mall were armed, but it was not necessary to use the firearms. Neethiing noticed Hlako, Tobias, Gojo and Kutwana come out of the mall with two black men who were cuffed. Hlako informed them that they were the two men that he had been looking for. The men were shocked and looked nervous. They were put in the Honda Civic. At one state the elderly female lady, in her 40’s, who was with Hlako, pointed to the vehicle.

Neethiing drove the men to Harare Police Station to detain them. Davids was the passenger. The apprehended men were speaking Xhosa very loudly. He did not understand and told them to be quiet. The accused and police officers did not talk to each other. At the police station, Hlako asked him to go with him to the cells with the suspects. He did not enter the cells. When the cell was opened, Neethiing left. Hlako went to the cell with the accused. They arrived at Harare just after five and he went home. He never saw the suspects again and was not further involved in the matter.

He said no firearms were pointed at the mall. The detectives had firearms in holsters. Sergeant Davids went to his office and when Neethiing the offices, Davids had already gone. Of the seven or eight people that assisted Hlako, he does not know how many stayed at the police station, as he left. He

said there was no white blond male at the station and there were no white investigators. Davids cannot and did not speak Xhosa. It was put to Neethling that accused 3 would say that Davids asked him about a firearm while in the car, which he denied. He also denied that the men were pushed into the car or shouted at as alleged. He confirmed that other people are not allowed to speak to the accused after their detention without Hlako’s consent.

Sergeant Davids also assisted Hlako in his duties on 19 November 2009 and he confirmed the testimony of Neethling regarding the events at the mall and the people who were involved. They were informed that the suspects were coming to Promenade Mall and that a lady will hand over a sum of money to them and that they should be on the lookout for African males at the centre. He confirmed that Hlako and Kutwana came out of the mall with two handcuffed suspects and Hlako said “these are the two suspects”, who were the put in the vehicle. Hlako searched the suspects and recovered cell phones. He informed the suspects that he was looking for the cell phone to see if the number of the lady who had been sitting inside, was on their cell phones.

The suspects seemed shocked and confused. Initially they were resisting. He is not aware of anybody at any stage

assaulting or manhandling the suspects. Afterwards they were talking Xhosa loudly, which he and Neethiing did not understand and Neethiing told them to be quiet. They were taken to Harare Police station, where Hlako took them to the cells. He, himself, went to his office for five or 10 minutes and then went home. He could not remember the name of the cell guard and had no further contact with the suspects. He confirmed that when you visit a suspect, you have to speak, to the investigating officer and the cell guard. He does not know about people who were shouting and screaming at the accused when they were in the police vehicle and nobody asked them about a gun. He and Neethiing did not address the suspects. He did not hear anything subsequently regarding any assault of any of the men and knows nothing about a tall blond white man at the police station.

Colonel Tobias (“Tobias”), the commander of the detective services at Harare in November 2009, testified that on 19 November 2009, he assisted Hlako, at his request, by gathering members to go with Hlako to Mitchells Plain, where a transaction would take place between a lady and two suspects. The suspects would collect money from the lady. He repeated the version of how the suspects were apprehended at the mall and who were present and where. Hlako and the lady waited opposite FNB Bank for the suspects. Kutwana and Gojo, himself and Scheepers were also at the centre.

They waited quite some time. They saw a commotion and then outside the mall they found Hlako and Kutwana walking with two persons who were handcuffed. Hlako said that he had his people. Tobias never mobilised a white policeman. He did not see anyone being assaulted. He recognised accused 1 as the lady with Hlako, who had to hand over money to the suspects. He, himself, was not part of the investigation.

Tobias did not go back to the police station after the arrest, as he had another appointment. He left with Warrant Officer Scheepers, who also assisted Hlako with the arrest. Scheepers confirmed the version of Tobias. He was dropped off at the station after the arrest, where he got into his own vehicle and went home. He did not see or hear of anyone assaulting the suspects.

Sergeant Petersen assisted Hlako and waited at the main entrance of the mall for about an hour. Hlako and Kutwana exited the mall with two young black males, who were taken to the police station. He went back to his office at the station for about five minutes, whereafter he left for home. He did not see any assault at any time. He could not recall exactly when he went home, but by the time he went home, most-of the

Contact with accused 3 on his number ending in 4518, the person whom she allegedly does not know, started on 28 October at 05:13 in the morning the deceased was shot and killed. (I refer to page 26 of Exhibit DD). The first recorded contact with number 3 was an incoming SMS to number 1’s phone, 2865, from number 3’s phone, 4518, just before she SMS’d number 2’s number (3106) at 05:15. At 05:18 she called number 3 and had a discussion with him and then called number 2 at 05:33. At 06:02 she texted number 3 and then called him. Later that night between 20:58 and 22:16, accused 1 contacted number 3 twice and he contacted her once.

On 29 October 2009, the day after the murder, there were seven contacts between numbers 1 and 3 in the afternoon between 17:16 and 17:32. On 30 October was the last recorded contact between numbers 1 and 3 on the number of accused 1 ending in 2865. Contact continued on her 9829 number.

Contact between accused 1 on 2865 and accused 2 on 3106 from 27 October 2009, the day of the Caverni burglary:

The first contact between accused 1 and 2 on 27 October was an outgoing call from number 1 on 2865 at 06:02 from

Khayelitsha. The contacts continued as follows: 07:29 an incoming SMS from No. 2 on his number ending in 3106, and 07:32 and 07:35 outgoing calls from number 1 to number 2. These later contacts were all picked up by the base station in Claremont. This means that accused 1 who, according to her employer, was only due to arrive at work at about 9 a.m. was in Claremont, in the area of her employment, from at least 07:30 that morning.

The next three contacts between number 1 and 2 occurred at 09:03, 09:04 and 09:35. The first one was an SMS from number 2 to number 1 and the next two calls were from her to him. All registered in Claremont. These contacts were made around the time that Mr Caverni received a call from accused 1 to tell him that his home had been broken into. It is unthinkable that any person, upon entering the home of her employer and discovering that it has been broken into, would think to call someone from whom she sometimes purchases clothing. Neither accused sought to explain this suspicious coincidence. The remaining 11 contacts between accused 1 and 2 on the same day were from 16:26 to 21:08. The recorded base station names indicate that accused 1 communicated with accused 2 while she was still in Claremont that afternoon and continued contacting him until she reached her home in Khayelitsha.

On 28 October, the day accused 1’s husband was killed, she made contact with accused 2 at 05:15 and again at 05:35 in the morning. At 07:45 she received an incoming SMS from him (page 26 of Exhibit “DD”). They remained in contact with each other thereafter. Ms Makhubu explained, with reference to Exhibit “DD”, and more particularly the different IMEI numbers reflected in the detailed billing, that accused 1 used the same SIM card in three different handsets in the period recorded. She also testified, in essence, that accused 1 used the same handset on the Cell C network, as she did on the Vodacom network, from 7 November 2009 to 19 November 2009. Accused 1 changed her handset, cell number and network provider frequently, within short periods of time.

Exhibit “EE”: The detailed billing records in respect of cell phone number of number 3. ending in 4518. reflecting contact between accused 3 and accused 1.

This exhibit is an itemised printout of incoming and outgoing calls to and from the cell number of number 3, ending in 4518, from 1 August 2009 to 20 November 2009. Accused 3 formally admitted that when Hlako arrested him, he was in possession of a cell phone with a number ending in 4518. Although it was put to a number of witnesses that the cell phone handset found in his possession belonged to Lwandile Mandla, Lwandile denied this convincingly when he gave evidence. In any event accused 3 testified that it was his SIM card and, therefore, his number in the phone.

No recorded contact between accused 3 and 1 was shown on or before 27 October 2009, the day of the housebreaking incident, on this, the only known number of number 3. The recorded contact between accused 3 (4518) and accused 1 (2865) on 28 October, up to and including 19 November, as detailed in Exhibit “EE”, is identical to, and confirmed by the information contained in the detailed billing of the number ending in 2865 (number 1’s phone) in Exhibit “DD” as set out above. The recorded contact between 4518 (number 3) and 9829 (number 1) on 19 November, as reflected on page 7 of Exhibit “EE”, is identical to, and confirmed by the information on page 15 of Exhibit “BB”, which is the detailed billing report for the number ending in 9829 of number 1, which has been discussed above. These cell phone records show that accused

1. and 3 had regular and frequent contact from 28 October 2009 to 19 November 2009. They cannot claim not to know each other or never to have contacted each other.

Contact between accused 3 with number 4518 and accused 2 with number ending in 3106:

Exhibit “EE” shows that accused 2 and 3 were in regular

contact from 11 September 2009 onwards. On 27 October 2009, the day of the housebreaking, and the night prior to the murder, they communicated with each other during the evening, with five contacts between 19:27 and 21:23. On 28 October, the day of the murder, they also communicated in the evening at 19:38 and 19:58. It is noticeable that number 3 contacted number 1 three times soon after her contact with number 2 on the evening of 28 October. On 31 October, accused 3 contacted accused 2 immediately after contact with accused 1. The remaining contact as recorded in Exhibit “EE”, was constant and frequent and at all hours of the day and night.

On 19 November 2009, the day of their arrest, they began communicating at 00:33. They continued at 06:14 and 09:39 and thereafter. They contacted each other shortly before 16:00 that day, in between contact with number 1, at 15:47, 15:48 and 15:56 (page 13 of Exhibit EE), which would suggest that they were not yet in each other’s company at that time. The cell phone base station record shows that accused 3 was not at the mall from about midday, as was alleged on his behalf, but he was in fact travelling from Nyanga and only entered the Mitchells Plain area at about 15:36.

Exhibit “L”: Detailed billing records of cell number of accused

2. ending in 3106. reflecting the contact between number 2 (on 3106) and accused 1. with numbers ending in 2865 and 9289, as well as accused 3 on number ending in 4518:

Exhibit “L” is an itemised printout provided by MTN of all calls to and from the cell number of accused 2 ending in 3106 from 9 October 2009 to 19 November 2009. Exhibit “L” confirms the contact between accused 2 and accused 1 on the morning of

27. October, the day of the housebreaking, from 06:02, when accused 2 was still in Nyanga and thereafter when he was in Newlands and Claremont. This information has already been dealt with above, when the contents of accused 1’s cell records were discussed and it was shown that accused 2 went to Newlands early in the morning of 27 October 2009. He was there by 07:35 and he left Newlands before nine and returned to Nyanga, while in cell phone contact with number 1. The record shows that accused 2 was in contact with accused 1 five times between 06:02 and 09:35 on 27 October and he had nine further contacts with accused 1 on that day and two contacts with accused 3.

At 05:15 on the morning of 28 October 2009, accused 1 called accused 2 while he was in Khayelitsha, yet he allegedly lives in Nyanga. She called him again at 05:33, while he was still in Khayelitsha (this aspect remains unexplained). There was no further contact between accused 1 and 2 that day, but they

continued to communicate up to 19 November 2009, which is the last recorded day of the detailed billing on Exhibit “L” and is the day of their arrest.

Accused 3 called accused 2 twice on 28 October, once at 13:01 and once at 19:38 (page 8 of Exhibit “L”). On 19 November 2009, accused 2 was in frequent contact with accused 3. The first contact was made by accused 2 at 00:33 and the last contact was made by accused 3 at 15:54. There was no indication during the trial why number 3 phoned number 2 from Promenade Mall and it is contrary to the evidence of number 3. Exhibit L shows that accused 2 arrived in Mitchells Plain at approximately 15:47 on 19 November 2009. On the same day he was contacted by, and made contact with accused 1, who was using the number ending in 9829. He received his first call from her at 12:35 while still in Nyanga. The last contact from her was while he was in Mitchells Plain at 16:07.

In essence, the cell phone records show that accused 1 and 2 contacted each other frequently in October and November 2009. On 27 October, accused 2 and accused 1 started contact at 06:02, while accused 2 was in the area of his home in Nyanga. Then they contacted each other at 07:32 and 07:35 when they were both in Newlands/Claremont. At 09:04 he was

contacted again by accused 1 and when accused 1 contacted him at 09:35, he had reached Observatory before returning to Nyanga. Accused 2 and 1 were in contact with each other five times between 06:02 and 09:35 on that day and had nine further contacts on that day. Accused 2 and 3 were in contact on the evening of 27 October no less than five times. The first recorded contact between accused 1 and accused 3 is earlier on the morning of 28 October 2009 at 05:13 and 05:18 and two contacts between them at 06:02. Both accused 2 and accused 3 were in Khayelitsha earlier that morning. Neither of them lived in Khayelitsha.

Accused 1 called accused 2 twice between 05:15 and 05:33 on

27. October. The three accused remained in frequent contact with each in the days to follows. On the day of their arrest, accused 2 and 3 arrived in Mitchells Plain just before 16:00 and in the minutes leading up to the 16:00, they were each in contact with accused 1 and with each other.

The last witness for the state, Lwandile Mandla, who was implicated in the murder by accused 3 in his statement to Van Wyk, is 28 years old and passed Grade 10 at school. He is employed as a chef at a restaurant in Sunset Beach, Cape Town and has been so employed since August/September 2009. Initially he appeared uneasy and sometimes spoke very softly. It was my Impression that he may have been somewhat confused about the sequence of events at times, but his evidence was very specific and detailed and remained consistent throughout his testimony and cross-examination.

Lwandile knows accused 2 and 3 through his “cousin’s brother”, Zwelethu. They are not close friends. He met accused 1 through a friend, Kolekeli, at a shebeen during 2009. On an occasion, at a date that he later estimated as August 2009, the date of a friend’s birthday, he was socialising with his friends at his home, when accused 2 and 3 arrived. They enquired after Zwelethu. Soon after their arrival, accused 1 arrived, coming from a prayer meeting at a nearby house where a child had passed away. She enquired about Kolekeli and then asked to be accompanied to the taxi rank nearby. Lwandile, his friend Papi, accused 2 and 3 accompanied her. On their way to the taxi rank, she asked Lwandile if Kolekeli had told them about “that thing”. He replied that he had been told. (Nobody asked him what she was referring to during the trial).

After accused 1 had left in a taxi, while they were on their way back to his home, accused 2 and 3 told Lwandile, and spoke to him about the fact that number 1 wanted them to have her husband killed as he was abusive and assaulted her. Lwandile told them to ignore the “old woman”. They showed him her phone number on their phones. They did not tell Lwandile how much they would be paid for the job, but they said they would be paid within 48 hours of the deed. Lwandile continued socialising at his home. Accused 2 and 3 became involved in a quarrel with their friends who were present. Number 3 drew a firearm and pointed it at the vehicle of his friends, while some of them were inside the vehicle. Number 2 was standing next to the vehicle. One of the men asked Papi to tell number 3 to hand over the firearm as his brother wanted the firearm. Number 3 refused and the vehicle left. The socialising continued.

The next morning Lwandile saw that accused 3 was still there. He asked him to go with him to his friend’s house nearby, as he did not want to leave him alone at his home. The friend was working on a vehicle and needed Q20. Lwandile went back to his home to fetch the Q20. As he left his home, on his way back to his friend, he saw a white Corolla vehicle driven at high speed. This vehicle collided with another vehicle in the area. Two young men got out and approached Lwandile. One of them had a firearm. The man inquired about accused 3 and the whereabouts of the firearm that he had used the previous evening. Papi and the brother of accused 2 were in the vehicle and Lwandile told the men to ask them. The men ran

away before the police arrived to investigate the collision.

When Lwandile returned to his friend’s house with the Q20, number 3 was still there. He told him what had happened and that the men had a firearm. That afternoon, Lwandile was present when, outside his home, number 2 and his brother approached number 3. Accused 2 asked accused 3 where the firearm was. They were talking hurriedly and mentioned Site C in Khayelitsha. Lwandile’s 13 year old brother then went to fetch a firearm that number 3 had given to him (the brother) for safekeeping. Lwandile took the gun from him and told accused 2 that the firearm was "an issue”, since the owners of the firearm had been there to inquire about it, presumably referring to the men in the speeding vehicle. He did not want them to discuss the firearm issue further, as he did not want his mother to overhear and told them to leave. Later he gave this firearm to his cousin’s brother, Fezile Rhani, who was arrested for possession of this firearm in due course. According to Lwandile, this was the last time that he saw accused 2 and 3. He also did not see accused 1 again.

On 28 October 2009, he was not staying in Khayelitsha any more. He had commenced his employment in Sunset Beach. He had nothing to do with the murder of the deceased and did not know him. He denied that he ever gave a cell phone to accused 3 and did not see him on or about 19 November 2009. During cross-examination, Lwandile was referred to his warning statement and some perceived contradictions and discrepancies in the statement compared to his evidence. The statement had been taken after he had been arrested for the murder on 17 November 2010, a year after the arrest of the three accused. He was in custody for three weeks prior to being released on bail, while the matter was considered by the DPP, who took their time, as can be concluded from the frequent postponements recorded. The charges against him were dropped in April 2011. He appeared at, and was not identified at an identity parade.

Lwandile said he had phoned Hlako prior to his arrest to advise him that he had nothing to do with the matter and explained to him what had happened, namely that he had removed a firearm from accused 3 and that he thought that was why he was implicated in this matter. It appears from Lwandile’s testimony that before Hlako called him, he had been advised that the police had been to his house with accused 3 in connection with a firearm. He informed the court that both accused 2 and 3 had previously been arrested in another matter and on “every occasion” when they are arrested, they implicate him. He also told the court that he had made more than one statement to the police and that in his statements to the police, he replied to their questions on matters that they regarded as relevant.

His last statement was a summary of matters that were of interest to the police, which explained why certain aspects of his evidence did not appear in this statement. He also said the last statement that he was asked about, was done in a hurry at his place of employment. I do not believe the contradictions/inconsistencies in his statements are at all material. He was an intelligent, good and convincing witness, whose evidence was so detailed and consistent that it lent credence to his version. He denied the allegation by accused

1. that she had never met him, or that his version of their meetings was a fabrication. On behalf of accused 2 and 3, it was admitted that they had been to Lwandile’s house, but they denied that they were ever at his house when accused 1 was present and they denied the entire version of their accompaniment to the taxi rank, the discussions about killing the husband, pointing of the firearm or discussions about a firearm.

Lwandile stated in cross-examination that he was not friends with accused 3, who arrived with accused 2. Accused 3 again denied that he knew accused 1 or that he has ever had any contact with her and denied that he was arrested in connection

with a firearm or that he ever went to the house of Lwandile with the police. Finally, it was put that accused 3 would say that on the day of his arrest in November 2009, he had a phone with him that, contrary to Lwandile’s testimony, had been given to him by Lwandile. No further explanation for this allegation was given, such as why or when the phone had been given to him. No explanation was given about the SIM card that he said was his own and why his SIM card was inserted in Lwandile’s phone. There can be no doubt that the allegations of accused 3 on this aspect, were a fabrication.

When Lwandile was arrested, his cell phone was confiscated by Hlako. The numbers that he used were obtained and the information was downloaded (Exhibit CC). The deponent to the exhibit did not testify and the exhibit was introduced by the representative of accused 1 during the testimony of Ms Heyneke. From the questions put to the witness, it was established that there was no contact between accused 1 and Lwandile at any time reflected on the cell phone exhibits. Lwandile confirmed that he had no cell phone contact with any of the accused and they never alleged such contact, or showed any record of such contact.

The state closed its case and counsel representing accused 1 and 2 applied for their discharge in terms of the provisions of section 174 of the Criminal Procedure Act. The state opposed the application. After considering the arguments on behalf of the accused and the evidence presented in the trial, the court was not convinced that they were entitled to a discharge. Judgment was given refusing the applications. Accused 1 and 2 elected not to testify and their cases were closed without calling witnesses. The court explained to them the possible danger of closing their cases at the request of their counsel and they indicated that they understood. Accused 3 elected to testify.

Accused 3, Thanda Krwece, testified that he was an 18 year old scholar at the Zola Business School at the time of the commission of the offences. He lived with his mother and sisters in Delft. His father lived in Makhaza, Khayelitsha. He denied knowing accused 1 on the day that he was arrested. He became acquainted with her during the proceedings in court. He knows accused 2. On 19 November 2009, he was arrested at Promenade Mall in Mitchells Plain. He was there in order to window shop to purchase clothes for initiation purposes. He could not say what time he had gone to the mall, as he did not have a watch. He left and was on his way to the taxi rank on his way home, when he unexpectedly met accused

2. who was surprised to meet him and informed him that he had to meet a customer and requested him to accompany him.

On their way into the mall, accused 2 was making calls on a cell phone to establish the whereabouts of his customer. He ran out of airtime on his phone and borrowed the phone of accused 3 to call the customer one last time, before handing the phone back to accused 3. Number 2 pointed in the direction of a chair where the investigating officer, Hlako, whom he did not know at the time, was sitting, as well as accused 1, whom he also did not know. They approached, but before they reached them, the police drew firearms, grabbed them and handcuffed them. They were searched during the arrest. He could not recall how many policemen there were, but he said there were many. They were taken to a nearby police vehicle and were placed inside the vehicle.

Accused 1 arrived and the detectives inquired from her as to “are these the people”, while they were pointing at them. Accused 1 replied: “here is the person that I have called”. She pointed out accused 2 only. Accused 2 and 3 were in the vehicle with two detectives. One was the Coloured person who had testified in court (Neethling) and the other was a Xhosa speaking person, Mr Gojo, who also testified in the case. In the vehicle Gojo reprimanded accused 2 and 3, asking them questions, such as why dit they kill Tamara’s husband, where Lwandile was and where the firearm was that was used in the

Killing. Accused 3 was shocked and said “we have no knowledge of that”. Gojo kept on asking questions until they reached the police station.

At the police station they were still handcuffed and were taken to the cells. They were accompanied by four detectives, Hlako, Kutwana, Gojo and a fourth unknown detective who did not testify in court. At the cells accused 2 and 3 were assaulted and questions were asked, including where is Lwandile, where is the gun and where were they on the morning of the 28^th. Accused 3 repeatedly replied that he had no knowledge. They were assaulted by all four detectives. Eventually the four detectives left, but after a while four other detectives arrived and questioned them about the firearm and Lwandile. He did not know the other detectives. They also assaulted them and asked questions, but eventually gave up and left.

Subsequently a white person arrived and entered the cell. Accused 3 thought the person might assault them. Only accused 2 and 3 were inside the cell. The person managed to get into the ceil as it was opened by police officer Bobotjana, the cell guard who testified in court. Accused 3 did not know Bobotjana, but saw him at the police station and knows his name, because the detectives called out his name in order to enter the cells. The white detective asked accused 3 whether he was aware of the seriousness of the matter and that he was facing life imprisonment. Accused 3 was shocked and scared. This detective then said that if accused 3 opened up, he could be used as a state witness, maybe allowed to go home and would only be asked to testified in court. Accused 3 thought that that was how he could be exonerated from the matter and not sit in jail for life. He did not talk to the man or say much, but he decided that he would open up. He thought that talking would save him and he told the man that he wanted to talk. The man then left.

After a while Hlako arrived and took accused 3 out of the cell. They stood outside in a passage. He enquired from accused 3 as to whether it was correct that he had told he other detective that he wanted to make a statement. He confirmed this and told Hlako a summary of what had happened. He knew what the detectives required and said that the crime had been committed by Lwandile and that the gun was with Lwandile. Hlako then left. In the morning hours Hlako returned, accompanied by Kutwana. The removed him from the cell and went to a room used as a kitchen in the same cell block. Kutwana was busy putting cuffs on his legs, while Hlako talked to him. He told him to tell everything and to say that he does not want an attorney. Number 3 did not know anything about the importance of an attorney and that is why he decided to tell Van Wyk that he did not want an attorney.

Kutwana took him to the office in the police station where he met Captain Van Wyk, who was on his own and who did not talk to him until the interpreter arrived. The contents of the revised statement of accused 3, AA, was not disputed. Ultimately accused 3 testified that the reason why he decided to make a statement was because he wanted to get out of jail. Accused 3 says he decided to lie and to say things about Lwandile. Van Wyk told him that he had to say what he personally witnessed, but he thought that Van Wyk would then not believe him and, therefore, decided that he would say he was also present. He, therefore, made the statement that had been handed in to court. He told them that he knows Lwandile, that he gave him a cell phone and that Lwandile said that they should fetch his money at promenade Mall.

Accused 3 said because the detectives asked him about Lwandile, he told them that Lwandile is known to accused 1 and that is why he said that Lwandile committed the crime and was the one who was planning the killing of Tamara’s husband. Listening to accused 3’s evidence at this stage of the proceedings, the court could understand why the statement that was made to Captain Van Wyk seemed so incoherent. It

was difficult to understand what he was saying at times. Accused 3 said that he told Van Wyk that they were at Lwandile’s place and that they were scared of Lwandile. Early one morning Lwandile said that they must wake up and go to Makhaza. He said the four of them went there, including himself and accused 2. They waited at a corner, while L^lwandile went with a firearm to the old lady’s house (referring to accused 1).

He confirmed that he said in his statement that he and accused

2. heard a gunshot and ran away. He explained to the police that Lwandile gave him a cell phone and told them to fetch his money at Promenade Mall. Accused 3 said he lied when he said in the statement that Lwandile had received money, because he thought the detectives might ask him why Lwandile would trust him with money. (An incomprehensible comment). He also told Van Wyk that Lwandile did not go personally, as he was suspicious of the reason why he had to go to Promenade Mall. Everything that he told Van Wyk was not true, but a story that he made up from what he heard during the questioning by the detectives. He was then asked whether everything was untrue or just parts of the statement and replied that his version was not true, but based on information that he gathered from the questioning by the detectives.

Lwandile is his friend and the last time they saw each other, they did not quarrel. He was shocked at Lwandile’s evidence in court and shocked at the things he said that were unknown to him. He repeated that the cell phone that he had with him when he was arrested at Promenade Mall was received from Lwandile, who has many phones. He could not recall, however, when he received the phone or why and could supply no further details in this regard. It was put to accused 3 that Gojo and Hlako had said that they were not involved in any alleged assault of accused 3 at the police station and they had left, and he said they were lying, as well as Kutwana. It was put to him that the police officers said that there was no white detective who worked with them at Harare Police Station at the time and he said that they were lying.

As regards Hlako’s version of a note, indicating that other people were not allowed into the cell to interview the accused, he also said that was a lie. Accused 3 said he could not tell anybody else about the assaults, as he did not trust any police officer. The other detectives witnessed what happened. He did not inform the magistrate of the assaults, as he thought that he would explain about it when he matter was tried in court. As regards the evidence that Bobotjana was not on duty on 19 November 2009, he said that this information shocked him as that was the person that was on duty on the evening and he does not know the other people who say that they were the people who locked him into the cells. Jacobs, who testified that he was on duty when accused 3 was arrested and placed in the cells, was unknown to him.

Accused 3 also said that Hlako was lying when he said that he first talked to him on the morning of 20 November 2009. He also lied when he said Kutwana took him out of the cells to take his statement, as Hlako and Kutwana took him together, and he lied when he said they were not talking in the kitchen, since that is where he was cuffed. He knows Lwandile and has visited his house, but Lwandile’s version relating to having drinks and what then ensued, was denied. He does not know anything about a firearm as testified to by Lwandile. He denied that he ever met accused 1 and did not meet her at any stage as she passed Lwandile’s house as testified to by Lwandile. The whole incident relayed by Lwandile in this regard was denied, including that he showed Lwandile the telephone number of accused 1 as it appeared on his cell phone.

Accused 3 specifically testified that he never had the phone number of accused 1 and that it was not stored on his phone. He did not know the deceased, does not know anything about the murder of the deceased and was very surprised when the

detectives asked him if he was involved in a murder. He denied any knowledge of a firearm taken at a house in Newlands and only heard about that in court. He has never been in possession of a firearm or ammunition. He denied that he conspired to kill the deceased. He denies that he has any knowledge of what transpired in the matter and he did not know that he would land in jail in a matter of which he has no knowledge. The statement he made to the police, that he knew about the matter and was on the scene, was a lie.

During cross-examination, accused 3 testified that he stays mainly with his mother in Delft and visits his father now and then in Khayelitsha. On 19 November 2009, after he had been to Promenade Mall, he was going to Crossroads to sleep over until he had to write his next examination a few days later. (Accused 3’s version is improbable, especially since he had no extra clothes with him and no school books in order to study). Accused 3 denies that he was pointed out by accused 1 at Promenade Mall. His testimony throughout was that he did not know accused 1 at all. He did not explain to Hlako what he was really doing at the mail, because they did not approach him in an orderly manner and he was not granted an opportunity to speak. Furthermore, his rights were not explained at the police station. (The testimony of accused 3 about arriving at the police station and being placed in the cells before being assaulted by two sets of detectives, without any reference to the signing of a form 14A, constitutional right forms, was improbable and clearly fabricated).

He could not explain how his signature appeared on the 14A form and could not recall signing the document, Exhibit M, at all. Although he could not recall signing the document or where it may have been signed, he said that his rights had not been explained to him as stipulated on the form. He did not deny his signature. He could also not recall whether a copy had been to him and could not explain why it had not been put to Hlako that he had not received a copy of the form as testified to by Hlako. He reiterated that the cell phone with him that had been confiscated at Promenade Mall, was given to him by Lwandile. However, the SIM card inside the phone was his own. The cell number on the phone ending with the digits 4518, therefore, belonged to him. He testified that he had a school timetable in his pocket at the time when he was searched and arrested. He could not explain why this timetable had not been shown to any police detective, including Van Wyk or the magistrate, at any stage during the initial proceedings to show that he was in fact a scholar.

Accused 3 said he knows Lwandile and he knows Papi. There were never any problems between him and Lwandile. He is not aware of any problems between Lwandile and accused 2. He and accused 2 sometimes visited Lwandile together. Accused

2. and 3 contacted each other by cell phone. He does not know Lwandile’s phone number as he changes phones. The three accused closed their cases without calling witnesses.

Legal Aspects:

The court determines the factual basis of a case before pronouncing a finding, by evaluating the evidence and probative material presented during the course of the trial. The court’s findings are based on factors such as the credibility of the witnesses, their reliability and the probabilities. The finding on the credibility of a witness will depend on the court’s impression about the truth of the evidence of the witness. That, in turn, will depend on factors such as the witness’ demeanour, internal and external contradictions with established facts or with extra-curial statements, the probability or improbability of aspects of his version and the calibre of his performance compared to that of other witnesses testifying about the same incident. The court must analyse and evaluate the probability or improbability of each party’s version on disputed issues and will assess the weight of the probative material, in order to determine whether the party carrying the burden of proof, has proved its allegations in accordance with the applicable standard of

proof.

In a criminal case the state has to prove the guilt of an accused beyond reasonable doubt. Linked to this is the well known principle that if the version of an accused is reasonably possibly true, he is entitled to be acquitted. No onus rests on the accused to convince the court of the truth of any explanation he gives. Even if the explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt, it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.

The court need not believe the version of the accused, as long as there is a reasonable probability that his version is true. The fact that his version is improbable, does not mean that it should be rejected. I refer to the case of S v Shackell 2001 (2) SACR 185 (SCA) on 194g-i. The court need, however, not be satisfied that there is no doubt whatsoever about the guilt of the accused.

In S v Mark & Another 2001 (1) SACR 572 (C) at 580F-H, Davis. J agreed with, and referred to the comments of Rumpff, JA in S v Clegg 1973 (1) SA 34 (A) page 38(h)-39(a):

“Die begrip “redelike twyfel” kan nie presies omskryf word nie, maar dit kan we! gese word dat dit ’n twyfel is wat bestaan weens waarskynlikhede of moontlikhede wat op grond van algemene gangbare menslike kennis en ondervinding as redelik beskou kan word. Bewys buite redelike twyfel word nie gelyk gestel aan bewys sonder die allerminste twyfel nie, omdat die las om bewys so hoog gestel te lewer, prakties die strafregbedeling sou verydel.”

The state also referred me to S v Phallo 1999 (2) SACR 558 (SCA) at 562g-563b, where Olivier, JA referred, in agreement, to R v Mlambo 1957 (4) SA 727 (A) and more specifically at 738A-C, where Malan, JA found:

“It is sufficient for the court to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged.”

The judge continued to find that the accused’s claim to the benefit of the doubt, must not be derived from speculation but must be based on the solid foundation created by positive evidence or gathered from reasonable inferences which are not outweighed by the proven facts of the case.

The approach of a court to circumstantial evidence, such as the evidence in this matter, is set out in the often quoted R v Blom 1939 AD 188 on 202-203, as stated by Watermever, JA:

“In a reasoning by inference, there are two cardinal

rules of logic which cannot be ignored:

1. The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn;

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

Inferences drawn must not be based on speculation, presumptions of perceptions. There can be no inference unless there are objective facts from which to infer the other facts, which is sought to establish. In some cases the other facts can be inferred with as much as practical certainty as if they had been actually observed, but sometimes an inference is no more than a reasonable probability. I refer to S v Essack & Another 1974 (1) SA 1 (A) on 16D.

In a case such as the present where the state’s case rests mainly on circumstantial evidence, the cumulative effect of the evidence needs to be weighed carefully. The trial court’s approach to the case should be holistic. S v Chabalala 2003 (1) SACR 134 (SCA) at 139. Evidence must be weighed in its totality, taking into account the probabilities, reliability and the opportunity for observation of the respective witnesses, as well as the other factors that I have mentioned above.

The legal representatives in this matter agreed that the court will have to assess circumstantial evidence to make a finding to establish whether or not the state has proved its case beyond a reasonable doubt. It has often been said that circumstantial evidence is not necessarily weaker than direct evidence. Inferences are, and may be drawn, from circumstantial evidence. Certain rules of logic must be followed as noted above. The court should consider the cumulative effect of all the items of circumstantial evidence. No circumstance is considered in isolation in order to then give an accused the benefit of a reasonable doubt as to the inference to be drawn from each circumstance. The state must

satisfy the court, not that each separate item of evidence is inconsistent with the innocence of the accused, but only that the evidence taken as a whole is beyond a reasonable doubt inconsistent with such innocence. See S v Mtembu 1950 (1) SA 670 (A).

With regard to the assessment of the credibility of witnesses, and more particularly the witnesses Mngese, Gxotha and Wana, the defence argued that the evidence of these witnesses be rejected as a result of some contradictions in their evidence. The state referred to the comments of Nicholas. JA in an article titled “Credibility of Witnesses”, published in the 1985 SALJ page 32. The learned author referred to the frailties of human evidence and reminds the reader that error does not in itself establish a lie. It is in the nature of mankind that mistakes are made by witnesses. The court should establish whether the essence of testimony is reliable. An argument based solely on a list of contradictions between witnesses, leads nowhere as far as veracity is concerned. It must be established if the witnesses are lying about material issues. The author commented that there is no rule that where a witness has lied, his testimony must be rejected without more ado - all that can be said is that a witness whose evidence has been shown to be deliberately false on one point, is liable to be regarded with suspicion and distrust and the trier of fact may, not must, conclude that his evidence on another point cannot safely be accepted:

“The question is not whether a witness is wholly untruthful in all that he says, but whether the court can be satisfied, beyond a reasonable doubt in a criminal case ... that the story which the witness tells is a true one in its essential features.” (Page 35).

The author points out that images can be introduced into memory, for instance by post-event information, including discussion and reports or rationalisation or reconstruction of events.

In this matter, two of the charges against all the accused are the unlawful possession of a firearm and ammunition of the firearm. The court will have to establish the aspect whether each person in the group possessed the firearm, which in turn will be decided with reference to whether the state has proved facts from which it can properly be inferred by a court that the group had the intention to exercise possession of the firearm through the holder thereof, and whether the holder of the firearm had the intention to hold the firearm on behalf of the group. If these requirements are fulfilled, the court can find joint possession involving the group as a whole. In other words the court may find that the group had a common purpose to possess the firearm and ammunition. We were referred to S v Khambule 2001 (1) SACR 501 (SCA), page 503e-g, where Olivier, JA found:

“There was no reason why, in appropriate situations, and if the principle of common purpose was applied, the common intention to possess the firearms jointly, could not be inferred. If it was the intention of the members of the group to use firearms in the execution of a robbery or murder, to the advantage of all of them, they associated themselves with the possession of firearms. Possession of the firearms accordingly had to be taken by one or more members of a gang and on behalf of, and to the advantage of the group...(Then) The inference of an intention to jointly control and possess the firearm and ammunition, was unavoidable.”

On behalf of accused 1. it was submitted that the state had not shown that she had a motive to end the life of the deceased and that this fact should count in her favour when a possible involvement in the murder was considered. Her representative suggested that the court should be slow to convict a person where there is no proven motive for a crime. The general rule is that a person’s motive, whether good or bad, is irrelevant to criminal intent. The reason for ignoring motive in the matter of determining criminal liability, is that individual motives are too complex and obscure to provide a reliable basis for determining liability for punishment. The principle of legality militates against asigning liability on a basis of personal and individual ethics and motivation. I refer to Principles of Criminal Law, 3^rd Edition, Jonathan Burcell.

Evidence of the accused’s motive in committing a crime is admissible and may prove important in implicating the accused in a commission of the crime or establishing his intention, but intention may be proved without reference to motive.

As regards the failure of a party to testify and the constitutional right of an accused to refuse to testify, it was held by Holmes, JA in S v Mthetwa 1972 (3) SA 766 (A) 769A-

E:

“Where the state case against an accused is based upon circumstantial evidence and depends upon the drawing of inferences therefrom, the extent to which his failure to give evidence may strengthen the inferences against him, usually depends upon

various considerations. These include the cogency, or otherwise, of the state case after it is closed, the case which the accused could meet if innocent, or the possibility that the reason for his failure to testify may be explicable upon some hypothesis unrelated to his guilt ... Where, however, there is direct prima facie evidence implicating the accused in the commission of the offence, his failure to give evidence, whatever his reason may be for such failure, in general, ipso facto tends to strengthen the state case, because there is then nothing to gainsay it and, therefore, less reason for doubting its credibility or reliability.

Schwikkard and Van der Merwe, Principles of Evidence, page 543).

Since the finding in the Mthetwa judgment, the court has found that no adverse inference can be drawn against an accused merely by virtue of the fact that he has exercised his constitutional right to refuse to testify. However, if an accused exercises his constitutional right to silence, the court is left with nothing but the uncontroverted prima facie case presented by the state, and the court will be called upon to decide whether the uncontradicted prima facie case of the prosecution must harden into proof beyond reasonable doubt.

Of importance is the fact that the accused’s constitutional right to silence cannot prevent logical inferences. The circumstances of a case may be such that a prima facie case, if left uncontradicted, must become proof beyond reasonable doubt. This happens not because the silence of the accused is considered an extra piece of evidence, but simply because the prima facie case in a particular case is, in the absence of contradictory evidence, on logical grounds, strong enough to become proof beyond reasonable doubt. I refer to S v Boesak [2000] ZACC 25; 2001 (1) SACR 1 (CC) at [24]. See also Schwikkard and Van Merwe, supra, page 545.

Clear authority exists for the proposition that in certain circumstances an accused’s refusal to testify when the prosecution had established the prima facie case, could be a factor in assessing guilt.

The Constitutional Court has pronounced on more than one occasion that trial silence may have untoward consequences. In S v Tebus [2003] ZACC 12; 2003 (2) SACR 319 (CC), paragraph 58, the court found that:

“If there is evidence that requires a response and if no response is forthcoming ... [Then] the court may be justified in concluding that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused.”

One of the difficulties for the court in this matter is the fact that the accused have failed to explain a multitude of proven facts, not only by not testifying, but also by not even putting to witnesses their possible version. The court does not have to consider the probability of their version, as on many aspects there is no version, such as where they were at a particular date or time or what the explanation is for recorded telephonic contact between them.

Housebreaking Charge:

With regard to the housebreaking charge, the state conceded that theft would be a more competent verdict, since the elements of this offence, namely actual breaking and entering were not established. The state also conceded that the evidence linking accused no. 3 to this crime, was too tenuous for a conviction. Although no fingerprints were found on the scene of the housebreaking, accused 1 and 2 are implicated by their cell phone records, which show that they were in the vicinity and in contact with each other on the day of the housebreaking, as well as in contact on the days before and after the housebreaking.

Between 21 October 2009 and 26 October 2009, there was very frequent cell phone contact between accused 1 and 2, including contact on 15 occasions on 22 October. From Exhibit “L”, it is interesting to note that number 2 had contact with number 3 and number 1 in the days before 27 October while he was in Nyanga, where he resided. On 26 October, he and number 1 communicated twice and on the day of the housebreaking, 27 October, accused 1 and 2 contacted each other 17 times (Exhibit “DD”), starting with a call from number 1 to number 2 at six o’clock in the morning, while she was still at home in Khayelitsha and he in Nyanga. At 07:29, 07:32 and 07:35 there was contact between them and by now both accused had arrived in the Newfands area. At 09:03 accused 1 sent number 2 an SMS from the Newlands area while he was in Rondebosch, having ostensibly just left Newlands. By 09:35, when accused 1 again contacted number 2, he was already in Observatory area, from where he returned to his home in Nyanga. The last contact between accused 1 and 2 of a successive series of 10 calls, that is the last 10 calls between them on 27 October, was at 21:28, she had returned to Khayelitsha and he had also arrived in the same area where he did not live.

This extensive cell phone contact was not explained by the two accused and accused 2 never denied or explained his presence in the vicinity of Mr Caverni’s home on the morning of 27 October 2009. Accused 1 never explained why it was necessary to contact number 2 repeatedly immediately before and after her employer’s house had been broken into and why, with only a few exceptions, he was the only one that she called that day on that particular number of hers.

Mr Caverni testified that he was the only person who knew where the key to the safe was, even his live-in partner did not know. The evidence was that the Mr Caverni and Ms Du Toit had a good relationship with accused 1. She had worked for Mr Caverni for eight years by the time of the burglary and was a person who could access the premises and disarm the alarm. She would most probably be aware of where Mr Caverni kept not only his safe, but also the spare key to the safe and she must have ascertained what he kept in the safe. This is the only explanation how the house was accessed without activating the alarm, that in the past had functioned effectively. This explained why the paintings in the bedroom were removed and the key found, and why only the items in the safe were removed, despite the fact that Ms Du Toit’s jewellery was there for the taking.

It was the undisputed testimony of Ms Du Toit that after the break-in, accused 1 never returned to work and never alerted her employers to the reason for her absence and that she did not respond to calls from them. Accused 1 was only arrested some three weeks later and, from her cell phone records, we know that she was not averse to using her cell phone and at times called from two numbers during this period.

Finally, the husband of accused 1 was killed the very next morning with a firearm, using the same cartridges as the calibre firearm and cartridges stolen from Mr Caverni’s home the previous day, in circumstances where number 2 was shown to have been in the area of the murder, both by virtue of his cell phone records and by virtue of an eyewitness. It has also been shown that the deceased was murdered within less than an hour after cell phone contact by number 2 with number 1, who had by now made sure that she was not in the area.

The only reasonable conclusion from the testimony presented to court in the absence of any explanation from either accused 1 and 2, is that accused 1 and 2 planned that number 2 would steal Mr Caverni’s firearm and that with the assistance of accused 1, he did just that.

It is, therefore, our unanimous finding that accused 1 and 2 are guilty of the theft of the items from Mr Caverni’s safe and that their unexplained denial of this charge falls to be rejected.

Both accused 1 and 2 are accordingly found guilty of theft in regard to this charge. Due to a lack of evidence against accused 3, despite some suspicions in this regard, he is found not guilty on this charge.

Murder Charge:

The state alleged a common purpose, premeditated murder by the three accused. Incorporated in the argument of the state is a submission that the three accused planned to steal the firearm in order to use it to kill the deceased almost immediately after the theft. It was not disputed that the cartridge case found on the scene after the deceased had been shot and killed, was a cartridge case of a 7,65 calibre firearm, the same calibre as the stolen firearm. The court was asked to conclude and find that the same stolen firearm was used to kill the deceased, although the stolen firearm was never found.

The evidence presented by the state was that accused 1 repeatedly informed her friend, Ms Nofemele that she wanted to kill her husband, that if he had been killed during a burglary, she would not have minded, and even that she had tried, unsuccessfully, to murder him with rat poison. Ms Nofemele was a good, intelligent, unshaken witness, who never deviated from her highly believable version and who had no discernabie motive to discredit accused 1.

A further building block in the version of the state of accused 1’s desire to end the life of her husband, was the testimony of Siyasanga and Sivenatha. Of these two, Siyasanga was the more intelligent. He had heard from the less sophisticated Sivenatha, that accused 1 had asked him to assist to kill her husband. When he, himself, went to number 1 to ask for a small loan, he was asked about the operation of a firearm. He and Sivenatha discussed the matter. Sivenatha could not go through with such a deed, especially since he knew the son of the deceased. Both of them testified to an instance where number 1 contacted them by cell phone and told them to come “the door is open”. It is true that their testimony on this aspect differs, but in material respects, their evidence corroborate each other and we believe they may have recalled the evidence differently as a result of time delays, shock and discussion on the subject.

Of importance is the testimony of Sivenatha that when he arrived at the scene of the murder, shortly thereafter, he said to the people gathered there that “the woman has done what she planned to do”, or words to that effect. That he said this was confirmed by Amos Wana. We were informed, during the hearing, that the community blamed number 1 for the murder of her husband and we know that Sivenatha told his version to the police and also told the police of accused 1’s request to Siyasanga. Siyasanga also confirmed his version to the police. Both Sivenatha and Siyasanga testified that accused 1 called them cowards and told them that she found other people to do the job.

The deceased was murdered on his way to the taxi rank. The evidence showed that he did not catch a taxi to work every day, but sometimes used a truck from his employment. On the fateful day, he did not use the truck. His assailants must have known that he would not be using the truck on that day and they also knew where on the route to wait for his arrival. The deceased had a good relationship with his stepdaughter, with whom he shared the home with accused 1. The only person who could have advised the assailants of the presence of the deceased en route to the taxi rank, and the time that he would leave, was accused 1. She telephonically contacted accused 2 many times the previous day and evening and contacted both accused in the short period of time before the deceased was killed in the early hours of the morning. It can only be concluded that she was the person who advised the assailants what the movements of the deceased would be on the particular morning.

There is also the testimony of Lwandile, that he admitted to number 1 that he had heard about “that thing”, which apparently referred to accused 1’s wish to have her husband killed. This was apparently a reference to a discussion that he had had with his friend, Kolikeli, who was also a friend of accused 1. The discussion with accused 1 on this subject, was just before accused 2 and 3 discussed, with Lwandile, that accused 1 wanted to have her husband killed and had offered to pay them for the job, showing him her number on their phones. From the cell records we know that the number or numbers were known to them, despite their denials of this testimony.

Not only did Sivenatha identify accused 2 as one of the two young men that he saw running away from the very street where the murder had been committed, directly after the murder of the deceased, but the cell phone records of accused

1. and 3 show conclusively that they were both in the area where the murder was committed during the relevant early hours of the morning, in an area where they had no business to be at that stage. Their presence was never denied or explained to the court. I will not dissect the cell phone evidence again, save to point out that the contact between the three accused started very early on the morning of 28 October 2009 and continued until the date of their arrest. Extensive

contact that was not explained, and in fact in regard of accused 3, was denied, although the contents of the cell phone records were not denied and showed the contrary.

Although accused 3, the only accused who testified, struck me as a shrewd witness, who exhibited more intelligence and maturity than one would expect considering his relative youth. He was astute to perceive when certain aspects of his evidence was open to challenge and at times he changed and adjusted his version to make it more believable. The many contradictions in his evidence with the testimony of state witnesses and with recorded documentary evidence, indicated to the court that he was an unreliable, untruthful witness.

Some aspects where his version is clearly fabricated and contradictory to believable state evidence include:

1. His testimony that he did not know accused 1 and did not have her cell phone number.

2. That Lwandile gave him his phone.

3. That he only went to the mall, because number 2 asked him to accompany him.

4. That he was at the mall, window shopping, some time before his arrest.

5. That it was Gojo who reprimanded him in the car in Xhosa en route to the police station, evidence contradicted by several state witnesses.

6. That the police asked about Lwandile before he gave his statement.

7. That Bobotjana was a cell guard on 19 November.

8. That he was not warned of his constitutional rights in terms of SAP14A at the police station. There is documentary signed proof to the contrary.

9. That he was assaulted by numerous detectives, most of whom he could not identify in court and contradictory to the testimony of eight detectives that the detectives left the police station after the arrest.

10. That Hlako remained at the station and called Van Wyk on 19 November to take his statement, contradictory to Van Wyk’s own testimony.

11. That he did not compliment a female cell guard.

12. That he did not know the cell guards who booked him into the cell and that he shared a cell with only number 2 initially.

13. That the interpreter did not arrive with Van Wyk.

14. His version in court that the entire statement to Van Wyk was fabricated, was clearly untrue, only sections implicating Lwandile were, on the face of it, fabricated. The bulk of the contents of the statement confirmed the state’s evidence.

15. His evidence that accused 1 did not point him out as a culprit at the mall, was shown to be false and is rejected.

The statement of accused 3 to Captain Van Wyk was admitted by the court, as on his own evidence he was not influenced unduly to make the statement, but made it, as he thought it was a way he could escape incarceration. No further evidence or document in this matter has persuaded the court that the acceptance of the statement was a mistake. As stated, accused 3 testified that the statement was mainly a fabrication. Despite the fact that he alleges that his statement to Van Wyk was a fabrication, he confirmed many aspects of the statement during his testimony, including the obvious falsehood that Lwandile gave him his phone. There is no indication whatsoever why Lwandile, who denied this, would have given his phone to accused 3. As noted previously, the accused did not have telephonic contact with Lwandile at any relevant time, if ever.

The statement of accused 3 corroborates the cell phone evidence of his presence at the scene of the murder. We also know that Sivenatha saw a man running away with accused 2. His allegations that the contents of the statement were fabrications based on what he heard from detectives who questioned him, is not only improbable, it borders on the

preposterous and is rejected. In essence, the version of accused 3 supports and corroborates the evidence presented by the state, with the only exception being that he implicates and involves Lwandile in the matter and minimises his own role. He confirmed that the murder was early in the morning, that he and number 2 were standing on a corner, that a shot was fired and the two of them ran away and that accused 1 paid the perpetrators for the deed. He even knew that accused

1. telephoned on the day of his arrest to advise the perpetrators that she would pay them more money for the deed, an aspect he was suspicious about. This statement, accordingly, shows the involvement of accused 3 in the murder of the deceased and his presence at the scene where the murder was committed at the relevant time, as stated, a fact confirmed by his cell phone records that remain unexplained.

The court accepts the evidence contained in the statement of accused 3 to the extent that it is consistent with the evidence of the state witnesses. The evidence of accused 3 in the statement which is contradictory to the state’s evidence is rejected.

The court is accordingly satisfied that accused 3 admitted his presence in the area where the murder was committed, although he tried to put the blame on Lwandile, for reasons that were explained by Lwandile, even from before his arrest, on the telephone to Hlako. In addition, accused 3 has never denied being in the area where the deceased was killed at the time of the murder and has not provided the court with any explanation for his presence in the area. Accused 3’s evidence relating to his denial of his involvement in the matter, is not reasonably possibly true and is rejected.

The fact of the involvement of all three accused in the murder, is further strengthened by the pointing out in Promenade Mall. Accused 1 agreed to point out the people involved in the killing of her husband. In fact, she told Hlako “these are the young boys” and that there were no other culprits. She agreed to pretend that she would pay them more money. Accused 3 later said to Hlako he thought it was a trap, but hoped he would be lucky. In his statement he pretended that it was Lwandile who was suspicious about this aspect. Accused 1 told Hlako, by indicating and verbally, on three occasions, that accused 2 and 3 were the correct suspects. She even asked for protection as they were dangerous. Subsequent to their arrest, all three accused agreed to make incriminating statements. There was no denial or explanation for this testimony.

The evidence of the state was well presented to provide the different blocks of the puzzle in this matter. No possible evidence was ignored. The police witnesses generally impressed me as honest and reliable. Sergeant Hlako worked hard and left no stone unturned to make sure the investigation was thorough. He gave his testimony in a calm and composed, consistent manner. He testified on the same set of facts and circumstances on two separate occasions within the space of a month and a half, because of the trial-within-a-trial proceedings. On both occasions, he was in the witness box for more than a day. Notwithstanding this, and vigorous cross- examination, his version remained consistent and he was unshaken. His evidence, and that of other police witnesses, as well as documentation, corroborated each other and there were very few, if any, discrepancies in their evidence. The court has no reason to doubt his credibility or reliability, nor do we doubt the credibility or reliability of the other state witnesses on material aspects.

Accused 1 and 2 elected not to testify and relied mainly on their denials in court for their acquittal. They chose not to explain their frequent, highly suspicious, cell phone contacts with each other and accused 3 at critical times, not even by putting a version through their legal representatives. Number 2 chose not to explain where he was at the relevant times on either 27 or 28 October 2009, if he was not where the cell phones indicated, and if he was not running away from the scene of the crime, as testified to by a witness. No innocent explanation was given for his presence on these days. The version alleged by number 2 and number 1 relating to why he agreed to meet number 1 at the mall, namely to pay for a dress, was shown to be a lie. Number 1’s version that she did not know and did not contact number 3, was a lie. There is no reasonable possible version or innocent explanation of any accused before court. In the premises, their denials of their involvement in the murder of the deceased are rejected.

The state argued that the accused acted with a premeditated common purpose to murder the deceased. The argument advanced was that an agreement to commit the crime can be inferred from their actions and from their proven regular telephonic contact at crucial stages, as well as from the fact that the evidence shows that accused 1 paid the accused for their services after the event. It is, therefore, argued, correctly in our view, that the state showed a causal connection between the accused with common knowledge of the crime they were planning to commit. The court can conclude from the evidence presented, that the three accused all contributed to the crime and associated themselves with the fatal consequences of their attack on the deceased.

It is trite law that common purpose can be inferred by the court from joint actions. In the circumstances, each of the accused is liable for the acts which the other performed in the furtherance of their common purpose. In this matter, it cannot be argued that any accused was indifferent to the act or consequences thereof.

The three accused, accordingly, in our view, each acted with dolus directus in a premeditated murder. THE THREE ACCUSED ARE ACCORDINGLY ALL FOUND GUILTY OF MURDER AS CHARGED.

Attempted Murder:

Although the state has shown that accused 1 wished to end the life of her husband and even told her friend, Ms Nofemele, that she had poisoned his food, which was not proved to have had any detrimental effect, THE STATE HAS NOT PROVED THE CHARGE OF ATTEMPTED MURDER AGAINST ACCUSED 1 AND ON THIS CHARGE SHE IS ACQUITTED.

Counts 3 and 4 of the charge sheet: unlawful possession of a firearm and illegal ammunition:

With reference to the judgement referred to above, S v Khambule, the state requested the court to find, by inference, that all three accused are guilty of the charges of unlawful possession of a firearm and ammunition. By virtue of the facts and legal principles set out above, and the finding of the court relating to the theft of a firearm and the murder of the deceased by the use of a firearm and ammunition by one of the three accused, while the three accused were acting with a common purpose with the intention to murder the deceased, the court finds that the three accused jointly exercised possession of the firearm. ACCORDINGLY THE COURT FINDS THE THREE ACCUSED GUILTY ON THE CHARGES RELATING TO POSSESSION OF A FIREARM AND AMMUNITION FOR SUCH FIREARM, as these charges were set out in count 3 and 4 of the charge sheet.

STEYN,J

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