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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO:  CC 04/2018

In the matter between:

THE STATE

and

VERNON JUNAID WITBOOI                                                                                Accused 1

GERALDO PARSONS                                                                                          Accused 2

EBEN VAN NIEKERK                                                                                           Accused 3

NASHVILLE JULIUS                                                                                             Accused 4

JUDGMENT DELIVERED ON 7 NOVEMBER 2018

ALLIE, J:

1. The accused were indicted on the following charges:

1.1. Accused 1,2 and 3:

1.1.1 Count 1- Robbery with aggravated circumstances in that the accused on or about 27 May 2017 at Jan Celliers Street, Stellenbosch, in the district of STELLENBOSCH, did unlawfully and intentionally assault CHESLIN CLAUD MARSH with the intention to submit him into submission by threatening to kill or hurt him with a knife and screwdriver and/or pushing him in the boot of a Volkswagen Citi Golf motor vehicle and then and with force took certain possessions from him.

AND FURTHER THAT the accused acted in a common purpose.

AND THAT aggravating circumstances as described in section 1 of Act 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or threatened to inflict grievous bodily harm to CHESLIN CLAUD MARSH.

AND FURTHER THAT the provisions of section 51(2) (a) of Act 105 of 1997 are applicable in that this crime is mentioned in Part II of Schedule 2 of the said Act.

1.1.2 Count 2- Robbery with aggravated circumstances in that the accused on or about 27 May 2017 at Jan Celliers Street, Stellenbosch, in the district of STELLENBOSCH, did unlawfully and intentionally assault HANNAH CORNELIUS with the intention to force her into submission by threatening her with a knife and/or screwdriver and/or pushing her between the passenger seats of a Citi Golf motor vehicle CL 7651 and/or driving with her inside a Volkswagen Citi Golf motor vehicle, and then and with force took certain possessions from her.

AND THAT the accused acted in a common purpose.

AND THAT aggravating circumstances as described in section 1 of ACT 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or inflicted grievous bodily harm HANNAH CORNELIUS.

AND FURTHER THAT the provisions of section 51(2) (a) of Act 105 of 1997 are applicable in that this crime is mentioned in Part II of Schedule 2 of the said Act.

1.1.3 Count 3- Kidnapping in that the accused on or about 27 May 2017 at or near Jan Celliers Street, Stellenbosch and/or Stellenbosch area and Kraaifontein area, in the districts of STELLENBOSCH and KUILS RIVER, did unlawfully and intentionally deprive CHESLIN CLAUD MARSH of his freedom of movement by, driving with him against his will inside motor vehicle Volkswagen Citi Golf CL 7651;

i) from Bird Street, Stellenbosch to an unknown place(s) in Stellenbosch where he was forced into the trunk of a Volkswagen Citi Golf, and

ii) from an unknown place in Stellenbosch to the Kraaifontein area.

AND FURTHER THAT the accused acted in a common purpose.

1.1.4 Count 4- Kidnapping in that the accused on or about 27 May 2017 at Jan Celliers Street, Stellenbosch and/or Kraaifontein and/or Bottelary Road and/or Groenhof Farm Stellenbosch, in the districts of Stellenbosch and KUILS RIVER, did unlawfully and intentionally deprive HANNAH CORNELIUS of her freedom of movement by pushing or forcing her between the two seats of a Volkswagen Citi Golf motor vehicle and driving with her against her will:

i) From Bird Street, Stellenbosch to an unknown place in Stellenbosch;

ii) From an unknown place in Stellenbosch to Kraaifontein area;

iii) From Kraaifontein area to another area in Stellenbosch where CHESLIN MARSH was taken out of the motor vehicle;

iv) From the area in Kraaifontein where CHESLIN MARSH was taken out of the vehicle to the Reapers Paint Ball Range on the Bottelary Road;

v) From Reapers Paintball Range on the Bottelary Road to Groenhof Farm, Stellenbosch.

AND FURTHER THAT the accused acted in a common purpose.

1.1.5 Count 5- Attempted murder in that  the accused on or about 27 May 2017 at or near Kraaifontein, in the district of KUILS RIVER, did unlawfully and intentionally attempt to kill CHESLIN CLAUD MARSH a male person, by stabbing him with a sharp object(s) and/or stoning him with bricks to his head and body and/or performing other unknown acts of serious physical violence against his body;

AND FURTHER THAT the accused acted in a common purpose.

1.1.6 Count 6 - Rape as contemplated by section 3 of the Criminal Law  (Sexual Offences and related matters) amendment Act, 32 of 2007, and further read with section 51(1) and Schedule 2 Part 1 of Act 105 of 1997; in that the accused on or about 27 May 2017 at or near Reapers Paintball Range, Bottelary Road, Stellenbosch, in the district of KUILS RIVER, did unlawfully and intentionally commit act(s) of sexual penetration with the complainant, to wit HANNAH CORNELIUS a female person, by each of them putting or pushing their penises into or beyond the vagina of the said HANNAH CORNELIUS, without her consent;

AND FURTHER THAT the provisions of section 51(1) of Act 105 of 1997 are applicable in that this crime is mentioned in Part 1 of Schedule 2 Rape paragraph (a) (ii) of the said Act in that more than one person raped the complainant in the execution of a common purpose or conspiracy and (c) grievous bodily harm was inflicted during the rape.

1.1.7 Count 7- Murder as contemplated by section 51(1) and Schedule 2 Part 1 of Act 105 of 1997 in that the accused on or about 27 May 2017 at or near Groenhof Farm, Koelenhof, Stellenbosch, in the district of KUILS RIVER did unlawfully and intentionally kill HANNAH CORNELIUS, a female person, by stabbing her twice with a sharp penetrating object(s) in her left neck and/or by throwing a big rock on her head and/or by performing unknown acts of severe blunt force trauma to her head or body;

AND FURTHER THAT the provisions of section 51(1) of Act 105 of 1997 read with Schedule 2 Part I Murder (c) (i) are applicable in that the death of the victim was caused by the accused in committing or after having committed rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters Amendment Act, 32 of 2007).

AND FURTHER THAT the provisions of section 51(1) of Act 105 of 1997 read with Schedule 2 Part 1 Murder (c) (ii) are applicable in that the death of the victim was caused by the accused in committing or after having committed robbery with aggravated circumstances as defined in section 1 of the Criminal Procedure Act, 51 of 1977.

1.1.8 Count 8- Robbery with aggravated circumstances as contemplated by section 51(2)(a) read with Schedule 2 Part II of Act 105 of 1997 in that the accused on 27 May 2017 at Northpine Drive, Kraaifontein, in the district of KUILS RIVER, did unlawfully and intentionally assault NCUMISA QWINA with the intention to force her into submission by chasing her until she fell and/or performed an act which looked like taking something out of his pants and then with force took certain possessions from her.

AND THAT the accused acted in a common purpose.

AND THAT aggravating circumstances as described in section 1 of Act 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or inflicted grievous bodily harm and/or threatened to inflict bodily harm to NCUMISA QWINA.

AND FURTHER THAT the provisions of section 51(2) (a) of Act 105 of 1997 are applicable in that this crime is mentioned in Part II of Schedule 2 of the said Act.

1.1.9 Count 9- Robbery with aggravated circumstances as contemplated by section 51(2)(a) read with Schedule 2 Part II of Act 105 of 1997;  and in that the accused on 27 May 2017 at Langenhoven Way, Soneike, Kuils River and/or the ATM Brackenfell and/or Bottelary Road in the district of KUILS RIVER, did unlawfully and intentionally assault MIEMIE OKTOBER with the intention to force her into submission by performing the following acts:

i) Grabbed her bag and threatened her with physical assault to get into a Citi Golf motor vehicle; and/or

ii) Driving with her inside a Volkswagen Citi Golf motor vehicle and forcing her to provide her bank pin;

AND took certain possessions and money from her.

AND THAT the accused acted in a common purpose.

AND THAT aggravating circumstances as described in section 1 of Act 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or inflicted grievous bodily harm and/or threatened to inflict bodily harm to MIEMIE OKTOBER.

AND FURTHER THAT the provisions of section 51(2) (a) of Act 105 of 1997 are applicable in that this crime is mentioned in Part II of Schedule 2 of the said Act.

1.1.10 Count 10- Kidnapping in that the accused on 27 May 2017 at Langenhoven Way, Soneike, Kuils River and/or the ATM Brackenfell and/or Bottelary Road and/or Kruis Road Brackenfell in the districts of KUILS RIVER and STELLENBOSCH, did unlawfully deprive MIEMIE OKTOBER of her freedom of movement, by driving with her against her will, captured inside a motor vehicle, from Langenhoven Street, Kuils River to a Petrol Station in Kruis Road, Brackenfell and/or to Kuils River Golf Club in a Volkswagen Citi Golf motor vehicle.

AND FURTHER THAT the accused acted in a common purpose.

1.2. Accused 4 was charged with the following:

1.2.1. Count 1:  Robbery with aggravated circumstances

1.2.2. Count 2:  Robbery with aggravated circumstances

1.2.3. Count 3:  Kidnapping

1.2.4. Count 4:  Kidnapping

2. Accused 1 pleaded guilty to  a competent verdict of robbery without aggravating circumstances on counts 3,4 and 10 but after the court’s questioning in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977, his plea of guilty was not accepted and it was changed to not guilty.

3. Accused 1 pleaded not guilty on the remaining counts.

4. Accused 2, 3 and 4 pleaded not guilty on all counts.

5. All the accused made formal admissions in terms of section 220 of the Criminal Procedure Act.

6. Those admissions concerned the following:

6.1. The identity of the deceased;

6.2. The injuries sustained by the deceased;

6.3. The pathologist’s crime scene report;

6.4. That the cause of death was severe blunt head injuries and sharp penetrating injuries to her neck;

6.5. The autopsy report;

6.6. The cellular phone, IMEI number and sim card of the deceased;

6.7. The cellular phone, IMEI number and sim card of the Cheslin Marsh;

6.8. The Blue Citi Golf possessed by the deceased;

6.9. The key, plan, statement and crime scene  photographs, taken at Groenhof Farm; at Bernadino Heights, Kraaifontein; at Reapers Paintball club and at Dwars in die Weg Farm;

6.10. The photographs taken at Dr Tiemensma’s medical examination of accused 1 and accused 2; photographs taken of Cheslin Marsh at the time of his medical treatment at Kraaifontein Community Health Centre and photographs of the autopsy;

6.11. Dr Tiemensma’s J88 report in respect of accused 1 and 2;

6.12. Buccal samples taken from Mr Marsh as well as other DNA samples taken from him and buccal samples taken from each accused;

6.13. Dr Gororo’s medical report concerning the treatment of Cheslin Marsh at Tygerberg Hospital;

6.14. The collection, sealing and testing of swabs taken from the bodies of accused 1, 2 and 3;

6.15. The collection, packing and sealing of the clothes of accused 1 and 2;

6.16. That the DNA reference samples taken from accused 1, 2, and 3 were correct;

6.17. The statement of the Vodacom specialist concerning the data messages extracted from the deceased ’s phone ;

6.18. Accused 1 admitted that the identity parade was correctly conducted and the report was admitted

7. Accused 1 made a confession, to Lieutenant Colonel Bredenhann which was reduced to writing and captured on audio-visual footage. Accused 1 had no objection to its admissibility

8. In the confession, accused 1 states that he:

8.1. He was in the company of his co-accused on the evening of 26 May 2017 through to 27 May 2017 as he used drugs with them;

8.2. The accused went into the town of Stellenbosch at the suggestion of accused 2 to see what they could find;

8.3. They saw a blue Golf motor vehicle with 2 people sitting inside,  parked near Lavanda Flats;

8.4. Accused 2 said they should rob the two people of the vehicle and put them inside the boot;

8.5. Accused 2 stormed into the car and pushed the man to the middle, while accused 1 went to the driver’s side to look for the keys and pushed the girl to the middle and Accused 4 robbed the man of his wallet and cell phone;

8.6. Accused 2 took the car keys and said that accused 1 must help him put the man in the boot;

8.7. Accused 1 opened the boot for the man;

8.8. Accused 3 sat in the back seat of the car and accused 4 left them after he robbed the man;

8.9. Accused 2 drove the vehicle, the girl sat in the front passenger seat  and accused 1 also sat in the back seat;

8.10. Accused 1 said they have the cell phones which they can sell but accused 2 said he had a buyer for the car;

8.11. They drove to Kraaifontein to a person called Eben who had a shack there to buy drugs to smoke. That is where accused 1 saw that accused 2 had a firearm;

8.12. The girl went into the shack with them while the man was still in the boot;

8.13. They drove to an African male’s place who gave them a Tik lolly and dagga pipe. Accused 1 referred to that male as “Kaffirtjie" who allegedly accompanied them in the car.

8.14. They used the drugs in the car;

8.15. Accused 2 stopped at some bush and took the man out of the boot and into the bush. Accused 1 remained alone in the car with the girl;

8.16. After approximately a half hour, they came out of the bush without the man. Accused 1 asked what happened to the man and accused 2 said that he tied the man up and left him in the bush because he wanted to get rid of the man so that he could sell the car;

8.17. They again drove to a shack in Kraaifontein where accused 2 and Kaffirtjie went inside and returned;

8.18. On their way back to Stellenbosch, they stopped near some bush and accused 2 said they were going to have sexual intercourse with the girl but accused 1 declined;

8.19. Accused 2 ,3 and Kaffirtjie had sexual intercourse with the girl in the bush while he remained smoking in the car;

8.20. Accused 2 allegedly said that accused 1 missed out and that accused 2 went first, followed by accused 3 and Kaffirtjie;

8.21. The girl sat next to him with her head on his shoulder and he could see that she was in pain because she had tears. It was the first time he made eye contact with her. As she came back to the car after being in the bush, she was still putting on her jacket;

8.22. Later they stopped at some vineyards but it was dark and accused 1 couldn’t see what accused 2, 3 and Kaffirtjie were doing but they took the girl into that area and they came back without the girl;

8.23. He asked accused 2 what happened to the girl and he said that he tied her up and farmworkers would find her the next day;

8.24. He saw that accused 2 put his firearm between his legs when he climbed into the driver’s seat;

8.25. They drove back to Kaffirtjie’s house where they left him;

8.26. Accused 1, 2 and 3 drove to Eben’s house and Eben joined them;

8.27. They drove around in Kraaifontein and it was daylight;

8.28. Accused 2 threatened a woman walking along the road with a firearm and told her to get inside the car which she did;

8.29. Eben took her bag, her bank card and cell phone and he forced her to provide her pin number;

8.30. Accused 2 told him to withdraw money from the bank card as he was nicely dressed;

8.31. Later they dropped the woman and they gave Eben R1000 and two cell phones;

8.32. They also dropped accused 3 and accused 2 said that accused 1 must accompany him to Delft where the car could be sold;

8.33. Accused 1 alleged that he didn’t want to go with and argued with accused 2 who beat him with his fist and with the firearm;

8.34. The police spotted them  and chased them but accused 2 said that if he surrendered, accused 2 would hurt accused 1’s family;

8.35. Accused 2 stopped the car when they couldn’t drive any further and accused 1 jumped out and ran through a river and was apprehended there by the police;

8.36. He alleged that the scrape marks on his body were caused by accused 2 fighting with him while the police were chasing them because he wanted to jump out of the car.

8.37. He cried during his description of how the police began chasing them.

9. Accused 3 made certain allegations when Colonel Beneke took his warning statement on 30 May 2017 after his rights were explained to him. Those allegations  are as follows:

9.1. Accused 3, accused 2, accused 1 and another person whose name he doesn’t know were  walking near Kilotreads in the early morning hours of 27 May 2017 when accused 1 observed that there were people inside a Blue Golf;

9.2. He would prefer to explain his involvement to the Legal aid because he can’t dispute that he was with them but he didn’t commit any crime.

10. Accused 3 initially challenged the admissibility of a letter that he allegedly wrote to the parents of the deceased on the ground that Sergeant Adams suggested that he write the letter but after giving evidence in a trial within a trial to determine admissibility; his legal representative said that he was abandoning the challenge to admissibility. The court nonetheless ruled that the letter was admissible because it was not proved to have been made under duress or undue influence and because accused 3’s rights were explained to him the day before he wrote the letter.

11. The letter contains the following:

11.1. Accused 3 expresses regret for what he had done;

11.2. Accused 3 asks the parents of the deceased to forgive him;

11.3. Accused 3 alleged that he wanted to help the deceased but he could not because his co perpetrators would see;

11.4. He alleged that the deceased was like a friend;

11.5. He was also scared of the other accused;

11.6. It wasn’t nice to see;

11.7. He asks the parents of the deceased not to be angry with him.

12. Accused 4 made a statement to Captain Rossouw in which he declared as follows:

12.1. On the evening of 26 May 2017, he met accused 1, 2, and 3 while he was walking home;

12.2. Accused 1 asked him if he had a Tik lolly and then they walked together to a  flat where they smoked;

12.3. Accused 1 told him to go with them to Lavanda flats and he joined them;

12.4. On the way there, accused 2 said that there was a blue Golf car parked nearby;

12.5. Accused 1 then said that there were people in the car and they should go see who was inside the car;

12.6. They then walked around Kilotreads, a business premises;

12.7. Then accused 1 and 2 approached the car ahead of accused 3 and 4;

12.8. Accused 3 and 4 approached the car afterwards;

12.9. When accused 3 and 4 arrived at the car, the two front doors were open with accused 1 standing by the front passenger door and accused 2 standing by the driver’s door, where accused 2 made the woman move up from her driver’s seat to the middle while accused 1 sat in the front passenger seat;

12.10. Accused 2 moved to the passenger front door and pulled a coloured man out of the car;

12.11. Accused 1 told accused 3 and 4 that they must climb into the back seats and he made the coloured man sit in the middle of the back seat between accused 3 and accused 4;

12.12. The woman asked them what they were looking for and accused 2 said they are looking for the car keys;

12.13. The woman said that she didn’t know where the keys were;

12.14. Accused 1 and accused 2 started looking for the keys with their cell phones under the seats;

12.15. That is when accused 4 searched the man and robbed him of his cell phone and R40 from his wallet;

12.16. Accused 4 then looked for the keys outside the vehicle;

12.17. Accused 2 started looking for the keys at the other car;

12.18. Accused 4 looked until he walked around the corner and thereafter he walked away;

13. The admissibility of the statement wasn’t disputed.

14. The complainant in counts 1, 3 and 5, Cheslin Claud Marsh testified as follows:

14.1. He, the deceased, Hannah Cornelius and other friends were socialising on the evening of 26 May 2017 at the residence of University of Stellenbosch where they were enrolled last year.

14.2. The deceased insisted that she drive him home to the flat in Stellenbosch town where he lived.

14.3. He put his long skateboard on the back seat of the car and they drove to a parking area outside his apartment.

14.4. They were chatting in the car for a while.

14.5. He was about to open the front passenger door to leave, when he saw a hand holding a screwdriver at the driver’s side window pointed at Hannah.

14.6. He closed his door and gripped the hand.

14.7. Suddenly, someone opened his door and pointed a knife at him saying: “Staan stil of sy gaan dood.”  That person climbed into his seat and forced him to move to the back seat.

14.8. The person holding the screwdriver climbed into the driver’s seat and forced Hannah to sit in the middle between the two front seats.

14.9. A third person climbed into the back left seat and a fourth into the back right seat. They were all coloured men.

14.10. The man on his right searched Mr Marsh and robbed him of his cell phone and the content of his wallet which had a small amount of money in it.

14.11. The two men in front were looking for the car’s keys which Hannah had hid and they became irritated when they couldn’t find the keys. They threatened to kill them.

14.12. After searching in the car with the light from cell phones, they found the keys and started driving away.

14.13. Hannah asked them what they were going to do and the driver said that they just wanted to drive themselves home and then they would give back the car.

14.14. Hannah’s cell phone and wallet was on the dashboard in the front of the car.

14.15. Hannah asked them not to take the car because it was her grandmother’s.

14.16. They drove in the direction of Helshoogte Pass onto a gravel road.

14.17. The man on his left got out of the car and told Marsh to go to the back of the car.

14.18. That man told Marsh to go inside the boot, which he did but one of the men also told him to take off his shoes before getting into the boot.

14.19. He could hear people speaking inside the car but he couldn’t see inside.

14.20. He was in shock. He felt very claustrophobic and helpless.

14.21. He heard them speaking inside the car about going to the merchant;

14.22. After driving for a long time, the vehicle stopped and the boot was opened and one assailant showed Marsh lying in the boot to another person;

14.23. One man frisked him and stole his jacket, his bank card, his diamond earrings and they asked for his pin number but he gave the wrong number;

14.24. They closed the boot again and drove further;

14.25. Not long thereafter, the car stopped again and he heard the doors open and close and one of them said they got what they were looking for;

14.26. He heard a whistling sound and the sound of a lighter and he assumed that they were smoking Tik;

14.27. They stopped again and someone hit on the boot lid and said that he gave them a wrong pin number;

14.28. They drove further and stopped again and someone asked: “ Wil julle daar binne gaan rook?”

14.29. One person said that they can’t leave the girl alone and they all got out;

14.30. Later he heard everyone get back into the car and they drove off again;

14.31. Hannah asked in a soft, frightened voice where are they going and what are they going to do;

14.32. He could hear from Hannah’s emotional state that she was scared;

14.33. They asked him how much he has in his account and he said R50. Then someone came back to the car after it stopped and said he has nothing in his account;

14.34. As the car was driven further, he could hear that they were driving on a gravel road;

14.35. When the car stopped,  the boot was opened and two men stood by the boot and told him to get out and go with them;

14.36. They walked into a bushy area until they stopped at a tree where there were bricks on the ground;

14.37. They told him to put his head on the bricks;

14.38. He saw the two men had half bricks in their hands;

14.39. He closed his eyes and prayed;

14.40. He couldn’t remember what happened thereafter but it was dark at that time;

14.41. When he regained consciousness, the sun started rising;

14.42. He realised that he could stand up and so he tried to see where he was and ran to the nearest house’s wall;

14.43. He climbed over the wall in search of help;

14.44. He ran around the yard and knocked on the door but the people chased him away;

14.45. The police arrived and he was taken to the Kraaifontein Community Health Hospital;

14.46. He had injuries.

14.47. He explained to the investigating officer what happened;

14.48. He  was taken from there to Tygerberg Hospital;

14.49. His arm was fractured and his head had open wounds and gashes on it.

14.50. At Tygerberg Hospital he had a brain CT Scan and his skull was found to be fractured.

14.51. He had an operation in which a metal plate was put in his left  arm;

14.52. He was transferred later to Paarl Hospital;

14.53. He had stitches to his head.

14.54. He was very emotional while he was in hospital.

14.55. He was shown 32 photos in hospital by a female police officer.

14.56. At an I.D Parade at Pollsmoor prison, he identified two people, namely accused 1 and accused 4. Accused 4 sat on his right side in the back of the car.

14.57. He had another CT scan recently. His left ear is completely deaf as a result of the injuries he sustained.

14.58. He didn’t get his longboard; wallet and cards back.

14.59. The sleeveless jacket was worn by accused 1 and can be seen on the video footage.

14.60. He wasn’t in a position to return to university because he couldn’t focus due to the trauma that he endured.

15. During cross examination of Marsh by accused 1’s representative it was put to him that accused 1 admits that he opened the passenger door of the car and pulled Marsh out but he denies that he had a knife. Marsh said accused 1 had a knife.

16. It was further put to Marsh that accused 1 denies that he threatened to kill him but Marsh said that he did.

17. It was put to Marsh that Hannah sat alone in the front passenger seat and accused 1 sat at the back but Marsh denied that.

18. It was put to Marsh that accused 1 wasn’t one of the men that tried to kill him with a half brick but Marsh denied that allegation.

19. In cross examination on behalf of accused 4 Marsh said that accused 4 spoke in a threatening tone of voice when he robbed him but accused 4 didn’t threaten or assault Hannah.

20. Marsh agreed that accused 4 left the car after robbing him.

21. Dr Gororo who works at Tygerberg Hospital testified about Marsh’s condition when he first saw him, how he treated him and what injuries he had.

22. He differed with the doctor who treated Marsh at the Community hospital about the cause of the head injuries in that he believed that they were not caused by stabbing but by blunt trauma because brain bleeds and the base of the skull fracture are more in keeping with blunt trauma injury.

23. Marsh had a laceration of the left ear with no visible wound. He was offered a hearing aid but didn’t receive it because he had to pay for it.

24. There was some fluid leaking externally into the mastoid air cells.

25. It could have been cerebral spinal fluid or blood.

26. One of the bones in his arm was fractured.

27. The head wounds were already sutured when Dr Gororo examined Marsh but he still had raccoon eyes, i.e. bloody eyes.

28. The type of brain injuries that Marsh sustained increased his risk of death or falling ill but fortunately in Marsh’s case, his skull fracture and brain bleeds healed.

29. Dr Gororo expressed the view that Marsh was lucky to survive a severe to moderate skull fracture. Usual complications associated with that type of injury are meningitis and epilepsy.

30. It is not disputed that after their arrest, accused 1 and 2  and later accused 3, were taken to Dr Tiemensma for medical examinations and that photographs were taken of accused 1 and 2 in their clothes and without some clothes to reveal their tattoos.

31. It is also admitted that the DNA samples collected from swabs taken from the accused were correctly collected, packed, sealed and used for testing and compared with DNA found on items found on the crime scenes and with DNA belonging to the deceased.

32. Video footage taken from the CCTV of the Battery Centre near where the deceased and Marsh had sat in the car were shown and four assailants are shown walking pass the vehicle and then returning and eventually getting into the vehicle while one assailant leaves the vehicle before it drives off.

33. Video footage was shown of the blue Golf vehicle being driven into a Caltex petrol station on the corner of Bottelary and Koelenhof Road, Stellenbosch at 04h18 on 27 May 2017 and where accused 1 is seen walking to an ATM to withdraw money while wearing Marsh’s sleeveless jacket.

34. Video footage was shown of the blue Golf vehicle being driven into a Shell petrol station in Brackenfell at approximately 13h12 where accused 1 walked to an ATM followed later by accused 2.

35. Mr Jongilana testified how he and other officers found the deceased’s body lying in the grass on top of a sprinkler pipe face down and how he turned the body. He saw a large stone nearby but no blood was visible on it.

36. Constable Siko described how he was called to the scene where he was shown the body by Flippie Booysen who was repairing pipes on the farm when he found the body.

37. He showed the police photographer certain items on the scene that he noticed such as a ladies hair tie and tyre marks.

38. He also described how he saw the deceased’s vehicle driven by accused 2 and he pursued them and eventually he apprehended accused 1 after the blue Golf stopped at the farm, Dwars in die Weg and the suspects jumped out of the car and fled.

39. Video footage was shown of accused 1 and 2 being pursued by police on 27 May 2017 at 14h27. 27 seconds while they were in the blue Golf vehicle of the deceased and thereafter they were apprehended. Constable Siko confirmed that it correctly depicted the chase which ended with the apprehending of accused 1 and accused 2.

40. Warrant Officer Van Langelaar said that he took imprints of the tyre marks at the crime scene at Groenhof Farm and he compared it to imprints of the tyres of the blue Golf that was kept in police storage and they matched.

41. Sergeant Cl Adams said that he and Constable Steenberg also pursued the blue Golf driven by the suspects and that Captain Banda also pursued the suspects. He describe how he and Constable Steenberg apprehended accused 2 who had run through a grove and in the direction of the farm labourers’ accommodation.

42. Sergeant S Pieterson described how he supported his colleagues who were chasing and trying to apprehend accused 1 and 2 at a farm on the afternoon of 27 May 2017. He handcuffed accused 1 and he found a Samsung phone and R100 on accused 1 inside his pants pocket. There was no sim card in the phone.

43. Captain C E Loesch testified that he went to interview Marsh at the Kraaifontein Day Hospital. Marsh told him how he and the deceased were sitting in a car opposite his flat and how they were hijacked by 4 men and 3 of them took him to Kraaifontein where he was beaten with bricks and left. He found Marsh to be sick and confused.

44. He noticed the blue Golf on his way back to Stellenbosch and started following it. He later saw it at a farm after it was abandoned.

45. He explained that Smartie Town is an area in Cloetesville which is known for gang activity,

46. Lieutenant F J Le Roux testified that accused 1 took him to various places to do a pointing out of crime scenes, such as the Bernadino Heights area where Marsh was assaulted and left; as well as the Paintball club where the perpetrators went into the bush with the deceased.

47. Sergeant B Van der Merwe testified that he took photographs of the crime scene where the body was found and he collected, packed and sealed certain exhibits, including condoms and condom wrappers found at the Reapers Paintball Club scene.

48. Sergeant J Timmy testified he used a dog that is trained to identify human bodily fluids and the dog gave a positive reaction at the Paintball club scene. He collected condom wrappers at that scene.

49. Sergeant Van Graan testified how he heard by radio control that accused 3 was being sought on a murder charge and he went to accused 3’s house after receiving information concerning where he could be found. He found accused 3 hiding underneath a mattress and arrested him. He signed the SAP14 A Notice of Constitutional Rights given to accused 3 but he didn’t complete the Notice which was in English. He was cross examined about how he could have explained the rights to accused 3 if he spoke Afrikaans to the accused and the Notice of rights is in English. He said that he used his pocketbook but later he couldn’t find a note of having done so in his pocketbook. The witness couldn’t explain why accused 3 refused to sign the SAP14 A Notice but he signed the Warning Statement when Colonel Beneke took him through it.

50. Captain Bester testified that he compared the fingerprint found on a condom wrapper with the fingerprints of accused 2 and found that there were sufficient similarities to conclude that the fingerprint on the condom wrapper is that of accused 2.The defence declined to cross examine this witness.

51. Sergeant B Choene testified that he collected video footage at two petrol stations and at the Battery Centre in Stellenbosch. He was not subjected to cross examination.

52. Warrant Officer Ntobela testified that he took swabs of various places inside the blue Golf vehicle as well as of items, including hair fibres, grass vegetation found inside the car and grass vegetation collected at the Paintball club scene. He took photographs of what he swabbed. He sent the swabs to the police laboratory for DNA analysis. He was cross examined by accused 1’s counsel about why the Okapi knife that he photographed was on the driver’s seat whereas Sergeant Van der Merwe said he found it on the floor underneath the front passenger seat. The witness said he picked it up from the floor, put it on its side, so he could swab and photograph it. He was also questioned about why he found the bottle neck on the floor of the front passenger seat whereas Sergeant Van der Merwe photographed it outside the vehicle. The witness said he found it inside the vehicle.

53. In fact Sergeant Van der Merwe testified that he found the bottle neck and a can of spray outside the left side of the car at the scene at Dwars in die Weg farm which is where the car was abandoned by accused 1 and 2.

54. Captain N A Ngwenya testified that she compared a palm print found that she lifted from the left back side of the blue Golf, to the prints of accused 2.  She concluded that there were sufficient points of similarities to find that it matched beyond reasonable doubt.  She said that the direction of the palm print showed that the person who made it, stood at the boot and leaned on the back side of the car.

55. During cross examination, she said that there were other prints lifted from the car but the palm print was the only one that matched with the prints of accused 2.

56. Colonel D J Beneke testified that he went to the scene where the body was found. Thereafter he went to the scene of the Fortuin’s home where Marsh sought help and established where Marsh had entered those premises. He took accused 3’s warning statement and accused 3’s attitude was that he had nothing to do with the offences and that he wanted to speak about what happened but then he decided to explain his involvement to the Legal Aid.

57. Dr Deidre Kay Abrahams, the pathologist testified as follows:

57.1. After conducting a stepwise examination at the crime scene of body temperature and ambient temperature, she estimated the time of death to be between 04h00 and 09h00 on 27 May 2017.

57.2. She made a further estimate that the approximate time of death could have been at 06h30 or 07h30 within a range of 2 hours earlier or later.

57.3. She noticed a heavy rock or boulder nearby which could have been the cause of the blunt force trauma to the face, head and skull.

57.4. She described the injuries to the genitalia as follows:

57.4.1. The labia minora protruded externally beyond the labia majora due to being injured, abraded and contused which could be ascribed to rubbing without lubrication.

57.4.2. The sand found in the vestibular fossa and on the labia minora could have been caused by being on the ground with forced penetration and resistance.  She may have picked up grains of sand.

57.4.3. The cervix was closed with redness and contusion externally over the anterior and posterior lip. That type of injury as well as the injuries to the labia minora would be very painful because force is exerted against the cervix.

57.5. She described the injuries that would most likely have caused death to ensue in order from most fatal to the least fatal as follows:

57.5.1. Severe blunt head injury with skull, skull base and brain injury which are rapidly fatal, hence the most likely cause of death. So severe that it caused the skull base to fracture with tearing of the brain, pons and mid brain. Consistent with a minimum of 2 heavy blunt blows to the head from left to right with the head supported on the ground on the right ear as well as from back to front with head supported on lips, forehead and right cheek.

57.5.2. Skull base fractures extend into orbital, nasal and oral cavities. Large amount of blood in oro-pharynx.

57.5.3. She would not breathe and there would be neither further brain activity, blood circulation nor heart activity upon infliction of that injury. Brain injury is consistent with side to side and back to front compression injuries.

57.5.4. Sharp penetrating incised wound to the left neck with deep penetration through soft tissue and muscle which perforated the left vertebral artery up to the level of the cervical vertebra with surrounding haemorrhage along the wound tract and into the soft tissue and muscle. It is a fatal wound.

57.5.5. Penetrating wound to the left neck through the left sub mandibular gland and haemorrhage into soft tissue and gland. Contributed to death due to blood loss.

57.5.6. A superficial incised wound to the left earlobe.

57.5.7. A superficial incised wound to the left shoulder.

57.5.8. No evidence of blood aspiration which means that she died instantly after the blunt force head injury and didn’t breathe in any blood.

57.5.9. The neck wounds were inflicted before the head injury hence it bled. There was a large volume of blood on the scene.

57.5.10. Her jacket’s cord was tied around her neck but it was loose and there was no strangulation.

57.5.11. The neck wounds were caused by a sharp object such as a knife or screwdriver.

57.6. There were 5 superficial linear scratches on the right abdomen.

57.7. There was a peri mortal contusion with patterned imprint on the right breast.

57.8. There was an oval shaped peri mortal contusion on the left anterior rib margin.

57.9. There were 3 oval shaped areas of peri mortal contusion on the right wrist and lower arm and is more likely caused by gripping over clothing at the peri mortal stage.

57.10. Blood was found on the right hand & fingernails.

57.11. There was an oval shaped contusion on the ventral aspect of the left upper arm, ante mortem which was most likely caused by gripping the upper arm.

57.12. There were multi local oval shape and confluent contusions on the left lower arm which are consistent with ante mortem gripping of the lower arm.

57.13. There was blood on the left hand and fingernails.

57.14. There were peri mortal dry abrasions of the right anterior thigh with linear scratch pattern.

57.15. There was a peri mortal contusion of the right knee.

57.16. There was a small oval shaped contusion at the inferior aspect of the right patella consistent with ante mortem contusion.

57.17. There were a set of peri mortal scratches of the left anterior thigh which has debris consistent with injuries while lying face down on the ground

57.18. There was an oval shaped contusion on the right medial thigh inflicted ante mortem.

58. There was no cross examination of the pathologist.

59. Miemie Oktober, the complainant in counts 9 and 10, testified that at approximately 13h00 on 27 May 2017 she was walking towards the taxi rank from Soneike Shopping Centre when a blue Golf vehicle stopped and a man got out of the back left side. While holding a firearm, the man told her she mustn’t make a noise and she should go inside the car. She complied because she was scared.

60. She sat between two men on the back seat. There were two men seated in the front seats as well. The driver was accused 2 and accused 1 sat next to him. She describe the man who sat on her right side as being lighter in complexion and short and then she said that it was accused 3. She said that accused 3 was sleeping while she was in the car. They asked her for her bank card and her pin number and she gave it to them. Accused 1 asked her if she had money and asked her for her pin number. The man on her left side robbed her of her wedding rings, cell phones and bank card. They drove to the petrol station in Brackenfell, in the direction that she had walked from and parked a distance away from the petrol pumps. She had 2 cell phones with her, an LG one and Samsung one. They initially robbed her of the one phone and she kept the other phone in her jacket pocket. Accused 1 went into the shop and a while later accused 2 followed him.  Then she received a text notification on her cell phone that R1000 had been withdrawn from her bank account. The man who threatened her with a firearm took the phone off her when he heard the notification. Accused 1 and 2 returned and they drove off and dropped her at the four way stop in Brackenfell. She went to the shop to block her sim card and her bank card but later she discovered that a total of R3900, 00 was withdrawn from her account on that day.

61. During cross examination on behalf of accused 1, it was put to her that accused 1 says that he agrees with her, save for the allegation that he sat in front. He says that he sat at the back and Kaffirtjie sat in front. She denied that allegation.

62. The investigating officer, Sergeant Marlon John Appollis testified that on 27 May 2017, he went to the scene where the body was found. He asked Warrant Officer Langelaar to take the tyre mark impressions found at the scene. He felt that the rock on the scene should be collected because it could have been used in the commission of the offence. No DNA or blood was later found on the 37, 5 kg rock.

63. He went to Kraaifontein Community Hospital where he collected all clothing and samples taken from Marsh and handed them in for safekeeping and later for analysis. He also spoke to Marsh who was clearly badly injured and in pain.

64. Later he went to Dwars in die Weg farm where accused 1 and 2 were apprehended and where they abandoned the blue Golf vehicle. He saw accused 1 and 2 kept in separate police vans. He arranged for a district surgeon at Victoria Hospital, Dr Tiemensma to examine accused 1 and 2. He accompanied them to Victoria Hospital and waited behind a screen while Dr Tiemensma examined each accused separately and called Sergeant Appollis to make certain observations and take certain photographs of the accused. Dr Tiemensma told Appollis that accused 1 was hiding something behind his back. It was in fact a torn page from a French book, a chips packet, a cell phone, a cigarette lighter, cash, wedding rings, condoms and a plastic bag commonly used to sell drugs in. A Mandrax tablet was found on accused 2.

65. He explains that Lavanda flats where the accused were allegedly headed to that night, is 300 to 500 metres away from where the deceased and Marsh were hijacked.

66. He said that “ses” usually referred to membership of the 26 gang and “agt” referred to membership of the 28 gang.

67. He found the phone of the deceased. It was being used by someone with a different sim card in it.

68. He confirmed that he took fingerprints from all the accused. He arranged an I.D Parade at Pollsmoor Prison on 6 December 2017.

69. He sent the video footage to the laboratory for authentication. 

70. From the video footage at the Battery Centre he described the 4 men approaching the direction of the deceased’s vehicle as follows:

70.1. Accused 4 walked on the furthest left position, with accused 2 walking next to him, while accused 1 walked in front and accused 3 walked behind. He said that accused 2 had the same cap on his head throughout the footage at the Battery Centre and at the footage taken at the ATM.

70.2. He also noticed that accused 1 initially wore a dark colour track pants on the footage at the Battery Centre and at the ATM at the Caltex garage but later the day on the footage at the Shell Garage in Brackenfell, accused 1 wore a light brown pants.

70.3. He recognised accused 3 on his manner of walking.

71. He explained that the laboratory found DNA of an unknown male which is not accounted for.

72. Ms Ncumisa Qwina is another complainant who was allegedly robbed on 27 May 2017 by the accused but he had difficulty finding her so that she could testify.

73. Dr Tiemensma, the doctor who examined accused 1, 2 and 3 after their arrest, produced J88 reports.

74. Dr Tiemensma found embedded under the skin of accused 2’s penile shaft were multiple pearls which accused 2 later alleged provided some sort of pleasure.

75. Accused 2 had a fresh abrasion behind his left ear, 20 x 5 mm; a fresh linear “scratch” abrasion behind his left ear, 40 x 1 mm; a curvilinear abrasion to his left check in front of his left ear; 7 x 1 mm which looks like a finger nail scratch; a fresh contusion on the lower left ear lobe and 3 linear abrasions to the right hand.

76. She found a fresh linear abrasion to accused 1’s forehead, 20 x 1 mm;  a fresh abrasion to the left forearm, 20 x 2 mm;  3 parallel fresh linear abrasions behind his left ear, measuring: 30 x 5 mm and two 25 x 5 mm fresh abrasions with surrounding contusion on the left shoulder

77. Warrant Officer B A Stubbs testified that she is a forensic analyst who said the following:

77.1. She used DNA from the skin cells of the samples provided for the accused;

77.2. The DNA found on the inside of a condom matched the DNA of accused 1;

77.3. The DNA of the deceased was found on the swab taken from the scrotum of accused 2;

77.4. The DNA of accused 2 was found on two condoms and on the handle of the knife;

77.5. The DNA of the deceased was found on the knife and on the outside of a condom containing accused 2’s DNA;

77.6. The DNA of accused 1 was found on the inside left front door handle of the car. It was a mixture with DNA of other unknown persons;

77.7. The DNA of accused 1 was found on the mouthpiece of the Twizza cool drink bottle. It was a mixture with DNA of other unknown persons.

77.8. The DNA of accused 1 was also found on the left rear window handle of the car;

77.9. The DNA of accused 3 didn’t match any of the samples tested.

78. During cross examination on behalf of accused 1 and 2, the witness confirmed that no semen was found inside any of the condoms.

79. Warrant Officer Annamarie Van Niekerk, a cell phone records analyst testified she interpreted the cell phone records of the deceased. A base station/cell phone tower called Koopmanskloof West, picked up signals from the deceased’s cell phone. The base station is approximately 4, 66 km away from the Caltex Garage, Devon Place and approximately 5, 23 km away from Knorhoek where the body of the deceased was found. The base station is on the Koelenhof Road above the town area of Stellenbosch. The following signals were picked up by the base station:

79.1. In the vicinity of sector 5 of the base station’s area on 27 May 2017 at 04h31.08;

79.2. In the vicinity of sector 6 of the base station’s area on 27 May 2017 at 04h32.40;

79.3. In the vicinity of sector 1 of the base station’s area on 27 May 2017 at 06h52.58.

80. This witness was not subjected to any cross examination.

81. Faith Sheldon testified that at approximately 08h30 on the morning of 27 May 2017, she was driving in Northpine Road and headed toward Brackenfell when she saw a young lady being attacked by two men on either side of her, who were grabbing her bag.

82. She drove after the men who were running towards a blue Citi Golf with white stripes that was parked in a side road. They entered the back passenger doors of the car on either side.

83. They were coloured men and one was shorter than the other.

84. She saw two coloured men in the front of the car as well.

85. She tried to block them with her car but they drove straight towards her and she reversed because they would have bumped her car.

86. She followed them to take down their registration plate and reported it to her neighbourhood watch.

87. They drove away in the direction of Bernadino Heights.

88. Then she went to help the young lady. She took the lady to a house of a friend nearby and called the police who eventually arrived.

89. The young lady was in shock and crying. The witness was shocked too.

90. Ncumisa Qwina, aged 20, the complainant in count 8, testified that on the morning of 27 May 2017 at approximately 08h30, while she was walking in Northpine, she noticed a blue Citi Golf car parked near the church. She walked pass the car. There were 4 men inside the car. Then she saw 2 men get out of the car. She saw a Xhosa man seated in the front passenger seat. She heard and felt that she was being followed. Each time she turned around, she didn’t see anyone. She was wearing high heeled boots. She tried to cross the road and saw two coloured men behind her. She was fearful and traumatised. One man reached into the front of his pants. She fell to the ground. Her bag fell in the middle of the road. She ran over the road to the park and the men stole her bag. A blue Citi Golf drove nearer to the men who then got into the Golf. She believed it was accused 3 who put his hands in the front of his pants. She said that accused 3 had dreadlocks at the time. She alleged that accused 1 was the other man who followed her. They robbed her of her bag; cell phone; sim card; pearl necklace and earrings; wallet; Capitec bank card and Sportscene card. She later recognised her phone when the detective showed it to her. The witness was tearful while testifying.

91. After cross examination by accused 1, 3 and 4’s counsel, it became apparent that her dock identification wasn’t entirely reliable in as much as, she alleged that accused 4 was also in the car but accused 4 wasn’t charged with count 8 and it is common cause that he left the blue Golf and the company of his co accused before it drove away from where it had been parked by the deceased opposite Marsh’s flat.

 

Video Footage not placed in dispute

92. On the video footage taken from the CCTV of the Battery Centre, the following is clear:

92.1. The deceased parks her car next to a white bakkie opposite Marsh’s flat at 03h23.44 seconds;

92.2. Accused 3 first crosses the road at 03h29.59 seconds followed by accused 1 and 2 and accused 4 walks behind them;

92.3. They all walk pass the car and accused 4 turns back and looks in the direction of the car behind him at 03h30.38 seconds;

92.4. All the accused disappear from view;

92.5. A few seconds later at 03h32.47 seconds, accused 1 and 2 approach the car and they each go to a different front door of the car opening the doors at 03h32.58 seconds;

92.6. At 03h33.03 seconds, accused 1 and 2 are still outside the car at the doors;

92.7. Accused 3 and 4 approach the car as well;

92.8. At 03h33.52 seconds accused 4 and accused 1 and 2 pull someone out of the car;

92.9. Accused 2 walks around to the front passenger door and back;

92.10. Accused 3 and 4 climb into the car and all the doors are closed at 03h34.15 seconds;

92.11. A few seconds later at 03h34.17 seconds, accused 4 leaves the car and is searching for something at a tree in front of the car;

92.12. Accused 4 then continue searching closer to the car while crouching at 03h37.37 seconds;

92.13. Accused 4 continues searching until he is out of sight at 03h38.08 seconds;

92.14. Accused 4 returns at 03h38.14 seconds and he leaves finally  at 03h38.17  seconds;

92.15. The lights of the car are switched on at 03h38.53 seconds;

92.16. The lights go off at 03h38.58 seconds;

92.17. The lights remain on until 03h38.59 seconds;

92.18. The car starts moving at 03h39.46 seconds;

92.19. The car goes out of view at 03h40.24 seconds

93. It took 7 minutes from the time they gained access to the car to the time they drove off in the car.

94. The video footage of the Caltex Garage called Devon Place, in Stellenbosch shows the following:

94.1. The blue Golf is seen entering at the garage at 04h20.20 seconds;

94.2. Accused 1 can be seen wearing a dark coloured sweat pants and a sleeveless jacket belonging to Marsh;

94.3. Accused 1 enters the shop at the Caltex garage at 04h20.26 seconds and goes to the ATM at 04h20.36 seconds;

94.4. He fumbles around in his pockets;

94.5. Accused 1 walks away from the ATM at 04h20.53 seconds and returns soon;

94.6. Accused 1 returns to  the ATM and shop at 04h21.15 seconds;

94.7. Accused 1 goes to the ATM for the second time and remains busy there for approximately 3 minutes.

95. The video Footage of the Shell Garage in Brackenfell shows the following:

95.1. The blue Golf is seen entering the garage at 13h12.00 and stopping a distance away from the petrol pumps and accused 1 is seen getting out of the front passenger door immediately;

95.2. Accused 1, still wearing Marsh’s jacket and a light brown pants at that stage, is seen walking from the car into the shop and to the ATM at 13h12.43 seconds;

95.3. The car parks at a bay furthest away from the petrol pumps at 13h12.47 seconds;

95.4. Accused 1 takes a few minutes at the ATM and the queue grows longer;

95.5. Accused 2 walks to the shop at 13h14.05 seconds with white earphones on and immediately joins accused 1 at the ATM;

95.6. Accused 1 takes money from the ATM at 13h16.23 seconds

95.7.  Accused 1  and 2 leave the ATM  and shop together;

95.8. The car leaves the garage at 13h17.17 seconds.

96. Accused 2 testified as follows:

96.1. He and his co accused walked pass the blue Golf past midnight on 26 May 2017 and he said that they should steal the car but accused 1 said that there was a man & a woman sitting inside the car and they should rob them.

96.2. Accused 1 and 2 approached the car together and they both went to the front passenger door.

96.3. Accused 2 gave his Okapi knife to accused 1 who used it to threaten  Marsh and told him to hand over his cell phone, wallet and other possessions or he would be hurt while accused 2 opened the driver’s door from the front passenger side before going around to the driver’s side and getting in there,

96.4. He asked the deceased for the keys. His intention was to drive out of the area and then let the deceased and Marsh go. He just wanted to sell the car in Delft.

96.5. He noticed that accused 3 and 4 joined them and sat in the back seat.

96.6. By then Marsh was also still in the front seat with the deceased and accused 1.

96.7. He was searching for the car keys as the deceased initially said that she didn’t know where they were.

96.8. When he found the keys, accused 4 had left the car and accused 3 was sitting alone in the back seat.

96.9. He drove off with the car towards Helshoogte Pass where he allegedly wanted to properly search the deceased and Marsh.

96.10. Accused 1 asked Marsh for his bank card pin number and then told Marsh to go to the boot.

96.11. He unlocked the boot so that Marsh could go inside and then he locked it again.

96.12. They first drove to Jamestown for drugs but they didn’t find Tik there only Mandrax so they drove to Kraaifontein.

96.13. He went to a house in Kraaifontein where they usually smoke drugs and he bought a dagga pipe from a Xhosa man there. The deceased went into that house with them and also smoked with them.

96.14. They drove to a dirt road near a sewerage plant and he intended to tie Marsh up there.

96.15. When he unlocked Marsh, he was looking for rope in the boot but in that time accused 1 took Marsh into the bush. He didn’t find rope.

96.16. When he joined accused 1 he saw that Marsh was lying on his stomach. Accused 1 said they must kill Marsh but he thought accused 1 was joking. Accused 1 had two stones in his hand. Accused 1 threw stones at Marsh and accused 2 was also looking around for stones but found none.

96.17. Accused 3 sat in the car with the deceased to ensure that she didn’t make any sudden moves.

96.18. When they returned to the car after leaving Marsh in the bush, Accused 1 told the deceased to sit in the back and accused 3 then sat in front.

96.19. Accused 2 was allegedly focussed on driving, when accused 1 passed him a condom and said that the deceased agreed to have sexual intercourse with them. Accused 2 asked the deceased to confirm that and he saw the fear in her eyes.

96.20. It was still dark at the time when they drove to the shooting range.

96.21. Accused 1 said that accused 2 should first have intercourse with the deceased.

96.22. He did so while standing outside the car. At this point accused 2 cried because he said that he had a girlfriend and children and he didn’t feel good about having had intercourse with the deceased.

96.23. He took off his condom and threw it outside.

96.24. Accused 1 and accused 3 thereafter had sexual intercourse with the deceased. He doesn’t know what they did with their condoms.

96.25. When they drove away, he told accused 1 that they had to get rid of the deceased so that they could sell the car.

96.26. They put the deceased in the boot.

96.27. Accused 1 directed accused 2 how to drive as he didn’t know the farm area. They drove to a farm in Knorhoek Road.

96.28. When they stopped at that farm, he tried to pull the deceased out of the boot.

96.29. She resisted getting out and he pulled her out.

96.30. Then he also said that to get the deceased to stop resisting getting out, accused 3 stabbed her in the neck.

96.31. Her blood came spurting out and accused 2 jumped back to avoid it.

96.32. When he jumped back, he let her go and she fell to the ground.

96.33. Accused 2 also said that accused 1 tramped the deceased in the stomach until she fell.

96.34. Quickly accused 1 came with a stone and threw it at the deceased’s head.

96.35. Accused 1 said that they already killed Marsh and they needed to kill the deceased.

96.36. After they got back into the car accused 2 asked if the deceased was dead and accused 1 said that she was.

96.37. They drove again to Kraaifontein. And went back to the shack where they first smoked. They asked where they could buy Tik and Kaffirtjie got in the car with them and they went to buy Tik. They smoked and it was becoming daylight & they had no money.

96.38. He wanted to sell the car as it was more money but on the way to Delft, they robbed a lady in Northpine. He didn’t see the lady at first because he was focussed on avoiding the police. He waited in a side street. Accused 1 said he must stop there.

96.39. Accused 1 and Kaffirtjie got out and went after the lady. They came back in the car.

96.40. Eben was sleeping that time. They got money and a cell phone. Accused 1 wanted to sell the phones but he wanted to just sell the car.

96.41. He drove to Delft to his child’s mother, he gave money there & they smoked there.

96.42. They drove again towards Kuilsriver as their money was up. They robbed a woman walking along the road. Accused 1 said she must get in the car and she had bank cards. She gave the pin number. At Brackenfell petrol station, he, accused 3 and Kaffirtjie sat in the car.

96.43. He went to see why accused 1 took so long. Accused 1 withdrew R1000. Accused 1 said they must tell accused 3 and Kaffirtjie that they just got R500. Accused 3 said the phone pinged and he could see they got R1000.

96.44. He just drove off and let the lady out of the car. The pin was right and they went to another garage in Kraaifontein and drew money and did the same at yet another garage and repeated that until the bank stopped allowing withdrawals. They took the sim cards out of the cell phones.

96.45. They gave Kaffirtjie a phone and R300 and dropped him where they picked him up. They drove to Stellenbosch.

96.46. Accused 3 said he’s tired and they gave him his share of the money and they would go alone to Delft. He saw a detective car behind him. He turned off at Kayamandi and the car followed him the whole time. He told accused 1 that the police were following them.

96.47. He realised the Golf is too slow so accused 2 said he’s going to jump out. Accused 1 didn’t believe him but he jumped out and ran. They didn’t catch him first but they caught accused 1 first.

96.48. He ran around on the farm and he hid away.  Eventually the farmworkers showed where he was and the police caught him.

97. During cross examination, accused 2’s testimony that they were walking around until midnight before the offences were committed because they were waiting  for the next day to arrive so that they could withdraw money from their bank accounts was challenged and it was put to him that they were walking around to see who they could rob. Accused 2 admitted that was their intention.

98. During cross examination, accused 2  admitted the following:

98.1. membership of the 28 gang;

98.2. he said that he held the rank of sergeant in the gang while accused 1 held the rank of colonel;

98.3. they were walking around that night in search of opportunity to rob people;

98.4. it was his idea to steal the car even though there were people inside and his co accused went along with the plan;

98.5. he admits that he knew the area where Marsh was left because he lived nearby before and that it was his idea to drive there;

98.6. he admits lying to Hannah when he said that they would leave them and go to their homes;

98.7. he admits that they tried to withdraw money at a Caltex garage although he didn’t mention it during his evidence in chief;

99. When asked why he robbed when he had a job, he replied that it was part of life.

100.   He couldn’t explain how accused 4 robbed Marsh if he sat in the front. He said he was focussed on driving.

101.   Although he said that it was very dark in the bush where they left Marsh and he couldn’t find a stone. He was able to see Marsh lying on his stomach and he was able to see how accused 1 allegedly lifted the stone over his shoulders to throw at Marsh but he couldn’t find a stone in the dark.

102.   He also said during cross examination that he took Marsh’s diamond earrings off in the bush and put it in his ears and when the police were chasing him later, he threw it away.

103.   He didn’t want to plead guilty because it wasn’t proved yet. He was scared one of the co accused would say he was the main man.

104.   Accused 1 didn’t want to let Marsh and the deceased go because he said they could raise the alarm and then they would be caught.

105.   Accused 2 denied that he showed Marsh lying in the boot to someone where he stopped even though that was Marsh’s testimony which wasn’t challenged.

106.   He alleged that what he meant about getting rid of the deceased and Marsh was to tie them up and abandon them somewhere but he also admitted that they saw the faces of the accused who failed to conceal their faces.

107.   He couldn’t explain why they didn’t abandon Marsh and the deceased in the same place, save to say that’s what accused 1 wanted. He was asked how it would assist their escape if they abandoned them separately but he had no answer.

108.   It was put to him that the reason for abandoning the deceased separately was because they planned to rape her.

109.   He was questioned about why his legal representative didn’t dispute Marsh’s testimony that the two men in the bush with him each had had half bricks in their hands, yet accused 2’s testimony is that he didn’t have any brick in his hand as he was looking for a stone in the dark.

110.   He was questioned on how he could have had intercourse with the deceased while standing when the pathologist found sand in her genitalia but he had no explanation.

111.   He was questioned about what happened to the underwear of the deceased but he had no answer for that.

112.   He was questioned about how many times he had intercourse with the deceased but he said it was only once, yet he couldn’t explain why 2 condoms containing his DNA were found on the scene.

113.   He agreed that he knew there would be no one at Reapers Paintball club and that’s why he drove there.

114.   It was put to him that Dr Tiemensma said he had a fresh abrasion behind the back of his left ear; a fresh abrasion scratch next to his left ear; a he had linear scrape by his left cheek which looks like a fingernail scratch and another scrape by his left earlobe as well as a further 3 linear scratches on his right hand.  He said it came from working on the farm with vineyard sticks.  It was pointed out to him that he didn’t challenge the evidence of Dr Tiemensma which was admitted. Accused 2 nonetheless denied that he had those injuries.

115.   It was put to him that Accused 1 also had abrasions on his fore-arm.  There were fresh abrasions by his left ear and by his left shoulder.  Accused 1 alleged in his confession it came from accused 2 beating him. Accused 2 denied that he hit accused 1.

116.   He offered no explanation for how the deceased’s student card was found at Koelenhof train station.

117.   Accused 2 said that he didn’t want to leave her by the Paintball club because she could go to the houses nearby and he didn’t want the police to look for them earlier.

118.   He said that she didn’t resist being put in the boot and she was very quiet.

119.   He said that the time when he pulled her out of the boot to leave her at the farm, it was daylight.

120.   He was questioned about why it was necessary for accused 3 to stab her if she was already out of the boot and he said for the first time during cross examination that she was making a noise and that’s why accused 3 stabbed her.

121.   He denied knowing if anyone’s clothes had the deceased’s blood on them and he couldn’t say when accused 1 changed his pants.

122.   After they left the deceased, he asked why accused 3 stabbed her and accused 1 said that they had to kill her because they already killed Marsh.

123.   He said that accused 1 threw the rock lying at the electric box at the deceased and he confirmed that it looked like the rock exhibited in court. He demonstrated using two hands how accused 1 threw the rock.

124.   Accused 1 allegedly said that he had to make sure that she was dead.

125.   He heard afterwards by his girlfriend that she found accused 3 burning his clothes.

126.   He admits being part of the plan to rob Ms Qwina. He said that accused 1 and Kaffirtjie robbed Ms Qwina. He took Kaffirtjie along because they were going to commit robbery.

127.   He denied that he had a firearm as alleged in accused 1’s confession at the shack where they went to buy drugs.

128.   He agreed that he was sufficiently lucid to drive and to commit the offences and he wasn’t adversely affected by drugs to do so.

129.   He denied the allegation contained in accused 1’s confession that accused 2 said they were going to rape the deceased and he would do so first and he denied that accused 1 sat in the car while accused 2, 3 and Kaffirtjie raped her.

130.   He denied the allegation contained in accused 1’s confession that accused 2, 3 and Kaffirtjie took the deceased into the dark and when they returned without her accused 2 said that they had tied her up.

131.   He also denied accused 1’s statement that accused 2 threatened Miemie Oktober with a firearm and that he told accused 1 to withdraw Miemie’s money.

132.   Finally, accused 2 said that he accepts joint responsibility for the commission of all 10 offences and he did not dispute that the deceased was gang raped.

133.   Accused 2 wasn’t cross examined on behalf of any of his co-accused and accordingly those co-accused are deemed to agree with the testimony of accused 2 even where he implicates them in the commission of the offences.

134.   Mrs Elicia Johnson testified that’s she is the girlfriend of accused 2 and they have two children together. On the evening of 26 May 2017, she gave accused 2 R100 and he and accused 3 went to smoke drugs at a house nearby while she went to a shebeen.

135.   The afternoon of 27 May 2017, when accused 2 did still not return home, she went to inquire from accused 3 at his home, where accused 2 was.

136.   She found accused 3 standing in his front yard in front of a fire.

137.   She asked accused 3 where accused 2 was and he didn’t answer.

138.   She asked accused 3 why he was making a fire and he said that he was burning his clothes and shoes because it had blood on it and he was involved in a robbery.

139.   The witness left and told accused 2 about what accused 3 told her when she visited accused 2 in prison after his arrest.

140.   Although she was cross examined by counsel for accused 3, it was not put to her that she wasn’t an independent witness. She was cross examined on the basis that accused 3 denies that she came to him as alleged and he spoke to her or made a fire as alleged.

141.   The witness persisted with her version despite cross examination.

 

The Applicable Law

142.   When an accomplice gives evidence implicating his co- accused, the court must approach that evidence with caution and establish if the accomplice does so in an attempt to exculpate himself or to minimise his role.

143.   R v Ncanana 1948 (4) SA 399 (A) at 405 albeit it referring to an old legislation, dealt with the cautionary approach to accomplice evidence as follows:

“The rule of practice which it was intended to state and which is consistent with, if it is not expressly approved in, decisions of this Court (see R v Kubuse (1945 AD 189); R v Brewis (1945 AD 261); R v Kristusamy (1945 AD 549)) is that, even where sec. 285 has been satisfied, caution in dealing with the evidence of an accomplice is still imperative. The cautious Court or jury will often properly acquit in the absence of other evidence connecting the accused with the crime, but no rule of law or practice requires it to do so. What is required is that the trier of fact should warn himself, or, if the trier is a jury, that it should be warned, of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone; so that satisfaction of the requirements of sec. 285 does not sufficiently protect the accused against the risk of false incrimination by an accomplice. The risk that he may be convicted wrongly although sec. 285 has been satisfied will be reduced, and in the most satisfactory way, if there is corroboration implicating the accused.”

144.   Hlapezula and Others  1965 (4) SA 439 (A) at 440 D - H where Holmes JA    said:

"It is well settled that the testimony of an accomplice requires particular scrutiny because of the cumulative effect of the following factors. First, he is a self-­ confessed criminal. Second, various considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit or, particularly where he has not been sentenced, the hope of clemency.  Third, by reason of his inside knowledge, he has a deceptive facility for convincing description - his only fiction being the substitution of the accused for the culprit. Accordingly .... there has grown up a cautionary rule of practice requiring (a) recognition by the trial court of the foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong conviction, such as a corroboration implicating the accused in the commission of the offence, or the absence of gainsaying evidence from him, or his mendacity as a witness, or the implication by the accomplice of someone near or dear to him; see in particular R v Ncanana 1948 (4) 399 (A) at 405 - 406; R v Gumede  1949 (3) SA 749 (A) at 758; R v Nqamtweni and another  1959 (1) SA 849 (A) at 897 G - 898 D.

Satisfaction of the cautionary rule does not necessarily warrant a conviction, for the ultimate requirement is proof beyond reasonable doubt, and this depends upon an appraisal of all the evidence and the degree of the safeguards aforementioned."

145.   In S v  Johannes 1980 (1) SA 531 (A) at 533B-C, Hofmann:  The South African Law of Evidence was relied for the following: -

“The evidence of a co-accused given on his own behalf is, when considered against a co accused, the evidence of an accomplice and open to all the objections which can be made to accomplice evidence. The cautionary rule for dealing with such evidence should therefore be applied.”

146.   Failure of an accused to testify in circumstances where the evidence calls for a rebuttal has been dealt with in S v Chabalala  2003 (1) SACR 134 (SCA) para 21  where the following was stated:

‘The appellant was faced with direct and apparently credible evidence which made him the prime mover in the offence. He was also called on to answer evidence of a similar nature relating to the parade. Both attacks were those of a single witness and capable of being neutralised by an honest rebuttal. There can be no acceptable explanation for him not rising to the challenge. If he was innocent appellant must have ascertained his own whereabouts and activities on 29 May and be able to vouch for his non-participation. . . . To have remained silent in the face of the evidence was damning. He thereby left the prima facie case to speak for itself. One is bound to conclude that the totality of the evidence taken in conjunction with his silence excluded any reasonable doubt about his guilt.’

147.   In  S v Boesak [2000] ZACC 25; 2001 (1) SACR 1 (CC) para 24 the court held as follows:

The right to remain silent has application at different stages of a criminal prosecution. An arrested person is entitled to remain silent and may not be compelled to make any confession or admission that could be used in evidence against that person. It arises again at the trial stage when an accused has the right to be presumed innocent, to remain silent, and not to testify during the proceedings. The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence. What is stated above is consistent with the remarks of Madala J, writing for the Court, in Osman and Another v Attorney-General, Transvaal when he said the following:”

‘Our legal system is an adversarial one. Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that, absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence. The fact that an accused has to make such an election is not a breach of the right to silence. If the right to silence were to be so interpreted, it would destroy the fundamental nature of our adversarial system of criminal justice.”

148.   The requirements for holding a person criminally liable on the basis of the approach adopted in Safatsa were set out in S v Mgedezi 1989 (1) SA 687 (A) at 705I – 706C where it was held that:

‘In the absence of proof of a prior agreement, accused No 6, who was not shown to have contributed causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of the decision in S v Safatsa and Others 1988(1) SA 868 (A), only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with 1 (Paras 64 – 67 and 71 of the judgment.)  recklessness as to whether or not death was to ensue.’

149.   In Principles of Criminal Law 5^th ed (2016) at 477 by J M Burchell, the doctrine of common purpose is described as applying as follows: ‘Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for the specific criminal conduct committed by one of their number which falls within their common design.’

150.   Burchell (ibid) explains the basis for the distinction made in Mgedezi as follows:

“The Appellate Division in Mgedezi has drawn a distinction between common-purpose liability where there is a prior agreement, expressed or implied, to commit a crime (the mandate situation) and where there is no such prior agreement.  In the last-mentioned situation, certain additional requirements have to be satisfied before the principle of imputation, which is the characteristic of common-purpose liability, can arise.  The Mgedezi rule has been held to pass constitutional muster in Thebus.

The two extremes (prior agreement and active association without a prior agreement) may overlap in practice.”

 

Application of the law to the facts

151.   Applying the requirements set out above, the authorities concerning common purpose, deal with the question of whether the co-accused were aware that one or more person’s in their group had a weapon and intended using it to achieve the purpose of committing an offence. The inquiry concerning knowledge and intended use of a weapon depends on the facts of each case.

152.   In the present case, the four accused, who set out together to see what ill-gotten gains they could acquire, were in the company of one another when accused 1 and accused 2 discussed how they could rob the occupants of the blue Golf vehicle.

153.   Every member of the group didn’t necessarily know what weapon, if any would be used to overpower the deceased and Marsh sufficiently to enable the accused to carry out the robbery, but accused 1 and accused 2 knew that a knife would be used as a weapon. Marsh’s testimony that a knife and a screwdriver were used wasn’t challenged by accused 2, 3 and 4. Accused 1’s counsel only challenged Marsh on whether accused 1 held a knife and failed to disavow knowledge of the use of a screwdriver.

154.   To give effect to their plan to rob, every accused fulfilled a specific role in ensuring that Marsh and the deceased could not escape from the car. Accused 2 occupied the driver’s seat, accused 1 initially occupied the front passenger seat, accused 3 and 4 each sat next to a back door, thereby blocking all exits inside the car.

155.   Once the accused had gained entry to the car, they didn’t necessarily need to use a weapon to bring Marsh and the deceased to submission as their sheer number and threatening presence was sufficient to achieve that submission.

156.   It may well be that accused 3 and 4 didn’t know what weapons accused 1 and accused 2 intended using to gain access to the inside of the car, but there can be no doubt, that they knew that the purpose of accused 1 and accused 2 approaching the car was to so gain access and eventual control over the car and its occupants.

157.   Having seen that accused 1 and 2 indeed managed to get the car doors open and were standing on either side of a front door next to each occupant, accused 3 and 4 reconciled themselves with the conduct of accused 1 and 2 and not only approached the car, but also climbed inside the back seat and proceeded to rob and facilitate the robbing of Marsh at that stage. In so doing, accused 3 and 4 manifest common purpose with accused 1 and accused 2 by performing the acts of association of entering a vehicle that they had no right of access to and by blocking its exits by physically sitting on either side of Marsh, thereby restraining him from escaping. In that manner all 4 accused participated jointly in achieving the objective of robbing Marsh and the deceased of their possessions and the kidnapping of Marsh and the deceased.

158.   Accused 4 committed an additional act of association. In his statement to the police, he alleged that he was looking for the car keys outside the car before he eventually left the company of his co accused. The video footage supports that allegation. It is only when accused 4 couldn’t find the keys, that he disassociated himself from the group by leaving.

159.   Accused 3 was assigned the role of remaining in the car with the deceased when accused 1 and 2 put Marsh in the boot and again did so later when they took Marsh out of the boot and into the bush.

160.   Accused 2’s testimony is that he wanted to sell the car and to enable him to do so, he wanted to get rid of Marsh and the deceased in such a manner that they wouldn’t raise the alarm and foil his plan to drive off with the car and sell it. He goes further and states that he mentioned in the presence of accused 1 and 3, the need to rid themselves of Marsh and Cornelius. Neither accused 1 nor accused 3 challenged that evidence of accused 2.

161.   Accused 3 didn’t distance him from the group after accused 1 and 2 returned to the car without Marsh.

162.   On accused 2’s evidence, accused 3 also participated in the bringing of the deceased to submission by stabbing her in the neck at Groenhof Farm so that she could be murdered and accused 3 didn’t challenge that evidence nor did he provide an alternative explanation.

163.   Accused 2’s testimony is that accused 3 had blood on his clothes and burned them to conceal his involvement in the offences. Accused 3 failed to challenge accused 2 on that evidence, yet chose to challenge, Mrs Johnson’s evidence that he in fact burned his clothes and told her that he was doing so because he was involved in a robbery and had blood on his clothes.

164.   Although Miemie Oktober said that accused 3 appeared to be asleep in the car when she was robbed, accused 2 testified that when he and accused 1 wanted to cheat accused 3 out of some of the money they withdrew, accused 3 told them that he saw the text message on Miemie Oktober’s phone and it reflected the correct amount withdrawn. He was accordingly fully aware of the robbery of Miemie Oktober.

165.   The doctrine of common purpose requires that the accused must all have had the intention to commit the offence as evinced by their lack of disassociation and act of association with the conduct of one another in the commission of the offence.

166.   The doctrine does not depend on the role of each perpetrator being specifically determined, however the role that each played would support a conclusion of disassociation or active involvement.

 

Evaluation of Accused 1

167.   Despite accused 1’s attempts to minimise the role that he played and in blaming accused 2 as being the main decision maker and ringleader and despite his attempt to suggest that he was intimidated by accused 2 because he had a firearm and threatened to harm accused 1’s family should he implicate accused 2, the following objective facts give lie to that evidence:

167.1. A condom was found with accused 1’s DNA on it at the same scene where the condom was found with accused 2 and the deceased’s DNA on it, which means that accused 1 also raped the deceased at that place;

167.2. The scratch and scrape marks found on accused 1 was found by the doctor to be consistent with scratches inflicted by the deceased, most likely while she resisted being hurt by accused 1;

167.3. Accused 1’ s version in his confession of having sat at the back initially while the deceased sat in the front seat, changed to the deceased having sat in the back next to him without him expressly saying so but purely by his evidence of her having allegedly put her head on  his shoulder;

167.4. Accused 1’s evidence then changes to him having sat in the front seat at the place where the deceased was left behind even though he alleged that when the deceased was taken out of the car, he remained in the car. If that were so he would still have been sitting in the back seat when they left the deceased behind. He gives no explanation of having got out of the car at those vineyards nor of how he got to the front seat;

167.5. He then further exculpates himself from the murder by saying he remained in the car when the deceased was taken into the vineyards, yet the tyre track marks are extremely close to where the body was found and the deceased’s cell phone was picked up by the cell phone mast in that area for the last time at 06h52 when it would have been sufficiently light to see what was happening to the deceased;

167.6. Accused 1 said that he had to withdraw money at the ATMs when they later robbed Miemie Oktober because he was better dressed than the others, yet he provides no explanation for how he came to have had a light brown casual pants on at that time as opposed to the loose, dark, track pants he wore when he tried to withdraw money from Marsh’s account earlier. He had ample opportunity to remove the deceased’s DNA or blood from his clothes by changing his pants. This points to his integral involvement in the rape and murder of the deceased to the extent that it was necessary to change his pants;

167.7. Most tellingly, at the shack of Eben earlier that morning, accused 1 said he saw accused 2 had a firearm which he took out, yet accused 1 didn’t disassociate himself from the group and was content to go along with them, knowing full well that kidnapping people who they had to get rid of, would lead to violence being perpetrated on those people;

167.8. Accused 1’s attempt to minimise his involvement in the withdrawal of funds using bank cards of people they robbed by alleging that accused 2 always stood nearby and accused 1 couldn’t remember how much funds he withdrew is wholly unbelievable because on the CCTV footage of the Caltex service station, accused 2 is not seen going to the ATM at all. In addition, to having to obtain the pin number, accused 1 had to remember it and no one could compel him to do so. He did so of his own volition.

 

Evaluation of Accused 2

168.   Accused 2’s initial attempts in his testimony, to reduce the role that he played and to cast accused 1 as the mastermind behind the commission of the offences was altered by his admission during cross examination, that he had in fact participated jointly with his co accused in the commission of all the offences. Accused 2 testified as follows:

168.1. On accused 2’s version, accused 1 didn’t even have a dangerous weapon with which to rob the people and accused 2 gave him his knife with which to do so;

168.2. Accused 1 couldn’t drive and so without accused 2’s ability to drive and willingness to do so, the plan to rob the deceased of her car couldn’t have occurred;

168.3. Accused 2 raped the deceased first on both his version as well as that of accused 1, hence he played a leading role in the rape;

168.4. Accused 2, on his version put the deceased in the boot and later pulled her out, even when she resisted, hence playing a leading role in causing her to be forced out of her car and into the area where her body was eventually found;

168.5. Accused 2 expresses no remorse for having raped the deceased with reference to how awful that must have been for her but expresses regret and emotion at having betrayed his girlfriend and children by having done so;

168.6. The injuries that the doctor noted on accused 2 and which she found to have been caused by resistance of the deceased, wasn’t challenged as the medical report was admitted in terms of section 220.  Accused 2’s explanation that he sustained the injuries while working in vineyards is most unbelievable since they were mostly fresh scratches in a specific area, namely his left ear area, which means its where the deceased would have had access to him when he was in close proximity to her, for example while raping her;

168.7. Accused 2 did join accused 1 at the ATM at the Shell garage when Miemie’s money was withdrawn because he played a joint leading role with accused 1 and they, on his version, planned to short change accused 3 by saying that they received less money than they actually did. They accordingly colluded together and had a measure of trust and camaraderie between them.

 

Extraneous corroboration for Accused 2’s testimony

169.   Accused 2’s version of how they approached the vehicle is corroborated by the video footage of the Battery Centre. His testimony of how Marsh was put in the boot and eventually taken out of the boot and taken to a bush where he was made to lie on the ground and stones were hurled at him, is corroborated by Marsh.

170.   Accused 2’s testimony concerning the rape is corroborated by DNA evidence in so far as it implicates himself and accused 1.

171.   Accused 2’s evidence concerning the murder is corroborated by the pathologist’s crime scene report and the post mortem report.

172.   His description of accused 3 having stabbed the deceased in the neck is supported by the pathologist’s evidence, as well as by Ms Johnson’s evidence concerning accused 3 having blood on his clothes.

173.   Accused 2’s version of how and when, in the chronology of events, the deceased was murdered is supported by the tyre track marks found so close to the body as well as by the time that the deceased’s cell phone was picked up by a nearby cell phone tower.

174.   In short, corroboration for the most salient aspects of accused 2’s evidence in which he implicates himself and accused 1 and 3 can be found in evidence extraneous to accused 2.

175.   Accused 2 was accordingly not an accomplice who sought to exculpate himself by implicating his co-accused. He in fact sought to ensure that he was implicated and therefore didn’t attempt to save his own skin as it were.

 

Evaluation of Accused 3

176.   Accused 3 is not only implicated by accused 2‘s viva voce evidence as having been part of the commission of all the offences, but he also did not challenge accused 2’s evidence concerning those allegations. His failure to dispute that evidence amount to an acceptance of its truthfulness which this court is obliged to take into account.

177.   Accused 2’s version is that when he and accused 1 took Marsh out of the boot in the bush, accused 1 told accused 3 that he must watch the deceased so that she doesn’t escape and accused 3 complied with that instruction, thereby demonstrating an act of association which made it possible for accused 1 and 2 to take Marsh into the bush and to attempt to murder him there. Each member of the group fulfilled an agreed role and by so co-operating with one another, they were able to jointly commit and facilitate the commission of each offence.

178.   Accused 3’s letter of attempted apology is in fact predicated upon his admission of his involvement in the offences.

179.   There is no evidence of accused 3 having ever disassociated himself from the commission of the offences or from the group at any stage during the series of events and at the numerous places at which the group stopped during the course of those approximately 11 hours that they had control of the car.

180.   The fact that no condom was found containing the DNA of accused 3, doesn’t lead to the only reasonable inference of him not having been involved in the rape. Against that fact, must be weighed the evidence of accused 2 that accused 3 also raped the deceased.  Accused 3 failed to challenge that evidence. Accordingly, the proven facts are that accused 3 on accused 2’s version, raped the deceased.  The only reasonable inference to be drawn from that proven fact, is that accused 3 indeed raped the deceased.

181.   Similarly accused 3 is implicated in the commission of the murder by accused 2 who pertinently implicates accused 3 in having stabbed the deceased in the neck. Accused 2’s evidence of accused 3 having the blood of the deceased on his clothes is supported by Mrs Johnson.

182.   However, additionally accused 3’s failure to disassociate from the murder, in itself brings into operation the doctrine of common purpose where it is found that they acted in concert in bringing about the intentional, wrongful and unlawful killing of the deceased at Groenhof Farm.

183.   Accused 3 is guilty of all the remaining offences on the same basis as the murder, namely that he acted in concert with the rest of the group.

 

Evaluation of Accused 4

184.   Accused 4 acted in concert with the group in bringing the deceased and Marsh to submission.  He deprived them of their freedom to move out of the vehicle and away from the control of the accused. Accused 4 specifically robbed Marsh of his valuable possessions, according to accused 4’s statement to the police and according to accused 2, whose testimony wasn’t challenged by accused 4.

185.   While accused 4, by leaving the company of the group at an early stage, is not implicated in counts 5 to 10, the murder and rape of the deceased and the attempted murder of Marsh would not have ensued had the deceased and Marsh not been kidnapped and to that extent, accused 4 facilitated their continuous kidnapping and captivity which had fatal and near fatal consequences for each respectively. Accused 4 committed the act of kidnapping as a fully involved perpetrator and not as a mere accessory.

186.   I am of the view that the accused’s failure to present countervailing testimony to that of the state, strengthened the state’s case.

187.   The exculpatory allegations made by accused 1, 3 and 4 in their statements are contradicted by their failure to challenge accused 2 and their failure to challenge the state’s evidence which prove their integral involvement in each relevant offence.

188.   I am persuaded that the state has proved beyond reasonable doubt that accused 1, 2 and 3 committed the offences set out in counts 1 to 10 with direct intent and that accused 4 perpetrated the offences described in counts 1 to 4 with direct intent.

 

IT IS ORDERED THAT:

1. On count 1, the robbery with aggravating circumstances of Cheslin Claud Marsh: Accused 1, 2, 3 and 4 are guilty;

2. On count 2, the robbery with aggravating circumstances of Hannah Cornelius: Accused 1, 2, 3 and 4 are guilty;

3. On count 3, the kidnapping of Cheslin Claud Marsh: Accused 1, 2, 3 and 4 are guilty;

4. On count 4, the kidnapping of Hannah Cornelius: Accused 1, 2, 3 and 4 are guilty;

5. On count 5, the attempted murder of Cheslin Claud Marsh: Accused 1, 2 and 3 are guilty;

6. On count 6, the rape of Hannah Cornelius, Accused 1, 2, and 3 are guilty;

7. On count 7, the murder of Hannah Cornelius, Accused 1, 2 and 3 are guilty;

8. On count 8, the robbery with aggravated circumstances of Ncumisa Qwina, Accused 1, 2, and 3 are guilty;

9. On count 9, the robbery with aggravated circumstances of Miemie Oktober, Accused 1, 2, and 3 are guilty;

10. On count 10, the kidnapping of Miemie Oktober, Accused 1,2, and 3 are guilty.

 

______________

JUDGE R. ALLIE

 

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