S v Tai-Tai and Others (CC21/2020) [2023] ZAECMHC 16 (29 March 2023) (2023)

IN THE HIGH COURT OFSOUTH AFRICA

[EASTERN CAPEDIVISION: MTHATHA]

CASE NO. CC21/2020

Inthe matter between:

THESTATE

vs

LUZUKOTAI-TAIAccused No.1

MALETSATSIMAKETENGAccused No.2

SAMKELONONTWANAAccused No.3

JUDGMENT

JOLWANAJ:

Introduction.

[1]The three accused persons were arraigned in this Court on charges ofconspiracy to commit murder, (count 1); arson, (count 2)and counts3, 4 and 5 which are murder charges. The State invoked the provisionsof section 51 (1) of the Criminal Law Amendment Act 105 of 1997 inrespect of the murder charges on the basis that the murders werepremeditated and that the accused acted in execution of a commonpurpose.

[2]The summary of substantial facts in terms of section 144 (3) of theCriminal Procedure Act 51 of 1977 which was attached to theindictment does throw light into what the gravamen of the State’scase against the accused is.It reads as follows:

“1.Before the killing of the deceased persons, accused no.2 approachedaccused no.1 looking for a person who she could hire to killherestranged husband (Nyakambi Monoana). And that she was preparedto pay a sum of R10000.00 for such killing.Accused no.2then introduced accused no.1 to her boyfriend one Sam.

2.On the 6^th of November 2019 during the day, accused no.2phoned Zimasa Binca to arrange transport to take her to WalazaLocation during thenight at 22h00. Zimasa then informed herboyfriend who was running a business of taxi cab about the booking ofthe cab byaccused no.2 to Walaza and her cell number 0[...].

3.Around 23h15 Zimasa received a call from the same number that the cabshould wait for her near Mokhesi Bridge. Indeed,Mihlali Manzidrove to the mentioned place and that is where he met and identifiedthat it was accused no.2, Sam and an unknownguy. Sam loaded ablack plastic at the back and accused gave directions to WalazaLocation.

4.Accused no.2 instructed Mihlali to drive to the main road whilst Samand Accused no.1 had gone away to burn deceased house.Oncoming back accused no.1 and Sam came back smelling burns.

5.The house of Nyakambi Monoana was burnt and he died of being burntwith his girlfriend and his son.

6.All 3 deceased died as a result of flame burns.”

Thepleas.

[3]The accused pleaded not guilty to all the charges preferred againstthem with their legal representatives indicating that theaccusedwould not be disclosing the basis of their defence which was reservedfor trial.

Thecase for the prosecution.

[4]The first State witness was sergeant Tole. She testified thaton 6 November 2019 while on duty at about midnight towardsearlymorning she was at the charge office when they received a telephonecall reporting that a homestead at Walaza was on fire.Shedrove to Walaza and the time was about 2am. As the vehicleapproached Walaza she could see from a distance that therewas aburning house. She drove to that homestead and went to a tworoomed structure that was on fire. She looked throughthewindow and saw a human body inside the first room. She went tothe next room and saw two burnt bodies in the kitchen.Shelooked around in the yard of those premises. She saw agreen water tank. Next to the water tank she saw ablack bucketwhich contained something that was green and smelled like petrol.She looked around and next to the gate shesaw a black plastic whichhad a plastic container with a yellow lid. She opened thecontainer and it smelled of petrol.After all thoseobservations she called the emergency services, the detectives andthe LCRC to come to the crime scene. TheLCRC officers workedon the crime scene and took exhibits.

[5]The State then called Zimasa Bhinca. She testified that shestayed at Kroomspruit in Sterkspruit. She was a studentatNelson Mandela Metropolitan University. On 6 November 2019 shewas at home at Kroomspruit. In the course of theday shereceived a telephone call from a lady enquiring about whether she hada taxi cab. After she confirmed that indeedshe was running ataxi cab the lady enquired about prices for a return trip to Walaza.She informed the lady that a returntrip to Walaza was R300.00.The lady indicated that she would call again around 18:00 as shewould need a cab to take herto Walaza. She phoned her partner,Mihlali Manzi and informed him that they had a trip to Walaza atabout 18:00.

[6]Just after 18:00 the lady phoned again requesting to reschedule thetime. The lady also mentioned that she would be comingwith asangoma whom she wanted to strength her household. The ladyindicated that the rescheduled time should be about 10pmto 12midnight because the sangoma did not want to do the cleansing withlocal people still moving around. She told the ladythat thatwould not be a problem as their business operated on a 24 hourbasis. The lady said they would wait for the cabnear theMokhesi Bridge. After 10 pm the lady phoned again indicatingthat they were ready. Zimasa then called herpartner Mihlaliand informed him that the people that needed a cab were ready.

[7]The State called Mihlali Manzi. He testified that he wasinvolved in various types of business ventures including farmingandtaxi cab services. He knew the three accused persons. Hesaw accused no.1 for the first time on the day of theincident andthereafter he got to see him when he attended this case. Heknew accused no.2 even before the incident froma place calledDlalanomemela where she was employed. He first sawaccused no.3 when he met him at an event atMemela. He also gotto know that accused no.3 was a producer or presenter at LA-FM radiostation in Sterkspruit. Thereafterhe would see him in localsocial circles.

[8]On 6 November 2019 at about 17:00 he received a call from Zimasa whotold him that there were people that would need a cab toWalaza atabout 22:00. He received another call from Zimasa at around23:00 indicating that the people who needed a cab werewaiting nearMokhesi Bridge. He then drove to Mokhesi Bridge and found threepeople who were waiting for him. Accusedno.3 requested him toopen the boot of the vehicle. Indeed, he opened the boot andaccused no.3 loaded a container of between10 to 20 litres in theboot. The said container was in a black plastic bag.Thereafter he drove off. Accusedno.1 was introduced to him byaccused no.2 as a sangoma and he was told that he was going tostrengthen a certain homestead.When they reached the Walazaarea accused no.2 gave him directions. During the trip accusedno.2 was sitting in the frontpassenger seat. Accused no.3 wasin the rear passenger seat behind him and accused no.1 was seatingbehind accused no.2.Accused no.2 gave him directions untilthey reached a certain homestead. When they reached that placeaccused no.2 made aphone call and informed the person she wascalling that they had arrived.

[9]Accused no.1 and 3 alighted from the vehicle. Before theyalighted they requested him to open the boot for them.Heopened the boot and they took out the object they had loaded.He did not notice who took the object between accused no.1and 3.Accused no.2 asked him to drive to the main road and stop next to ashop that was no longer operating. He droveto that spot withaccused no.2, leaving accused no.1 and 3 behind. While theywere waiting there accused no.2 told him thatthe sangoma was goingthere to help her sister whose marriage was going through somedifficulties. They were going thereat night so that hersister’s husband could not see what was being done. Atsome point accused no.1 and 3 came backrunning. They got intothe vehicle. As they boarded the vehicle he noticed that theysmelled smoke. As a result,he enquired from them what theywere smelling of. Accused no.3 said they were smelling of thething they had used.He also enquired why they were running.Accused no.3 responded saying that it was because dogs were chasingthem. Heasked them why they were not carrying the thing theywent with there. They said that after a job they leave whatevertheywere working with at the place.

[10]He drove with all three accused and it was quiet on the way. Hedropped them off at the same spot he had earlier pickedthem up nearMokhesi Bridge. They paid after which he parted ways with them.The following day he went to Memela andrealized that accusedno.2 was not at work. He learned there from one Nonelwa thatsomething happened at Walaza and thatpolice had just left. Henever had anything to do with the accused again.

[11]An inspection in loco which was by agreement between the Stateand the defence during which the court was not present was done.Both Manzi andthe accused and their legal representative as well asthe prosecutor were present. Thereafter the State placed onrecordthe following observations which it was indicated, were byagreement:

1.It was agreed between the State and the legal representatives for theaccused that from the point at which Manzi said he droppedaccusedno.1 and 3 to the homestead of the deceased, the distance was 150metres.

2.The distance from the point at which he dropped accused no.1 and 3 towhere he and accused no.2 waited for accused no.1 and 3was alsoagreed at 150 metres.

3.It was also noted that the accused disagreed that the drop off pointwas the one pointed by Manzi.

4.The distance from where Manzi said he dropped accused no.1 and 3 towhere they said they were dropped was 100 metres. Therefore,from that spot to the deceased’s homestead the distance was 250metres according to the accused.

5.The distance from the place where Manzi alleged that he droppedaccused no.1 and 3 to where the accused said he droppedaccused no.1and 3 is 50 metres and it is obscured from the one pointed by Manzi.

6.When they returned the witness pointed near the Gamazini Carwash nearMokhesi as the spot at which he dropped off all the accusedafterthey had returned from Walaza.

7.According to the accused they were dropped off at a place known asDukathole next to a cash loans advertising board near Mokhesi.

8.The distance between the two places is 50 metres.

[12]Under cross-examination Manzi testified that he estimated thedistance from where he picked up all the accused to Walaza tobebetween 15 and 20km. He testified that when he opened the bootfor accused no.3 to put the plastic bag that had a containerof about10 to 20 litres he was sitting in the driver’s seat. Hetestified that in his statement and in his evidencehe did notmention a smelling of petrol because he did not smell petrol.He confirmed that the spot where he dropped accusedno. 1 and 3 wasabout 150 metres from the deceased’s homestead. He denieddropping accused 1 and 3 about 100 metresfrom the spot that hepointed. He denied dropping them next to Mr Monoana’splace. He said that while he is notfrom Walaza, he is fromSterkspruit and he could never miss Mr Monoana’s place.He agreed that the distance from MrMonoana’s place to thedropping place that he pointed was 50 metres.

[13]He confirmed that the person who was giving him directions when theywere going to Walaza was accused no.2. It was putto him thathis evidence that the plastic bag carried by accused no.3 contained acontainer was a fabricated story which he madeup after he learnedthat a container was found at the crime scene. He deniedfabricating his evidence in this regard.It was further put tohim that the plastic bag that accused no.3 carried had clothes init. His response was that while hewould not know what accusedno.3 was carrying, he maintained that he saw a container in thatplastic bag. He denied thatwhen accused no. 1 and 3 returnedto the vehicle accused no.3 was in possession of a plastic bag anddenied having to open a bootfor accused no.3. It was put toManzi that the purpose of going to Walaza was to get dagga and thoseclothes that were inthat plastic bag were going to be used toexchange them for dagga. His response was that he would notknow that. Hedenied that when they returned to the vehicleaccused no.3 was carrying anything.

[14]The next witness for the State was Keketso Mokgejane. Hisevidence was that he knew accused no.1 as they resided in thesamerental premises but occupying different rooms and were neighbours.At the time which was in 2019 accused no.1 workedas a security guardat a shop called Metro in Sterkspruit. He also knew accusedno.2 from her work place. She alsostayed in the same premisesas himself and accused no.1. He did not know accused no.3 buthe would see him when accused no.3would often visit accused no.2 buthe never saw him anywhere else. In November 2019 he, accusedno.2 and accused no.1 wenttogether to Walaza where they fetched somegoods from a certain homestead. They travelled in a bakkie.He knew thathomestead but he did not know the owner thereof.It had a two roomed flat structure. The goods they fetched wereacupboard and some other items he did not remember. He did notknow if accused no.2 was related to the people in that homesteadbutshe said it was her homestead. They took the goods to her placeof residence in her flat. The goods were off loadedfrom thevehicle and taken to her flat or room. Some of the goods oritems did not have space in her room. They putthose otheritems in his room. The items that were put in his room werefive containers. Four of those five containerswere 25 litresand one was twenty litres in size.

[15]The following day he, accused no.1 and accused no.2 were in her roomand bought liquor which they consumed. At some pointhe wentout and when he came back he was told not to enter as they were stilldiscussing something. He then went to his ownroom. Atabout 18:00 or thereabout accused no.2 came to his room and borroweda container saying that she was going to fetchwater. He gaveher one 25 litre container. She said she wanted the one thatwas black with a yellow lid. He gaveit to her, after all itwas hers. He later saw the three accused persons getting out ofthe gate from those premises singingor chanting. That was thelast time he saw them on that day.

[16]The following day at about 10:00 am he noticed that accused no.1 wasnot waking up. He went to his room to wake him up.Accused no.1 opened the door and he noticed that his face was black.He asked him where he was burning fire. Accusedno.1 said thathe should have followed him when he was told to leave as this wouldnot have happened. Keketso enquired fromaccused no.1 as towhat happened. He did not give him an answer. Keketsothen left. Later that day police arrivedlooking for theaccused persons. He added that on the day that he had gone outof accused no.2’s room he had left hiscoat in accused no.2’sroom. The following day he went to fetch it and noticed that itwas burnt. He did notknow what happened or how it got burnt onthe sleeve and on the edges at the back. When he fetched thecoat accused no.2was on her bed and accused no.3 was also in theroom. He took his coat. When he left it there, it had notbeen burnt.He asked accused no.2 why his coat was burnt.Her response was that she did not know. Thereafter he askedaccused no.1about his burnt coat and he also said he did not know.He further enquired from him how come his coat was burnt as it hadnot been burnt when he left it. However, he decided to leavethe issue like that and washed his coat.

[17]Under cross-examination Keketso testified that when he wasinterviewed by the police he did not mention that he together withaccused no.1 and 2 went to fetch goods from Walaza. He also didnot tell them about him going to accused no.1’s roomandfinding him with black face and asking him when he had burnt tyres.He said the reason he did not tell the police aboutaccused no.1’sburnt face was because he did not know what burnt his face. Heonly made the statement to the policewhen everything had happenedwhen Mr Kutwana, the investigating officer approached him.Their trip with accused no. 1 and2 to Walaza to fetch goods happenedand the statement was taken after the trip to Walaza. Policeapproached him on the dayhe heard about the Walaza incident askingabout the whereabouts of accused no. 2. He could not recallwhen Mr Kutwana approachedhim but it was still in November 2019.It was put to him that the statement was made on 18 January 2021.His responsewas that the statement was taken a long time ago,perhaps he forgot as to when it was actually made.

[18]It was put to Keketso that accused no.1 went to Walaza with him notin November 2019 but at the beginning of October 2019.Hedisputed this saying accused no.1 was lying. It was further putto Keketso that at the beginning of October 2019 he, accusedno.1 andanother person went to Walaza to fetch accused no.2’s brother’sgoods because he was going to be working inCape Town. Hisresponse was that accused no.1 was lying. He did not knowaccused no.2’s brother’s homestead.What he didknow was that they went to Walaza to fetch the goods. Accusedno.2 said that they were fetching the goods fromher homestead andthey were fetching her own belongings.

[19]He testified that he did not mention to the police leaving his coatat accused no.2’s place and finding it burnt in someplacesbecause when he had asked accused no.2 about it, she said she did notknow. It was put to Keketso that accused no.2did not disputegoing to Walaza with him in 2019 but she was saying it was early inOctober. Keketso said he did not rememberthe date and themonth but what he was saying was that they did go to Walaza. Itwas further put to him that accused no.2disputed that she had saidto him that the homestead from which they went to fetch the goods washers. Keketso said thataccused no.2 was lying. Hepersonally did not know the owner of that homestead but it wasaccused no.2 who told him thatit was her homestead. He said that hewent to that homestead for the first time when he went there withaccused no.2. Hedid not know to whom the goods belonged andwould therefore not dispute that they belonged to accused no.2’sbrother Lefu.He confirmed that accused no.2 went to his roomto fetch a container the following day after they had returned fromWalaza.

[20]He disputed accused no.2’s version that she fetched thecontainer from him on 3 November 2019 and said that she fetchedthecontainer from his room on the 6 as he was on duty on that day but hecould not recall the month. He testified that the5 was on aTuesday. He worked on Tuesdays, Thursdays and Sundays and onlywhen it was busy that he worked everyday Mondayto Friday. Hedisputed accused no.2’s version that he was not present whenshe came to fetch the container from hisroom saying that accusedno.2 was lying. He denied that only three containers, two ofthem were white and one was yellowwere kept in his room insistingthat they were five. He said that there were five containers,four of them were 25 litrecontainers and one of them was a 20 litrecontainer which was black with a yellow lid.

[21]He denied that he had meals at accused no.2’s place and saidthat it was accused no.1 who used to have meals at accusedno.2’splace. He denied having a quarrel with accused no.2 and beingtold to stop eating there or even coming to herplace. Hisevidence was that accused no.2 was lying and that they are stillclose even now and that he never had any quarrelwith accused no.2.He denied that his evidence in court was because of the allegedquarrel. It was put to him thataccused no.2 denied that heever left a coat in her room. He said that accused no.2 waslying and that she knew very wellthat he left his coat there.It was put to him that when he saw the container as accused no.2 wasleaving the premises,she was going to fetch water and she was withher sister and accused no.3. Keketso testified that accusedno.2 was lyinginsisting that she came to fetch the container fromhis room. Then she was joined by accused no.1 and 3 and allthree ofthem left together from the premises. He did not knowher sister and that the only female was accused no.2 when they leftthe premises.

[22]The next State witness was Mr Combi. He testified that heresided at Walaza. He knew the deceased Nyakambi Monoana.He was his brother but he uses their mother’s surname becausehe was raised by his mother’s family. He knew accusedno.2 as she was his brother’s wife but they had been inseparation for about four years when his brother died. InNovember 2019 they were no longer living together as husband andwife. Accused no.2 left their common home. At the timeofhis death the deceased stayed with Kekeletso Senoamadi and a boychild who was 13 years old at the time. During the nightof the6 November 2019 he received a call in which he was told that the homeof the deceased was on fire. He and his wifeproceeded to thehome of the deceased. On arrival they found that indeed thedeceased’s homestead was on fire and therewere members of thecommunity there. The deceased persons were inside the burningstructure lying there. He saw a 20litre container next to awater tank. At that stage police had arrived and warned themnot to touch anything. He didnot report the incident toaccused no.2. He continued with the preparations for hisbrother’s funeral and accused no.2did not attend the funeral.

[23]He confirmed that accused no.2 had a brother who stayed at Walaza in2019. He could not remember when accused no.2’sbrotherleft Walaza. With reference to photo no.2 which is in the photoalbum which was submitted as an exhibit he testifiedthat photo no.2depicted the 20 litre container that he referred to including theplastic bag. Photo no.4 depicted a bucketthat was smellingpetrol which was also at the crime scene.

Thetrial within a trial.

[24]The State indicated its intention to lead evidence in relation to astatement allegedly made by accused no.1 which it believedwas aconfession as well as a pointing out allegedly made by accused no.1.The attorney for accused no.1 indicated that hisinstructions were toobject to the evidence of the said statement and the pointing out.The reason for the objection wasthat that the said statement andpointing out were not obtained freely and voluntarily in that accusedno.1 was beaten, assaulted,tortured and threatened by the policeinto making the statement and doing the pointing out. He fearedfor his life and outof that fear he did what the police told him todo. He was told where to point and what to point before he wentto do thepointing out. His constitutional rights were notexplained to him during the interview with the police which precededtoconfession and pointing out.

[25]The State applied and was granted leave to open a trial within atrial to determine the admissibility of the statement madeby accusedno.1 as well as the pointing out. The State called sergeantKutwana, the investigating officer of the case.He testifiedthat he works as a detective at Palmietfontein police station.On 6 November 2019 he received a phone call atnight in which he wastold that a certain homestead at Walaza had been set on fire withpeople inside. He proceeded to Walazaand when he got there thedate was the 7 November 2019 and from then police investigationscontinued. On the 8 November 2019he received a phone call forhis informer. His informer told him to look for accused no.1accused no.2 and her boyfriendwhose name the informer did not knowat the time. On that very same day he proceeded to accusedno.2’s place of residencein Mokhesi. She was present andhe told her that she was a person of interest in the Walazaincident. He enquired fromaccused no.2 about any knowledgethat she might want to share with the police about the Walazaincident. Her response wasthat she knew nothing. Heasked her about her boyfriend and she said his name was SamkeloNontwana who is accused no.3 inthis case. He eventually metaccused no.3 in town that same afternoon and he also told him that hewas also a person of interestin his investigations about the Walazaincident. He requested accused no.3 to give him his cellphonehandset and he agreed.

[26]He then proceeded to accused no.2’s place of residence but shewas not present this time. He eventually found herat Hohobeniin a church service. He took her to her place of residence.He asked for her cellphone and she said eventhe cellphone of accusedno.1 was with her. He took both handsets with him. Herequested her for permission to searchher place and she agreed.She searched it and found a jacket and a pair of trousers which shesaid belonged to accused no.3.Those clothing items weresmelling of smoke and he took them to the police station. Helooked for accused no.1 from the 8to the 10 November 2019 but hecould not find him anywhere. Even at his home at Pelandaba hewas not there. At workhe was told that he was no longerreporting for duty. Then on 11 November 2019 he receivedinformation from his informerthat accused no.1 was on his way to hisplace of residence. The time was about 12 midday. Hetogether with sergeantMoahloli proceeded to accused no.1’splace of residence. They found him and introduced themselves tohim and also toldhim why they were there. Accused no.1co-operated with them and agreed to come to Palmietfontein policestation with them.When they arrived at the police station hetold him his constitutional rights. He asked him what hischoice was and he saidthat he would speak on his own and that hewould co-operate with the police and tell them what happened.

[27]He interviewed accused no.1 about what happened on the day of theincident at Walaza. From what he was saying it seemedto himthat accused no.1 was not present when the fire started. As hewas taking a statement from him he noticed that hehad some burns onhis face. He asked him about the burns and he then said that hegot those burns on the day of the incident.He decided toinspect his body and noticed that he had burns also on his waist atthe back as well as the back of his leg.It is then thataccused no.1 told him what happened on the day of the incident.As he listened to his story he realized thathe was also involved inthat incident. He therefore stopped him from continuing withhis narration of what happened.He asked him if he would beprepared to repeat his narration before a commissioned police officeror a magistrate. Accusedno.1 requested that he should arrangea magistrate for him so that he could narrate everything before themagistrate. Heasked him since the incident occurred at nightif he knew the area where it occurred and he said he knew the area.He askedhim if he would be prepared to do a pointing out to anotherpolice officer and he said he would have no problem with that.

[28]The time was about 16:00 at that stage and the court had alreadyclosed for him to arrange a magistrate. He then decidedto letaccused no.1 go home. This was because even when he fetched himfor his place of residence he co-operated with him.Hetherefore saw no need to keep him in the holding cells before he metthe magistrate. That was how they parted ways on11 November2019. On the 12 November 2019 he came to court very early andmet Mr Tloti who was a magistrate in Sterkspruitat the time.He made his request for him to take accused no.1’s statement.Mr Tloti indicated that he would beable to see accused no.1 on thatvery day. He also made arrangements for captain Modise to dothe pointing out and he agreed.He then went to the policestation to fetch sergeant Ndulula whom he wanted to take accused no.1from his place as he had arrangedwith accused no.1 that he wouldfetch him after he would have made all the arrangements. He andsergeant Ndulula travelled in twoseparate vehicles going to accusedno.1’s residence. In his vehicle he was with sergeantMoahloli and sergeant Ndululawas alone in his vehicle. As theyreached the Mokhesi Bridge which is near accused no.1’s placeof residence he sawaccused no.1.

[29]He then went to sergeant Ndulula and told him that accused no.1 wasthe person he was going to fetch from his home. Theyproceededback to Palmietfontein police station with accused no.1. Whenthey arrived at the police station he asked accusedno.1 if he wasstill prepared to make the statement to the magistrate and was alsostill prepared to do the pointing out.He said he was stillprepared to carry on with those things. The statement was to bedone on the 12 November 2019 and thepointing out was to be done on13 November 2019 in terms of the arrangements he had made withmagistrate Tloti and captain Modise.He parted ways withaccused no.1 whom he handed over to sergeant Ndulula. He metsergeant Ndulula at about 18:00 on the 12November 2019 and he gavehim accused no.1’s statement which had been recorded by themagistrate. He then arrestedaccused no.1 and detained him.On 13 November 2019 he again asked sergeant Ndulula to go withcaptain Modise for the pointingout.

[30]He testified that accused no.1 was never assaulted, forced, inducedor tortured at any stage to make a statement. Heexplained thataccused no.1 even had an opportunity to run away if he had beenassaulted or even go to Sterkspruit police stationto report theassault as the interview with him took place at Palmietfontein policestation. On the 11 November 2019 afterhe had finishedinterviewing him he drove him back to his place of residence to spendthe night at his place and come back thefollowing day.Therefore, he had an opportunity to run away if he had beentortured. As far as the pointing out wasconcerned sergeantKutwana testified that he was not present when it took place.Therefore, he would not be able to respondto accused no.1’sallegation that he was told places and points to point out.Even the officers who went with him todo the pointing out were notfamiliar with that area.

[31]At no stage was he dealt with by six police officers. He waswith one police officer when he interviewed accused no.1at thepolice station, sergeant Moahloli. The other officers who wereat the police station were busy with their daily duties.Hedenied that the statement was not made freely and voluntarily.He testified that accused no.1 was never assaulted throughouthisdealings with him. It was a lie that he was confronted withinformation obtained from an informer upon arrival at thepolicestation. He denied that accused no.1 was schooled on what tosay and said that everything contained in his statementcame fromhim. He further testified that he could not have schooled himas he did not know how the events unfolded.He denied that hewanted accused no.1 to be a State witness. He deniedsuffocating accused no.1 with plastic bags or twistinghis privateparts. He denied schooling accused no.1 about the points hewanted him to point out. He denied threateningaccused no.1with drowning him at the Orange River if he told the magistrate aboutbeing tortured or forced to make a confession.

[32]Sergeant Kutwana was further cross-examined by the legalrepresentative for accused no.2 and 3. He denied findingaccusedno.3 at accused no.2’s place of residence andconfiscating both their cellphones. He explained that heconfiscatedaccused no.3’s cellphone when he met him in townwhereas he confiscated accused no.2’s cellphone in her place ofresidence.It was further put to him that accused no.2 saysthat when he took accused no.3’s clothing in her place ofresidence andhe said that they smelled of paraffin or petrol, but henever said they smelled of smoke. Sergeant Kutwana testifiedthathe never told accused no.2 that those clothes smelled of smoke.He kept that to himself. He denied breaking at accusedno.2’splace of residence saying that he found her at Hohobeni and took herto her place of residence which she opened onher own.

[33]The next State witness was Dr Godlwana. She testified that inNovember 2019 she worked at Empilisweni Hospital in Sterkspruit.On 12 November 2019 she performed her duties as a medical officer atthe casualty area. At 14:34 she saw accused no.1 andexaminedhim and completed a J88 form. He was brought by constablesKutwana and Moahloli. She read the informationshe had recordedin that J88 form into the record. At no.5 of part 2 thereof shehad recorded that accused no.1 told her that she had been burnt withpetrol and fire by one adult male and one adultfemale that wereknown to him at around 12 am on 6 November 2019 at midnight. Hesaid that he was burnt on the face, thelower back, and backside ofhis left leg. She testified that all that information came fromaccused no.1 himself. Herclinical findings were that accusedno.1 had first degree burns on the face and nose. He had seconddegree burns on the lowerback, the upper thigh and the lower limb ofthe left leg. She estimated those burns to have been about sixdays old and werein their healing stages. She furthertestified that if he had been assaulted on 11 November 2019 suchassault would havebeen evident on his body on 12 November 2019.When she examined a patient she did so with his clothes off so thatshe couldexamine him or her from head to toe.

[34]Under cross-examination it was put to Dr Godlwana that the policeofficers who brought accused no.1 to hospital were the sourceof theinformation regarding how the burns were inflicted, it did not comefrom accused no.1. She testified that the contentsof the J88form were a reflection of the examination she conducted and theinformation contained therein was that of the patient.Shefurther testified that she examined the private parts of accusedno.1. Whether or not there would be evidence of hisprivateparts having been twisted would depend on how long the twisting tookplace and the amount of force applied as well as thetechnique used.Accused no.1 never told her that his private parts had been twistedwhen he gave her the history she recorded.

[35]The second J88 form was read into the record. It was alsocompleted by Dr Godlwana also on 12 November 2019 at 17:12after hehad been brought by police for the second time. She testifiedthat a patient examination is done without the policebeing presenteven where they had brought the patient because of theconfidentiality as the patient might divulge things that werenotintended to be of general knowledge. When she examined accusedno.1, it was just the two of them in the room and thepolice officerswere waiting outside. Nothing had changed with the accused fromthe earlier examination. There wasno evidence of new physicaltrauma. She denied that there was a stage in which she wasfound by the accused with the policeofficers who had taken himthere. Even during the second examination she had to examinethe patient as if she was doing itfor the first time.

[36]The State called Mr Sithembele Tloti who testified that he is amagistrate currently based at Edenburg in the Free State.InNovember 2019 he was based in Sterkspruit. On 12 November 2019he was asked to assist in taking a confession. Herequested theclerk of the court to get a pro forma of the confession and aninterpreter for him. After all the preliminaryarrangements hadbeen made he asked that the person concerned should be brought in.He took down the details of the policeofficer who brought thesuspect in after which he excused him so that only himself, thesuspect and the interpreter were in hisoffice. He did theintroductions and attended to the preliminary formalities. Hethereafter read the confession proforma as completed on 12 November2019 into the record. There is nothing peculiar on the proforma and the information containedtherein save for a part in whichthe pro forma requires the suspect to explain to the magistrate howhe was treated by the policefrom the time of arrest until he wasbrought before the magistrate. His response was:

“Todaythey did not ill treat me before they brought me here.Yesterday they arrived at home saying they were looking for me.I do not wish to say anything regarding the treatment I gotyesterday.”

[37]Mr Tloti was cross-examined on the pro forma document. Hiscross-examination related to what accused no.1 said allegedlyhappened before he was brought to him. As would be expected MrTloti would not be able to comment on any of the things thatallegedly happened in his absence. Those all concerned the samethings that were put to sergeant Kutwana during the police’sinteraction with accused no.1. Mr Tloti’s evidence wasthat while he did not know what happened before accused no.1wasbrought before him as he was not present, when he was before him heappeared to be making the statement freely and voluntarily.Themagistrate’s evidence was that if accused no.1 had told himthat he had been schooled on what to say to him hewould haverecorded that as well.

[38]The next witness was Mr Sipamla, the interpreter who assisted withinterpretation when accused no.1 was before the magistrate.There is nothing peculiar about what happened when the accused wasbefore the magistrate in the presence of Mr Sipamla who didtheinterpretation. In fact he was not even cross-examined as itwas the accused’s case that everything went well duringthatprocess.

[39]The State called its next witness, sergeant Ndulula. Hetestified that he was stationed at Palmietfontein police station.On 12 November 2019 he received a call from constable Kutwana in themorning requesting him to assist with a suspect who wantedto make aconfession. He was driving a marked police vehicle and was withsergeant Bahlekazi. Constable Kutwana wasin his own vehiclewith constable Moahloli. As they drove towards Sterkspruitconstable Kutwana showed him accused no.1 asthe person he wanted tobe assisted with. They met accused no.1 at Mokhesi just beforethe town of Sterkspruit. Kutwanathen requested accused no.1 tocome to his vehicle. From there they all drove to constableKutwana’s office at thepolice station. After Kutwana didsome paper work he handed accused no.1 to him and asked him to takehim to the magistrate.But before he took accused no.1 to themagistrate he took him to Empilisweni Hospital where he was attendedto by a doctor.He wanted the doctor to complete a J88 formbefore accused no.1 was taken to the magistrate. The doctorexamined accusedno.1 and completed the J88 form and signed it afterwhich he brought accused no.1 to the magistrate.

[40]He met the magistrate in his office and told him that he had broughta suspect for the confession. The magistrate tookhis detailsafter which he excused him. He came back only after themagistrate had finished taking the confession.The magistratehanded the confession to him and he took accused no.1 back toEmpilisweni Hospital with a new J88 form. Accusedno.1 wasexamined again and the J88 form was completed after which he droveback to the police station with accused no.1 and gaveall thedocuments to Kutwana and left. On 13 November 2019 he was toldthat captain Modise would be coming and he was requestedto assisthim with the pointing out that accused no.1 wanted to do. Hetook a clean J88 form and took accused no.1 from thecells toEmpilisweni Hospital. The doctor examined him and completed theJ88 form after which he took accused no.1 and theJ88 form back tothe police station. At the police station accused no.1 metcaptain Modise in the office. After thathe drove captainModise and accused no.1 to Walaza. After the pointing out wasdone he drove back and took accused no.1 anda clean J88 form toEmpilisweni Hospital again. After he was examined and the formwas completed he took accused no.1 backto the police station.

[41]Under cross-examination it was put to sergeant Ndulula that accusedno.1 knew Walaza locality even before the 13 November 2019.What he did not know was the homestead in which people were burnt todeath. Sergeant Ndulula testified that it cannot betrue thathe did not know that homestead as he was the one who gave himdirections to that homestead as he was driving. Hegavedirections all the way to the crime scene. As far as havingbeen schooled on what to point out Ndulula said that hedid not knowwhat accused no.1 was schooled to say or point out. All he knewwas that as the driver it was accused no.1 whogave him directions tothe homestead that was a crime scene. Prior to his interactionwith the accused he knew Walaza andhe knew the directions fromPalmietfontein police station to Walaza and accused directed him tothat homestead.

[42]The State called Dr Ntethe. She testified that on 13 November2019 she was on duty at Empilisweni Hospital. Policebroughtaccused no.1 for examination. She examined him and filled inthe J88 form. She examined him two times thatday. Shefirst examined him at 10:05 and then at 15:00. During the firstexamination she observed that he had two healingabrasions, one onthe right hand side of the face and the other one below the left sideof the cheek. He also had two seconddegree burns on the lowerside of the back which was becoming septic and also on the left legat the back. There were nofresh injuries. She againexamined accused no.1 at 15:00 when he was brought for the secondtime by the police. Therewas no change in his condition fromthe earlier examination and no fresh injuries were noted. DrNtethe was not cross examinedon her evidence.

[43]The next witness for the State was captain Modise. He testifiedthat he was a police captain stationed at Maletswai policestationdetectives’ unit. On 12 November 2019 he received a callfrom sergeant Kutwana requesting him to assist himwith a pointingout. They arranged that he would do it on the 13 November2019. On 13 November 2019 he drove to Palmietfonteinpolicestation. On his arrival he was allocated an office and waitedfor the suspect to be brought in. Constable Ndululabroughtaccused no.1 in after which he left him with accused no.1. Hehad with him a pointing out form which he completed.Heobtained all the details of the accused from the accused himself andthey were both communicating in isiXhosa and there wasnointerpreter. The photographer who had been arranged to takephotographs joined them for the pointing out photographs.Afterthe initial photographs of accused no.1 were taken in the office theyproceeded to the vehicle and more photographs of thevehicle andthemselves were also taken. They then left for the pointing outin a vehicle driven by Ndulula.

[44]Under cross-examination he testified that accused no.1 did not tellhim anything about being schooled, threatened or assaultedby thepolice. It was confirmed by accused no.1’s legalrepresentative that indeed he told accused no.1 his constitutionalrights. He testified that while he would not be able to commenton what was allegedly done by the police to accused no.1,he wascertain that during the pointing out he was doing the pointing outfreely and was in fact relaxed. It was put to himthat whileNdulula was driving in Walaza when accused no.1 saw a burnt downhouse he pointed it out as he was previously directedby the police.Captain Modise testified that his impression was that accused no.1was doing the pointing out as someone witha personal knowledge andwanted to point out what he wanted to point out. Nothing aroseout of the cross-examination.

[45]The State called sergeant Mooko. He testified that he is apolice officer stationed at Aliwal North LCRC. On 13November2019 he was requested by Kutwana to assist captian Modise with apointing out. He drove to Palmietfotein policestation andfound captain Modise already interviewing accused no.1. CaptainModise introduced him to the accused. CaptainModise asked theaccused to have his photos taken in a semi naked position.Indeed, he agreed and the initial photos of accusedno.1 were takenin the office with his permission. The purpose of those photoswas to have visual aid of any injuries thesuspect might have.Thereafter they moved to the vehicle where more photographs weretaken including the ones for the vehiclethat was going to be used.Thereafter he followed captain Modise’s vehicle who was withthe accused and the driver.Captain Modise was in constantconversation with the accused person at the crime scene which iswhere he took photographs of everythingpointed out by the accused.After that they drove back to Palmietfontein police station where hetook pictures of the vehicleon return. They then went insideto the office and photographs were again taken with the accused beingsemi naked.Sergeant Mooko was not really cross-examined on hisevidence on anything of significance.

[46]The next witness for the State was sergeant Moahloli. Hetestified that he was at work at Palmietfontein police stationon 11November 2019. He was with Kutwana when the latter receivedinformation on the investigation of the Walaza incident.Theyfollowed up on that information and went to the place of residence ofaccused no.1. After the preliminary introductionstheyrequested him to come to the police station with them. Heagreed and at the police station Kutwana informed accusedno.1 of hisconstitutional rights after which the accused indicated that he wouldlike to talk on his own and co-operate with thepolice. At somepoint Kutwana noticed that accused no.1 had some injuries on his facewhich appeared to be burns. Accusedno.1 also showed Kutwanaother burns on his body. On being questioned further ittranspired that accused no.1 had knowledgeabout the Walazaincident. Kutwana asked accused no.1 if he would be prepared torepeat that information to a commissionedpolice officer ormagistrate. He agreed to that. It was late in theafternoon and because of the co-operation of theaccused, Kutwanadecided to release him to go back home on the basis that he wouldarrange for his statement to be taken the followingday.

[47]On the 12 November 2019 he and Kutwana drove to the accused’splace of residence. However, they came across himalong theway. There was also another vehicle from their work place thatwas following them driven by Ndulula. Kutwanaasked accusedno.1 if he still wanted to continue with making the statement and heresponded in the affirmative. Accusedno.1 boarded Ndulula’svehicle and they drove back to the police station. He deniedthat accused no.1 was ever assaultedand forced to make a statement.He confirmed that accused no.1 was informed of his constitutionalrights and denied thathe was coached on what to say to themagistrate.

[48]Under cross-examination he denied that on their arrival at his placeof residence they told accused no.1 that they had allthe informationon the Walaza incident and that he should not waste their time.He denied that accused no.1 was assaultedor taken to the policestation without being given his constitutional rights or without hispermission. He denied that theytold accused no.1 that theyknew that he was not involved in the Walaza incident and that theywanted him to be a State witnessand must make a statementincriminating his co-accused. He denied that accused no.1 wastortured and his private parts twistedor threatened with beingdrowned at the Orange River. He testified that in fact accusedno.1 was so co-operative that theydecided to let him go home as thestatement was to be taken the following day because it was late.It was put to him thatindeed on 12 November 2019 Kutwana enquiredfrom the accused if he was still willing to make a statement and hesaid indeed hehad decided to continue with the statement.Moahloli confirmed that. He however denied that the contents ofthe statementmade before the magistrate did not come from accusedno.1 and that he made the statement to the magistrate based on whatKutwanatold him to say. He further testified that accused no.1was not told how to do a pointing out or even schooled on what topoint out at the crime scene. He pointed out however that he,Moahloli was not involved with the pointing out. Afterthisevidence the State closed its case in the trial within a trial.

Theevidence of accused no.1 in the trial within a trial.

[49]Accused no.1 testified in the trial within a trial to give evidenceabout the treatment he allegedly received in the handsof the policeon 11 and 12 November 2019, that evidence being the basis upon whichhe contended that the confession and pointingout which the Statesought to introduce should be declared inadmissible. His maincontention was that both the confessionand pointing out were notfreely and voluntarily made. He testified that after supper hereceived a call from his fatherinforming him that police have beenlooking for him. His father told him that he had been receivingphone calls from thepolice who told him they were looking for him.

[50]He testified that after hearing from his father that police werelooking for him, he went to the police in Sterkspruit. TheSterkspruit police told him that they were not the ones who werelooking for him. He then decided to go to his place ofresidence in Mokhesi where he was renting a room. When he gotthere he saw a police vehicle but those detectives could notseehim. He noticed that accused no.2’s room had been brokeninto and the police officers were inside. He proceededto hisroom and applied his ointments on his injuries. While he wasstill doing that, Kutwana and Moahloli barged in. Kutwanacamein and slapped him with an open hand on the wounds. Hetestified that he and Kutwana were known to each other but Kutwanaasked “if this is Zuko”. At that stage Kutwana wascarrying a pipe. Moahloli slapped him with an open handaswell. Kutwana used the pipe he was carrying to hit him manytimes in the shoulder area.

[51]The reason proffered by these police officers for assaulting him weregiven only after they had finished assaulting him withthe pipe.They asked him what he did at Walaza. When he told them that hedid not know anything about that, they saidthat he was playing.They told him that they have an informer who had told themeverything. It was at that moment thatMoahloli jumped onto himand throttled him. They told him that he was lying and that hewould tell the truth. Theytook him and put him in the vehicleand drove with him to the police station. When they arrived atPalmietfontein policestation they took him to their officers andhandcuffed him to a drawer of a steel cupboard and left him like thatsaying they weregoing to have a meal. When they came backKutwana and Moahloli were joined by a third police officer and theyasked him questionsabout this case.

[52]They told him that he was implicated in the burning of a house atWalaza but they were actually after accused no.2 and 3.Theytold him that he was also present during the incident when the housewas burnt and people were killed. Throughout hewas neverinformed of his constitutional rights by the police. He wasjust kicked and assaulted and told that he would saywhat they wantedhim to say. When he did not speak saying that he did not knowanything they started hitting him hard especiallyon his burn woundsand took turns in doing so until he became weak. They continuedhitting him for a long time. Theytook evidence bags and saidif he wanted to say something he should stomp his feet on the floor.They inserted the plasticbag on his head and sealed it so that hecould not breath. He then decided to stomp his feet on thefloor. The plasticwas removed but when he said he did not knowanything the police inserted it again and suffocated him for a longtime. Whenhe realized that they were not stopping he stompedhis feet on the ground again. The third police officer rolledup his sleevesand would squeeze his private parts very hard everytime he was suffocated with the plastic. He would also hit himwith fists,go up and down and hit him some more with fists.

[53]Eventually he succumbed to the torture and agreed to a statement thatthe police officers gave him. He was afraid thatthey wouldkill him as they said they would drown him in the Orange River.He was told what to say from what appeared tohave been written andthat he would have to go to a pointing out to point out certainspots. After he agreed to the statementand pointing out he wasnot assaulted again and was also uncuffed. He was caused to sitthere and told what was going tohappen. He was told that hewould not be arrested again, he would be a State witness and that hewould be taken to a magistrate.He was warned not to tell themagistrate that he had been beaten up. He should not tell himthat he would become a Statewitness. The police further saidthat he should speak nicely about them. If he did not do sothere would be consequences.He was told that he should narratethe statement he had been given to the magistrate. He was givena homework and told thathe should go home and come back thefollowing morning so that they could hear that nothing has changedbefore he went to the magistrate.The other police officersleft and he remained with Kutwana who took him home.

[54]On the following day he went to meet Kutwana who happened to arrivenear his place of residence at that moment. Kutwanatold him toboard their vehicle. They proceeded to court and sat outsideand drank some juices. During that time hewas made to rehearsethe statement he was required to make to the magistrate by Kutwana.After Kutwana was satisfied withhow he would narrate the statementto the magistrate, Kutwana handed him over to Ndulula. Ndululatook him to the magistrateand stood at the door as he entered theoffice of the magistrate. An interpreter was called over andthe process of takingthe statement before the magistrate started.He testified that Mr Tloti, the magistrate explained hisconstitutional rightsto him after which he narrated the things hehad been told by Kutwana. He told the magistrate what Kutwanahad schooled himon what to say. He did not tell the magistratethat Kutwana and his colleagues had assaulted him.

[55]He could not do so because he had been warned that there would beconsequences if he told the magistrate that police had assaultedhim. He further testified about the part of the pro forma wherehe was dealing with his treatment from the time of arrestuntil hewas brought before the magistrate. He said that he told themagistrate that he was not ill-treated before he wasbrought to him.He explained that when he said that he had realized that there wereno police officers in the office wherethe magistrate was. Hetherefore decided to “show the magistrate something when Inarrated the story that a certaintreatment was there on the previousday”. However, the magistrate stopped him saying that heshould not say anythingabout that treatment if he was notcomfortable in telling him what transpired the previous day and thathe would inform the courtif he was not comfortable informing himthere. He testified that he did not make the statement freelyand voluntarily ashe was forced to make it.

[56]With regard to the pointing out, the police had told him four placesto point out. When he woke up in the morning Kutwanatold himthat he would go and do a pointing out. He was then taken tocaptain Modise from the cells. The pointing outwas also notdone freely and voluntarily. It was as a result of the assaultand being schooled on it. He did not informcaptain Modiseabout being assaulted and tortured as he had been warned not todivulge such things. He testified that whenhe went to Walazafor the pointing out it was not the first time that he went toWalaza. He pointed the places he did, notbecause he knew thembut because he had been schooled on them. He confirmed that thedoctors who examined him did find burnwounds on his body. Hewas with accused no.3 when he sustained those burns. He hadgone to a drinking establishmentto drink alcohol. There weretyres that were sometimes burnt on the streets. Because he wasdrunk on that day he fellon that fire. He was with accusedno.3 who saved his life. He testified that all the doctors whoexamined him did notexamine his private parts. He furthertestified that captain Modise did inform him about his constitutionalrights.When he told one of the doctors that he was burnt byaccused no.2 and 3 he had been schooled by the police to say that.

[57]Under cross-examination he testified that he knows Kutwana a lot.He did not recall the date on which Kutwana and Moahlolivisited himat his residence. He testified that in November 2019 he visitedWalaza but he could not remember the date.On that occasion hevisited Walaza with accused no.2 and 3. He accepted theevidence of Kutwana that he and Moahloli wentto his place ofresidence on 11 November 2019 but he could not remember the date onhis own. When it was put to him thathe heard Kutwana’sevidence in that regard who was also cross-examined on the events ofthe 11 November 2019 he said thathe did not hear him. He saidthat he might have been lost in his own thoughts about his ownproblems when that was said.With regard to his evidence thathe saw the police at accused no.2’s room it was put to him thatthe evidence of Kutwanawas that it was on the 8 November 2019 whenhe went to accused no.’2’s place of residence,not the 11November 2019.He disputed that saying that it might be thatKutwana visited accused no.2 on 8 November 2019 but he did not seehim on that date.He saw him on 11 November 2019. On thatdate it had been a while since Kutwana had taken his cellphone fromaccused no.2’splace which he had left there for charging.Therefore it could have been on 8 November 2019 when Kutwana took hiscellphone.

[58]When it was put to him that in laying the basis for objection to theadmissibility of his statement, his legal representativehad saidthat six police officers dealt with him at Palmietfontein policestation, he said that his attorney did not ask him howmany policeofficers assaulted him. However, three police officers dealtwith him while the others were there in the office.He deniedbeing dealt with by Kutwana and Moahloli only, insisting that therewas a third police officer. He was assaultedbecause the policewere asking him what he had done and wanted him to co-operate withthem. He was assaulted with hands andkicked. No weaponswere used until the evidence bag was used to suffocate him.Kutwana would put the evidence bag overhis face and the third policeofficer would squeeze his private parts. His hand was cuffed toa steel cabinet drawer to thelevel of his head. The handcuffswere not tight and he had no injuries caused by the handcuffs.

[59]The police were saying that he should co-operate with them and make astatement in the manner in which he was being told.He wasdrilled by Kutwana and Moahloli on what he must say to the magistratebut it was Kutwana who was telling him what to saywith Moahloli justassisting. It was put to him that Kutwana and Moahloli neverassaulted him at Palmietfontein police station.It was furtherput to him that Kutwana was so professional in his dealings with himand he co-operated with Kutwana so much thatKutwana decided to lethim go and sleep at home. He denied that. He said Kutwanatook him from his place of residencein the morning and brought himback home at night. He co-operated as a result of which Kutwanadecided to bring him backto his place of residence. Kutwanabeat him so much that he had no option but to co-operate with him.

[60]Accused no.1 was referred to his consultation with Dr Godlwana at14:34 on 12 November 2019. He testified that policeentered tosee the doctor first and told the doctor about the history of hisinjuries. All he did was to confirm what thedoctor wanted himto confirm. When he spoke to the doctor she had already beentold what happened by the police. Withregard to the magistratewho took the statement from him he testified that he treated him welland he had no complaint againsthim. He told the magistrateeverything he had been schooled to tell him. He told themagistrate that he was burnt byaccused no.2 and 3. That camefrom him but he had been schooled to say that. The history hegave to the doctor of havingbeen burnt with petrol and fire by oneadult male and one adult female known to him on 6 November 2019 ataround 12 midnight wassomething the doctor had been told by thepolice. All he did was to confirm it in line with what he hadbeen taught.He denied that what the doctor and the magistraterecorded came from him voluntarily. He testified that on 13November 2019he met captain Modise. When he met him he toldhim everything that he was taught to tell him but he did not have aproblemwith captain Modise.

[61]With regard to his injuries he testified that on 9 November 2019 hesustained the burn injuries when he fell on a fire of burningtyres,while he was drunk that night. He clarified that that was twodays before he met Kutwana on 11 November 2019.He was baskingon that fire when he fell on it and was assisted by accused no.3.When it was put to him that he got burnton 6 November 2019 atWalaza, he denied that. He confirmed his evidence that only themagistrate and captain Modise explainedhis rights to him.Accused no.1 was not re-examined on his evidence. After thisevidence accused no. 1’s casein the trial within a trial wasclosed.

Theconfession and pointing out.

[62]The defence having closed its case in the trial within a trial theState and the defence addressed the court on the admissibilityof theconfession and the pointing out. Section 217 (1) (a) of theCriminal Procedure Act makes the following provision regarding theevidence of a confession:

“Evidenceof any confession made by any person in relation to the commission ofany offence shall, if such confession is proved tohave been freelyand voluntarily made by such person in his sound and sober senses andwithout having been unduly influenced thereto,be admissible inevidence against such person at criminal proceedings relating to suchoffence.”

[63]The basis for the objection to the statement made to Mr Tloti on 12November 2019 was that accused no.1 was beaten up, assaulted,kicked,suffocated, beaten with a pipe and other forms of torture were usedto force him to tell the police what they said he knewabout theWalaza incident. This was done despite the fact that he hadtold the police that he knew nothing about what happenedat Walaza.From his evidence it appears that the torture took various forms, wasprolonged and was done with heavy handednessdesigned to force him toagree to a statement in which he would implicate accused no.2 and 3.What is inexplicable thoughand which he did not explain was that onthe 12 November 2019, the following day after the torture he wastaken to EmpilisweniHospital. He was seen by Dr Godlwana andshe examined him two times that day and there was no evidence of anyform of physicalassault at all. I have looked at accusedno.1’s evidence thoroughly. It is clear to me that hisevidence aboutbeing assaulted was fabricated. I just do notunderstand how it is possible for him to have been physicallyassaulted inthe manner he described and to have no evidence of theassault the following day after he was assaulted as heavily as hedescribed.It also does not make sense to me that he could beso seriously assaulted for such a prolonged time and being subjectedto allforms of torture only to be driven home to sleep at his placeof residence peacefully and not detained.

[64]His other main objection was that his constitutional rights were notexplained to him by the police. Besides the difficultieswithhis evidence generally which appeared to be mostly contrived andlargely fabricated to fit some narrative, it was also hisevidencethat both the magistrate, Mr Tloti and captain Modise treated himvery well. Most importantly, his evidence wasthat both of themexplained his rights to him when he appeared before them for theconfession and the pointing out respectively.The obviousquestion then is, why did he not exercise those rights when he was inthe presence of people in authority both of themvery senior andaccountable people who on his evidence treated him well. Henever used the enabling atmosphere that theycreated and told themabout the ill-treatment that he said the police subjected him to.I do not intend to go into furtherdetails on his evidence save topoint out that I was satisfied that his evidence on being torturedwas patently dishonest besidesbeing largely contradictory.

[65]Both the confession and pointing were recorded in circumstances inwhich the alleged earlier treatment accused no.1 claimedto havereceived included physical torture for a long time in which he wasassaulted in various ways. I have found that helied about thattorture and I reject his evidence in that regard. His evidenceincluded the fact that the magistrate andcaptain Modise bothexplained his constitutional rights to him. This is besidestheir evidence that indeed they explainedthe constitutional rightsto accused no.1. The explanation of constitutional rights tohim happened before the confessionand pointing out were done.The State also led evidence of an official photographer from theAliwal North Criminal RecordCentre. The photos of the upperbody of the accused which were taken on 13 November 2019 which weretaken within two daysof the alleged violent assault on his body wasinflicted bear no evidence of the assault. This must be becauseit did nothappen. I reject this idea by accused no.1 that hedid not tell both the magistrate and captain Modise about theviolencehe alleged was visited on him because he feared beingdrowned at the Orange River as false as is the evidence of theassault itself.

[66]The confession was properly recorded and in my view, complied withthe law. The requirements of a proper recordal ofa confessionwere articulated quite clearly in S v Mpetla & Others 1982(2) SA 406 (C) which predates our constitutional dispensation.It was quoted with approval very recently by Mbha JA in Mudau andAnother v S (1148/2016) [2017] ZASCA 34 (29 March 2017) in whichthe Supreme Court of Appeal said:

“Aconfession made to and reduced to writing by a magistrate is, uponits mere production, admissible in evidence provided that therequirements of s 217 are satisfied. This means that amagistrate should ensure that the confession conforms to theprescripts set out in the Constitution.Even before the adventof the Constitution, cases are legion that emphasized the importanceof informing the accused of his constitutionalrights to legalrepresentation and the right to silence at every important stageduring the recording of a confession.

Thusin S v Mpetla & Others [1982 (2) SA 406 (C)] the courtsaid at 408 E-H:

‘Beforethe presumption comes into operation it must appear “from thedocument in which the confession is contained”that suchconfession was made freely and voluntarily etc. Normally noconfession of itself would refer to questions of voluntarinessorundue influence. A person making a confession is most unlikelyto volunteer the fact that he is confessing freely andvoluntarily,that he is in his sound and sober senses and that he has not beenunduly influenced to make such confession.It is manifesttherefore that implicit in the whole procedure envisaged by thesection is a questioning by the magistrate of theperson confessing.These question as well as the answers must be recorded for it to beable to appear from the document thatthe confession was made underthe required conditions of voluntariness, etc. This, of course,is also in accordance withlong-standing practice. It is wellknown that over a period of many years departmentalinstructions and the decisionsof the Courts have built up a seriesof guidelines to ensure that confessions are in fact freely andvoluntarily made without theexercise of undue influence. …’

Theserights have since been entrenched in s 35 [of the Constitution].”

[67]It is evident from the pro forma confession document that the rightquestions were asked by the magistrate and answered bythe accused.All of that including accused’s clear answers appear from thepro forma document itself. This isbesides accused no.1’sown evidence that indeed his rights were explained to him bymagistrate Tloti.

[68]The same applies to the pointing out. It was preceded by a formcaptioned “NOTES OF POINTING OUT OF A SCENE/S AND/ORPOINT[S]”.It appears there from that the accused was indeed telling thetruth when he testified that his rights wereexplained to him.The form is quite detailed and has been carefully designed to ensurethat no accused person would participatein a self-incriminatoryprocess without a clear understanding of his right not to participatein such a process when the processis properly done. In allthese circumstances I ruled both the confession made on 12 November2019 before Mr Tloti, the thenSterkspruit magistrate and thepointing out done with captain Modise from Aliwal North or Maletswaipolice station were admissibleas evidence in this case.

Canan accused be cross-examined in the confession before it is ruledadmissible?

[69]As I conclude on this issue I must point out that prosecutors mustunderstand that while a confession is generally shieldedfrom theears and eyes of the court and therefore the accused person may notbe questioned on it, that veil may be lifted, on application,if theaccused’s basis for his objection to its admissibility is thatthe contents thereof did not come from him. Theywere narratedto him by the police or that he was schooled on what to say.This is because the truthfulness of his allegationsin this regardneeds to be tested as well. The best way to do that is tocross-examine the accused on the contents of theconfession which healleged, came from the police even though it has not yet been ruledadmissible. In S v Talane 1986 (3) SA 196 (A) at 198 C-Din which the court said:

“Thetruth of the content of a confession made by an accused is, generallyspeaking, irrelevant to the decision of the question whethersuch aconfession has been freely and voluntarily made, and a prosecutorwould not be entitled to cross-examine the accused asto the truth ofsuch contents. Where the accused, however, himself alleges thatthe content of his confession is false andwas prescribed to him bythe police, the State should have the right to cross-examine theaccused on the content of the confessionto prove that the accusedhimself is the source of the contents, in other words to test hiscredibility. In such a case itwould not constitute anirregularity that the content of the statement has been revealed tothe Court and the assessors beforethe decision as to theadmissibility thereof has been made.”

[70]With the confession and pointing out having been ruled admissible,the State continued with its evidence against all the accusedin themain trial. I start with the evidence of Mr Tloti. Hestarted by reading the confession into the record as follows:

1.

“Iam Luzuko Taitai and I am 27 years old. I stay at Mokhesi, justacross the bridge from town. I am renting since Iwork as asecurity guard here in town. I work at M[...] F[...] M[...].My home is at Phelandaba

2.

About3 weeks back Maletsatsi arrived where I rent also to come and stay.We welcomed her with other tenants. Aftersome time, about twodays after her arrival, she asked me if I know at a person who sellsfirearms. I asked her what is shegoing to do with thefirearm. She informed me of her abusive husband. I said Ihave no knowledge of a person who sellsfirearms.

3.

Thenext time I saw her, approximately a day later, she again talkedabout her abusive husband. She said anybody who can killherhusband can give that person R10000.00. I told her I am asecurity. I only do legal work. She was confusingme.She began to call me constantly, even at work, urging me to do thisfor her, I refused. I told [her] I am busywith my odd jobs andI was doing painting during the day at those flats.

4.

On05 November 2019 I got off days at my work that were to resume on 06November 2019. She requested me to paint her roomand do someplaster work. We were no longer talking about killing of herhusband as I have earlier refused. On my arrivalon 06 November2019. In the morning from work, she was already gone to work.

5.

Earlier,when she arrived to stay at the flats where we rented, she hadintroduced me to Sam. Sam works at L.A. Radio Station.Hewas also a tenant at the flats. They had a love affair.He was always sleeping at Maletsatsi’s room.

6.

Onthe 6^th November 2019 they were both present at 17h00.I am not certain if they arrived together or separately.Maletsatsisent us liquor at Boxer, namely 4 quartz stout and 6 packof blue ice. She sent us there before 18h00. Again sentusto buy liquor at Mjafi Tavern, namely several quartz, I cannotremember well as I was already drunk. It was about 21h00.I was on both occasions in company of Sam.

7.

Atabout 22h00, we were very drunk. We were still drinking.It was myself, Sam and her. She said to us this isthe day shehas been talking about. She said we must not concern ourselveswith money, she has it. She will pay us.We ignored heras we were busy drinking. She told us what to do, we were justdrinking ignoring her.

8.

At23h00 she called one Oupa telephonically. She said we must gonext to the road so that Oupa will not see the room we emergedfrom.Oupa has a small taxi. She gave us plastic containerscontaining petrol to take to Oupa’s vehicle.I[t] was 1 X20 litre container and 2 X 5 litres. In the 20 litres there wasabout 10 litres of petrol. Oupa askedwhat was contained in thecontainers and she said it was traditional medicine. He took usto Walaza. The car waitedfor us in the main road. Thethree of us proceeded to a house in Walaza. At that stage I wasstruggling to walk asI was very drunk.

9.

Iseek to clarify that the petrol was only in the 20 litre container.The 2 X 5 litre containers were empty. On ourarrival at thishouse in Walaza, Sam jumped over the fence into the yard. Thepetrol was then poured into the empty 5 litreempties. Theywere almost full both. Small petrol was left in the 20 litrecontainer. Sam poured the petrol inthe 5 litres before hejumped into the yard.

10.

Isaid I am drunk and I do not want to be involved. Sam told mehe will kill me if I do not co-operate. I also enteredandMaletsatsi was trying to open the gate in order to enter.Whilst inside the yard I refused to co-operate. Sam pouredmewith petrol and Maletsatsi lit me. He used his hands to scoopthe petrol he poured at me. I took off my jersey tryingtoextinguish the fire.

11.

WhilstI was trying to doze off the blaze, Sam had opened the windows at thehomestead and sprinkled petrol. He lit usingmatches.Also Sam caught fire on his hair. He came to me trying toextinguish himself. Maletsatsi was also therebut since I wasburning I could not quite make out where she was. Also mytrouser was burnt and came back naked on my lowerbody.

Weran back to Oupa in different directions. We came back toSterkspruit with Oupa. On our arrival I went to my room.They took my phone. They then started to threaten me that theywill kill me if I talk. They then ran away.

Thatis all.”

[71]Captain Modise also gave evidence in the main trial relating to thepointing out which had also been ruled admissible.His evidencewas based on the photo album compiled by sergeant Mooko in respect ofthe pointing out and the notes of the pointingthat he, captainModise took as the pointing out was taking place. It is worthmentioning that the pointing out notes whichwere read into therecord were signed by both captain Modise and accused no.1. Thenotes read as follows:

“11:00Interviewing started with the witness Luzuko Tai-tai at office C-10Palmietfontein detective’s offices.

11:50Photos of the witness taken by constable Mooko of LCRC.

11:55Photos of the seating in m/v BSZ 055 B Reg No. F[...] 2[...] E[...].

11:57The witness ordered the vehicle to depart and pointed left directionfrom the police station.

11:58The witness Luzuko Tai-tai orders the vehicle to turn left on theR393 road main road from Telle-bridge to Sterkspruitdirection.

12:10The witness orders the vehicle to turn right joining the road toWalaza on Zastron road.

12:20The witness orders the vehicle to turn right near Walaza Store.

12:23The witness Luzuko Tai-tai pointed the burnt house referred herein asthe scene of crime and asked the vehicle to stop km:reading: 102010.

12:24The photo of the gate was taken where the witness Luzuko Tai-tai andSam and Maletsatsi entered carrying five litresof petrol.

12:25The photo was taken where the petrol containers were left and thewindow where petrol was thrown in the house.

12:28Photo of the window where petrol was poured by Sam as witness LuzukoTai-tai alleges.

12:30The witness pointed the spot where one full five litre petrol andhalf five litre petrol was left by him (Luzuko Tai-tai)and Sam asthe petrol also burn them.

12:35The witness Luzuko Tai-tai pointed the place where the white sedanwhich was hired by Maletsatsi was parked before theyproceeded to thescene.

12:40The witness Luzuko Ta-itai finished or was done with the process ofpointing the scene and orders the vehicle to driveback to the policestation at Palmietfontein.

13:05The witness Luzuko Tai-tai, captain Modise and the driver constableNdulula arrived at the police station motor vehiclekilometer readingstands at 102040.”

[72]Captain Modise was not cross-examined on his evidence and hishandwritten notes.

[73]Sergeant Mooko’s evidence was that at the request of Kutwana toassist captain Modise with taking photos of the pointingout processhe arrived at Palmietfontein police station on 13 November 2019.In his evidence he merely confirmed the evidencehe had given duringthe trial within a trial. No real cross-examination on the realissues pertaining to the actual pointingout process took place.After Mr Tloti, captain Modise and sergeant Mooko’s evidenceall of which related to the confessionand the pointing out the Stateclosed its case.

Thedefence case.

[74]After the State had closed its case there was an attempt on the partof the legal representatives for the accused persons toapply to thecourt to make a ruling on whether or not, following the admission ofthe statement made by accused no.1 before MrTloti, that statementwas in fact a confession. I first deal with this issue as thecontents of the confession, to the extentthat it was alleged to beexculpatory, loomed large in both the heads of argument filed andduring oral submissions in court.I think that the saidapplication was procedurally out of place and in fact a conflation oftwo separate issues. When theevidence of a confession issought to be introduced, a trial within a trial is opened forpurposes of determining if the said statementcomplies with thestrick requirements of section 217 of the Criminal Procedure Act. Ihave already dealt with section 217 above. However, I considerit necessary to point out that once a ruling is made that thestatement made by the accused personis admissible, all it means isthat the State is not barred from leading such evidence.However, the evidence itself mustbe assessed together with the restof the evidence as to whether when considered with other evidence, itsupports a convictionof the accused person. Its admission doesnot mean that on its mere admission the fate of the accused is sealedand he mustbe convicted.

[75]The accused, through their legal representatives, sought to arguethat the court should make some form of a ruling on thatdocument.I do not think that there is a second ruling that must be made by acourt that is based on the reading of the documentthat has beenadmitted as a confession. That document speaks for itself inthat it is now available to the court as wellto read it. Untilthe State has led its last witness, it is not known what other Statewitnesses might say and what mighttranspire from a cross-examinationof such witnesses. After all, rulings on confessions, pointingsout and admissions aregenerally interim in nature and the court isentitled to revisit them. The court is at large to consider theconfession inlight of what the accused chooses to say in his defencewhen he testifies. The court may very well conclude that on itsreadingof the document it does not appear that the accused admittedto having committed any offence. Or he did not admit to all theelements of the offence. Even worse, he can testify and proveto the court that he was compelled to commit the offence.Thatis a totally separate issue to that of its admissibility.

[76]The accused having said in a confession statement that he was at thecrime scene because he was forced to be there by otherpeople mustdepend on whether it is in fact his defence that he committed theoffence because he was forced by other people.If his defenceis that in fact he was not there as was the case in this matter, hecannot use the confession that says that hewas there as a result ofbeing forced to be there or was compelled to commit the offences whenin fact his evidence under oathin court was that he was not even atthe crime scene and he never committed any of the offences. Ifan accused person givesas his defence that he was compelled tocommit the offence indeed, the State must cross-examine him on beingforced to commit theoffence, not on him not even being at the crimescene. The same applies with the accused being too drunk to becriminallyliable, he must decide if that is his defence or not andput his version to the State witnesses accordingly. The ideathathe must first see which way the wind blows is not part of ourlaw and is not in the interests of justice. He cannot have hisbread buttered on both sides. His right to remain silent isbeyond debate as it is enshrined in our Constitution. ThattheState must prove the guilt of the accused beyond reasonable doubt,there can be no debate about that. But the accusedis notentitled to plead an alibi and at the same time plead compulsion incommitting the offence. The fairness of a trialis not to bedetermined only on the basis of what the accused and his legalrepresentative consider to be his way out of the evidencethe Statepresents. That would be antithetical to the whole concept ofjustice.

[77]In S v Yende 1987 (3) SA 367 (A) at 368 E-J the following isstated which, with respect, I consider to be the correct statement ofthe law:

“Inthe adjudication of the question whether a statement was a confessionfor the purposes of s 217 (1) (a) of the Criminal Procedure Act 51 of1977, an objective approach is preferable to a subject approach.A confession, being an unequivocal admission of all the elementsofthe offence in question, concerns the facts which an accused states(either orally or in writing) rather than the intentionbehind suchstatement. If the facts which he admits amount to a clearadmission of guilt, it does not matter that (in makingthe statement)he acted exculpatorily. It would be unrealistic to regard astatement which otherwise amounts to a confessionas not amounting tosuch merely because the person making the statement (possibly forsome or other illogical reason) does notintend it as a confession.The application of an objective standard does not mean, however, thatall subjective factors haveto be left out of account. Thestate of mind or intention of the person making the statement willsometimes be taken intoaccount as one of the surroundingcircumstances from which the objective meaning of his statement canbe ascertained. Inmany cases the precise meaning of astatement can only be ascertained against the background of theprevailing circumstances –particularly in the case of an oralstatement consisting only of a few words. Surroundingcircumstances can therefore betaken into account, with this proviso,however, that ‘(s)urounding circumstances which put thestatement in its proper settingand which help to ascertain the truemeaning of the words used’. Facts of which the personmaking the statement hadno knowledge at the time of the statementmust, however, be left out of account.

Inorder to decide whether a statement amounts to a confession, thestatement must be considered as a whole. In this connectionregard must be had not only to that which appears in the statement,but also that which is necessarily implied therefrom.If thecontent of the statement does not expressly admit all the elements ofthe offence or exclude all grounds of defence, butdoes so bynecessary implication, the statement amounts to a confession.Whether a statement, either standing alone or inconjunction withsuch surrounding circumstances as can lawfully be taken into account,is capable of a necessary implication willhave to be determinedaccording to the merits of each particular case. If there isdoubt in this connection, the statementis not a confession as itdoes not, in the nature of the case, contain a clear admission ofguilt.”

[78]It should be remembered that the trial within a trial is concernedwith one issue only. That issue is the admissibilityof theconfession or pointing out. The issue at that stage is not theguilt or innocence of the accused person who remainsentitled to beregarded as innocent until proven guilty beyond reasonable doubt.When the court rules that a confession isadmissible, that is the endof the issue as far as admissibility is concerned. The contentsof that document and what theyamount to do not require a newimpromptu enquiry to determine if it is in fact a confession.The issues of whether the accusedmakes an unequivocal admission ofguilt in the statement itself are all part of the trial. He maytestify and explain theprevailing circumstances at the time it wasmade. Those circumstances may very well show that he was forcedto be there andcompelled to commit the offences. The document,though admitted as a confession, is not immune from scrutiny.In fact,it is always open to scrutiny in terms of what is actuallysaid in the document. The court may very well decide that thatstatement was not a confession. This is because, the court,during the trial within a trial is not dealing with whether thestatement is a confession or not but whether, it wasconstitutionality obtained. If it was constitutionallyobtained, thenit is admitted as a confession. If on closerscrutiny after admission it appears not to be, the court is entitledto revisitits earlier decision and conclude that in fact thatstatement was not a confession in which case it can still disregardit.This legal position was made very clear in Zuma andOthers v The State [1995] ZACC 1; 1995 (1) SACR 568 (CC) where theConstitutional Court per Kentridge AJ said at para 7:

“… Thereference to the admissions of the two accused that they hadcommitted the offences arose from the evidence which they had givenin the course of the trial within a trial. As Hugo J fullyappreciated, that evidence was given only in the context of thetrialwithin a trial, where the only issue was admissibility. To thatissue the truth of the confession was irrelevant.Thus, in Sv Radebe and Another, 1968 (4) at 410(A) Ogilvie Thompson JA said –

“Itnot infrequently occurs that, although the presiding Judge may thinkthat the contents of a tendered confession are true, thecircumstances where-under the confession was made compel itsexclusion.”

Theevidence of accused no.1.

[79]The accused opened their case with accused no.1 testifying in hisdefence. He testified that on 6 November 2019 he stayedatMokhesi in Sterkspruit. He was employed as a security guard atM[...] F[...] M[...]. He testified that he knowsnothing aboutthis case. However, he remembered what happened in the earlydays of November 2019. He and accused no.2stayed in the samepremises whereas accused no.3 would visit the premises from time totime. On 6 November 2019 he was athis place of residence andlate in the evening he went to Walaza. When they went to Walazathey were four people. Itwas himself, accused no.2 and 3 aswell as Mihlali Manzi. The purpose for going to Walaza was tofetch a bulk amount of dagga.He and his co-accused were goingto sell it. Manzi was not involved in that business, he wasjust driving them there.They did not tell Manzi that hisvehicle was going to be used to transport the dagga as he might haverefused. They toldhim that they were going there to perform aritual at a certain homestead in Walaza and that he was a traditionalhealer.The arrangement for Manzi to transport them to Walazawere made by accused no.2. They boarded the vehicle nearMokhesi Bridge.

[80]The person who was going to sell them dagga confirmed to them that hewas available on that day. He also said that theyneeded not toworry about money if they did not have cash as he also took clothingand blankets, branded clothing like Nike.The said person was amale and he spoke Sesotho. The clothing was packed in a blackplastic bag which was closed. WhenManzi confirmed that he waspresent they proceeded to the vehicle. They greeted him andasked him to open the boot.They put the parcel in the boot andthe vehicle drove off. After a while he asked them what werethey carrying. Theydecided not to tell him the truth.They said to him that they were carrying traditional medicine for acleansing ritual.They were only carrying the black plastic bag whichwas fully loaded with clothing. They stopped near Mr Monoana’shomesteadwho is not the same person as the deceased in this case.They requested Manzi to open the boot so that they could off loadtheparcel. He did so and they took the plastic bag from the bootand proceeded to the shack where they were going to meetthe daggadealer. He and accused no.3 left leaving accused no. 2 in thevehicle with Manzi. But they requested herto alight from thevehicle to show them directions to the shack. He already knewthe shack so when she showed them the roadthey proceeded to theshack. The dagga dealer was there smoking dagga. He askedthem to taste the dagga. He tastedit by smoking it and heconfirmed that it was indeed dagga. Thereafter the dagga dealeropened the plastic bag to check theclothing and when he wassatisfied, he took the dagga and loaded it in the same black plasticbag. After they were done smokingand had their parcel of daggathey had to rush as the vehicle was a hired vehicle.

[81]They ran back to the vehicle and on reaching it they requested Manzito open the boot for them. He disputed Manzi’sevidencethat on their return they were not carrying the parcel. AboutManzi’s evidence that on their return they wererunning, hetestified that they rushed to the vehicle or were trotting.When he was asked to explain whether when they returnedto thevehicle they were running or not, he testified that initially theywere rushing and then eventually they ran to the vehiclebut not infull speed. He was asked to comment on Manzi’s evidencethat he asked them why they were running and theysaid they werebeing chased by dogs. He said that Manzi never asked himanything unless he was talking to his co-accused.He explainedthat he did not dispute that the question was asked by Manzi sayingthat perhaps he did not hear it.

[82]On Manzi’s evidence that on their return they were smelling ofsmoke he testified that Manzi could be telling the truthabout themsmelling smoke because on arrival at the dagga dealer’s place,the room was full of smoke and he also smoked somedagga. Hedenied that when they departed for Walaza from Mokhesi they were inpossession of a 20 litre container. Ontheir return to thevehicle at their request Manzi opened the boot for them, they loadedtheir dagga parcel and he drove off untilthey reached Mokhesi Bridgenear the place where he had picked them up earlier. On reachingthat place they requested himto open the boot for them and they offloaded their parcel. Manzi drove off and they went to theirrespective rooms.He opened his room but did not stay but wentto their room to say goodbye and to also say that they would see thefollowing dayhow to go about their dagga. He then went to hisroom to sleep.

[83]One day he was arriving from his home at Phelandaba and found thepolice already at the premises. The police officerswereKutwana and Moahloli who assaulted him and eventually took him toPalmietfontein police station where he was cuffed and interrogatedabout Walaza. During that interrogation he was assaulted andthreatened with being drowned at the Orange River. Thepolicewanted him to implicate accused no. 2 and 3 saying that he was burntby accused no.2. Eventually he agreed to co-operatewith thepolice. That same evening, he was brought back home and fetchedthe following morning in two vehicles. Thepolice found himwith his employer. He was taken to the magistrate’s courtwhere they waited outside for some timewith the police trying to seeif he had rehearsed his statement properly. Eventually he wasescorted to the magistrate byNdulula. The magistrate informedhim of his constitutional rights. He made a statement to themagistrate which is theone that the magistrate read into therecord. He testified that in that statement he talks aboutaccused no.2 and 3.After that statement he was taken to thehospital. He was examined by the doctor.

[84]He testified that when he went to Walaza on 6 November 2019 withaccused no.2 and 3 it was not his first time going there.Hefirst visited Walaza in October when he went to fetch accused no.2’sbrother Lefu’s goods. He went there forthe second timeduring the dagga visit on 6 November 2019. On that first visitin October 2019 it was himself, the personwho was going to assistthem in loading the goods, the driver and accused no.2. Whenasked if Keketso went with them to Walazaon that occasion, hisresponse was that Keketso is a sickly person and that he did notnotice his presence. He then saidhe did not dispute hispresence but he was saying that he did not remember his presencethere or seeing him there. He disputedKeketso’s evidencethat they went there in November 2019 to fetch the goods insistingthat it was in October 2019.They brought the goods to accusedno.2’s place of residence. They remained there consumingliquor.

[85]After he made the statement to the magistrate he was then charged anddetained. The following morning, he was taken tocaptain Modisewho took him to the pointing out where he pointed the points he hadbeen told about. He pointed the pointsor spots Kutwana hadtold him about. He testified that he knew the home of thedeceased in count 3 and he knows that it isthe homestead of accusedno.2 because she said that it was her husband who stayed there on theday they went there to fetch a key.On that day he did notenter. That day was in October when they went to fetch Lefu’sgoods. On that day accusedno.2 went inside while he remainedin the vehicle. Since it was her husband, she was taking timecoming back. As aresult he went in to call her out. Hetestified that he never conspired with anyone to commit the offencesfor which he hasbeen charged. He never set the deceased’shomestead alight and he never caused the death of the deceased incounts3, 4 and 5. Accused no.1 was referred to the evidence ofKeketso who said that he knocked at accused no.1’s room andwhen he opened he noticed that his face was black. He asked himwhere he was burning tyres and accused no.1 said that hewished hehad listened to him. Accused no.1 testified that he did notopen for Keketso because he had a hangover. Hedenied that hisface was black or that Keketso enquired about it.

[86]Accused no.1 was cross-examined by the legal representative foraccused no.2 and 3. He testified that his statement whichhemade to the magistrate led to the arrest of accused no.2 and 3.He testified that he was told by Kutwana that they wereafter accusedno.2 and 3. Kutwana assaulted him to make a statementimplicating accused no.2 and in accordance with whatthey told him tosay. What he said in that statement was a lie and it is what hewas told to say. He was also promisedthat he would not bearrested but would be made a State witness. Where he said inthat statement that accused no.2 loadedpetrol in the hired vehicle,that was a lie and he had been schooled to say that. Heconfirmed that on 06 November 2019 hewas at Walaza and he had beenthere before some time in October when he went to fetch a key.

[87]He knew the deceased Nyakambi Monoana by sight as he once saw him.On the 6 November 2019 when they went to Walaza, thehomestead theyvisited was very far from Nyakambi’s. On 6 November 2019he and accused no.3 went to a shack to buydagga. He did notdispute smelling smoke but it was from smoking dagga. Anyevidence that related to him and accusedno.3 at the crime scene wasa lie. Any evidence of him being approached by accused no.2 fora firearm to kill the deceasedwas also a lie. It was somethinghe had been told to say. He never conspired with accused no. 2and 3 to kill the deceased.It was also a lie that he wasforced to participate in the commission of any offence by accusedno.2 and 3.

[88]Under cross-examination by the prosecutor it was put to him that hementioned for the first time when he gave evidence thathe oncevisited the home of the deceased in count 3 and that he knew him.He responded that he had indicated that he forgotto mention that hedid go to the homestead of the deceased in count 3. Thedeceased in count 3 also used to visit accusedno.2’s placewhere she was renting. Accused no.2 used to tell him about herhusband and he would see him when he visitedher. When he wentto Walaza in October to fetch Lefu’s goods he was not seeingthe deceased in count 3 for the firsttime. It was put to himthat on his evidence he visited Walaza three times, the first timewas when he went there in Octoberto fetch Lefu’s goods, thesecond time was when he went to buy dagga and the third time was whenhe was taken there for thepointing out. He admitted going toWalaza on 3 occasions.

[89]On 6 November 2019 he boarded Manzi’s vehicle which was hiredby accused no.2. They were carrying clothing thatwas in ablack plastic bag which was a refuse bag. They used two refusebags for that one parcel of clothing. He agreedthat Manzi wascorrect that they were carrying a black plastic bag which they put inthe boot. He said that that plasticbag was sealed, so he couldnot have seen what was inside. He did not know where Manzi gotthe idea of a 10 or 20 litre containeras he could not see what wasin that plastic bag. He also agreed with Manzi that he wasintroduced to him as a sangoma andthat he was going to Walaza for aritual. With regard to the in loco inspection they did withManzi, accused no.1 said thatManzi pointed his own places and they,as the accused pointed their own. He disputed Manzi’sevidence that they loadeda plastic bag containing a 20 litrecontainer. Their plastic was sealed with clothing inside.He was referred to theevidence that a black plastic containing acontainer with a yellow cap was found at the crime scene, he said heknew nothing aboutManzi’s evidence. He denied that theyloaded a plastic bag containing a container inside in the boot ofManzi’svehicle. He insisted that that plastic bagcontained clothing in it. He knew nothing about a container withpetrol whichwas used to burn the homestead of the deceased in count3.

[90]Accused no.1 explained that his burn wounds occurred when he fell ona fire of burning tyres because he was drunk and was rescuedbyaccused no.3. This happened after some time after the 6November 2019. He however did not remember the date.Hethought it was the 8 or the 9 November 2019 when he fell on thatfire. When Kutwana visited him he had already fallenon thefire. He disputed Keketso’s evidence that on 6 November2019 he gave accused no.2 a container with a yellowlid and that hethen saw him, accused no.2 and 3 getting out of the premisessinging. He denied being seen by Keketso thefollowing morningwith a black face and saying that he never opened for him. Hesaid that Keketso was lying and is sick andthat he must have beenfed this kind of information. On 6 November 2019 he had not yetbeen burnt. On Manzi’sevidence that he came back to thevehicle smelling smoke, he testified that he should have smelledsmoke because the room theywere coming from had smoke and he hadsmoked dagga. He further said that Manzi was lying that ontheir return they were notcarrying the plastic bag.

[91]They returned carrying the plastic bag containing dagga. Hedenied telling Dr Godlwana that he was burnt on 6 November2019saying that Dr Godlwana had spoken to the police, she just examinedhim and told him that they did not have medication.It was putto him that his being burnt by burning tyres was never put toKeketso. His response was that he had told his legalrepresentative how he got burnt. On the fact that it was alsonever put to Dr Godlwana that he was burnt in a burning tyrefire hetestified that may be his lawyer was focusing on being burnt on the 6November 2019 but Dr Godlwana never asked him whenhe got burnt.He had mentioned to his attorney how he got burnt who wascross-examining witnesses. He mentioned itwhen he testifiedbecause it was his chance to tell his story. He testified thathe saw Kutwana on 11 November 2019 in accusedno.2’s room butshe was not there. Kutwana then came to his room just after hearrived. He denied that on 6 November2019 he went to Walazafor the purpose of killing the deceased in counts 3, 4 and 5 and notto buy dagga. On being askedsome questions by the courtaccused no.1 testified that he went to Walaza once in October whenthey went there to fetch Lefu’sgoods. He explained thatLefu’s keys were kept at the deceased’s homestead andthat was the key they went tofetch in October 2019. InNovember he only went to the deceased’s homestead when he wasbrought there by the police.Accused no.1 closed his case afterhis evidence.

Accusedno.2’s evidence.

[92]Accused no.2 testified that she stays at Majuba in Sterkspruit andshe is not married currently. She and her husbandsimplyseparated and theirs was not a civil law marriage. Her husbandwas Nyakambi Monoana, the deceased in count 3.She had threechildren with her husband but those three children all passed away.Majuba is her home where she stays withher mother, nephews andnieces and her own children. She now has two children, one is 7years old and the second one is 5years old. In November 2019she stayed at Mokhesi and worked at Memela Tarven until the time shewas investigated for thiscase. At that time she had alreadyseparated from her husband as she stayed in Mokhesi and he stayed atWalaza. Theyhowever, visited each other. He would cometo her place of residence in Mokhesi and she would visit him inWalaza.Their relationship was basically the same as at thetime they stayed together in Walaza. By being in separation shewas referringto the fact that they lived in different places.

[93]On 6 November 2019 she was at her workplace. She knows nothingabout the offences in this case. She knocked offfrom work at18:00 and went to her place of residence where she found accused no.1already there but in his own room as he wasoff duty on that day.When he saw her entering her room he came to her and told her thataccused no.3 had just left.He further said that they wanted todiscuss something with her. She then phoned accused no.3 whosaid he was in town.He came back from town and the three ofthem had a meeting. The time was at about 19:00. Accusedno.1 and 3 said theyhad a dagga that needed to be fetched fromWalaza that same day and they needed transport. She then toldthem that she hada metre taxi that she normally used which belongedto someone she knew. She phoned the metre taxi as it was onlyher phonethat had airtime. The call was answered and she saidto the person who answered the phone that at around 22:30 she wouldneed transport to Walaza. She phoned this person again andchanged the pick-up time to 22:45. The vehicle arrived at 23:15.The clothing that was to be taken to Walaza had already been packed.They took a plastic bag and went to the vehicle.The driver sawthe plastic bag and opened the boot. The plastic bag was loadedin the boot of the vehicle. She satin the front passenger seatand accused no.2 and 3 took the back seat. The vehicle droveoff until it reached Walaza.At a certain place in Walaza thevehicle turned where accused no.1 and 3 alighted. Before theyleft Mokhesi for Walaza herco-accused had requested her to comealong because they were taking clothing to Walaza but they wereworried that the driver mightleave them. The arrangement wasthat she would remain in the vehicle with the driver.

[94]Accused no.1 and 3 alighted from the vehicle and requested that theboot be opened for them. They took their parcel andleft her inthe vehicle with the driver. They later came back and requestedthat the boot be opened for them. The bootwas opened and theyloaded their parcel. She noticed when they alighted at Mokhesithat the parcel was in a black plasticbag. The vehicle droveoff returning to Mokhesi where they alighted and all three of themproceeded to her room. Inthe morning on 7 November 2019 sheheard that her husband had passed on in a fire incident fromsomeone. This was on a Thursdaywhen she heard the news.It was on Friday the 8 November 2019 when police arrived at her placewhile she was preparing togo to Walaza. The police officerswere Kutwana and Moahloli and a third policeman. When thepolice arrived she waswith accused no.3 in her room. Theyasked them about what happened at Walaza and told her that she was asuspect. Theyasked her for her cellphone handset which shegave to them. They also requested accused no.3’scellphone handset.He also gave it to them. Kutwana also askedher not to go to Walaza because she was a suspect after which Kutwanaand his colleaguesleft.

[95]Later that day on 8 November 2019 police found her at Hohobeni andtook her to her room in Mokhesi. Her keys were notwith her,accused no.3 had left with them. She was not even able to phonehim because police had taken his phone. Thepolice decided todamage the padlock and gained entry into her room. She enteredthe room with them. They searchedher room but did not findanything that linked her to the commission of the offences in thiscase. With regard to the evidenceof Keketso that on 6 November2019 she took her 20 litre container which was in his possessionwhich the State alleges, was foundat the crime scene, she testifiedthat she had three containers that she had asked Keketso to keep forher. They were two25 litre containers, both white and one 20litre container which is yellow. When she went to Keketso’sroom he wasnot there and the room was not locked. She enteredand took one white 25 litre container. She, accused no.3 andhersister left the premises. Her sister was going to the taxirank while she and accused no.3 went to fetch water with thatcontainer. She did not have a black container. However,she did have a 20 litre container that had a yellow lid butit wasalso yellow. With reference to photo no. 17 she testified thatshe never had a black or blue container with a yellowcap. Sheexplained that on 6 November 2019 she and her co-accused had in theirpossession a black plastic bag but it didnot have a container.The plastic bag they loaded in Manzi’s vehicle boot did nothave a container.

[96]She phoned Zimasa and made arrangements for their trip to Walaza.The person she knew who had a metre taxi was Manzibut when shecalled the phone was answered by Zimasa. She could not recallthe time she spoke to her but she arranged thepick-up time withZimasa to be 22:45. However, the vehicle arrived at23:15. She had arranged the time initiallyto be 22:30 but shelater changed it to 22:45. Manzi was correct that she was theone giving him directions to Walaza.She knew the place theywere going to.

[97]Under cross-examination she testified that she and her husbandseparated in terms of places of residences in 2010. Duringtheperiod they were in separation he would visit her at Mokhesi andsleep there and she would also visit him at Walaza and sleepthere.She was not aware that in 2019 the deceased in count 3 was datingKekeletso, the deceased in count 4. When itwas pointed out toher that it was never put to Mr Combi that the deceased and herselfvisited each other, she said that her legalrepresentative neverasked Mr Combi any questions. He also did not ask her if shehad anything she wanted Mr Combi to beasked. She consideredherself as deceased’s wife even after she left him because hewould also refer to her as hiswife.

[98]Accused no.2 was asked about the time at which she called Zimasa on 6November 2019. She said that during the first callto Zimasashe buzzed her number which was a number she saw on a poster whilstshe was still at work. It was after 18:00 aftershe knockedoff. It was put to her that Zimasa testified that she receiveda phone call from a lady during the day and thatlady enquired abouta cab. Her response was that she did not hear Zimasa sayingthat. Zimasa went on to say that thecaller wanted to know theprice for a return fare to Walaza and she told the lady that it wouldbe R300.00. The lady saidshe would call at about 18:00 as sheneeded a cab to Walaza. She responded that what Zimasa wastalking about was what theydiscussed after she had knocked off andafter her discussions with accused no.1 and 3. It was furtherput to her that Zimasatestified that indeed the lady phoned justafter 18:00 and requested to reschedule the time. She confirmedcalling to reschedulethe time. Accused no.2 was referred toher conversation with Manzi in which she told him that accused no.1was a sangoma,she explained that she could not tell Manzi the truthwhen he asked her what they were going to do at Walaza. Thiswas becausethey were going to fetch dagga at Walaza and he would nothave agreed to load dagga in his vehicle.

[99]Accused no.2 testified that she did not leave her homestead in 2010in a bad way. Her two children who are seven andfive years oldare not those of her husband. She did not know that he wasstaying with Kekeletso. She last visitedthe deceased in count3 in 2019. She had gone there to fetch a key, so in 2019 shevisited him once, when she went to fetcha key. It was put toher that Manzi said that when accused no.1 and 3 returned to hisvehicle at Walaza they did not returnwith the parcel they had takenwith them when they alighted. She testified that she had noknowledge about that. However,they asked him to open the bootfor them and when they reached the place where the vehicle had pickedthem up they took out a blackplastic bag which she understood to bethe same plastic bag they had placed in the boot when they returnedto the vehicle.Accused no.2 confirmed Keketso’s evidencethat in November 2019 he together with her and accused no.1 went tofetch goodsform a two roomed flat structure. However, that wasnot the home of the deceased in count 3. It was the place herbrotherLefu was renting.

[100]She also disputed Keketso’s evidence that on 6 November 2019she came to his room and took a 20 litre black containerwith ayellow lid. It was put to her that according to Keketso she,accused no.1 and 3 were carrying that 20 litre containergoing down,out of the premises and singing. She disputed that evidence andsaid that Keketso saw her, accused no.3 and hersister. Theywere carrying a white container which he did not see it when she tookit because he was not present in his roomwhen she took it.Furthermore, it was not on 6 November 2019 but it was on a Sunday.

[101]Accused no.2 testified that Manzi lied when he said that accused no.3asked him to open the boot and the boot was opened andaccused no.3put in a black plastic bag containing a 10 or 20 litre container.She testified that Manzi could not have seenwhat was in that plasticbag. She however, agreed that the plastic bag was blackand that Manzi took them to Walazaon 6 November 2019. It wasfurther put to her that at the crime scene a black plastic bag with ablack container that hada yellow lid was found. She respondedthat she heard that. It was further put to her that her legalrepresentativesaid Keketso was fabricating his story about herbecause of a quarrel. However, she herself never gave evidenceabout that.She testified that that was because her legalrepresentative did not ask her about her quarrel with Keketso.It was put toher that on 6 November 2019 she went to Walaza with theintentions of killing the deceased persons in this case. Herresponsewas that she had not gone to the homestead of the deceasedin count 3 when she went to Walaza on that day. She went toWalazato fetch dagga. She denied acting in concert withaccused no.1 and 3 to kill the deceased.

[102]In re-examination accused no.2 testified that she remembered that shedid call Zimasa during the day after she met accusedno.1 and 3 andhad discussions with them on 5 November 2019. During thosediscussions she said to them that she would makea telephone call thefollowing day during the day. So her discussions with accusedno.1 and 3 were on 5 November 2019.She first called Zimasa on6 November 2019. With regard to what was put to Keketso that hewas falsely implicating her sheexplained that when she arrived attheir premises, Keketso already stayed there and she already knewhim. She did not havea stove and used that of Keketso forcooking. She took his stove and used it to cook in her room andthey would eat together.She was also buying the groceries.One day he came back drunk carrying 2kg of chicken. Keketsolater gossiped abouther saying he was feeding her. After sheheard that gossip she took the 2kg chicken and his stove and threwthem outsideand told him never to set foot in her room. Thatis what they quarreled about. Since then their relationswerenever the same. The main reason for him to implicate herwas that he was no longer coming to her room for meals but wouldseeaccused no.1 and 3 coming to have meals with her. He got angryabout that. The difficulty with accused no.2’sevidence about the reasons Keketso would falsely implicate her isthat they were never put to Keketso.

Thecase for accused no.3.

[103]Accused no.3 testified that he stayed in Lusikisiki but in 2019 hestayed at Tienbank in Sterkspruit. He arrived inSterkspruit inFebruary 2018. He worked at LA-FM as a programme director andalso conducted two radio shows. He stoppedworking at LA-FM inNovember 2019. He received another offer in Limpompo where theyneeded a manager for a restaurant.He testified that he knewnothing about the charges preferred against him. He also didnot know any of the deceased persons.He had never seen orheard of them before. He had never visited the homestead of thedeceased in count 3, Mr Nyakambi Monoana.He once visitedWalaza in November 2019 in connection with their dagga deal.All he knew about the dagga dealer was thathe had a Sotho name whichhe struggles to pronounce. However, that person was known byaccused no.1. Accused no.1 knewthe name of this person verywell. They visited Walaza at night but he was not sure aboutthe time. He was with accusedno.1 and 2 as well as the driverof the vehicle. They met with their dealer at Walaza in hisshack. When they wentto meet him it was himself and accusedno.1. The driver and accused no.2 remained in the vehicle nearan old shop where thevehicle dropped them off. He estimatedthe dealer’s shack to be about 300 metres from where thevehicle dropped them.The reason the vehicle did not comecloser was because they did not want the driver of the vehicle to beinvolved in the daggadeal.

[104]They met the dagga dealer. They took their parcel as agreed andreturned to the vehicle. When they went to theshack they werein possession of some clothing items that were to be exchanged forthe dagga. They gave the dagga dealerthe clothes and he gavethem dagga. They placed the dagga in the plastic bag whichpreviously had the clothing items.He denied that that plasticwhich they had put in the boot of the vehicle had a 10 or 20 litrecontainer. He had nothingto do with the offences that werecommitted on 6 November 2019. He did not conspire with anyoneand he did not set the homesteadof Nyakambi Monoana on fire.He did not kill anyone of the three deceased persons.

[105]Under cross-examination accused no.3 testified that accused no.1 hasbeen his friend since 2019. He started knowinghim in February2019. Accused no.2 is also his friend. He disputedKeketso’s evidence in which he said he sawhim and accused no.1and 2 leaving the premises carrying a 20 litre container which had ayellow cap. He testified that accusedno.1 was not there.It was himself, accused no.2 and her sister. However, he couldnot remember what the date was.He denied Keketso’sevidence that he was with him, accused no.1 and 2 in accused no.2’sroom and he went out and onhis return he was not allowed in and thathe was told that they were still discussing something. Accusedno.3 said all thatwas a lie because usually when he visited accusedno.2’s room, he had no relations of any sort with Keketso andhe neverspent time with him. He confirmed asking Manzi to openthe boot for him at Mokhesi and he confirmed carrying a plastic bag.He went on to say that it, however, did not contain a container.Secondly, when Manzi opened the boot, he did not alightfrom thevehicle to open the boot in which case he could have identified whatwas in that plastic bag. That plastic bag containedclothingwhich was to be exchanged for dagga. Those were normal clothing formales like jeans and t-shirts.

[106]He disputed Manzi’s evidence that accused no.2 gave directionsas he was driving to Walaza saying that Manzi knew theWalaza area.What he did not know was where he was going to drop them. Whenit was brought to his attention that accusedno.2 admitted that shewas the one giving Manzi directions, he said that accused no.2 wasadmitting for herself, not for him.He could not agree tosomething that did not happen. Accused no.2 told Manzi on thephone that they were going to Walaza.As a result, Manzienquired from accused no.2 where exactly in Walaza they were going toso that he could charge the fare properly.He added that he waspresent when accused no.2 made the phone call. The last time hewas present when their transportationto Walaza was finalized was inthe afternoon.

[107]When it was pointed out that accused no.2’s evidence was thatshe phoned Zimasa after 18:00 after knocking off fromwork. Hisresponse was that perhaps accused no.2 had her own reasons for sayingthat and therefore he would not stand inher way. When it waspointed out that accused no.2 was speaking to Zimasa, not Manzi, hisresponse was that he did not havea comment. When he was askedabout accused no.2’s evidence that it was before 19:00 whenthey told her that they neededtransport to Walaza, his response wasthat he would not comment as he was not sure about the time. Hefurther testified thatthe dagga deal was discussed with the daggadealer by accused no.1. Accused no.1 told him about it fivedays before the dateof the actual deal.

[108]When they got inside the dealer’s shack they were supposed totest the dagga to see if it was the correct dagga theyhad made thedeal for. They found the dagga dealer smoking his own dagga andthey had to test the one they were going totake with them.After they had tested it and were satisfied with it, the dagga dealerchecked the clothing to see if it waswhat was agreed upon. Hetestified that when they returned to the vehicle they found thevehicle at the spot where Manzihad dropped them off. He thensaid he did not know if he had moved after he dropped them off.On returning to the vehiclehis observation was that the vehicle wasstill in the same spot where it had dropped them earlier. Headded that when theywere dropped at that spot he and accused no.1alighted from the vehicle. He disputed accused no.1’sevidence that accusedno.2 also alighted to show them the way.He insisted that only himself and accused no.1 alighted and addedthat accused no.1knew the place.

[109]On Manzi’s evidence that on their return, they were runningsaying they were being chased by dogs, he said that thatwas nottrue. They were walking when they returned in the same way thatthey walked on their way there. He disputedaccused no.1’sevidence that on their return they were running but not in full speedor that they were trotting. Accusedno.3 said that he did notknow because accused no.1 had been smoking dagga and on that day hehimself did not smoke. He merelytested the dagga.Accused no.1 was a dagga smoker. Perhaps he was high as aresult of which he thought they were runningor rushing when in factthey were just walking. Accused no.3 closed his case.

Analysis.

[110]The defence of all three accused persons was that at about the timeat which the crimes were committed they were in the vicinityof thecrime scene, at most, about 250 metres from the crime scene.They were there on an unrelated business that had nothingto do withthe deceased or the homestead at which the deceased died. Theywere there to get dagga from a dagga dealer.It is so thatthere is no direct evidence linking them to the crimes that werecommitted. Therefore, the evidence againstthem is of acircumstantial nature.

[111]In Gcaza v S (1400/2016) [2017] ZASCA 92 (9 June 2017) theSupreme Court of Appeal restated the approach to the assessment ofcircumstantial evidence, reaffirming our locus classicus, R v Blomon inferential reasoning. The court said in Gcaza:

“[23]The appellant’s challenge to the evidence is in a piece-mealfashion. This court in S v Reddy &Others 1996 (2) SACR 1 (A) at 8C-Dwarned against this, where it stated as follows:

‘Inassessing circumstantial evidence one needs to be careful not toapproach such evidence upon a piece-meal basis and to subjecteachindividual piece of evidence to a consideration whether it excludesthe reasonable possibility that the explanation givenby an accusedis true. The evidence needs to be considered in its totality.It is only then that one can apply theoft-quoted dictum in Rv Blom 1939 AD 188 at 202-203, wherereference is made to two cardinal rules of logic which cannot beignored. These are, firstly, that theinference sought to bedrawn must be consistent with all the proved facts and secondly, theproved facts should be such “thatthey exclude every reasonableinference from them save the one sought to be drawn”.

…

[25]The sentiments expressed by this court in S v Ntsele 1998 (2)SACR 178 (SCA) are relevant, where it held that the onus rests uponthe State in a criminal case to prove the guilt of the accused beyondreasonable doubt - not beyond all shadow of doubt. The courtheld further that when [it] was dealing with circumstantialevidence,as in the present matter, the court was not required to considerevery fragment of evidence individually. It wasthe cumulativeimpression which all the pieces of evidence made collectively, thathad to be considered to determine whether theaccused’s guilthad been established beyond a reasonable doubt. Courts arewarned to guard against the tendency tofocus too intensely onseparate and individual components of evidence and viewing eachcomponent in isolation.”

[112]There are a number of facts that are common cause and some thatcannot be disputed with any degree of cogency in this case.Imention a few of them hereinbelow.

1.Accused no.2 was married to the deceased in count 3. Accordingto accused no.2, they had three children who all predeceasedthem.

2.Accused no.2 had two children who, on her evidence, in 2022 wereseven and five years old respectively. Both of those childrenwere not fathered by her husband.

3.At the time of his death, the deceased in count 3 had an intimaterelationship with Kekeletso, the deceased in count 4 and alsolivedwith a 13 year old boy, the deceased in count 5.

4.Accused no.1 and 2 and Keketso went to fetch goods at Walaza, notvery long before the deceased’s homestead was set alightevidently with the petrol found at the crime scene.

5.Keketso testified that he was part of the people that went to fetchthose goods. Some of his evidence indicates that itwas inNovember 2019. So both on accused no.1 and 2’s versiongoods were fetched from Walaza. This corroboratesKeketso’sevidence. Accused no.1 chose not to know whether Keketso wasthere or not in the bakkie that accused no.2had hired to fetch thegoods.

6.According to Keketso, he did not know the deceased in count 3.However, he was told by accused no.2 that they were fetchingthegoods from her homestead in Walaza. Accused no.1 adds a pieceto this evidence. He says he and accused no.2 wentto theNyakambi homestead but, they went there to fetch a key for thehomestead where Lefu’s goods were to be fetched.So onthat occasion, he also places himself at the deceased’shomestead with accused no.2. They only disagree aboutthedates.

7.Keketso’s evidence was also that he was approached by accusedno.2 who took a black 20 litre container with a yellow lidfrom him.That container was part of the items he keep is his room for accusedno.2 as some items which had been fetchedfrom Walaza did not fit inher room. He later saw accused no.1, 2 and 3 leaving thepremises with the said container singing.Accused no.2 and 3agree that they did leave the premises carrying a container whichaccording to accused no.2, was white witha white lid and it was a 25litre container.

8.Keketso’s evidence was also that the following day afteraccused no. 1,2 and 3 left the premises with the container hedescribed as black with a yellow lid, he noticed that accused no.1was not waking up. He went to his room and knocked.Accused no.1 opened the door. Keketso noticed that accusedno.1’s face was black. He asked him about his blackface. Accused no.1 responded that if he had listened toKeketso, none of this would have happened. Accused no.1’sevidence was that he did not open for Keketso. Mostimportantly, he never disputed that Keketso knocked at his door.

9.Manzi’s evidence was that he was hired for a trip to Walaza onthe night of the 6 November 2019. In the vehicle itwas thethree accused persons. He picked them up near Mokhesi Bridge.He was asked to open the boot of his vehicle.He opened theboot while sitting in the driver’s seat. He saw beingloaded, a black plastic bag which had a 10 or 20litre container.The accused admit his evidence, all of it in this regard save forwhat was in the black plastic bag.Their version is that it wasclothing that was in the plastic bag which was to be exchanged fordagga.

10.The vehicle drove to Walaza with accused no.2, who had hired thevehicle giving directions. Accused no.2 admitted hiringManzi’staxi cab which picked them up at 23:15 and giving him directions toWalaza. Manzi was told where to stop thevehicle and at thatspot accused no.1 and 3, alighted and he was again asked to open theboot and the parcel was off loaded.Accused no. 1 and 3 leftwith that parcel.

11.According to Manzi, when accused no.1 and 3 returned to his vehiclein which he and accused no.2 were waiting, accused no.1and 3 wererunning. Accused no.1 agrees that they were running or were ina rush as he put it. Manzi says when thetwo accused returned,they were not carrying the parcel they had taken with them when theyleft and were not carrying anything.In fact they were smellingsmoke. When he asked then why they were running they said theywere being chased by dogs.Accused no.3 denies that they wererunning. He thinks it could be that accused no.1 was high fromthe dagga he had smokedat the dagga dealer’s shack. Asfor smelling smoke, Manzi did not know why they smelled smoke.However, theyattribute the smell from the dagga that was smoked atthe dagga dealer’s shack. Very interestingly, it was putto Manzithat accused no.3 did not smell any smoke. It wasfurther put to him that if anything he smelled cigarettes because heisa smoker. Manzi clearly stated that “well, at least Ican be (sick) differentiated between that smell of a cigaretteor tobacco and that of something which has been burned different froma cigarette.”

12.It is common cause that accused no.1 had healing burn wounds on hisface, lower back in the waist area and the back of his leftleg.

13.It is common cause that the police found a 20 litre container at thecrime scene. That container appears in photos 1,2 and 17 ofthe crime scene photo album. It is in a black plastic bag.The crime scene photo album’s descriptionof points describesthat plastic container as black. This aligns with Keketso’sevidence that the container that accusedno.2 took from his room wasblack with a yellow lid.

[113]The version of the accused having gone to Walaza that night inpursuit of a dagga deal is farfetched and is so improbableas to befalse. It is a product of an attempt at creative manipulationof facts which resulted in their evidence being contrivedand appearsto have been well rehearsed and appears to have been adjusted as theState’s case continued. This explainsthe contradictionsthat are just too many to count in the evidence of the accused.However, as they say the truth has a tendencyof coming out no matterhow hard and careful one is at trying to hide it as the accusedbefore me seem to have done. Theexchange of dagga with accusedno.3’s clothes is farfetched. It does not fit in withprobabilities and is in fact false.The whole dagga deal hasclearly been made up to explain their presence in that area at aboutthe same time the crimes were committed.It is even worse thatthe dagga dealer was not called to testify so that the veracity ofthis dagga deal could be tested.

[114]The same applies with what was alleged to be Lefu’s goods, thebrother to accused no.2. Accused no.2 testifiedto have asister from one of her relatives who lives in Walaza. The keywas not left with her and there is no evidence whythe key could notbe left with her or at the homestead Lefu was renting. Lefuhimself was not called to testify about hisgoods. Accusedno.1’s evidence was that on the day they fetched the goods,which on his and accused no.2’s evidence,was in October 2019,they fetched the key from the homestead of the deceased Nyakambi.Combi’s evidence was that atthe time of their demise,Nyakambi had a relationship with Kekeletso who also died in thatfire. How in those circumstanceswhere there was no longer anyrelationship between accused no.2 and Nyakambi, and both of them hadmoved on with their lives, thekey could be left with him isbewildering. After all the homestead from which the goods werefetched not very long beforeNyakambi’s homestead was burned,was that of Nyakambi according to Keketso. Keketso’sevidence was that he wastold by accused no.2 that they were fetchingthe goods from her homestead in Walaza.

[115]The evidence of these State witnesses, Zimasa, Manzi and Keketso wasvery credible in most material respects. It wasnot exaggeratedand while it was not perfect, especially that of Keketso, it was verycredible with all its inconsistences andimperfections at times.I may add that in respect of the issues he testified about, Keketsowas a single witness. Applyingthe necessary precautions to theevidence of a single witness, it is clear that Keketso told the truthand his evidence was credible.The evidence of all the accusedwas full of contradictions and was largely fabricated. Not onlydid each accused contradictthemselves, they also contradicted eachother. All of it was fabricated when it comes to their reasonfor hiring Manzi’svehicle and their presence on the night ofthe deceased’s murders at Walaza. That reason was forfetching dagga.That evidence was so improbable that it wasfalse and a trumped up story that was carefully designed to explaintheir presenceat Walaza at about midnight on the date and at aboutthe same time at which the deceased were killed in that fire.On theevidence of the State, even without the confession andpointing out, I would, in any event, have convicted the accused.Ihave no doubt in my mind that they are the ones who set theNyakambi homestead on fire. They intentionally killed thedeceasedat the behest of accused no.2. The confession merelyserves to explain what was in the mind of accused no.2 which wouldhavecaused her to arrange and procure the murder of the deceased andthe burning of their home. Accused no.1’s confessionandpointing out merely add to the State’s evidence which was, inmy view, sufficient for a conviction even without the confessionandpointing out. At the risk of stating the obvious, I may addthat the confession of one accused is not admissible as evidenceagainst another accused. Section 219 of the Criminal ProcedureAct makes this very clear.

[116]Two cases come to mind that fit the circumstances of this case.The first case is Olawale v S [2010] (1) All SA 451 (SCA) at455 paras 13-15 in which the court said:

“Itis a trite principle that in criminal proceedings the prosecutionmust prove its case beyond reasonable doubt and that a merepreponderance of probabilities is not enough. Equallytrite is the observation that, in view of this standard of proofin acriminal case, a court does not have to be convinced that everydetail of an accused’s version is true. If theaccused’sversion is reasonably possible true in substance, the court mustdecide the matter on the acceptance of that version.Of courseit is permissible to test the accused’s version againstinherent probabilities. But it cannot be rejectedmerelybecause it is improbable, it can only be rejected on the basis ofinherent probabilities if it can be said to be so improbablethat itcannot reasonably possibly be true.

Inevaluating the evidence against the appellant, one must look at thereliability and credibility of the witnesses, consider ifany of themhad a motive to falsely implicate the appellant and further look atthe probabilities of the State’s version.”

[117]As the court said in S v Ipeleng 1993 (2) SACR 185 (T) at 189c-d an accused person is under no obligation to explain why the Statewitnesses would falsely implicate him. Thisprinciple issound. It is difficult for anybody to explain what is inanother person’s mind. The attempt by accusedno.2 toprovide a motive for what she said was the reason Keketso implicatedhim had all the hallmarks of an after thought.She gave a longwinded explanation that had different components that could notpossibly have anything to do with each other.It was, like mostof her evidence, false. It does not account for Manzi’sevidence who also testified about a 10 or20 litre container.It also does not account for the one that was found at the crimescene at Walaza on the night they, ontheir version, were all atWalaza. Those two pieces of evidence, looked at independentlyof the evidence of Keketso who isaccused of having a motive forimplicating accused no.2 point to the guilt of the accused persons.

[118]To the extent that some of the evidence of the State mightjustifiably be criticized for imperfections, the case of S v Vander Meyden 1999 (2) SA 79 (W) at 82 C-D comes to mind. Inthat case Nugent J, as he then was, said:

“Theproper test is that an accused is bound to be convicted if theevidence establishes his guilt beyond reasonable doubt and thelogical corollay is that he must be acquitted if it is reasonablypossible that he might be innocent. The process of reasoningwhich is appropriate to the application of that test in anyparticular case will depend on the nature of the evidence which theCourt has before it. What must be borne in mind, however, isthat the conclusion which is reached (whether it be to convictoracquit) must account for all the evidence. Some of it might befound to be unreliable, and some of it might be found tobe onlypossibly false or unreliable, but none of it may simply be ignored.”

[119]Having considered with great care, all the evidence of the Statewitnesses and the evidence of each one of the accused persons,it isclear to me that the three accused persons were not at the wrongplace at the wrong time. The evidence considered asa wholepoint to carefully planned and executed crimes which were designed toprocure the outcome that they did, the killing ofthe deceased andthe destruction of their home. On the evidence, it is accusedno.1 and 3 who set the Nyakambi homesteadon fire at the behest ofaccused no.2 who masterminded the whole operation in what, if it wasnot criminal acts, would be saidto be commendable skill to evadedetection. The meeting at her place was not to discuss a daggadeal. It was evidentlyto plan and execute the crimes that werecommitted with the willing assistance and participation of accusedno.1 and 3 who ordinarilyhad no axe to grind against the deceasedpersons.

[120]The fact that accused no.2 never set her feet at the Nyakambihomestead at the time it was set on fire is neither here northere.Accused no.1 and 3 acted on her behalf and executed a plan they hadall hatched together. They both had no reasonof their own tokill the deceased persons. The doctrine of common purpose underwhich they were charged makes all of themequally liable for all thecrimes that were committed that night. The principles of thedoctrine of common purpose have recentlybe reaffirmed in Tshabalalav S; Ntuli v S 2020 (2) SACR 38 CC, 2020 (5) SA 1 (CC) by theConstitutional Court in which the court said:

“[46]Burchell defines the doctrine of common purpose in the followingterms.

‘wheretwo or more people agree to commit a crime or actively associate in ajoint unlawful enterprise, each will be responsiblefor specificcriminal conduct committed by one of their number which falls withintheir common design. Liability arises fromtheir ‘commonpurpose’ to commit crime.’

[47]Synman elaborates that –

“theessence of the doctrine is that if two or more people, having acommon purpose to commit a crime, act together in order to achievethat purpose, the conduct of each of them in the execution of thatpurpose is imputed to the others.”

Theserequirements are often couched in terms which relate to crimes suchas murder.

[48]The liability requirements of a joint criminal enterprise fall intotwo categories. The first arises where there is aprioragreement, express or implied, to commit a common offence. Inthe second category no such prior agreement exists oris proved.In the latter instance the liability arises from an activeassociation and participation in a common criminaldesign with therequisite blameworthy state of mind.

[49]It is trite that a prior agreement may not necessarily be express butmay be inferred from surrounding circumstances.The factsconstituting the surrounding circumstances from which the inferencesare sought to be drawn must nevertheless be provedbeyond reasonabledoubt. A prior agreement to commit a crime may invoke theimputation of conduct, committed by one of theparties to theagreement which falls within their common design, to all the othercontracting parties. Subject to proof ofthe other definitionalelements of the crime, such as unlawfulness and fault, criminalliability may in these circumstances beestablished.”

[121]In all these circumstances, the State has proved the guilt of all theaccused beyond reasonable doubt. They acted togetherto committhe premeditated gruesome murder of Nyakambi Monoana, KekeletsoCatherine Senoamadi and the 13 year old boy, S[...] B[...].

[122]In the results all the accused are found guilty in respect of counts2, 3, 4 and 5, that is arson and the murder of the deceasedin counts3, 4 and 5 as charged.

M.S.JOLWANA

JUDGEOF THE HIGH COURT

Appearances: