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IN THE NORTH WEST HIGH COURT, MAFIKENG

 

CASE NO.: CA 58/2022

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

 

VUYO DEMOND MLUNGUZA                                             1^st APPELLANT

 

TSHIDISO RAPIPUDI                                                          2^nd APPELLANT

 

MZWANDILE MABATHA                                                    3^rd APPELLANT

 

TSHIDISO GODWIN TSIANE                                              4^th APPELLANT

 

THABO EZEKIEL GWAMBE                                               5^th APPELLANT

 

MOTSEOTHATA DIRADITSILE                                           6^th APPELLANT

 

TEBOGO GERALO NAZO                                                  7^th APPELLANT

 

SELLO NCHUPETSANG                                                     8^th APPELLANT 

 

And

 

THE STATE                                                                           RESPONDENT

 

CORAM: HENDRICKS JP et MASIKE AJ

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 14h00pm on 18 July 2024.

 

ORDER

 

Resultantly the following order is made.

 

1.     The appeal is dismissed.  

 

JUDGMENT

 

MASIKE AJ

 

Introduction

 

[1]        In the early hours of 1 January 2015 at or near Khuma in the Regional division of North West, Mr. Johannes Thabo Molai (“the deceased”) met an untimely and gruesome death as a result of 15 x incisions both sides anterior chest wall penetrating, 3 x incisions left side of face 2 x incisions upper back.  

 

[2]        The cause of death according to the postmortem report prepared by Dr. Shailendra Lala, a medical officer in the service of the State Department of Health North West Province, registered with the Health Professions Council of South Africa as a Medical Practitioner (MP0383058) was excessive blood loss due to penetrating trauma to multiple organs.

 

[3]        Mr. Vuyo Desmond Mlunguza, accused 1 in the court below, the First Appellant before us, Mr. Tshidiso Rapipudi, accused 2 in the court below, the Second Appellant before us, Mr. Mzwandile Mbatha, accused 3 in the court below, the Third Appellant before us, Mr. Gopelang Daniel Masala, accused 4 in the court below and is not before this Court, Mr. Tshidiso Godwin Tsiane, accused 5 in the court below, the Fourth Appellant before us, Mr. Thabo Ezekiel Gwambe, accused 6 in the court below, the Fifth Appellant before us, Mr. Motseothata Diraditsile, accused 7 in the court below, the Sixth Appellant before us, Mr. Tebogo Geralo Nazo, accused 8 in the court below, the Seventh Appellant before us and Mr. Sello Nchupetsang, accused 9 in the court below, the Eighth Appellant before us were charged with having committed the crime of Murder (read with the provisions of Section 51(1) of the Criminal Law Amendment Act 105 of 1997) and were accused of having killed the deceased. In this judgment, I use the words accused and appellants interchangeably. 

 

[4]        All nine accused persons were legally represented in the court below. Accused 1 was represented by Mr. Dlanjwa, accused 2, 3, 4 and 6 were represented by Mr. Mahlatsi and accused 5, 7, 8 and 9 were represented by Mr. Roman.

 

[5]        On 5 April 2017, the trial of the nine accused persons commenced before the learned Magistrate Melodi (“the learned Magistrate”) in the Regional Court for the Regional Division of North West, held at Klerksdorp.

 

[6]        The State put the charge to all nine accused persons. All nine accused persons elected to have the trial proceed without assessors.

 

[7]        The learned Magistrate explained to all nine accused persons that the minimum sentence of life imprisonment applied to the charge that they were facing. All nine accused persons confirmed that they understood the explanation that the minimum sentence of life imprisonment applied to the charge they were facing.

 

[8]        All nine accused persons were asked if they understood the charge against them and all nine accused persons indicated that they understood the charge and pleaded not guilty to the charge.

 

[9]        Mr. Dlanjwa, Mr. Mahlatsi and Mr. Roman confirmed the pleas of not guilty by their respective clients and informed the court that their respective clients elected not to give a plea explanation in terms of Section 115 of the Criminal Procedure Act, Act 51 of 1977. All nine accused persons confirmed that they elected not to give a plea explanation.

 

[10]      The State handed in the following exhibits with the consent of the legal representatives of all nine accused persons:

 

10.1     SAPS 377 Identification of the Body of the deceased;

 

10.2     Photo Album consisting of 12 photographs, the key to the photo’s together with an affidavit from Constable Moeketsi David Motshwaiwa;

 

10.3     The Postmortem report of Dr. Lala.

 

[11]      The learned Magistrate, enquired from the legal representatives of all nine accused persons if the contents of the exhibits listed in 10.1 to 10.3 herein above are admitted. The legal representatives of all nine accused persons confirmed that the contents of the exhibits listed in 10.1 to 10.3 are admitted.

 

[12]      The State proceeded to call its witnesses. At the close of the State’s case, all nine accused persons applied for discharge in terms of Section 174 of the Criminal Procedure Act, Act 51 of 1977, the application was refused, all nine accused persons testified in their defense and some called witnesses.

 

[13]      After a lengthy trial, the learned Magistrate on 11 December 2020 found all nine accused persons guilty of the proffered charge and on 26 January 2021 sentenced all nine accused persons to 18 years imprisonment each and in terms of Section 103 (1) of Act 60 of 2000 declared all nine accused persons unfit to possess a firearm.

 

[14]      On 3 March 2021 accused, 1, 2, 3, 5, 6, 7, 8 and 9 brought applications before the learned Magistrate for leave to appeal against their conviction.

 

[15]      The eight accused persons before the court below in the application for leave to appeal were legally represented by Mr. Dlanjwa for accused 1, Mr. Mahlatsi for accused 2, 3 and 6 and Mr. Roman for accused 5, 7, 8 and 9. The State opposed the application for leave to appeal.

 

[16]      On 3 March 2021, the learned Magistrate handed down judgment in the application for leave to appeal and refused the application of the eight accused persons.

 

[17]      Subsequent to the refusal of the application for leave to appeal, accused 5, 7, 8 and 9 petitioned the Judge President of this Honourable Court in terms of Section 309C of the Criminal Procedure Act, Act 51 of 1977. This was on 19 March 2021. The petition was prepared by the Klerksdorp Justice Centre.

 

[18]      On or about 7 April 2021, a second petition was made to the Judge President of this Honourable Court in terms of Section 309C of the Criminal Procedure Act, Act 51 of 1977. This petition was in respect of accused 1, 2, 3, 5, 6, 7, 8 and 9. The petition was prepared by Mr. Dlanjwa.

 

[19]      On 9 September 2022, leave to appeal to this Honourable Court was granted by Petersen J and Morgan AJ to accused 1, 2, 3, 5, 6, 7, 8 and 9 on conviction only.          

 

[20]      Before us the appellants, that is accused 1, 2, 3, 5, 6, 7, 8 and 9 are represented by Advocate Lekitima of the North West Bar Association.

 

[21]      I must deal with an issue I picked up in the heads of argument of Advocate Lekitima on behalf of the appellants. Advocate Lekitima in his introduction states that this is an appeal on behalf of nine applicants (sic). This is incorrect, what sits before this court is an appeal by eight appellants. Accused 4 in the court below did not bring an application for leave to appeal and no petition to the Office of the Judge President was filed on behalf of accused 4.

 

[22]      The second issue I deem prudent to deal with is Advocate Lekitima in his heads of argument has attacked the sentence imposed by the learned Magistrate. As I have indicated herein above, the appellants before us were granted leave to appeal against the conviction only.  

 

The State’s Case:                

 

[23]      The State led the evidence of four witnesses. The First witness was Lerato Gurtrude Molaeng (“Lerato”).

 

[24]      Lerato testified that she is the sister of the deceased. She knows accused 1, 5, 6, 7, 8 and 9.

 

[25]      She knows accused 1 by sight and by the name Pio. She knows accused 5 by the name Tshidiso Wana, she knows accused 5 because he is the ex-boyfriend of a friend of Lerato. She knows accused 6 by the name Naka, she knows him by sight. She knows accused 7 by the name Jwara. She knows accused 7 because of an incident that occurred at Tazwae’s Tavern. Accused 7 asked Lerato about the whereabouts of Nunu and when she asked accused 7 who he is, he told her to tell Nunu that Jwara is looking for her. She knows accused 8 as Ngunguyane. She knows accused 8 from her next door neighbour at her home. The grandmother of accused 8 was the neighbour of where she used to stay in Khuma. She knows accused 9 by the name Pebanyana, she knows him by sight.

 

[26]      In the early hours of the morning of 1 January 2015, Lerato was at Dan’s Tavern. Dan’s Tavern is at CH Section on Oupakoe Street in Khuma. Lerato testified that she was with her friends. The deceased was also at Dan’s Tavern and he was in the company of his friends.

 

[27]      Lerato testified that whilst she was sitting outside Dan’s Tavern she saw people standing up. It was said that on 31 December 2014, L7 are looking for three heads from CH Section. L7 is the name of a gang. She went to the gate of Dan’s Tavern with other people who were at Dan’s Tavern, and she saw L7 gang approaching. She knows it was L7 gang because people were running screaming and shouting L7’s are coming. Other people from Dan’s Tavern were running together with the deceased away from L7 gang.

 

[28]      Lerato testified that she knows the L7 gang members by sight. She testified that she saw the deceased tripping and falling. She was some 30 meters from where the deceased tripped and fell. She testified that is when she saw accused 1, 5, 6, 7, 8 and 9 on top of the deceased with other persons that she does not know.

 

[29]      Lerato testified that there was a person by the name of Stopper who was holding a panga. Stopper was not arrested, and he was not one of the accused persons before the court below. She did not see what accused 1, 5, 6, 7, 8 and 9 were holding but they were on top of the deceased. The deceased was laying on the ground. She saw some of the accused persons kicking the deceased with booted feet, she saw Stopper raising the panga but did not see where he was hitting with the panga.

 

[30]      Lerato testified that there were many people and she could not tell with certainty what each of the persons were doing. In addition to Stopper and accused 1, 5, 6, 7, 8 and 9, there were other persons assaulting the deceased. Lerato testified that she was able to see the persons assaulting the deceased because there was an apollo light nearby. It was the source of the illumination.

 

[31]      Lerato testified that she could see clearly there was somebody being assaulted but could not tell who the person was but she could make out the faces of the persons assaulting the deceased. Lerato knew accused 1, 5, 6, 7, 8 and 9 were members of L7 gang.

 

[32]      The group of persons after assaulting the deceased left and went after another person known to Lerato as Ginnie or Guinne. After the group that attacked the deceased left, Lerato left Dan’s Tavern and went to where the deceased was left laying in the street. On her arrival at the spot where the deceased was left, Lerato noticed that the deceased was her brother. Lerato observed that the deceased had lost an eye and he had been stabbed multiple times on his belly.

 

[33]      When Lerato arrived at where the deceased had been left laying in the street, the deceased was already dead. When the police and the ambulance arrived, Lerato was still at the scene. Lerato gave a statement to the police and in the statement she gave the names of the people that she knew, that attacked the deceased.

 

[34]      Lerato testified that she had just started drinking. She and her friends had a argument because they had agreed to move to Mofokeng’s Tavern. She drank two gwaranas before the incident occurred and she did not have any problems with any of the accused persons before the court.

 

[35]      Under cross examination by Mr. Dlanjwa for accused 1, it was put to Lerato that Naka is the name of accused 2 and not accused 6. It was put to Lerato that accused 6 is Thabo not Naka. Lerato conceded to not knowing the name Thabo.

 

[36]      It was further put to Lerato that that accused 3 is Peba and not accused 9 and that Lerato is biased. Lerato conceded that she did not see accused 1 attacking the deceased.

 

[37]      It was put to Lerato that accused 1 will testify that there was a braai at the house of accused 7. Accused 1 was at the home of accused 7 and thereafter he passed Dan’s Tavern on his way home. Accused 1 would deny having fought with anyone, he did not have a weapon and he did not attack the deceased.

 

[38]      Under cross examination by Mr. Mahlatsi for accused 2, 3, 4 and 6, it was put to Lerato that she did not mention accused 6. Lerato conceded to not having seen what accused 6 used to attack the deceased but she insisted that accused 6 was there when the deceased was attacked. Lerato later conceded to not having seen accused 6 doing anything to the deceased.

 

[39]      The version of accused 2 was put to Lerato, that accused 2 would testify that he was never near Dan’s Tavern at any particular time. It was only after he woke up in the morning of 2 January 2015 and went to Spaza shop, that he heard that he was wanted by the police. Accused 2 went to the police station by himself to find out why the police were looking for him. Lerato conceded that she did not mention accused 2 because she does not know him.

 

[40]      The version of accused 3 was put to Lerato. The version of accused 3 was that he was at home on 31 December 2014, talking with his friend and they bought liquor. They were walking in the street with his friend and the police came and they were searched. They had knives with them and they were taken to the police station for being drunk in public and they were released the following morning. He was not present on the day of the murder of the deceased at Dan’s Tavern, he was not fighting with anyone on the particular day. Lerato insisted that accused 3 was amongst the group of persons that assaulted and murdered the deceased, but later stated to not having seen accused 3 at the scene.

 

[41]      The version of accused 4 was put to Lerato. The version of accused 4 was he was at his parental home playing music. He was braaing for family and friends. Lerato conceded to not knowing accused 4 and conceded to not having seen accused 4 at the scene.

 

[42]      The version of accused 6 was put to Lerato, that on 31 December 2014, he was at the house of accused 7. He arrived at 20H00 and they were there for the whole night. They left the following morning at 6H00 and went to a place called Masekengkeng to check his girlfriend. Lerato insisted on having seen accused 6 at the scene, but could not say what role he played in the assault and murder of the deceased.

 

[43]      Under cross examination by Mr. Roman for accused 5, 7, 8 and 9, Lerato was asked what time she arrived at Dan’s Tavern and what she was drinking on 31 December 2014 before the incident. Lerato admitted to having drank Castle Lite 300 milliliters. She insisted she was tipsy but not drunk. Lerato testified that Stopper is tall and that is how she could see him even though the persons who assaulted the deceased had their backs to her and they had encircled the deceased.

 

[44]      The version of accused 5 was put to Lerato. The version of accused 5 is that he was at the house of accused 7, he arrived at 20H00 on the evening of 31 December 2014 and left at 23H00 to go home and sleep. He was not in the company of Stopper on the day. He was not in the company of accused 1, 2, 3, 4, 6, 8 and 9. Lerato insisted that he was with the other accused persons. She had identified as being on the scene of the assault and murder of the deceased.

 

[45]      The version of accused 7 was put to Lerato. His version is that he was at home on 31 December 2014. His sister and her husband were having a braai. He never went out of the yard from 31 December 2014 and 1 January 2014. His girlfriend was present. When he went to sleep his girlfriend was there and when he woke up his girlfriend was still there. Lerato insisted that this was a lie. Lerato insisted she saw accused 7 on the street at the time of the incident.

 

[46]      The version of accused 8 was put to Lerato. His version is that on the day of the incident, he was arrested together with accused 3 on 31 December 2014. Himself and accused 3 were arrested for drinking in public and for being in possession of a knives. Accused 8 and 3 were released from the police station at 02H00 on 1 January 2015 and he went straight home. Lerato insisted that this was not true and when asked by the court why she said this is not true, she stated because she saw accused 8 among the group that assaulted the deceased on the morning of 1 January 2015.

 

[47]      It was put to Lerato that accused 8 will deny having been near Dan’s Tavern on the day in question, and having stabbed the deceased and being part of the group that stabbed the deceased. 

 

[48]      The version of accused 9 was put to Lerato. The version of accused 9 was that on the day of the incident he was at home with his sister, Priscilla Mafoka. He never left his home from 31 December 2014 until 1 January 2015. He was not part of the people that assaulted and killed the deceased. Lerato insisted that the version of accused 9 was not true.

 

[49]      The State then called Bongani Plaatjie (“Bongani”). Bongani testified that he knows the deceased because they stayed in the same section and they would share cigarettes. He testified that he knows all nine accused persons.

 

[50]      Accused 1 he knows by the name Theo. Accused 2 he knows by the name Sinyaka. Accused 3 he knows by the name Pega, Accused 4 he knows by the name Fish, Accused 5 he knows by the name Thediso, Accused 6 he knows by the name Thabo, Accused 7 he knows by the name Joacha, Accused 8 he knows by the name Mbunyane and Accused 9 he knows by the name Zikile.

 

[51]      He knows the accused persons because they usually fight Bongani and other people. The nine accused persons belong to a gang group called L7.

 

[52]      Bongani testified that on 1 January 2014, in the early hours of the morning, he was at Dan’s Tavern. He was drinking beer. It was himself and his friends. The deceased was one of the people who were in his company. They were seated outside the tavern and decided to go inside the tavern. At that time that is when L7 emerged. He could see that it was L7 because a apollo light illuminated that area and he could see people from a distance.

 

[53]      He testified that the last time he saw the deceased was when he ran, he ran past the deceased. Bongani managed to run to a certain house and hid himself there. Whilst he was hiding he saw a person named Search stabbing the deceased. Search, has not been arrested. Bongani was some 20 meters from the place where the deceased was stabbed.

 

[54]      Bongani saw accused 8 kicking the deceased on his back and the deceased fell on the ground. He saw accused 1 sitting on top of the legs of the deceased and stabbing the deceased with a knife. He saw Stopper striking the deceased with a panga. He saw accused 2 to 9 stabbing and throwing stone at the deceased. He saw accused 2 to 9 hitting the deceased with bottles.

 

[55]      After they had finished stabbing the deceased, accused 1 instructed them to cut the head of the deceased off. After that they ran away. After the group ran away, Bongani came out of his hiding place and went to where the deceased was left. He found the deceased stabbed on the front part of the body and the face. Bongani testified there was nothing obstructing his view from his hiding place.

 

[56]      Bongani testified that although he had been drinking alcohol, he was not drunk, he was fine and that is how he managed to run away.

 

[57]      Under cross examination by Mr. Dlanjwa Bongani he admitted to having been a member of a gang called Hard Living (“HL”). He admitted to having been convicted and sentenced for robbery. He admitted to having been on parole.

 

[58]      Bongani admitted that he was hiding behind a wall not far from where the deceased was assaulted and killed by the group of persons. He testified he had to peep to see what the group was doing to the deceased. There was an apollo light and it was the source of the illumination. He testified that he saw many people taking part in the stabbing and assaulting of the deceased.

 

[59]      Bongani under cross examination said Search was the first person to stab the deceased on the neck, and accused 8 then kicked the deceased on the back causing the deceased to fall to the ground. Accused 1 than sat on top of the deceased and started stabbing the deceased. He saw this as he was hiding and peeping from behind the wall.

 

[60]      The persons who assaulted and killed the deceased had encircled the deceased. Bongani testified at some point the group formed a “C” shape encircling the deceased and the open end of the “C” shape was facing him.

 

[61]      Accused 1’s version was put to Bongani. It was put to him that accused 1 was at the home of accused 7, and that there was a party or braai at the home of accused 7. That accused 1 left the home of accused 7 in the morning of 1 January 2015. That accused 1 went past Dan’s Tavern but he did not enter the tavern. That accused 1 will deny having taken part in the stabbing of the deceased, and he will deny being a member of a gang. That they have been constantly attacked by gangs so they grouped themselves to defend their homes, their properties not because of a gang but they were doing so to ward off any attack that may come from gangs. Bongani denied the version of accused 1 and insisted that accused 1 was amongst the group that assaulted and killed the deceased on 1 January 2014.

 

[62]      Under cross examination by Mr. Mahlatsi, Bongani stated the L7 gang came to Dan’s Tavern at 1H00. Bongani again testified that the deceased fell when accused 8 kicked him. On the issue of what Lerato had told the court that the deceased tripped and fell on his own, Bongani denied this and insisted that the deceased fell as a result of being kicked by accused 8. Bongani went on to say that Lerato had been drinking during the day.

 

[63]      The version of accused 2, 3, 4 and 6 was put to Bongani and Bongani denied that the accused persons were not part of the group that assaulted and killed the deceased in the early hours of the morning on 1 January 2015.

 

[64]      Under cross examination by Mr, Roman for accused 5, 7, 8 and 9, Bongani testified that there were other people who formed part of the group that assaulted and killed the deceased who were not before the court. Bongani indicated that he had given the names of these persons to the police, but they were not arrested.

 

[65]      Bongani testified that he saw accused 5 and 7 stabbing the deceased with a knife. He could not make out what type of a knife it was. Accused 8 was the one who caused the deceased to fall, and accused 8 and 9 were throwing stones at the deceased.

 

[66]      The version of accused 5, 7, 8 and 9 was put to Bongani and Bongani insisted that they were at the scene at the time of the killing of the deceased, and that they took part in the assault and killing of the deceased.

 

[67]      The State then called Lebogang Reginald Mawaya (“Lebogang”). The evidence of Lebogang was to the effect that he knows the deceased. He attended the same school as the deceased and they stayed in the same area. He also knows Bongani.

 

[68]      Lebogang testified that he knows accused 1 by the name Pio, Power Force, he knows him because they used to work together at Stilfontein. Accused 2 he knows by his name Naga. Accused 3 he knows by his name Peba, he knows him by sight. Accused 4, he knows by the name Fish, he is a family friend, he and accused 4 are distant relatives. Accused 5 is Tshidiso whom he knows by sight. Accused 6 is Thabo whom he knows by sight. Accused 7 is Dwaga he knows him from around the area because of his naughtiness. Accused 8 he knows as Ngugunyane, he knows him because he was the next door neighbour to the deceased, but later relocated to stay on the side of Dwaga. Accused 9 he knows as Zele.

 

[69]      Lebogang testified that when the group appeared, he did not run away down the street, he jumped the fence to the next door neighbour of the tavern, that is the back opposite where he hid himself.

 

[70]      Whilst he was hiding, he saw the deceased in the street and he was going home. The deceased was not running and according to Lebogang the deceased had consumed too much alcohol. Lebogang did not know where Bongani ran to. From where Lebogang was hiding, nothing was obstructing his view of the corner, which was some 50 meters from where Lebogang was hiding.

 

[71]      The source of illumination was the apollo lights which were on. Lebogang testified that he was not drunk as he had started drinking at around past twelve in the early hours of the morning of 1 January 2015, he had drank one or two long tom dumpies.

 

[72]      When Lebogang was looking at the corner he did not see the person who was laying on the ground who was being stabbed. He could not tell who the person was. He (Lebogang) was laying on his stomach looking in the direction of the corner.

 

[73]      Lebogang testified that he saw accused 1 sitting on top of the deceased and stabbing the deceased. Accused 1 seemed to be stabbing the deceased on his chest. There were other people who surrounded the deceased, they were also bending and taking turns stabbing the deceased. Accused 1, 2, 3, 4, 5, 6, 7, 8 and 9 were taking turns with bottles and knives stabbing the deceased.

 

[74]      Stoppa had a panga but he has not been arrested, Stoppa seemed to be looking out for them. There were other people with Stoppa and the nine accused persons. Zozo was the name of another person given by Lebogang as one of the people that took part in the assault and murder of the deceased. Zozo was also not arrested. Some of the persons assaulting the deceased had stones and others had bottles, they threw the bottles and stones at the deceased.

 

[75]      Accused 2 stabbed the deceased and after stabbing the deceased he said come and take your dog. Accused 3 stabbed the deceased. Accused 4, 5, 6, 7, 8 and 9 also stabbed the deceased. Stoppa also stabbed the deceased with the panga and then Stoppa said they should run away.

 

[76]      After the group had ran away, Lebogang went to see who the person that had been stabbed was. It was at that time that Lebogang realized the person that had been stabbed was the deceased. Lebogang was at the scene when the police arrived. He spoke with the police but the police did not want listen to what he and the other witnesses had to say. He did however give the police the names of the perpetrators at the scene.

 

[77]      Lebogang testified that he had problems with accused 1. Accused 1 once stabbed him on the head and the hand when he demanded money from him by force, but he decided not to open a case against accused 1.

 

[78]      Under cross examination by Mr. Dlanjwa for accused 1, Lebogang was cross examined on a previous statement he made to the police on 8 July 2015. It was highlighted that he did not in the statement indicate the L7 group said let us stab each other.  

 

[79]      Under cross examination Lebogang elaborated on the issue between himself and accused 1. He testified that accused 1 demanded that he buy him a beer by force and when Lebogang refused, accused 1 stabbed him with a knife on his head and on his hand. The incident was from 2011 or 2012.

 

[80]      The version of accused 1 was put to Lebogang, that accused 1 on 31 December 2014 was with his friends at the house of accused 7. They were having a braai. Immediately after midnight they went their separate ways. He was accompanied by his girlfriend and they were near Dan’s Tavern but they did not enter Dan’s Tavern, instead they went home. Accused 1 denies having participated in the attack or stabbing of the deceased.

 

[81]      Accused 1 would testified that the reason why Lebogang is testifying, is because Lebogang is a member of the gangs that are terrorizing the township members.

 

[82]      Under cross examination by Mr. Mahlatsi, Lebogang was taken through the   previous statement he made to the police and the issue of Lerato being with the deceased in the street when L7 gang appeared.

 

[83]      Lebogang was further cross-examined as to what he saw that caused the deceased to fall. Lebogang replied that it was the stones and bottles which were being pelted by the L7 gang. The versions of accused 2, 3, 4 and 6 were put to Lebogang.

 

[84]      Mr. Roman for accused 5, 7, 8 and 9 applied for an inspection in loco. The observations of the inspection in loco were recorded and admitted by the legal representatives of all nine accused persons. The observations included where Lebogang was hiding and where the tree was located that he said had been cut. The court observed that between the point of observation and the point of the incident there were many obstructions, but Lebogang said those items were not there on the day of the incident.

 

[85]      The versions of accused 5, 7, 8 and 9 were put to Lebogang and Lebogang insisted that at the time that the deceased was assaulted and killed, he saw the accused persons at the scene.

 

[86]      The State then called Constable Gontse Godfrey Black, (“Constable Black”). Constable Black testified that he has been employed by the South African Police Services for 11 years. He was the arresting officer in the matter of all 9 accused persons. He arrested all nine accused persons on 2 January 2015. He testified that the arrest of all nine persons came about as a result of a tip off.

 

[87]      Constable Black further testified that when affecting the arrest of accused 1, he got a knife from accused 1 and his clothes. Constable Black testified that he placed the clothes of accused 1 and the knife in separate exhibit bags. The exhibit bags were sent to the laboratory in Pretoria by Constable Patience.

 

[88]      Constable Black testified that he relied on a statement to effect the arrest of all nine accused persons. Constable Black, when being led by the public prosecutor, had in his possession a FIC control register. The register contains information of all suspects who were arrested for being in possession of dangerous weapons and drinking in public on 31 December 2014 until 2 January 2015. The details of accused 3 and 8 do not appear in the register of persons arrested on 31 December 2014 and 1 January 2015.

 

[89]      Under cross examination by Mr. Dlajwa for accused 1, it was put to Constable Black that accused 1 was arrested on 2 January 2015, but there is no record of his arrest on 2 January 2015. Constable Black was further referred to his arrest statement of accused 1 which was dated 2 January 2014, it was pointed out that there is no mention in the arrest statement of the knife obtained from accused 1. Constable Black in reply to the issue of the knife, indicated that he had forgotten certain aspects and that is why he had to make an additional statement and include the aspects he had forgotten.

 

[90]      Constable Black was further referred to a document titled interview with a suspect. This document purports to have been signed by a police official Daniel. Constable Black replied that although the interview was conducted by himself (of accused 1), other police officials assisted him in completing the documents.

 

[91]      Constable Black was asked about the arrest statement he made dated 2 January 2015 where he states that accused 1 told him that he and others assaulted the deceased at CH section. He was asked why he did not take accused 1 to make a confession. His reply was he did not think of doing that.

 

[92]      It was further highlighted to Constable Black that he had failed to inform his colleagues that he found on accused 1 what was potentially the knife used in the commission of the murder of the deceased. Furthermore. that he had further failed to inform Daniel that accused 1 admitted to having assaulted the deceased.

 

[93]      It was further highlighted that Lerato made her statement on 8 January 2015, some 6 days after Constable Black had arrested all nine accused persons. Bongani and Lebogang made their statements on 8 July 2015, some seven months after the nine accused persons were arrested. It was put to Constable Black that accused 1 would deny having told him that he participated in the assault on the person of the deceased or in the killing of the deceased.

 

[94]      Under cross examination by Mr. Mahlatsi for accused 2, 3, 4 and 6, Constable Black indicated that he relied on the statement of one Abel Motlhabi to arrest all nine accused persons.

 

[95]      Under cross examination by Mr. Roman for accused 5, 7, 8 and 9, the version of the accused persons was put to Constable Black. 

 

[96]      The State then, with the consent of the defense, handed in a statement in terms of Section 212 of Act 51 of 1977 of Lieutenant Inge Hilde Taylor. The chain was further admitted by the legal representatives of all nine accused persons. The State then closed its case.

 

The Application In Terms Of Section 174 Of Act 51 Of 1977.

 

[97]      The representatives of all nine accused persons brought an application in terms of section 174 of Act 51 of 1977. The grounds for the application can be summarized as follows: The evidence of all four state witnesses was of such a poor quality that it cannot be relied upon. There were contradictions between the evidence of three of the state witnesses as it relates to whether they were or are members of a gang or not, there were contradictions between the first, second and third state witness as it relates to what they saw when the deceased left and how he fell. The first, second and third accused cannot specify the types of knives that were used by the assailants that killed the deceased, except for the panga that was wielded by Stopp(a). As it relates to the Fourth State witness, he committed errors in investigation of the murder case and his evidence cannot be relied upon. The defense sought the Court to consider at that stage the credibility of the state witnesses by stating the second and third state witness are members of a rival gang to the L7’s, and they have a reason to “cook evidence against the accused persons”.

 

[98]      After the address by the legal representatives of all nine accused persons. The learned Magistrate asked them if it was common cause that the first, second and third state witnesses knew the nine accused persons before the incident. This was answered in the affirmative. The State opposed the application for discharge in terms of section 174 of Act 51, of 1977.

 

[99]      The learned Magistrate refused the application in terms of section 174 of Act 51, of 1977. The learned Magistrate gave reasons for the refusal amongst others, the poor quality of the evidence referred to by the legal representatives for all nine accused persons as it relates to the state witnesses does not refer to the quality of every piece of evidence placed before the court, but refers particularly to relevant evidence and that is evidence relevant to the issue in dispute.

 

[100]    The learned Magistrate stated the fact that the deceased was assaulted and killed by a group of persons in the vicinity of Dan’s Tavern in Khuma on or about 31 December 2014 is not in dispute, nor is the evidence that the first, second and third state witness know some if not all of the nine accused persons, not in dispute.

 

[101]    The defense of the nine accused persons is that they were not at Dan’s Tavern on the day of the incident, and they denied assaulting the deceased. The issue in dispute is the identification of the perpetrators to the murder of the deceased, and it is the quality of the evidence surrounding the alleged identification that needs to be assessed.

 

[102]    The learned Magistrate found this was a issue that dealt with credibility and the learned Magistrate stated that he was not satisfied that the evidence of the sate witnesses was of such a poor quality that it should be disbelieved or ignored or rejected. The learned Magistrate accordingly refused the application.

 

The Defence Case:

 

[103]     Accused one testified. His evidence is on 31 December 2014 he was at the home of accused 7. He was with accused 5 and 6 as well as other people. There was a braai at the house of accused 7. Accused 7 was present so was the sister of accused 7, the girlfriend of accused 1, the girlfriend of accused 5 and the girlfriend of accused 6. He told the court that he arrived at 20H00 at the house of accused 7. He does not remember the time that he left the house of accused 7 because he was drunk.

 

[104]    After he left the house of accused 7, he went to his house with his girlfriend and they went passed Dan’s Tavern. He did not enter Dan’s Tarvern. He saw nothing when he went passed Dan’s Tavern. He went passed Dan’s Tavern because it is on the route to his home. He saw people celebrating the coming of the new year. He does not recall the time he arrived at his home and he slept upon his arrival.

 

[105]    Accused 1 further testified that on the morning of 1 January 2015, he went to the house of accused 6. He went there with his girlfriend and slept at the house of accused 6 with his girlfriend. He slept at the house of accused 6 on 1 January 2015 and himself and accused 6 were arrested on 2 January 2015 by Constable Black.

 

[107]    Accused 1 testified to knowing the deceased. He denied having met the deceased on 31 December 2014 or on 1 January 2015. He denied having assaulted and taking part in the killing of the deceased. He denied the police having taken a statement from him. He testified that he knows Lerato, Bongani and Lebogang. He said he does not know why Lerato would say he is involved in the commission of the offence.

 

[107]    He testified that Lerato, Bongani and Lebogang are gangsters. He said that he is not a gangster. Accused 1 denied being in the vicinity of Dan’s Tavern with accused 2 to 9. He denied being in possession of a knife and denied having given Constable Black a knife, but admitted to having given Constable Black his clothes.

 

[108]    Under cross examination by the State, accused 1 testified that he knew the deceased because they went to primary school together. He knows Lerato, Bongani and Lebogang and he has no problems with any of them. Accused 1 testified that he is involved in a neighbourhood watch. He reports incidents of crime when he sees them. He testified that Lerato has a problem with him being a community member. He does not know why Bongani and Lebogang have a problem with him.

 

[109]    He testified that Lebogang was part of a group that robbed and attacked people and because of this, a group of people was organized to protect their homes. The group that was organized does not have a name. Accused 5, 6 and 7 are his friends but they are not part of the group.

 

[110]    Accused 1 testified that he went to the house of accused 7 because he was invited by accused 7 and the brother of accused 7, Molefe. The version of accused 5 was put to accused 1 to wit that on 31 December 2014, he (accused 5) was at the house of accused 7. He arrived at 20H00 and left at 23H00 and on that day he was never in the company of accused 1, 2, 3, 4, 6, 8 and 9. The version of accused 7 was put to accused 1 that the sister of accused 7 informed him (accused 7) that his friends, accused 5 and 6 had left. This was the version that was put to Lerato. The version changed when it was put to Bongani and Lebogang, namely that accused 1 was included amongst the people who were at a party at the house of accused 7. Accused 1 insisted that he was at the house of accused 7 during the party.

 

[111]    It was put to accused 1 that the version of accused 6 that was put to Lerato was that on 2 January 2015, the police arrived at the house of accused 6, and that the police kicked and assaulted accused 1. That accused 6 intervened and asked why the police were assaulting accused 1, and they were then arrested (accused 1 and 6). Accused 1 denied having been assaulted.

 

[112]    It was put to accused 1 that the version of accused 6 was that the police came with a knife and said it belongs to accused 1. Accused 6 denied it. Accused 1 said he does not know and they never took out a knife at the home of accused 6. It was put to accused 1 by the State that he is a part of the gang L7. His answer was no. Under questions by the Court, accused 1 was asked if he was a member of any gang. His answer was yes and the name of the gang is L7. When the learned Magistrate enquired why accused 1 said he was not part of a gang when the State prosecutor asked him, his reply was that he said he is a gangster. The case of accused 1 was then closed.

 

[113]    Accused 2 testified that he knows nothing about the murder of the deceased and he only heard about it in Court. He testified that on 31 December 2014, he was with Lindela from 9H30 am drinking liquor. They spent 45 to 50 minutes drinking liquor at Mastandi Bottle Store. He then went to his girlfriends’ house and was no longer in the company of Lindela.

 

[114]    After speaking with his girlfriend, he drank liquor at one bottle store after another. He was drinking alone until he got home at around 22H30. When he got home he watched music TV until he fell asleep. He woke up on 1 January 2015 when he was woken up by his girlfriend who told him that Lindela was around looking for him. That was on the morning of 1 January 2015 at around 7H00am or 8H00am.

 

[115]    He then went out to Mastandani bottle store at around 9H00. Whilst there, there were some guys that were talking about him saying he is wanted by the police. That was when he decided to go to the police station to hear why the police were looking for him.

 

[116]    At the police station he asked for Mr. Black. He found Constable Black and they went to his office. In the office of Constable Black, there was a list on top of the table with names on it. The list contained the names of persons accused of being members of L7. He was asked by Constable Black if his name was on the list, and he informed Constable Black that his name is not on the list. Constable Black then told him that he could go. On his way out of the office of Constable Black, another police officer saw him and said he should be included on the list. Whilst he was in the waiting cells, a person who is unknown to him came with Constable Black and pointed him out and left.

 

[117]    Accused 2 later corrected himself and said he actually went to the police station on 2 January 2015 and not 1 January 2015. Accused 2 explained that he heard he was wanted by the police on 1 January 2015, but he did not go to the police station on 1 January 2015. He was with his co – accused persons when he was pointed out in the waiting cells.

 

[118]    As it relates to the evidence of Bongani and Lebogang that accused 2 was amongst the people that assaulted and killed the deceased, he testified that he does not remember going to Dan’s Tavern on that day. He said at the time the deceased was killed, he was sleeping as he was drunk. Accused 2 admitted to knowing Bongani. Accused 2 testified that he was a member of L7 gang, but he left the gang in the year 2012. He testified there was no bad blood between himself and Bongani. He testified that he knows Lebogang.

 

[119]    Accused 2 also testified that L7 has a lot of members and he does not know the number of its members. They are so many they do not know each other. Accused 2 testified that he knew accused 1 and accused 9 before they were arrested.

 

[120]    Under cross examination by the State, accused 2 was asked about the statement he says was read in court that the murder of the deceased was committed by one person and the others kicked the deceased. He was asked why this version was never put to the State witnesses.

 

[121]    It was put to accused 2 that the version that was put to the state witnesses, Bongani and Lebogang, was different from what accused 2 was telling the court when testifying. Accused 2 denied having uttered the words “come and take this dog we killed him”. Accused 2 then closed his case.

 

[122]    The evidence of accused 3 and 8 are similar and for that reason I will summarize their evidence together. In short, the testimony of accused 3 and 8 is that on 31 December 2014, they were arrested at around 23H00. They were arrested for drinking in public and knives were found in their possession. At the police station they were placed in a waiting cell. They were arrested by a Constable Mojaki.

 

[123]    Accused 3 and 8 were released the following morning in the early hours of the morning. They were released and the police took them to their homes. Accused 3 and 8 denied having taken part in the assault and murder of the deceased.

 

[124]    Under cross examination by the State, it was put to accused 3 and 8 that their names did not appear in the J534 register for 31 December 2014 and 1 January 2015. Accused 3 admitted to being part of L7 gang and accused 8 is also a member of L7 gang.

 

[125]    Thankiso Lawrence Mojaki (“Mr. Mojaki”) was then called as a witness for accused 3 and 8.  Mr. Mojaki testified that he was a Constable in the South African Police Services stationed at Khuma Police Station. He testified that he knows accused 3 and accused 8.

 

[126]    Mr. Mojaki testified that he arrested accused 3 and 8 on 31 December 2014 at around past ten to eleven for drinking liquor in public. Mr. Mojaki testified that he searched accused 3 and 8 and did not find anything on them. He took accused 3 and 8 to the police station. He never had an opportunity to open a file for them in order to give them a fine. He did not register accused 3 and 8 in the book. He left accused 3 and 8 in the waiting cell and went to attend to other complaints. Whilst attending to other complaints, he realized that the four hours for accused 3 and 8 was nearly up and he returned to the police station to issue them a fine and release them, but he did not give them a fine. At between 1H00am and 2H00am Mr. Mojaki was about to issue a fine to accused 3 and 8, when he was called and told they had to attend a domestic violence matter.

 

[127]    Accused 3 and 8 were released without having been given a fine. Mr. Mojaki testified that he did not take accused 3 and 8 home. They walked home.

 

[128]    Under cross examination by Mr. Roman for accused 8, Mr. Mojaki testified that there is no relation between himself and accused 8.

 

[129]    Under cross examination by the State, Mr. Mojaki testified that he had arrested 3 people for drinking in public on 31 December 2014. The third person was arrested after accused 3 and 8 were arrested but he does not remember the name of the person. Mr. Mojaki was asked what the proper procedure is for affecting an arrest for drinking in public. He testified that the procedure is to lock the person up for 4 hours and after 4 hours to give the person a fine, a J534 and record the person in the occurrence book.

 

[130]    Mr. Mojaki was not able to explain why accused 3 and 8 were not recorded in the cell register of 31 December 2014. It was put to Mr. Mojaki that accused 3 told the court that he had given him a ‘Notice of Rights’. Mr. Mojaki denied having given accused 3 a ‘Notice of Rights’. Mr. Mojaki further denied having transported accused 3 and 8 to their homes. Mr. Mojaki further conceded to not having recorded the arrest of accused 3 and 8 in any book including his pocket book.

 

[131]    Mr. Mojaki admitted to not having told Constable Black that accused 3 and 8 could not be involved in the murder because he had arrested them on 31 December 2014. The case of accused 3 was then closed.

 

[132]    Accused 4 testified that on 31 December 2014, he was with his family and relatives that were visiting from Potch, they were celebrating the new year at his home. He went to sleep in the early hours of the morning on 1 January 2015. He spent the whole day of 1 January 2015 at home and did not go anywhere. He was arrested on 2 January 2015. The police came to his house and also to the house that is at the back of his house. When they came back they were in the company of accused 7.

 

[133]    Accused 4 testified that when the police passed through the yard of his house, accused 1, 3, 5, 6 and 8 were in the police van. The police left with accused 7 and the other accused persons and after 30 minutes they came back saying they wanted to talk about the matter that transpired at CH. Accused 4 was taken to the police station and at the police station, he was locked up in the waiting cells with the other accused persons.

 

[134]    Accused 4 testified that he was not at Dan’s Tavern on 31 December 2014 and that his sister will testify to that effect. Accused 4 denied having taken part in the assault and killing of the deceased.

 

[135]    Under cross examination by the State, accused 4 admitted that his nickname is Fish. He denied being a gang member but admitted to knowing accused 1, 2, 3, 5, 6, 7, 8 and 9. He testified that the third state witness, Lebogang, had a problem with him because he left the gang that Lebogang was in, namely VL and the gang members wanted to fight him. This was in 2005. It was put to accused 4 that this was not put to Lebogang.

 

[136]    Under questions posed by the court, accused 4 testified that he had joined another gang after leaving VL and the gang he joined was L7. Accused 4 testified that he left L7 in the year 2016 whilst he was still in prison.

 

[137]    Mmasello Emerentia Mosala was called as a witness for accused 4. Her testimony was that on 31 December 2014, she was at home with accused 4 and other relatives. She testified that accused 4 was busy braaing on that day. She testified that accused 4 never left the home on the evening of 31 December 2014 or in the early hours of 1 January 2015. The case for accused 4 was then closed.

 

[138]    Accused 5 testified that he was at the house of accused 7 on 31 December 2014. He arrived at around 20H00, and there was a braai there. He found accused 1 and 6 at the house of accused 7 and he left the house of accused 7 at around 23H00 alone. He went straight home. He denied having been at Dan’s Tavern and having taken part in the assault and killing of the deceased.

 

[139]    Under cross examination by Mr. Dlajwa for accused 1, he was asked if there were women at the braai or party that was held at the house of accused 7. Accused 5 testified that he knows Bongani by sight, he testified that he does not have a problem with Bongani. He admitted that he is a member of the gang L7. He testified that it is only L7 that operates in the area where he stays.

 

[140]    Under cross examination by the State, accused testified that he knows accused 1 because he stays in the same zone with the woman that he has a child with. He testified that he is friends with accused 3 and accused 7. He knows accused 6 by sight. He went to the house of accused 7 and found there was a braai. He and accused 7 belong to the same gang. Accused 5 denied that his girlfriend was with him at the braai held at the house of accused 7. He explained the contradiction to the evidence of accused 1 as maybe accused 1 saw him speaking with another girl at the braai.

 

[141]    Accused 5 testified that he left at around 23H00 and went home, because he had to be home at midnight on 31 December because his family prays at midnight on 31 December. Accused 5 was asked why the version that was put to Lerato was he was at the house of accused 7 with accused 6 and 7. Why was it not mentioned that accused 1 was also present at the braai and why was accused 1 added when the version was put to Bongani and Lebogang? Accused 5 replied that he did not hear Mr. Roman putting that part to the witnesses. The case accused 5 was then closed.

 

[142]    Accused 6 testified that on 31 December 2014, he was at the house of accused 7. There was a braai held at the house of accused 7. The people he saw there were people staying there, accused 1, accused 7, his side chick and accused 5. He arrived at the house of accused 7 at around 20H00.

 

[143]    On his arrival at the house of accused 7, he found accused 1 and the brother of accused 7, Molefe. Accused 5 had not yet arrived. He stayed at the house of accused 7 until the following morning at around 05H00 or 06H00. When he left, he left alone. He went to Masenkeneg to look for the mother of his child and when he could not enter Masenkeng, he went to Obakeng’s place to sleep. He was looking after the house of Obakeng.

 

[144]    He slept alone at Obakeng’s house and was woken up by the mother of his child on 1 January 2015. This was at around 11H00 or 12H00 during the day. Later during the day accused 1 came with his girlfriend to him. On 2 January the police arrived and he went out to reprimand the police because they wanted to assault accused 1. Constable Black and Constable Sam arrested accused 1 and himself for murder. Constable Black had an exhibit bag and it had a knife inside. He testified that he is a former gang member of L7, having left the gang in 2010

 

[145]    Accused 6 testified that he does not know about the murder of the deceased. As it relates to what the witnesses said about his role in the murder of the deceased, he testified that he does not know that and that he did not go to Dan’s Tavern.

 

[146]    Under cross examination by the State, accused 6 testified that he is friends with the brother of accused 7. He was invited to the braai by the brother of accused 7. He and accused 1 are not friends. He knew accused 1 through the brother of accused 7. He also knew accused 1 through Obakeng. He testified that on 2 January, the police were holding accused 1 by the upper arm and attempting to assault him and that is when he intervened. The version that was put to Lerato was then put to accused 6. In response accused 6 said he had told his attorney that the police were attempting to assault accused 1, not that they assaulted accused 1. It was put to accused 6 that accused 1 when testifying denied having been assaulted by the police. When asked about the knife, accused 6 said Constable Sam was holding the knife. It was put to accused 6 that accused 1 testified that the first time he heard about the knife was in court. The case of accused 6 was then closed.

 

[147]    Accused 7 testified that on 31 December 2014, he was at home. There was a braai. He knows accused 1, 2, 6 and 9 by sight. Accused 3 and 5 are his friends. He was with his sister, her husband, his siblings and other people staying in their street who are known to his sister and brother. Accused 1,5 and 6 were at his house. Accused 1 and 6 were there for his brother and accused 5 was there for him. Accused 1 and 6 were seated with his elder brother, Molefe. He went to sleep at around 12H00. He denied being at Dan’s Tavern on 1 January 2015. He testified that Dan’s Tavern is very far from his home.

 

[148]    Under cross examination by Mr. Dlajwa, accused 7 testified that at around 12H00 he was seated on the couch. He was intoxicated and started falling asleep, that was when his sister woke him up so that they could pray. After the prayer he sat on the couch and slept. He woke up at around 7H00. He last saw accused 1 sitting at the back of the house with his brother at around past 11H00.

 

[149]    Under cross examination by Mr. Mahlatsi, accused 7 said he walked past accused 1, 6, his brother and the girls who were also seated with them. He does not know when accused 1 and 6 left his house.

 

[150]    Under cross examination by the State, accused 7 said accused 5 was no longer in the yard when he walked past accused 1 and 6. He does not remember his sister’s prayer. The version as put to Lerato was put to accused 7. In particular that his sister informed him that his friends, accused 5 and 6 left. Accused 7 said his friend is accused 5. Accused 7 testified that he was a gang member of L7. He left the gang in 2013 when he got a job and was focusing on the job.

 

[151]    Accused 7 confirmed knowing Lerato, Bongani and Lebogang by sight. He has never had problems with them.

 

[152]    Defense witness for accused 7 was called. Keneilwe Elizabeth Sibeko (“Keneilwe”). She testified that she is the sister of accused 7. She knows accused 4, accused 5 and accused 6. On 31 December 2014, she saw accused 1, 5 and 6 at her house. Accused 1 and 6 were there to see her brother, Molefe. Accused 7 went to sleep at around 12H00 and she went to sleep at around 2H00. When she went to sleep she saw accused 7. He was sleeping on the couch.

 

[153]    Under cross examination by Mr. Dlajwa, Keneilwe said that she saw accused 1 and 6 at her house on 31 December 2014. She did not see accused 1 before she went to sleep at 2H00.

 

[154]    Under cross examination by Mr. Mahlatsi, Keneilwe said that accused 1 and 6 were seated with her brother. Molefe outside of the house whereas she was seated inside the house. She does not know when accused 1 and 6 left.

 

[155]    Under cross examination by the State, Keneilwe said she knows accused 8 and 9 by seeing them in court. Keneilwe testified that she remembers everything in detail because she does not drink alcohol. She testified that she woke accused 7 at 12H00 to pray and at 7H00 from the couch. After she prayed, she heard accused 7 saying amen. The case for accused 7 was then closed.

 

[156]    Accused 8 testified that he knows the deceased, who was a neighbour to his grandmother. He knows Lerato. He did not have a problem with the deceased. Accused 8 testified that he was arrested with accused 3 on 31 December 2014 for drinking in public. They were arrested around 23H00. He denied having taken part in the assault and murder of the deceased.

 

[157]    Under cross examination by the State, accused 8 was reminded of the version that was put to Lerato, Bongani and Lebogang, that he was arrested for being in possession of a dangerous weapon and drinking in public. He denied having had a weapon when he was arrested and he said that he was only arrested for drinking in public. It was put to accused 8 that there was no documentary proof that Mojaki arrested him and accused 3 on 31 December 2014. It was put to accused 8 that he was placed on the scene by Lerato who knows him well. The case for accused 8 was then closed.

 

[158]    Accused 9 testified that on 31 December 2014, he was at his house which he shares with his sister. His uncle was present on 31 December 2014 and they were celebrating. He went to sleep after the fire crackers. He did not see his co – accused persons on 31 December 2014. He knows Bongani and Lassie. He denied having taken part in the assault and murder of the deceased.

 

[159]    Under cross examination by Mr. Dlatjwa accused 9 said he was a member of the L7 gang. He joined the gang in 2006 or 2007 and he left the gang immediately when he was arrested for the murder of the deceased.

 

[160]    Under cross examination by the State, accused 9 testified that he, his sister and uncle were celebrating up until midnight and that is when he felt tired and ended up sleeping. He woke up during the night, went to the door and found the door locked and he went back to sleep. When he woke up the following day, he found his sister inside the house.  

 

[161]    Prescilla Makgang Mafotlha (“Prescilla”) was then called as a witness for accused 9. She testified that she is the sister of accused 9, and that in 2014 – 2015 she was staying with accused 9. On 31 December 2014 she was at her house with accused 9 and their uncle. After the crackers at 12H00, their uncle left. Accused 9 was drunk and decided to sleep. She also left the house and locked accused 9 in the house. She came back at around 04H00am. On her arrival accused 9 was still in his room.

 

[162]    Under cross examination by Mr. Dlajwa, Prescilla told the court that accused 9 would not be in a position to leave the house after she locked him inside the house because they only use one key. He would not be able to leave through the window because there are burglar – proof on the windows. If he wanted to use the toilet he would use a potty. She testified that she is certain that accused 9 did not leave the house when she was away because they use one key and the front door does not open.

 

[163]    Under cross examination by the State, Prescilla was asked if one needed to defecate what would they do being locked in the house. She replied that she does not believe a person would wake up at night to defecate. She admitted that she was not with accused 9 between the times 12H00 until 4H00. The case for accused 9 was closed.

 

[164]    At the close of the case of the defense, the State applied for conviction of all nine accused persons and the defense applied for acquittal of all nine accused persons.

 

THE JUDGMENT OF THE COURT BELOW

 

[165]    The learned Magistrate handed down judgment and found all nine accused persons guilty of the proffered charge. In finding all nine accused persons guilty, the learned Magistrate when assessing the evidence before him indicated that the following facts are not in dispute:

 

165.1     The identity of the deceased;

 

165.2     On 1 January 2015 just before 02H00 in the morning in the vicinity of Dan’s Tavern in the Chris Hani Section in Khuma in the Regional Division of North West the deceased was attacked by a group of young men who stabbed him with a panga, knives and struck him with stones and glass bottles;

 

165.3     As a result the deceased sustained a total of 20 incisions to his body, being 15 x 2 to 3 centimeters penetrating sharp edge incisions on both sides of the interior chest wall and three x 2 to 3 centimeters sharp edge incisions on the left side of the face and 2 x 2 centimeters incisions in the upper back.

 

165.4     The cause of death was consistent with excessive blood loss due to penetrating trauma to multiple organs.

 

[166]    The learned Magistrate indicated that what the court was to determine was whether the accused persons had been properly and correctly identified as the assailants of the deceased, and also that it was to determine if the deceased was assaulted in the execution or furtherance of a common purpose shared by all of the accused persons.

 

THE LAW:

 

[167]    It is trite law that a court of appeal should be slow to interfere with the findings of fact of the trial court in the absence of material misdirection (see: R v Dhlumayo and Another 1948 (2) SA 677 at 705 – 706). An appeal court’s powers to interfere on appeal with the findings of fact of a trial court are limited (see: S v Francis 1991 (1) SACR 198 (A) at 204E). In the absence of a demonstratable and material misdirection by the trial court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. When an appeal is lodged against the trial court’s findings of fact, the appeal court should take into account the fact that the trial court was in a more favorable position than itself to form a judgment because it was inter alia, able to observe the witness during their questioning and was absorbed in the atmosphere of the trial (see: S v Monyane and Others 2008 (1) SACR 543 (SCA)).       

 

[168]    In S v Thebus and Another [2003] ZACC 12; 2003 (6) SA 505 (CC) at paragraph 18, the court held:

 

“The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes jointly with another person or persons the commission of a crime. Burchell and Milton define the doctrine of common purpose in the following terms:

 

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.”  

 

[169]    In S v Shackal (308/99) [2001] ZASCA 72 at paragraph 30, the court held as follows:

 

“It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused's version is true. If the accused's version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused's version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”    

 

[170]    It should be noted that proof beyond a reasonable does not mean proof beyond any shadow of doubt. Our law does not require a court to act only upon absolute certainties but merely upon justifiable and reasonable convictions. In Miller v Minister of Pensions [1947] 2 All ER 372 at 373H Denning J said the following:

 

 “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond a reasonable doubt”.

 

[171]    In S v Van der Meyden 1999 (1) SACR 447 (W) Nugent J (as he was then) stated at 450 as follows:

 

 “What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.” 

 

ANALYSIS:    

 

[172]    On behalf of the appellants (accused, 1, 2, 3, 5, 6, 7, 8 and 9 in the court below) four grounds of appeal have been raised:

 

172.1    The learned Magistrate disregarded material contradictions and improbabilities;

 

172.2    The learned Magistrate failed to properly evaluate the adduced evidence;

 

172.3    The learned Magistrate made unjustifiable credibility findings, over- emphasis of one version in favor of existence of material contradictions;

 

172.4    The learned Magistrate over – emphasis of certain factors against others in sentencing the accused persons.

 

[173]    In assessing the evidence of Lerato, the learned Magistrate noted that Lerato knew some of the accused persons and did not know others. The learned Magistrate went on to find that he is satisfied that the second and third state witness (Bongani and Lebogang) knew all the nine accused well before the fatal incident. It should further be noted that all nine of the accused persons never denied that Bongani and Lebogang knew them. 

 

[174]    The issue of Lerato not mentioning some of the accused persons is covered by the evidence of Bongani and Lebogang. The learned Magistrate observed that accused 1 testified that he had gone passed Dan’s Tavern on 1 January 2015. He did not dispute the evidence of Lerato, Bongani and Lebogang as it relates to the apollo light being the source of illumination that evening.

 

[175]    In the heads of argument filed on behalf of the appellants, it is stated that the learned Magistrate should have taken into account the witnesses state of sobriety as she (Lerato) confused the names of the accused persons she identified as being present at the scene on the day of the incident and kept contradicting her evidence in chief. Lerato stated she did not know all of the accused persons. She stated under cross examination that she made a mistake with the names of some of the accused persons that she identified as being at the scene on the day in question, but she was steadfast on the accused persons she saw at the scene on the day. Her evidence of the accused persons she saw at the scene on the day in question, accused 1, 5 6, 7, 8 and 9, was corroborated by Bongani and Lebogang.

 

[176]    On behalf of the appellants it is stated that the version of the second state witness, Bongani, is in stark contrast with the version of Lerato and Lebogang. The issue comes from the version of Bongani that he ran passed the deceased and saw Search stabbing the deceased on his back and accused 8 kicking the deceased and he fell to the ground, whereas Lerato testified that the deceased tripped and fell on his own and Lebogang testified that the deceased fell because L7 gang were pelting stones and bottles. Further, who stabbed the deceased first, was it Search or was it Stopper?

 

[177]    Not every error made by a witness will affect his or her credibility. It is the duty of the trier of fact to weigh up and assess all contradictions, discrepancies and other defects in the evidence and, in the end, to decide whether on the totality of the evidence, the State has proved the guilt of the accused beyond reasonable doubt. The trier of fact also has to take into account the circumstances under which the observations were made and the different vantage points of witnesses, the reasons for the contradictions and the effect of the contradictions with regard to the reliability and credibility of the witnesses. (See: S v Sithole (54/06) [2006] ZASCA 173 at paragraph 7)

178]     From the reading of the judgment by the learned Magistrate, it is clear that the learned Magistrate did weigh up and assess all contradictions. The learned Magistrate further examined the ability of the witnesses to observe the incident. The learned Magistrate examined the testimony of Bongani and Lebogang as it relates to what they say they saw all nine accused persons doing at the scene on the day in question.

 

[179]    Both Bongani and Lebogang testified that as the deceased was laying on the ground facing upwards, accused 1 sat on his legs and stabbed him with a knife, accused 2, 3, 4, 5, 6, 7, 8 and 9 were stabbing the deceased with knives, hitting him with bottles and stones. Lebogang in particular testified that he was not sure where accused 1 was stabbing the deceased on his head or chest. Both Bongani and Lebogang testified that Stoppa struck the deceased with a panga. Corroboration is independent evidence that confirms the testimony of a witness and provides a safeguard. (See: The South African Law of Evidence, 2^nd Edition at page 977). The evidence of Bongani and Lebogang on how the injuries were inflicted on the deceased is corroborated by the postmortem report.

 

[180]    The learned Magistrate in my view correctly referred to the postmortem report which read that there were two incisions in the deceased’s upper body on the back. This corroborates the version of Bongani that Search stabbed the deceased on the back before he fell to the ground. The description of the other wounds in the postmortem report that is 15 x sharp edge incisions on both sides of the chest, 3 x incisions on the left side of the face corroborates the evidence of both Bongani and Lebogang.

 

[181]    The learned Magistrate further examined and referred to photos 3 and 4 of the photo album, which was handed in by consent. The learned Magistrate noted what appears to be pieces of glass and a fairly large stone or brick next to the head of the deceased. I agree with the observation of the learned Magistrate that it would have been difficult for the witnesses to know all this if they did not witnessed the incident.

 

[182]    In the heads of argument filed on behalf of the appellants an argument is made that there are inconsistencies relating to proper identification of the appellants and the role they played in attacking the deceased. Counsel for the appellants relies on Arendse v S (089/15) [2015] ZASCA 131 at paragraph 10. I understand counsel for the appellants to mean there is no dispute that Lerato, Bongani and Lebogang had prior knowledge of the nine accused persons before the court below. What is in dispute is that Lerato, Bongani and Lebogang contradicted each other on the role that each accused person played in attacking the deceased. I do not agree with this argument that Lerato, Bongani and Lebogang did not corroborate each other’s evidence as it relates to the roles played by the accused persons in attacking the deceased and this rendered their versions questionable and therefore improbable.

 

[183]    I have dealt with the test that the learned Magistrate used in examining the postmortem report, the photo album and the evidence of Bongani and Lebogang and the finding that the evidence of Bongani and Lebogang is corroborated by the postmortem report and the photo album. Accordingly, the learned Magistrate was correct in accepting the evidence of Lerato, Bongani and Lebogang.

 

[184]    It is submitted in the heads of argument of the appellants that despite the numbers (I assume this refers to the number of the assailants that assaulted and killed the deceased on the day of the incident), there is no allegation or application of the doctrine of common purpose. I disagree with this submission. The liability requirements of a joint criminal enterprise fall into two categories. The first arises where there is a prior agreement, express or implied, to commit a common offence. In the second category, no such prior agreement exists or is proved. The liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind. In the present matter, the evidence does not prove any such prior pact. (See: Thebus and Another v S2003 (6) SA 505 (CC)   at paragraph 19)

 

[185]    The learned Magistrate was correct to find that the assailants of the deceased were acting in a common purpose in the matter before the court below. It was not proven that the assailants had entered into a previous agreement to assault and kill the deceased, but the active association and participation of the assailants in the assault of the deceased which led to his death is sufficient to apply the doctrine of common purpose.

 

[186]    The investigation of the matter by Constable Black has been attacked by counsel for the appellants. This is a issue that the learned Magistrate also criticized. The learned Magistrate went so far as to state “…as far as the general quality of Constable Black’s investigation of this case is concerned the less said about it the better. It was astonishingly poor. It fell far below the standard of investigation expected of a police detective endowed with 11 years experience as an investigating detective”.

 

[187]    The learned Magistrate then went on to deal with all the mistakes made by Constable Black in investigating the matter. In conclusion, the learned Magistrate pointed out that because of the mistakes of Constable Black, no satisfactory evidence was placed before the court proving that the chain of custody could not have been broken. This was as it relates to the knife and the DNA results. The learned Magistrate further dealt with whatever admissions that some of the accused persons might have made to Constable Black that could not be admitted and held against any of the accused persons. Similarly with the evidence that the knife was obtained from accused 1 linking him to the murder of the deceased.       

 

[188]    It has been submitted on behalf of the appellants that the learned Magistrate erred in rejecting the version of the accused persons as not being reasonably possibly true. I have noted that the learned Magistrate devoted a considerable portion of his judgment to the evidence of all nine accused persons and their witnesses.

 

[189]    The learned Magistrate observed that accused 1 failed to confirm important parts of the version put to state witnesses. He contradicted some of the parts of the version that was put to the state witnesses and statements of some of his co accused as it relates to him. The learned Magistrate found accused 1 to be an unreliable witness.

 

[190]    The learned Magistrate dealt with the evidence of Bongani and Lebogang as it relates to accused 2. The learned Magistrate found it was improbable that Bongani and Lebogang would falsely implicate accused 2 even to the extent of making up words never uttered by accused 2. The reasoning behind this finding by the learned Magistrate is that because there was no bad blood between accused 2 and Bongani and Lebogang.

 

[191]    The learned Magistrate highlighted the description of accused 2 on how he was arrested did not make sense. The learned Magistrate rejected the version of accused 2 of a list of members of L7 gang as in all probability fictitious to create the impression that Constable Black was wrongly arresting anyone who happened to be a member of L7 gang.

 

[192]    As it relates to the version of accused 3 and 8, the learned Magistrate found that the version of the witness, Mr. Mojaki, was improbable. The learned Magistrate relying on probabilities and improbabilities indicted that it was 31 December 2014, and people were in a celebratory mood. The streets were probably full of people drinking in jubilation and anticipation of the new year. It is unlikely that only accused 3 and 8 were drinking in public on that day, on that night.

 

[193]    The learned Magistrate questioned why Mr. Mojaki would on that day go to the house of accused 3 and arrest him and accused 8 and not issue them with fines. Why would it only be accused 3 and 8 arrested on that day for drinking in public. There was no proof of the arrest of accused 3 and 8. On the alleged third person that Mr. Mojaki arrested also for drinking in public on 31 December 2014, no proof was tendered of this arrest. The learned Magistrate further rightfully observed that Mr. Mojaki contradicted the version of accused 3. Mr. Mojaki said he did not find any weapons on accused 3 and 8 whereas accused 3 said when he and accused 8 were searched, the police found knives on them and accused 8 denied that there were knives found on him.

 

[194]    The learned Magistrate dealt with the evidence of Lerato as it relates to having seen accused 8 at the scene of the murder and noted Lerato has no reason to falsely implicate accused 8 given the relationship she has with the grandmother of accused 8. The learned Magistrate rejected the versions of accused 3 and 8 that they were not at the crime scene when the deceased was assaulted and killed and found it to be devoid of truth.

 

[195]    As it relates to accused 4, the learned Magistrate compared the evidence of Bongani and Lebogang as to how they know accused 4. The learned Magistrate pointed out that the version of accused 4 as it relates to his arrest, was contradicted by accused 1 and 6. The learned Magistrate touched on the issue that Lebogang testified that accused 4 is a distant relative of him. There was no bad blood between Lebogang and accused. The learned Magistrate found that there was no reason for Lebogang to falsely implicate accused 4. If anything, he would want to protect accused 4.

 

[196]    As it relates to the sister of accused 4 who was called as witness, the learned Magistrate noted that the witness was not an independent witness, she had ample opportunity during the 5 years that accused 4 was in custody to discuss the matter with him.

 

[197]    As it relates to accused 5, 6, 7 the learned Magistrate noted the accused persons contradicted each other in some respects. It should be remembered that according to accused 5, 6 and 7, they were with accused 1 at the house of accused 7. The learned Magistrate dealt with the contradictions he noted.

 

[198]    The learned Magistrate observed that accused 6 appeared to be more dishonest than his friends. The learned Magistrate observed that accused 6 had no problem in manufacturing evidence and presenting it as the truth. The learned Magistrate dealt with the issue of the knife and the alleged assault on accused 1 by Constable Black and Constable Sam. This was denied by accused 1. The learned Magistrate found the evidence of accused 1, 5, 6 and 7 also to be so improbable and unsatisfactory that he could not accept it as the truth.

 

[199]    As it relates to the evidence of accused 9, the learned Magistrate dealt with it too. The learned Magistrate indicated from the evidence of Lerato, Bongani and Lebogang, that there was no bad blood between accused 9 and the three state witnesses.

 

[200]    The evidence of the sister of accused 9 was considered. The learned Magistrate found that it was improbable that the sister of accused 9 locked him in the house. The learned Magistrate found that the uncle also stayed in the house and accused 9, not being a child, it would not be probable to lock him in the house. The learned Magistrate indicated the sisters of the accused persons who were called to testify have a vested interest in seeing their brothers released from prison. They had ample opportunity to visit their brothers in prison and discuss the matter with them. The learned Magistrate specifically stated: “The possibility of some of the accused being at their homes on the night in question as testified by their sisters cannot be ruled out”

 

[201]    The learned Magistrate went on to state that it was impossible for them to still be at their homes at the time the deceased was assaulted and murdered because there is credible evidence before the court that they were at the scene of crime. The learned Magistrate rightfully observed that it is impossible for the accused persons to be at their homes and at the scene of the crime at the same time. The learned Magistrate dealt with the sister of accused 7, Keneilwe, having visited her brother many times in prison.

 

[202]     The learned Magistrate dealt with why he found Lerato, Bongani and Lebogang to be good witnesses. The learned Magistrate dealt with the fact that the evidence of Lerato, Bongani and Lebogang might not have been perfect in every sense, but the learned Magistrate found it to be credible and reliable in material respects. The learned Magistrate found that all nine accused persons unlawfully assaulted the deceased with the intention to kill him, in the execution of a common purpose that they all shared.

 

[203]    Having read the record of the proceedings in the court below, I have no doubt about the correctness of the trial court’s factual findings. I am mindful of the advantage that the learned Magistrate had in the court below of seeing, hearing and appraising the witnesses. I am of the respectful view that the versions of the appellants are what has been described as “fanciful possibilities” (See: Miller v Minister of Pensions supra).      

 

[204]    As it relates to the attack on the sentence, leave to appeal was granted only against the conviction of the appellants. No appeal lies against sentence. I have noted that the respondent in their heads of argument, rightfully do not address the sentence.

 

CONCLUSION:

 

[205]    Having regard to the issues raised herein above, the appeal must fail.

 

ORDER:

 

[206]    Resultantly, the following order is made:

 

(i)          The appeal is dismissed.   

 

 

T MASIKE

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

I agree

 

 

 

R.D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

APPERANCES

ON BEHALF OF THE APPELLANT;	ADV. LEKITIMA
	NPA
ON BEHALF OF THE RESPONDENT:	ADV. MOLEFE
	DPP
DATE OF HEARING:	18 JUNE 2024
DATE OF JUDGMENT:	19 JULY 2024

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