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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 102

PARTIES:

THE STATE

and

MANDILAKHE MARHOTYA

THANDUXOLO LUFELE

• Registrar CASE NO: CC06/07

• Magistrate:

• Supreme Court of Appeal/Constitutional Court: ECD

DATE HEARD:

DATE DELIVERED: 2/3/07

JUDGE(S): Plasket J

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Plaintiff(s)/Applicant(s)/Appellant(s): Mr McCallum

• for the accused/defendant(s)/respondent(s): Adv. Beard

Instructing attorneys:

• Plaintiff(s)/Applicant(s)/Appellant(s):

• Respondent(s)/Defendant(s):

CASE INFORMATION -

• Nature of proceedings : Criminal proceeding

• Topic:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CC06/07

DATE DELIVERED: 2/3/07

In the matter between:

THE STATE

and

MANDILAKHE MARHOTYA

THANDUXOLO LUFELE

JUDGMENT

PLASKET J

[1] On the afternoon of 16 June 2006 two men entered De Doorns farm in the district of Sterkstroom. They first accosted Mr Douglas Tshoki, a farm worker, threatened him with an object described as a panga and a knife and tied him up with wire. They also gagged him. Then they went to a nearby fowl run where Mrs Anna Maria Geyer, a 69 year old woman and the wife of the owner of the farm, was feeding chickens. I shall refer to Mrs Geyer hereafter as the deceased. They attacked her with the panga-like object and knife with a shocking degree of viciousness and brutality. The cause of her death is recorded in the post-mortem examination report as being ‘shock and haemorrhage following extensive injuries to the head and face’.

[2] Arising from these facts, which are not disputed, the two accused in this matter were charged with the murder of the deceased and with an assault upon Mr Tshoki. They have pleaded not guilty to both charges. Accused no 1’s defence is an alibi while accused no 2’s defence is that, far from being party to the murder of the deceased, he tried to protect her from accused no. 1’s murderous attack on her and he only participated in the assault upon Mr Tshoki, by tying his hands, because he was threatened by accused no 1.

[3] The evidence against the accused comprises, in the main, of the testimony of Mr Tshoki, a statement amounting to a confession made by accused no. 1 which I ruled to be admissible in a trial-within-a-trial, a statement amounting to a confession made by accused no. 2, the admissibility of which was not challenged, as well as the evidence of various members of the South African Police Service.

[4] Before proceeding to the merits, it is necessary for me to provide my reasons for my finding that the confession made by accused no. 1 was admissible.

[5] Accused no. 1’s version was that, on 18 June 2006, when the confession was alleged to have been made, he had been assaulted by the police with a view to making him confess, he had never been warned of his rights and had made no admissions in any event.

[6] The evidence adduced by the State was to the following effect. On the morning of 18 June 2006, Inspector Mlonyeni arrested accused no. 1 in the street near his home. He then arrested accused no. 2. He brought both of them to the Sterkstroom Police Station where he held an informal identification parade. When Inspector Mlonyeni arrested the accused, he informed them of their rights. He denied having assaulted either of the accused either on their arrest or thereafter. Later, members of the Serious and Violent Crimes Unit based in Queenstown arrived. This team, led by Captain Mahlanza interviewed accused no. 1. During the course of the interview arrangements were made for Captain Dyantyi to come to Sterkstroom to conduct a pointing out.

[7] Captain Dyantyi arrived during the course of the afternoon. He interviewed accused no. 1 and completed a standard form used in these circumstances. After completing the form by reading and explaining its contents to accused no. 1, and recording accused no. 1’s responses as well as his own observations where appropriate, accused no. 1 was photographed by Captain Mabaso, whose duty it was to take the necessary photographs before, during and after the pointing out. After returning from the pointing out the remainder of the form was completed. The entire document was read to accused no. 1 and his signature and that of Captain Dyantyi was appended to each page.

[8] A number of accused no. 1’s responses which are recorded in the form are significant. First, when Captain Dyantyi introduced himself to accused no. 1, the latter is recorded as having said: ‘Yes, I know you Buti Lennox.’ Captain Dyantyi testified that he had previously been stationed in Sterkstroom and that when he saw accused no. 1, he recognised him. Secondly, when accused no. 1 was informed of his right to legal representation and asked whether he wanted the services of a legal representative before proceeding further, he is recorded as saying: ‘No, not now. My family are to organise one for me at court.’ He duly applied for legal aid when he appeared in court the next day. Thirdly, accused no. 1 stated that he had not been unduly influenced, induced or assaulted to take part in the pointing out. The only injuries that accused no. 1 complained of were marks on his wrists that he ascribed to the handcuffs that had been put on him after his arrest and scratch marks from thorn trees. These injuries and no others were confirmed by Captain Dyantyi. Fourthly, when accused no. 1 was asked whether he had been informed of the reason for his arrest as prescribed by section 35 of the Constitution he answered in the affirmative and stated that this was done by Inspector Mlonyeni during his arrest.

[9] As against this evidence, accused no. 1 testified that he was arrested not only by Inspector Mlonyeni but by him accompanied by four other policemen, including Inspectors Fanele and Mthingeni. He stated that, as he played in the street, Inspector Mlonyeni approached him, asked him where accused no. 2 was and slapped him in the face so hard that he fell to the ground, whereupon the other policemen all kicked him on the back and side. At the police station, he was taken to an office where Inspectors Mlonyeni, Fanele and Mthengeni and two others assaulted him by placing a plastic bag over his head to suffocate him on three occasions. He was, he said, told to admit killing a white woman on a farm.

[10] Accused no. 1 denied that he was interviewed by Captain Mahlanza and her team. He also denied having been interviewed by Captain Dyantyi, stating the he first met Captain Dyantyi, whom he did not know, outside the police station immediately before going on the pointing out. He insisted that only he and Captain Dyantyi went to the farm together in one vehicle, while Captain Dyantyi testified that a Constable Makasi drove the vehicle. This is confirmed in the form. Finally, accused no. 1 denied that Captain Mabaso acted as photographer. He said that the photographer was a white policeman. This was denied by both Captain Dyantyi and Captain Mabaso. Once again, the form records that Captain Mabaso acted as photographer.

[11] The evidence of the State witnesses was, without exception, of an impressive calibre. All gave coherent and logical accounts of their involvement in the events dealt with in the trial-within-a-trial. None of them had any difficulties of note when they were cross-examined. Their evidence was mutually supporting, bolstered by contemporaneous documentary evidence – the form completed by Captain Dyantyi and the photographs taken by Captain Mabaso – and in line with the probabilities.

[12] Accused no. 1, on the other hand, did not impress me as a witness. His version was illogical and flew in the face of the probabilities. For it to be accepted, it would require me to accept that a conspiracy had been hatched by the police in Sterkstroom, the team from the Serious and Violent Crimes Unit in Queenstown as well as Captain Dyantyi and Captain Mabaso, both of whom knew nothing of the case, had nothing to do with the investigation and had no reason to connive in an illogical scheme to implicate accused no. 1 for no particular reason.

[13] The assault that accused no. 1 claimed to have been subjected to on his arrest suffers from two damning defects: first, he claimed to have been viciously attacked in a public street, in broad daylight, in plain view of a significant number of people by a group of policemen who attacked him for no reason at all. That is most unlikely. Secondly, he claims to have been slapped in the face with such force that he fell to the ground and then kicked by four policemen on the back and in the side while he lay on a gravel road, squirming as the kicks landed. Despite this he had no marks to show for his alleged ill-treatment. He tried to suggest that one of the photographs (which would have been taken a few hours after his arrest) showed swelling to the face. It clearly does not. The trousers that he was wearing in the photograph, which must have been the same trousers that he wore when he was arrested shortly before, are not dirty, as one would expect if he had been assaulted while lying on a gravel road. When he was cross-examined about the suffocation that he was subjected to in the second alleged assault, he got himself into a bind about how precisely these assaults were carried out.

[14] The falsity of accused no. 1’s version is patently obvious and I reject it as false beyond reasonable doubt. I accept the evidence of the State witnesses. That evidence establishes beyond reasonable doubt that accused no. 1 made the confession freely and voluntarily in full knowledge of his rights and without being unduly influenced in any way.

[15] The issue of admissibility having been determined in favour of the State, I now turn to the evidence on the merits.

[16] The first witness to testify was Mr Douglas Tshoki, the farmworker who is the complainant in count 2. His evidence was that on the afternoon of 16 June 2006, while he was working near the homestead on De Doorns farm, two men approached him. They told him that they were looking for work. When he told them that the owner of the farm was not there, they said that they had spoken to him and he had told them to wait for him. Mr Tshoki told them to wait under some trees and he carried on working.

[17] One of the men then asked for water. Mr Tshoki directed him to a tap. The second man went to the tap a while later but when he returned he claimed to have seen a snake in the grass. Mr Tshoki went to the place indicated to kill the snake but as he did so, one of the men grabbed him from behind and held a large homemade sword-like object about 50 to 60 cm in length against Mr Tshoki’s chest. (I shall refer to this weapon as a panga, as this was how it was described during the trial.) The second man drew a knife and prodded Mr Tshoki in the ribs with it. He was told that they would kill him if he made any noise. His hands were tied together behind his back with wire, he was made to sit, his feet were tied together with wire, a strip of cloth was cut from his jacket and he was gagged with this.

[18] He described his assailants by what they wore and by how they were armed. The man carrying the panga wore a white T-shirt and a brown corduroy jacket. The man armed with the knife wore grey jeans and a black and white jacket. He identified the T-shirt, the corduroy jacket and the jeans when these were shown to him. It is common cause that the jeans were worn by accused no. 2. Evidence was led by the State that the corduroy jacket and the T-shirt had been worn by accused no. 1. This was also confirmed by accused no. 2.

[19] On the basis of these features, he identified accused no. 1 as the man armed with the panga and accused no. 2 as the man with the knife. It was accused no. 2 who claimed to have seen a snake, accused no. 1 who grabbed him from behind and held the panga to his chest, and accused no. 2 who prodded him with the knife. It was accused no. 2 who told him that they would kill him if he made a noise. Accused no. 2 tied up his hands, accused no. 1 tied up his feet and accused no. 2 gagged him.

[20] After he had been bound, the man wearing the corduroy jacket lifted it and the shirt and showed him a tattoo on his back. He said that he and his companion were ‘bears’ and they were there to demand money.

[21] At this stage, they saw the deceased going to the fowl run. Accused no. 2 said that they should hurry up and ‘get rid of her’. Both men left Mr Tshoki. Shortly thereafter, he heard the continuous and loud cries of a female voice. Then accused no. 1 returned, followed shortly by accused no. 2. Both were carrying their weapons. There was blood on their hands and clothes as well as on the panga and the knife. Accused no. 1 asked accused no. 2 if he was sure that he had ‘finished’ the deceased. Accused no. 2 said he had ‘finished her’. They then said that the person they were waiting for was the deceased’s husband.

[22] He arrived shortly thereafter and they went in the direction of the homestead with the apparent intention of robbing and then killing him too but their plans were thwarted by the arrival of another man. Instead of proceeding with their plans, the accused fled, whereupon Mr Tshoki was discovered, as was the body of the deceased. She lay dead in the fowl run.

[23] Mr Tshoki identified the accused in an informal identification parade at the Sterkstroom police station. This parade was shot through with irregularities and little weight can be attached to the identification as a result. He identified accused no. 1 at a formal – and proper – identification parade about three months later. Not much weight can be attached to this identification either, its reliability having been fatally contaminated by the earlier, irregular, informal identification parade.

[24] The clothing by means of which Mr Tshoki was able to describe his attackers was obtained in the following manner. When Inspector Mlonyeni arrested accused no. 2 on the morning of 18 June 2006 he found, according to him, the pair of grey jeans being washed in a basin of water. He seized them then and there. While accused no. 2 disputes that the jeans were being washed, he confirmed that they were seized and that they were his.

[25] Accused no. 1 had said in his confession that he had been scratched by thorn bushes when he had run away from the farm, having taken off his jacket and T-shirt. He had, according to Captain Dyantyi, been unsuccessful in his search for these articles on 18 and 19 June 2006, but according to Captain Mahlanza, he had returned to the farm with her on 21 June 2006 and these articles had been found. Accused no. 1 denied that he had gone to the farm with Captain Mahlanza and said that the articles were in Captain Dyantyi’s vehicle when he was taken to the farm of 18 June 2006. For reasons that will be set out below, accused no.1’s evidence in this respect cannot be accepted.

[26] Mr Tshoki was a single witness but his evidence finds significant support in the confessions of both accused. In addition, he testified about the man wearing the corduroy jacket showing him a tattoo on his back and making mention of him and his colleague being bears. One of the photographs taken prior to accused no. 1 going on the pointing out with Captain Dyantyi show that he has a tattoo on his back. When he was at De Doorns farm with Captain Dyantyi on 18 June 2006, he admitted to threatening to kill Mr Tshoki when he and accused no. 2 grabbed him and that they told him that they were Amabhere Gansters. Captain Dyantyi testified that the Amabhere – the bears – are a gang that operates in the Queenstown area.

[27] The confession of accused no. 1, although it seeks to shift the majority of the blame to accused no. 2, tends to confirm Mr Tshoki’s version of events. In particular, it confirms that accused no. 1 was one of the two men who assaulted Mr Tshoki and killed the deceased, that their primary aim was to look for money, that accused no. 2 claimed to have seen a snake when he returned from the tap, that Mr Tshoki was threatened with death, that both went to the fowl run and took part in the attack on the deceased, that he heard a vehicle approaching and that they ran away when they saw that there were two vehicles arriving at the farm.

[28] Accused no. 2’s confession, much like accused no. 1’s, tries to deflect the majority of the blame from him onto his co-accused. Accused no. 2’s admission that he was present on the farm and played a role in the assault on Mr Tshoki also tends to corroborate his evidence. His confession confirms that he told Mr Tshoki that he had seen a snake, that they had then taken hold of and tied up Mr Tshoki as he had alleged, that they had then approached and attacked the deceased, that they had, after that, approached the deceased’s husband on his return, but that they had fled when a second vehicle drove up.

[29] Dr J.I. Koopowitz performed the post-mortem examination on the body of the deceased. He recorded the following observations concerning the external appearance of the deceased’s body and the condition of her limbs:

‘(1) Body covered in shale, gravel and blood

2. scalp: 7 x incised wounds ranging in length from 47mm to 73mm over the right side of the head and over the occipital region and 3 x 15mm incised wounds to the right earlobe with underlying bruising of the scalp tissue and fractures of the skull

3. face: 11 x incised wounds running transversely across the front of the face ranging in length from 13mm to 120mm with underlying fractures of the nose, jaw and maxilla

4. neck: 3 x 13mm-11mm stab wounds into the right side of the neck

5. chest: 2 x non-penetrating stab wounds into each breast 9mm – 11mm broad with a 27mm stamp abrasion laterally

6. abdomen: 15cm linear superficial transverse abrasion below the umbilicus with underlying bruising of the subcutaneous tissue

7. hands: left – 39mm incised wound palmar aspect of the base of the thumb and 58mm and 28mm incisions of this palm as well as a 10mm incision of the tip of the little finger and a similar wound dorsum of the middle finger; a 25mm incision also of dorsum of lateral border of this hand: right hand 2 x 25mm incised wounds dorsum of the middle finger present [the hand injuries appear to be protective attempts against the weapon used].’

[30] His report says the following of his findings concerning the deceased’s head and neck.

‘5. Skull 40mm transverse depressed fracture over the vertex; 5 x fractures over the vertex and lateral aspects of the eye sockets, 56mm x 23mm sliced fracture of the occipital region of the skull and a 30mm fracture over the right occiput; base of skull shows hairline fractures involving both anterior and posterior fossae as well as right middle fossa

6. Intracranial contents diffuse subarachnoid and subdural haemorrhages over the brain particularly the base

7. Orbital, nasal and aural cavities: wound severing the bridge of the nose; lacerated left eye

8. Mouth, tongue and pharynx: tongue lacerated and bruised; fractured hard palate and fractured left angle of the jaw; upper dentures cracked [see item 4 (3) above]

9. Neck structures: stab wounds into the strap muscles of the right side of the neck; large vessels in the neck intact.’

[31] Consistent with this, he recorded his chief post-mortem findings to be ‘multiple incised wounds of the scalp and face’ and ‘intracranial haemorrhage’. As stated at the beginning of this judgment, he concluded that the cause of death was ‘shock and haemorrhage following extensive injuries to the head and face’.

[32] Dr Koopowitz testified that the nature of the wounds on the deceased’s head, face and hands led him to conclude that two different types of weapons were used, namely what he described as a ‘panga-like instrument’ and a knife. The five fractures of the skull corresponded with an incised wound above each caused by the panga-like instrument.

[33] He identified in the region of 30 different wounds inflicted by the panga and the knife, describing the attack as vicious, and the degree of violence used as severe. The fractures of the skull were indicative of considerable force having been applied in the attack on the deceased.

[34] I turn now to the evidence of the accused.

[35] Accused no. 1’s defence was that he was not at De Doorns farm on 16 June 2006, and consequently that he had not assaulted Mr Tshoki and murdered the deceased. He had been in Sonwabile Township in Sterkstroom on that day but could not recall where exactly he had been or what he had been doing.

[36] He was familiar with De Doorns farm. He had spent time there when his father had been employed by Mr Geyer, its owner. He had worked there too on occasions when he had been staying with his father. He knew accused no. 2 before 16 June 2006 but believed that accused no. 2 was falsely implicating him to protect the person he had, in fact, been with on that day.

[37] He denied that the brown corduroy jacket and the white T-shirt belonged to him and stated that he had seen them for the first time on the seat of Captain Dyantyi’s vehicle when they went to De Doorns on 18 June 2006.

[38] He denied having directed Captain Dyantyi to the farm and stated that the photographs of him pointing were meaningless: he had simply been asked to point at nothing in particular by Captain Dyantyi.

[39] He had signed the form that Captain Dyantyi had completed because he was told to. Captain Dyantyi never read the form to him or went through it with him. He never, he said, confessed to playing a part in the murder of the deceased or the assault on Mr Tshoki. He never went to the farm with Captain Mahlanza as she alleged to look for and recover the corduroy jacket and the white T-shirt.

[40] Accused no. 2’s defence that he was forced by accused no. 1 to participate in the assault on Mr Tshoki collapsed during his cross-examination. On the events of 16 June 2006 as a whole, he tried to depict himself as an unwilling witness to offences committed by accused no. 1. He had, he said, been asked to accompany accused no. 1 to De Doorns farm to collect money owed to him by Mr Geyer.

[41] Once there, he was shocked and surprised when accused no. 1 took out a panga and grabbed hold of Mr Tshoki. He helped, however, to tie up Mr Tshoki. He claimed to have offered to untie Mr Tshoki after accused no. 1 went to the fowl run, where the deceased was. Mr Tshoki declined the offer.

[42] By now accused no. 1 was shouting at the deceased, demanding money. The deceased said that he should wait for her husband to return. Suddenly accused no. 1 struck the deceased on the head. She ran behind accused no. 2 for protection. Accused no. 1 closed the gate to the fowl run and advanced on accused no. 2 and the deceased, raining blows on the deceased, who was still behind accused no. 2 and was trying to protect herself from the blows with her hands.

[43] Accused no. 1 struck accused no. 2 with the panga on his arm. Accused no. 2 took out his knife. While he was retreating and waving his knife from side to side, he accidentally stabbed the deceased once in the head. He then ran out of the fowl run, abandoning the deceased to her fate. He called accused no. 1 to leave the deceased but he did not. The deceased’s husband then arrived followed soon after by someone else. Accused no. 1 threw the panga away and they both ran away.

[44] Accused no. 2 confirmed that accused no. 1 had been wearing a brown corduroy jacket and a white T-shirt as well as that he had shown Mr Tshoki his tattoo and said that he was a ‘bear’.

[45] Accused no. 2 testified that when he went to De Doorns with Superintendent Oranje and Constable Dlali to point out, the former had recorded incorrectly what he had said. For instance, he denied having told them that he had stabbed the deceased three times.

[46] I turn now to an assessment of the evidence.

[47] Mr Tshoki impressed me as an extremely good witness. His credibility was not challenged in argument, and nor could it be. He is a simple rural man with little formal education who appears to possess little aptitude for deception or guile: he struck me as being as honest as the day is long. His recollection of details about the events of 16 June 2006 was precise and accurate. The fact that the identification parades were marred by the irregularities in the first, informal, parade has not had any impact on the outcome of this case because Mr Tshoki’s identification of accused no. 1 in particular was confirmed by his evidence concerning the tattoo, the reference to the Amabhere gang and the identification of the brown corduroy jacket and the white T-shirt.

[48] His evidence also finds support in the confessions of the accused and in the evidence of Dr Koopowitz concerning the nature of the wounds inflicted on the deceased. Although Mr Tshoki was a single witness, all of the corroboration that I have mentioned and the high quality of his evidence in general satisfy the cautionary rule applicable to single witnesses.

[49] I was also favourably impressed with Superintendent Oranje and Constable Dlali, Inspector Mlonyeni, Captain Dyantyi and Captain Mabaso, and Captain Mahlanza. Their evidence was logical, clear, mutually supportive and in line with the probabilities. I accordingly accept the evidence of the State witnesses.

[50] I consider accused no. 1 to have been a poor witness for the reasons that follow. He experienced a number of difficulties in the witness box. His defence was a bare denial. Although it happens that a person sometimes does not know where he or she was when an offence with which he or she is charged was committed, that is usually explained by the fact that there was no reason to remember the day in question a long time after the event. In this case, however, the accused were arrested within 48 hours of the offence being committed and they had knowledge soon thereafter of the details of the offences that they were alleged to have committed. It is therefore surprising that accused no. 1 is not able to say where he was and what he was doing.

[51] Secondly, accused no. 1 had some difficulty in explaining how Mr Tshoki knew that he had a tattoo on his back. He was driven to assert that the police must have told Mr Tshoki about the tatoo. That led him to say that after the informal identification parade, Inspector Mlonyeni had examine his and his co-accused’s backs and seen the tattoo. This was never put to either Mr Tshoki or Inspector Mlonyeni as one would have expected if it had not been a knee-jerk fabrication to a tough question.

[52] Thirdly, accused no.1’s version of what happened at the police station and at De Doorns on 18 and 19 June 2006 is so improbable that it cannot be believed: in order to accept it one would have to accept that a stranger to the investigation and to accused no. 1 set out to falsely implicate him by making up a confession that contains details that could only have come from a person who had been present. Accused no. 1 was simply unable to explain this away.

[53] Fourthly, his evidence that he first saw the brown corduroy jacket and the white T-shirt on the seat of Captain Dyantyi’s vehicle carries with it problems of its own. An acceptance of this evidence makes nonsense of his later evidence (also given in chief) that on 19 June 2006 he was taken back to De Doorns and told to look for his clothes. If the clothes that were to be used to falsely link him to the offence were in the possession of the police the day before there would have been no need to take accused no. 1 to De Doorns on 19 June 2006. I am unable to accept accused no. 1’s evidence. Where it is in conflict with the evidence of the State witnesses, I reject it as false beyond reasonable doubt.

[54] Accused no. 2 was also a poor witness. His defence to the assault charge fell apart under scrutiny in cross-examination and, on his own version, he is guilty of having assaulted Mr Tshoki. His evidence that he had exculpated himself in his confession is so unlikely and improbable that it can safely be rejected as false beyond reasonable doubt. His version that he was protecting the deceased from accused no. 1 carries with it a number of glaring logical flaws.

[55] First, I find it unlikely in the extreme that, accused no. 1 opted to bring accused no. 2 to the farm as a witness to his planned crimes. Secondly, normal human experience suggests that it is improbable that accused no. 1, who asked accused no. 2 to accompany him and who was a friend of his, should suddenly display extreme aggression towards accused no. 2. Thirdly, his evidence that he offered to release Mr Tshoki but Mr Tshoki opted to remain tied up is improbable to say the least.

[56] Fourthly, his version of events in the fowl run is fanciful: he would have the court believe that accused no. 1 was raining blows with the panga on the deceased who was behind him and he only sustained a minor wound on his arm, as he also fended off blows. It should be noted that when he made his confession he was asked whether he had ‘any injuries or bruises of any nature whatsoever’. His answer was that he did not and this was confirmed by Superintendent Oranje’s own observation. This was never challenged when Superintendent Oranje testified.

[57] Fifthly, his account of how he accidentally stabbed the deceased can only be described as bizarre. It merely has to be stated for its mendacity to stand out like a beacon. He claimed that while he was fending off an attack from the front, he somehow managed to stab the deceased behind him. Sixthly, his version is unable to account for the number of knife wounds found on the body of the deceased. He claims that he stabbed the deceased once on her head but the knife did not penetrate. There is no suggestion in the acceptable evidence that accused no. 1 had a knife. All of the acceptable evidence is to the effect that the only person in possession of a knife was accused no. 2. The post-mortem report lists three stab wounds into the right side of the deceased’s neck and two non-penetrating stab wounds into each of the deceased breasts.

[58] Finally, accused no. 2 was unable to explain why, if he was innocent as he claimed and traumatised by what he had witnessed, he never reported the incident to the police. His explanation – that his feet were sore – borders on the pathetic.

[59] As a result of the above, I accept the evidence of Mr Tshoki as well as the other State witnesses. I reject as false beyond reasonable doubt the evidence of accused no. 1 and accused no. 2 where it is in conflict with the evidence of the State witnesses. I find, accordingly that: accused no’s 1 and 2 entered De Doorns farm on the afternoon of 16 June 2006; that they, acting in concert, assaulted Mr Tshoki by threatening him with a panga and a knife and by tying him up and gagging him; and that they, acting in the furtherance of a common purpose, murdered the deceased.

[60] In the result, I find accused no. 1 and accused no. 2 guilty as charged on both counts.

C PLASKET

JUDGE OF THE HIGH COURT

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 103

PARTIES:

THE STATE

and

MANDILAKHE MARHOTYA

THANDUXOLO LUFELE

• Registrar CASE NO: CC06/07

• Magistrate:

• Supreme Court of Appeal/Constitutional Court: ECD

DATE HEARD: CC06/07

DATE DELIVERED: 2/3/07

JUDGE(S): Plasket J

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Plaintiff(s)/Applicant(s)/Appellant(s): Mr McCallum

• for the accused/defendant(s)/respondent(s): Adv. Beard

Instructing attorneys:

• Plaintiff(s)/Applicant(s)/Appellant(s):

• Respondent(s)/Defendant(s):

CASE INFORMATION -

2. Nature of proceedings : Criminal Proceedings

3. Topic:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CC14/07

DATE DELIVERED: 02/03/07

In the matter between:

THE STATE

and

MANDILAKHE MARHOTYA

THANDUXOLO LUFELE

SENTENCE

PLASKET J

[1] I have convicted the accused of murder and of assault. In convicting them of murder, I found that they had, in killing the deceased, acted in the furtherance of a common purpose. That finding means that the provisions of s 51 of the Criminal Law Amendment Law Act 105 of 1997, read with Part 1 of Schedule 2, applies.

[2] These provisions prescribe that, in the circumstances of this case, I am obliged to impose sentences of life imprisonment on both accused unless the presence of substantial and compelling circumstances justifies the imposition of less severe sentences.

[3] In the leading case of S v Malgas 2001 (1) SACR 485 (SCA), Marais JA made it plain that courts ‘are to respect, and not merely pay lip service to, the Legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed’ ( at para 25).

[4] In essence, the approach to sentencing when the Act applies is this: the prescribed sentence should be imposed in the absence of what Marais JA termed (at para 25B), ‘weighty justification’. In other words, if a departure from the ‘severe, standardised and consistent’ sentences required by the Act is to be justified, there must be ‘truly convincing reasons’ (at para 25C). Obviously, if the prescribed sentence would result in an injustice being perpetrated against an accused, the disproportion between the prescribed sentence and a just sentence would automatically qualify as substantial and compelling circumstances (at para 25I).

[5] The purpose of the Act and the backdrop against which it was enacted are set out in Malgas at para 7 where Marais JA said the following:

‘That situation was and remains notorious: an alarming burgeoning in the commission of crimes of the kind specified resulting in the government, the police, prosecutors and the courts constantly being exhorted to use their best efforts to stem the tide of criminality which threatened and continues to threaten to engulf society. It was of course open to the High Courts even prior to the enactment of the amending legislation to impose life imprisonment in the free exercise of their discretion. The very fact that this amending legislation has been enacted indicates that Parliament was not content with that and that it was no longer to be “business as usual” when sentencing for the commission of the specified crimes.’

[6] The problem of high levels of crime and, in particular, of crimes of extreme violence and brutality remains a burning problem in this country. Society is entitled to demand protection from the State from the scourge of criminality, and retribution within the limits of the law when crimes have been committed.

[7] With these introductory remarks, I turn to the specifics of the case before me.

[8] The accused were 21 and 22 years of age when the offences in this matter were committed. They are both single and come from humble backgrounds. Both have not been educated much beyond standard 3 and both had no permanent employment at the time that the offences were committed, surviving on part-time employment as and when possible. Accused no. 1 is a first offender but accused no. 2 has ten previous convictions for housebreaking with intent to steal and theft.

[9] The State made a formal admission that accused no. 2 cooperated with the police after his arrest. Mr McCullum, who appeared for accused no. 1 argued that accused no. 1 also cooperated with the police in the sense that he too confessed his involvement in the offences.

[10] I have set out, in my judgment on conviction, the details of the offences committed by the accused and the terrible injuries they inflicted on the deceased. I do not intend to repeat those details. Instead, I shall draw conclusions concerning the nature of the offences and their objective gravity.

[11] The first point to be made is that their victims – the deceased and Mr Tshoki – were particularly vulnerable, living on a farm some distance from town, and the accused knew that they were on their own. The deceased was vulnerable too because of her age and gender. Our courts have made it abundantly clear that they are prepared to impose stern sentences on those who prey on the vulnerable and weak, whether the victims be children, women or old people. Thugs like the accused can expect no sympathy in circumstances such as the present.

[12] Secondly, it is obvious from the facts that the accused planned their raid on De Doorns farm. They armed themselves with lethal weapons and they were prepared to walk a considerable distance to carry out their plan, which was to rob the Geyers. They observed the farm and saw that Mr Geyer had left before they approached Mr Tshoki. They had a plan to deal with him and he can consider himself lucky that they did not kill him. They also planned to kill Mr Geyer and he is fortunate that someone arrived on his farm at much the same time that he did. It is clear to me that violence was a central part of the accused’s plan and that when they went to the fowl run where the deceased was feeding her fowls, they planned to attack her.

[13] The terror the accused inflicted on Mr Tshoki was clear from his evidence. He still lives with the consequences of their conduct in the sense that he has left De Doorns because he is too scared to remain there. The terror, not to mention the pain, that the accused inflicted on the deceased in the last minutes of her life can only be imagined. The viciousness of the accuseds’ attack is of such a nature that it is extremely difficult for me to find the words that adequately express the outrage that every right-thinking member of our society undoubtedly feels for such callous, mindless barbarity.

[14] In my view, the factors that I have listed propel this case into the category of the most serious that one will come across. I venture to suggest that this was the type of case – where extreme and gratuitous violence was directed at an old woman – that Parliament had in mind when it prescribed life imprisonment as the sentence for certain types of murders.

[15] It was argued that the accused’s co-operation with the police should be taken into account for purposes of mitigation. Any benefit that may have otherwise accrued to them, it seems to me, has been forfeited by the nature of their defences in which they spuriously denied the results of their co-operation, alleging extremely serious unlawful conduct on the part of the police and subjecting the court to what may accurately be described as pathetically concocted lies. In any event, whatever remorse the co-operation may have evidenced – and I have witnessed none during the course of this trial – pales into insignificance when viewed against the callous brutality of the accuseds’ deeds. See S v Stonga 1997 (2) SACR 497 (O), 501a-e.

[16] In S v Obisi 2005 (2) SACR 350 (W) at para 13 Makhanya J, in a case in which the appellant had been sentenced to life imprisonment for the senseless murder of a person during the course of a robbery, held that ‘the nature of the crime, the brazenness, the callousness and the brutality of the appellant’s conduct show that he attaches no value to other people’s lives, or physical integrity, or to their dignity’. Precisely the same may be said of both accused in this matter.

[17] I have considered with care the arguments advanced by Mr McCullum for accused no. 1 and Ms Beard for accused no. 2. I am unable to find that the factors put forward by them constitute substantial and compelling circumstances that would justify a departure form the ordained sentence of life imprisonment in respect of count 1. I also consider that life imprisonment is not an unjust sentence in the circumstances. Indeed, I would have imposed life imprisonment on the accused even if the Criminal Law Amendment Act had not been enacted. In respect of count 2, I am of the view that a sentence of one year’s imprisonment is appropriate.

[18] In the result, accused no. 1 and accused no. 2 are sentenced to life imprisonment in respect of count 1 an one year’s imprisonment in respect of count 2.

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C. PLASKET

JUDGE OF THE HIGH COURT

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