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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION: MTHATHA

                                                                                                           CASE NO. CC23/2018

In the matter between:

THE STATE

AND

NOMALANGA LUSHABA                                                                      ACCUSED NO.1

BALUNGILE SIKHONA SONGUNGQU                                                 ACCUSED NO.2

JUDGMENT

JOLWANA J

[1] On 21 January 2018 Cebo Matutu’s body was found having been stabbed multiple times with a knife and he succumbed to those stab wounds.  The accused have been arraigned in this court on charges of murder for his death.  They are also charged, in the alternative, with conspiracy to commit murder, the allegation being that on or about the 17 January 2018 at or near Lukholo Locality in the district of Bizana, the accused did unlawfully and intentionally conspire and agreed to kill him.  The state invoked the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997 on the basis that the murder of Cebo Matutu (the deceased) was preceded by planning or conspiracy and the accused acted with a common purpose in securing his murder.

[2] The accused both pleaded not guilty and elected not to disclose the basis of their defence.  Before calling witnesses the state addressed the court indicating its intention to call a witness who would establish the motive for the murder of the deceased and who the state alleges was present during the conspiracy or the planning of the murder.  However, she was not present during the actual execution of the murder of the deceased.  The state further indicated that its evidence was therefore circumstantial in nature in that the state did not have a witness who actually saw the accused killing the deceased.

[3] The first witness for the state was Vuyokazi Tilayi (Vuyokazi).  She testified that she was 39 years old and had an N3 level of education.  She resided at Highlands in Bizana.  She described accused No.1 as her friend.  Before accused no.1’s incarceration, they stayed in the same premises in Highlands in which they rented different rooms.  She testified that accused no.1 mostly stayed with her in her room and she would sometimes see the deceased at accused no.1’s homestead at Lukholo locality when she visited there.

[4] On Sunday morning on 21 January 2018 she was with accused no.1 at their premises in which they stayed.  She was told by accused no.1 that she had received a call from her rural homestead in which she was told that there was a problem at home and requested her to accompany her as she was going to her homestead to hear what the problem was.  Indeed they both proceeded to accused no.1’s homestead.  They alighted at a bus stop where they met with other young men from her family.  They took them to the place where the body of the deceased was.  Eventually, they learned that in fact the problem the accused had been told about was the death of the deceased.

[5] From the crime scene they proceeded to accused no.1’s homestead.  Vuyokazi testified that she stayed there for a short while and left later returning to her place of residence at Highlands.  On Monday 22 January 2018 she received a phone call from accused no.1 while she was at work.  Accused no.1 called her from her mother’s cellphone.  She had saved her mother’s cellphone number previously.  Accused no.1 told her that she had lost her cellphone and asked her to lend her, her second cellphone as she had two cellphones.  She indeed lent accused no.1 her second cellphone that very same Monday and returned to work after giving her the phone.  On Tuesday 23 January 2018 accused no.1 called her saying she was at the Department of Home Affairs.  She went to her at the Department of Home Affairs after which she went to her place of residence.

[6] Later that evening police arrived asking for accused no.1’s whereabouts and she told them that she was at her rural homestead.  They asked her to show them her room and she did so.  She had a key to accused no.1’s room and when the police arrived the light was on because she had turned it on.  The police asked her for permission to search the room to confirm if indeed she was not there.  She opened for them and they searched accused no.1’s room and left thereafter.   They just looked under the bed and in the wardrobe to see if she was not hiding there.

[7] That very same evening her phone rang and the caller identified himself as a police officer from Mzamba police station.  He said they were with accused no.1 at the police station and she wanted to speak to her.  Accused no.1 asked her to look for her cellphone which she said she had hidden in her (Vuyokazi’s) wardrobe.  After she had finished speaking with accused no.1 a police officer told her that after she found the phone, she should call them.  She looked for the cellphone and found it in her wardrobe.  It was the same dark grey Hisense cellphone which the accused had said she had lost.  She then called back the number of the police officer who had called her and he asked him to keep that cellphone saying that they would come and fetch it.  They came the following day on Wednesday to fetch it.

[8] On the day of accused no.1’s first appearance police called her saying she must bring her clothing there at Mzamba police station.  She did that and took back the dirty clothing she had been wearing and she took them back.  The second time she went to see her at the police station she asked her if she had done what she was accused of doing being involved in the murder of the deceased.  She told her that she was being falsely implicated.  At some stage the accused was detained in Mthatha and she went to visit her in prison in Mthatha.  During that visit accused no.1 told her that when she had visited her at Mzamba police station bringing her pyjamas there was a letter that she had put in her dirty clothing which she had taken home with her.  She then asked her to look for it amongst that dirty clothing.  Those clothes were in a plastic bag and she had put them in accused no.1’s wardrobe in a drawer and put the plastic bag away.

[9] On her return home from Mthatha she looked for the letter amongst those dirty clothes and she found it and read it.  That letter was written in isixhosa with a lead pencil.  It was exhibited in court.  It consisted of two pieces of paper that appear to have been pulled out of a diary.  They were admitted as evidence and marked as exhibit A1 and A2.  She read them into the record as follows:

“This young man is saying I must write the statement for him, I was thinking of saying this, Nontathu had given me a TV stand and a TV and she said I must pay for them R5 000.00 in instalments.  She phoned me on Saturday.  I went to her place and she demanded the money for these items.  I did not have the money.  I then said I was going to give her a sum of R300.00 or R400.00.  And then Sikhona to come with me to fetch it when we were in town.  I gave a sum of R600.00 to Sikhona.  Because he was asking for a money for a trouser.  So R200.00 was for Sikhona and R400.00 was for Nontathu.  And then on Sunday morning I received a call from Nontathu saying Sikhona had stabbed a certain person from Lukholo.  So he is asking me for money so that he could run away.  I must borrow him the money so that he could run away and I said we will talk during the day.  After I have just talked to him I received a call from my home.  When I arrived there it was Cebo who had been stabbed.  I then called Nontathu that we must report it because this person is from my family but she refused.  I went to town to collect my clothing, and I met up with Sikhona.  I met up with Sikhona on the way to Highlands.  He threatened to kill my siblings if I had said it was him.  And that they were going to say I have hired them with a sum of R5000.00 to kill Cebo because they know there is no way that I would not have an insurance.  Thereafter Nontathu phoned Nombeko.  Tell me what you think because this young man said he wants me to be out.  Nevertheless, he said I will owe him when he needs anything and he said that to me.  I then said rather than to be in jail I would.  I will fend for him.  Rather than to be in jail I will rather fend for him.  What do you think it’s worse because my number is not there in that phone but its Nontathu who revealed me or who talked about me but I will see.  Vuyo please read alone then destroy please”. 

At some stage police arrived enquiring about a letter she had received from accused no.1 and she gave it to them.

[10] During cross examination the following exchange occurred between Vuyokazi and Mr Mthayi who represented accused no.1:

“Mr Mthayi      : Further ma’am, you know that at the time the accused told you about    this letter to escalate frustrations [s]he was even frustrated by the bail process, because her attorney from Legal Wise was not attending, are you aware of that?

Witness           : I do not know whether she was frustrated.

Mr Mthayi        : I am telling you she was.

Witness           : Okay I hear you.

Mr Mthayi        : Because her matter was being postponed all the time and her attorney from Legal Wise was not attending?

Witness           : I don’t have any comment on that.

Mr Mthayi        : Okay.  Lastly on the letter ma’am, you will agree with me accused no.1 was thinking of the best ways to get out of jail but is not admitting liability in this matter.”

[11] The most important thing about this exchange is that, it was never put to Vuyokazi that accused no.1 denied ever writing the letter or telling Vuyokazi about it.  In fact, it is clear from the questions asked that accused no.1 was admitting to writing the letter.  This is important because later accused no.1 introduced a letter which is not the one Vuyokazi testified about and also denies being the author of the said letter.

[12] Vuyokazi also confirmed that when she visited accused no.1 in prison she denied any involvement in the murder of the deceased.  Nothing changed from the witness’ evidence under cross examination.

[13] The state called Nontathu Brown (Nontathu).  She testified that she knew both accused.  Accused no.1 is her friend whom she came to know in 2010.  Accused no.2 is her cousin in that her mother and his father are siblings.  Before his arrest accused no.2 stayed with her at Ngcingo locality.   She did not know the deceased during his life time.  She testified that on 15 January 2018 accused no.1 arrived at her place of residence.  She told her during that visit that she had financial problems, and she needed some money.  Nontathu told accused no.1 that she did not have money.  At that stage she was not working, she was still waiting for some money from her previous employer.  Nontathu suggested to accused no.1 that they could raise money by selling bentals.  Bentals were described as maize grinding machines.  They agreed on this proposal of selling bentals.  They thereafter parted ways.

[14] On 17 January 2018 accused no.1 again arrived at her place of residence saying that the idea of selling bentals was going to take time.  There was another way for her to get some money quicker.  She said she had a troublesome nephew called Cebo and if he could die, she could get some money.  Nontathu then asked accused no.1 how and she said she needed someone to kill the deceased.  She then told her that what she was suggesting was too much.  Nontathu further testified that accused no.1 said if the deceased died, she would get money because, she had an insurance policy on his life.

[15] Accused no.1 told her that the person who could kill the deceased was accused no.2.  She then refused saying she knew that accused no.2 was a drug addict but she did not want him to do such a thing.  On that day they parted ways having agreed that what accused no.1 suggested would not be done.  However, on Friday 19 January 2018 she sent accused no.2 to buy some things in town.  He indeed went to town and returned later.  On his return she noticed that he had a lot of money in his possession.  She asked him where he got the money and he said that he got it from accused no.1.  She thereupon called accused no.1 asking her about her giving money to accused no.2.  Accused no.1 responded saying that she had told her that she wanted him to kill the deceased.  Nontathu then asked accused no.2 if he was going to do what accused no.1 was asking him to do.  Accused no.2 said he was not going to do it, he just took the money because he wanted to have some money.  Accused no.2 left that Friday the 19 January 2018 and did not come back home.  He also did not come back home on Saturday the 20 January 2018.  She then called him on Sunday morning several times but he did not pick up his phone.  During the day on that Sunday children at her homestead reported to her that he was there.  He came back again on Monday 22 January 2018, saying that he was leaving going either to Lusikisiki or Mount Frere or Port Shepstone.  He told her that he had killed a person but he did not say who the person he had killed was.  At that stage she had already heard about the death of the deceased.

[16] Later that day she received a call from a private number from a person who said that he had a missed call from her phone.  She told the caller that she had called her cousin.  That person then asked her who her cousin is and she told him that her cousin is Sikhona who is accused no.2.  This person asked her who she is and she told him that she is Nontathu.  She then asked the caller who he is but he refused to identify himself.  She then dropped the call.  This person called again and she again dropped the call.

[17] In the afternoon still on Monday 22 January 2018 police arrived at her place of residence in two double cab vehicles.  They asked her to go with them to Mzamba police station.  When they got there, they asked her about the death of the deceased.  She then told the police what she had already testified about.  The police asked her where accused no.1 stayed.  She told them that accused no.1 stayed at Highlands and they asked her to go to Highlands with them.  They went to Highlands but she remained in the vehicle and both vehicles were parked outside.  They did not come back with her but they said they were going to accused no.1’s homestead at Lukholo locality.  They proceeded there with her but again she did not enter the premises.  They came back with accused no.1 and they all went back to Mzamba police station. 

[18] At the police station she and accused no.1 were placed in different offices.  She was later taken to the office in which accused no.1 was.  Accused no.1 was asked to repeat what she had said had happened.  Accused no.1 told the police that she came to her place and told her that she had a financial problem and that she then told her about the bentals.  She then told the police that she later came to her place again and she, Nontathu said she must use accused no.2 to kill the deceased.  At some stage she went to Lukholo locality with accused no.2.  She then sent the deceased to buy airtime so that accused no.2 would be able to see him.  Thereafter accused no.2 left.  She testified that at the time she used a cellphone number 083 528 4044 which was still her number.

[19] Under cross examination Nontathu confirmed that before the Friday on which accused no.2 did not come back home he had been staying with her for about a week or so.  At that stage she was not working but had a van she used to transport people and to load goods.   She denied accused no.2’s allegation that at the time her vehicle had broken down and she had asked him to organise some people who were going to sell drugs for her.  It was further put to her that she had used accused no.2 before to sell her drugs but he would use the money he got from selling drugs and that is why she did not want to use him anymore and asked him to organise other young men.  He organised one Anathi for that purpose but she did not want Anathi to know her or where she stayed.  Anathi would sell the drugs and give the money to accused no.2 who would give it to her.  On the first day he gave her a certain amount of money but later stopped giving her the money from the sale of her drugs and used the money instead.  He was scared of her and decided to run to KwaZulu Natal (KZN) after he had heard that she was with two men and they were looking from him.  Nontathu denied all this version of accused no.2.

[20] Nontathu confirmed that the discussion about the killing of the deceased was between herself and accused no.1 but accused no.1 suggested that accused no.2 be used to kill the deceased.  She also confirmed that she was not aware of any discussion between accused no.1 and accused no.2 regarding the killing of the deceased.  The only discussion she was aware of was between herself and accused no.1.  When it was put to her that accused no.2 denied saying to her that he was leaving because he had killed a person, she insisted that accused no.2 was lying.  It was further put to her that accused no.2 left for KZN on Saturday 20 January 2018 because he was supposed to bring the money on Friday.  He left the phone he was using with Anathi who had since passed on.  Nontathu disputed accused no.2’s avidence.

[21] Under cross examination on behalf of accused no.1 Nontathu testified that she met with accused no.1 at about 03:00 pm on 15 January 2018 by which time accused no.1 had already knocked off duty from her school.  It was put to her that on 17 January indeed accused no.1 came to her place in the company of Nondyebo.  Nontathu testified that there was an occasion in which accused no.1 came to her place with Nondyebo but that was not on 17 January because on 17 January accused no.1 came alone.  She did not know if accused no.1 and 2 met at all.  She testified that she could not dispute that accused no.1 never actually hired accused no.2 to kill the deceased because she was not there.

[22] The next witness for the state was sergeant Mzondi, the investigating officer whose evidence it was indicated would relate to oral admissions made by accused no.1 and therefore would form part of a trial within a trial.  It was also agreed by the state and the legal representatives of the accused that sergeant Mzondi’s evidence in the trial within a trial would be incorporated into the main trial so that he did not testify twice about the same issues.  He testified that on 21 January 2018 he was doing standby duties when, at about 7 in the morning he received a call from warrant officer Mshiywa who told him about a body of a dead person.  They both went to the crime scene where he found a cellphone about 8 metres from the deceased.  Whilst still there, they noticed that that cellphone was ringing while they were waiting for crime scene photographers and experts.  They did not pick up the call because they were waiting for the photographers and fingerprint experts.

[23] They eventually arrived.  They told the fingerprint expert that the cellphone had been ringing and they suspected that it belonged to the person who killed the deceased as they had been told that the deceased did not have a cellphone.  Crime scene photographs were taken and fingerprints were lifted from that cellphone.  After the fingerprints were lifted and the cellphone was given to them they checked the numbers that had been calling it, the missed calls.  The missed calls were from two cellphone numbers being 083 528 4404 and 083 959 6592.  He then used the phone that they found at the crime scene to call his own cellphone so as to established the number of that phone.  It’s number was 071 923 4642.

[24] He then hid the caller identity on his phone and then called the last missed call on the phone they found at the crime scene which was 083 528 4404.  The person who answered identified herself as Nontathu Brown.  Nontathu confirmed to him that the number 071 923 4642 which is the number of the cellphone they found at the crime scene was that of her cousin called Nkwili who is accused no.2 in this case.  After he told Nontathu that they found the cellphone with that number at the crime scene, Nontathu switched off her cellphone.  He then saved Nontathu’s cellphone number to check if it was using whatsapp.  He saw that she had an active whatsapp presence and her profile picture was there.  He did the same to the other number and he saw that it also had a whatsapp and it was accused no.1’ cellphone number and she also had a profile picture.

[25] He tried calling Nontathu but her phone was switched off.  They went to Ngcingo locality where she had told him she stayed when he spoke to her before she switched off her cellphone.  They found her at Ngcingo locality at her home on Tuesday 23 January 2018 at about 19h00.  At that stage they already knew that the dead person was the deceased, Cebo Matutu.  He told her that they were investigating the death of the deceased and asked her if she knew anything about it.  She told him that accused no.2 had arrived at her place of residence and told her that he had stabbed the deceased after being hired by accused no.1.  Nontathu took him where accused no.1 stayed at Highlands but she was not there.  She told him that if she is not at her place of residence she could be at her homestead at Lukholo locality as there was a bereavement at her home.  She then went to show them accused no.1’s homestead at Lukholo locality.

[26] On their arrival at Lukholo locality at the homestead of accused no.1 he and warrant officer Mshiywa went in and left Nontathu in the vehicle.  Accused no.1 was there with her mother and another person.  He spoke to her mother telling her that they were investigating the death of the deceased and were looking for accused no.1.  Accused no.1 emerged from another room.  He told her that he was investigating the death of the deceased but she had a right not to say anything and that if she told him anything it could be used against her as evidence in court.  He told her about her right to legal representation as well as legal aid assistance if she could not afford her own legal representative.  She then told her that he was arresting her for the death of the deceased.  Accused no.1 told them that she did not need legal representation.  They put her in the same vehicle with Nontathu and returned to Mzamba police station.  He left Nontathu with warrant officer Mshiywa and attended to accused no.1.

[27] He asked her about the death of the deceased.  Because of the answers she gave he spoke to his supervisor, captain Jojo who arranged a person to take a confession from her.  Accused no.1 had also confirmed that 083 959 6592 belonged to her.  He obtained cellphone records from MTN in respect of 071 923 4642 concerning the three cellphone numbers that had been communicating with it.

[28] Under cross-examination sergeant Mzondi testified that after he found a phone next to the deceased he looked at the activities of that phone and found some in coming and out-going calls.  One of those numbers it turned out belonged to Nontathu who, at some point during their conversation, switched off her phone.  From that day onwards Nontathu’s phone remained switched off.  This made him suspect that she knew something about the case.  He eventually traced her and found her at her place of residence and questioning her led to accused no.1.  Accused no.1 was eventually arrested at her rural homestead where she was with her mother following the ordinary procedure of an accused being told why he/she is being arrested and her constitutional rights being read to her.

[29] It was placed on record by the attorney for accused no.1 that she did not dispute that the number 083 959 6592 was her phone number.  She also did not dispute that she had communication with a phone which used the number 071 923 4642 on Saturday the 20 January 2018.  She used that number to communicate with the deceased.  In that communication the deceased was being told that accused no.1 would bring groceries home.  The deceased asked her to also bring him some money.  Indeed she brought groceries home and money for the deceased.  At that time the deceased did not have a cellphone of his own.  When the deceased wanted to communicate with her he would send a please call or call her using anyone’s cellphone.  It was put to sergeant Mzondi that Nontathu was falsely implicating accused no.1.  The reason she was falsely implicating her was that she, Nontathu was the first suspect in the investigations.  Sergeant Mzondi testified that what made him suspect accused no.1 was the fact that her phone number was on the phone of the person they suspected of killing the deceased.

[30] Under further cross-examination by the attorney for accused no.2 he confirmed that the phone the police found at the crime scene was not registered under accused no.2’s name.  It was placed on record that accused no.2 worked for Nontathu selling drugs for her.  At some stage he shared the phone he used in the drug related activities with one Anathi.  Anathi also worked for Nontathu in selling drugs.  Anathi was also from Lukholo locality.  Sergeant Mzondi said he did not know Anathi.

[31] The state called warrant officer Mshiywa.  He confirmed that on Tuesday 23 January 2018, he and sergeant Mzondi went to Nontathu at Ngcingo locality and eventually went to Lukholo locality where they arrested accused no.1 at her homestead.  Accused no.1 was arrested after the normal procedures relating to rights were followed and she was taken to Mzamba police station where she was further interviewed also in the presence of constable Mkhize who is a female police officer.

[32] The state then called Dharmesh Kanti (Kanti) who testified that he is a manager in the law enforcement division of MTN and is an expert in MTN mobile network operations.  His qualifications, experience as well as the operational functionality of their network data capturing of cellphone records are all not in issue.  He testified about the cellphone records in relation to 071 923 4642 which had been subpoenaed in terms of section 205 of the Criminal Procedure Act 51 of 1977 (the Act) for the period 17 January 2018 to 23 January 2018.

[33] He testified that the numbers 083 959 6592 called the number 071 923 4642 at a base station located at St Patrick Hospital, Hope Street, in Bizana at 12:36:20 on 20 January 2018.  That call lasted for 22 seconds.  Again on the same date between 13:22 and 13:25 the number 083 959 6592 called 071 923 4642 about for times.  Those four calls or transactions were one call of 9 seconds, one call of 1 second and then two SMS transactions.  The next transactions were three calls and three smses still on the 20 January 2018 between 13:35:11 all the way to 14:14:51.  The next transaction was a call at 15:12:05 and it lasted for 23 seconds.  The next one was at 16:00:29 to 16:00:36 which is one call and two smses.  The next one was a call at 16:01:00 and it last for about 13 seconds.  The next ones were transactions consisting of two smses and one outgoing call between 16:05:32 and 16:07:57. The last transaction on 20 January 2018 was at 21:41:05 and it was an incoming call which lasted for about 47 seconds.  All the transactions were for 071 923 4642 which reflected the numbers that phone was communicating with.  All this evidence was not challenged in cross-examination.

[34] The state called warrant officer Linda who was present when warrant officer Ngxazana arrested accused no.2 in Umlazi in Durban KwaZulu Natal.  At the time of his arrest accused no.2 was appearing there for an unrelated case.  His evidence concerned oral admissions allegedly made by accused no.2 to warrant officer Ngxazana when he arrested him at Umlazi Magistrates’ Court.  The trial within a trial in respect of those admissions and the evidence tendered by warrant officer Ngxazana were later abandoned for reasons that will become clear later.  I therefore do not consider it necessary to deal with that evidence as it will serve no purpose.

[35] The state called Mrs Lushaba the matriarch in that Lushaba household.  She testified that accused no.1 is her daughter.  She resides at her homestead at Lukholo locality in Bizana.  The deceased is her grandchild and he stayed with her during his lifetime.  The deceased was a child of his late son who passed away some time ago.  She raised the deceased.  Accused no.1 and her other children and grand-children grew up in her home.  But before her arrest she stayed at a different place, not far from town.  She confirmed that the body of the deceased was found on Sunday 21 January 2018 in the morning.

[36] On Saturday 20 January 2018 the deceased was at home the whole day.  He went to sleep but later came back saying there was nothing to eat his pap with.  She gave him a tin of fish to prepare a meal for himself.  When he had finished he asked her to lock up and went to sleep in his flat.  The time was about 21:00 or thereabout when he went to sleep.  She also slept about the same time until she was woken up by someone who was calling the name of the deceased from outside the premises.  She did not check the time.  She woke up and peeped through the window that is facing the gate.

[37] She saw two people, one of those people was at the gate and the second one was standing at a distance.  The one near the gate was calling the name of the deceased.  She went to the dining room and peeped through the window facing the deceased’s flat.  Whilst she was peeping through the dining room window she noticed that the deceased was opening the door of his flat.  He came out running carrying a jacket and wearing a t-shirt.  She went back to the window that is facing the gate and saw the deceased joining those people and they walked together.  The visibility outside was clear because of the moonlight.  She could not identify who those people who called the deceased were but she thought they were his friends.  She never saw him alive again.  In the morning on Sunday 21 January 2018 she was called to the crime scene where the deceased’s body was found. 

[38] When accused no.1 received her salary she normally came home bringing groceries for the family.  On this occasion she arrived during the day on Saturday 20 January 2018.  The deceased was present.  He asked for money to apply for his lost identity document.  The deceased gave him R350.00 for the identity book.  She then asked the deceased to give the money to her so that she could keep it for him until the following Monday to avoid him using it to buy liquor.  Accused no.1 took care of the deceased during his lifetime, doing everything for him, buying him clothing and taking care of his school needs.  She did not know that accused no.1 had an insurance policy on the life of the deceased.  When the deceased died, he was twenty-five years old although she did not know his date of birth.

[39] Under cross-examination Mrs Lushaba testified that at the time when those people were calling the deceased near the gate accused no.1 had already left that afternoon at about 15:00 after she had brought groceries for the family.  When asked about the relations between the deceased and accused no.1 she testified that she did not recognise anything amiss in their relationship.  When the deceased needed anything he would ask accused no.1 for it as she was the only aunt the deceased had.  Accused no.1 did everything for him.  Sometimes the deceased would go and visit accused no.1 where she stayed.  Accused no.1 treated the deceased like her own child.

[40] The state had, sought to introduce, in respect of accused no.1, evidence of a confession allegedly made by accused no.1 to captain Ngcobo, a commissioned member of the South African Police Services. However, through persistent cross-examination, by Mr Mthayi who previously represented accused no.1 it soon became clear to the state that that evidence of that confession should not be tendered at all.  Mr Nolutshungu who appeared for the state made the decision, correctly so, I might add, to abandon the trial within a trial.  There was another attempt to introduce the evidence of oral admissions made to warrant officer Ngxazana by accused no.2 after his arrest at Umlazi magistrates’ court cells.  Again cross-examination exposed the difficulties of the evidence of admissions made to warrant officer Ngxazana by accused no.2. 

[41] Again, without being prompted, Mr Nolutshungu realized that the difficulties were real.  He alerted the court to inconsistencies between what had transpired during his consultation with warrant officer Ngxazana and some of his evidence tendered during cross-examination.  He again applied for leave to discontinue with the evidence of warrant officer Ngxazana in its totality.  I express a sincere sense of appreciation to the professionalism displayed by Mr Nolutshungu in this regard in assisting the court by not persisting with the evidence of a confession in respect of accused no.1 and oral admissions in respect of accused no.2 in circumstances in which it was clear to him that that evidence was in very serious aspects, questionable at best.  This saved valuable court’s time which would have been spent in dealing with evidence that because of its unreliability, should not even be placed before court for assessment.

 [42] By agreement with the legal representatives for both accused, the following documents were entered into the record in terms of section 212(4) of the Criminal Procedure Act 51 of 1977.  The first was a post mortem report for the examination of the body of the deceased conducted by Dr Mrenqwa-Mazwi on 23 January 2018.  Her chief post mortem findings were that the deceased had the following injuries:

“1. Stab wound 4cm above the right breast into the 2^nd intercoastal space towards the midline injuring the heart with excessive bleeding.

2. Multiple stab wounds below the left breast injuring the left lung.

3. Multiple stab wounds in the posterior aspect of the neck and the left flank posterior.

4. The cause of death was excessive bleeding caused by stab heart caused by stab chest, also left pneumothorax.”

[43] The next document was a Sanlam policy.  In his affidavit Mr Nkateko Lucky Shivambu, the head of client services at Sanlam confirmed that according to their records accused no.1 was issued with a Sanlam Tribute Funeral Plan with policy number SG88158253.  The said policy commenced on 01 May 2017 with a monthly premium R99.00.  That policy covered the deceased C. Matutu with identity number 9303092016 143 with a cover amount of R32 400.00.  He further confirmed that this was the only policy in which the deceased was covered by accused no.1.  It also appears from the relevant policy schedule that in fact in that policy accused no.1 also covered her child L. Lushaba with an identity number 160425707940D for R10800.00 at a premium of R29.70.  The deceased’s cover was for R32 400.00 at a premium of R69.30.  Therefore, the actual premium in respect of the deceased was R69.30.  Both covers were scheduled to escalate at 8% on 01 May 2018.

[44] The following admissions were also agreed to and entered into the record in terms of section 220 of the Criminal Procedure Act 51 of 1977:

“1. That the deceased is the person named in the indictment, to wit, Cebo Matutu.

2. That the deceased died because of “excessive bleeding caused by stab heart, caused by stab chest.  Aslo left pneumothorax” which he sustained on or about 21 January 2018 at Lukholo locality in the district of Bizana.

3. That, police officers who visited the crime scene found a black Stylo cellular phone a few metres away from the deceased’s body.

4. That the body of the deceased sustained no further injuries from the time at which the wounds as previously mentioned were inflicted on or about 21 January 2018 until the medico-legal post-mortem examination was conducted thereupon by Dr Zonke Mrenqwa-Mazwi on 23 January 2018 at Bizana Forensic Laboratory.

5. That Doctor Zonke Mrenqwa-Mazwi who conducted a medico-legal post-mortem examination on the body of the deceased recorded her findings on Exhibit “H”.

6. That the facts and findings of the medico-legal post-mortem examination recorded by Dr Zonke Mrenqwa-Mazwi on exhibit “H” are true and correct.

7. That a photo album of photographs, exhibit “C” is a true depiction of the crime scene where the body of the deceased was found at Lukholo locality in the district of Bizana.

8. That the fingerprints lifted by police from a black stylo cellular phone were compared with the fingerprints taken from the accused no.2 and the results are positive.

9. That, police also conducted investigations from the cellular phone found a few metres away from the deceased.”

[45] After these admissions in terms of section 220 were read into the record the state closed its case.

[46] Accused no.1 testified in her defence.  Accused no.1 denied being involved in the murder of the deceased in any way whatsoever.  She testified that she became aware of the charges against her when at about 21:00 or 22:00 on Tuesday 23 January 2018 the deceased’s body having been found on Sunday 21 January 2018, sergeant Mzondi and warrant officer Mshiywa arrived at her homestead and took her to Mzamba police station.  She was not even given an opportunity to get dressed.  She just grabbed a jacket that was hanging behind the door and put it on top of the night dress as she was already in bed when they arrived.  She was taken to one of the police vehicles that were standing outside and was taken to Mzamba police station.  At the police station her legs and arms were tied to a chair.  Police ill-treated her with sergeant Mzondi using a 40cm or 50cm waterhose pipe to point at her exposed thighs saying she should be prostituting and not killing and beat her up on her thighs.  Warrant officer Mshiywa took a two litre bottle with water and poured water on her legs.  Essentially this portion of her evidence was that she was tortured to admit that she was involved in the killing of the deceased.

[47] She testified that she knew accused no.2 before the deceased was killed but had no dealings with accused no.2.  At some stage she attended a ceremony in Flagstaff at Nontathu’s homestead and she saw accused no.2 on that occasion. He was present when she was introduced to Nontathu’s family members.

[48] On 20 January 2018 at about 19:00 they had gone to Mtlakwe locality where they had heard that a young man had hanged himself and came back at about 21:00.  She had gone to Mtlakwe from Highlands which was her place of residence and she returned to Highlands.  She testified that Highlands is about 20km or so from Lukholo locality.

[49] She knew the deceased as he was her brother’s son.  The deceased was brought to her home by his mother while he was still a baby.  He was raised by her and her sisters as their mother was still working at the time.  The deceased was not working at the time of his death.  She looked after the deceased, buying him clothes as he had no parents.  She always made sure that when she got paid her salary on the 20^th of every month she would buy groceries and take them home.  She learned about the death of the deceased when she received a phone call from her homestead on Sunday 21 January in the morning telling her that the deceased had been injured.  She went home.  From the bus stop she was taken to the crime scene where she saw a body lying there covered in a blanket. She asked to view the body and saw that it was the deceased.

[50] She testified that she first came to know Nontathu in 2010 when she worked at Barnetts and they eventually became friends.  The schools reopened on 15 January 2018 and she was at school that day and knocked off at 14:00.  She denied the evidence of Nontathu that she went to her place.  She only heard in court when Nontathu testified about the possible selling of bentals as they neither met not discussed anything on that day.  She also disputed Nontathu’s evidence that she came back on the 17 January 2018 and told Nontathu that selling bentals would take long and that she had another idea of getting money much faster.

[51] She testified that on 17 January 2018 she went to school at Shukuma S.S.S. where she was an educator.  Form school she took her child who was not well to the doctor and thereafter went home.  She never met Nontathu at all on that day.  She denied saying to Nontathu that if the deceased could die she would get money and they never had a conversation about the killing of the deceased or telling her that she had an insurance policy that would pay out if the deceased died.  That conversation simply never took place.  She denied that she said to Nontathu that she wanted accused no.2 who is Nontathu’s cousin to kill the deceased.

[52] As regards to Nontathu’s testimony about sending accused no.2 to buy some items and coming back having a lot of money, accused no.1 testified that she knew nothing about that.  On that Friday on which accused no.2 was allegedly sent to town and came back with a lot of money, it was the 19 January 2018.  She knocked off from school and accompanied Thina to Port Shepstone where Thina wanted to apply for a tax clearance certificate from SARS.  On that day she left school at about 10:00am.  At 10:00am she was called to the principal’s office where she found Ms Mhlelembana who had asked the principal for her to be allowed to drive Thina to Port Shepstone.  They went to Port Shepstone and only returned at about 19:00.  She arrived at her place of residence at about 19:30 or so.  Again on that day she never met Nontathu.

[53] With regards to Nontathu’s evidence that on the 19 January 2018 accused no.2 came back from town with a lot of money, she testified that she never gave accused no.2 any money.  She confirmed Vuyokazi’s evidence that the day she heard about the death of the deceased, Vuyokazi accompanied her to her rural homestead on 21 January 2018.  She also confirmed that after her arrest and detention she was at some stage visited by Vuyokazi who brought her some pyjamas.  She clarified that Vuyokazi brought her pyjamas at Wellington Prison in Mthatha.  It was at Mzamba police station cells where Vuyokazi brought her change of clothing and took away her dirty clothing.

[54] Accused no.1 confirmed asking Vuyokazi to look for a letter amongst her dirty clothing which Vuyokazi had taken to their place of residence while she was still at Mzamba police station holding cells.  In that letter she was asking Vuyokazi to take her clothing, all her household goods and things like beds and the fridge to her rural homestead.  This was after she had received information that Vuyokazi was wearing her clothing and that she had moved her bed from her room to her own room.  She was also using the fridge.  In that letter she also asked her to call Xola Lushaba regarding that and that sergeant Mzondi was aware that she was going to assist her family in taking her belongings or household goods from her rental accommodation in Highlands to her rural homestead at Lukholo locality. This begs the question, if indeed sergeant Mzondi new about the plan to have her belongings taken from her rental accommodation to her homestead, why did she hide such an innocent letter amongst her dirty clothing instead of simply handing it to Vuyokazi?  I deal with the letter in much more detail later.

[55] She testified that she heard Vuyokazi reading the contents of the letter she said she found amongst her dirty clothing.  However, the letter Vuyokazi read in court which were exhibits A1 and A2 was not her letter.  She said that the letter that was read in court did not have the same contents as the one she wrote.  She testified that she remembered Vuyokazi’s evidence which included her being told by Nontathu to take the said letter to the police.  She further testified that after her arrest she never had any communication with Nontathu.  However, at some stage Vuyokazi visited her at Wellington Prison accompanied by Bongiwe Nombanga.  She noticed that Vuyokazi was wearing her shoes.  She then asked her if she had seen the letter that she had written to her thinking that she might not have seen it.  Vuyokazi asked her where that letter was and she told her that it was in the dirty clothing.  She surmised that Nontathu would have told the police about the letter because she wanted to be exonerated from the case.  They were detained at the same cell but she was later released.  She testified that she had been told by sergeant Mzondi that they were both suspects but Nontathu was later released leaving her there.

[56] She further testified that she used to have two cellphones.  When she was arrested one phone was in her possession while another one was in town.  The one that was in town was a grey Hisense cellphone which she left in Vuyokazi’s room in her wardrobe at Highlands.  The reason she kept it in Vuyokazi’s room was that after she learnt about the death of the deceased she realized that she was going to be busy and the phone could get lost as there would be many people at home.  Vuyokazi has a son of about seventeen years of age who used to sleep in her (accused no.1’s) room while she slept in Vuyokazi’s room.  Most of her clothing was in Vuyokazi’s room.

[57] She testified that the cellphone number 083 959 6592 was a number that she used.  She confirmed the evidence of Kanti the state witness from MTN network service provider that it was indeed true that the number that she used made a number of calls to the phone that was found near the body of the deceased which used the number 071 923 4642.  There were also sum’s exchanges between the two phones a number of times on the 20 January 2018.  These phone calls started at 12:36.  From that time there were almost 20 phone calls including sms exchanges between the two phones.  The fact that there was a lot of communication between the two phones on the 20 January 2018 is common cause, be they calls or messages.

[58] Her explanation was that on the 20 January 2018 she received two or three missed calls or call backs from the number 071 923 4642 at about midday.  She then called that number with her phone.  The person who answered her call said he was Cebo, the deceased.  He was checking if she would be coming back to see if the toilet pit/hole she had asked him to dig had been dug properly.  She then asked him where he got that phone and the deceased said he borrowed it from Anathi, his friend.  She then told the deceased that she was coming back and also told him to check items of groceries that she needed to buy.  They arranged that when he finished checking the grocery items that needed to be bought she would call him back again.  She did not call him for some time because she was still busy at the salon, she only called him after 30 minutes or so.  When she called the deceased he said he would send an sms with the grocery list as he was using borrowed airtime.

[59] Thereafter accused no.1 received on a call from the number 071 923 4642 but no one talked and the call was dropped.  She thereafter received an sms from that number with the grocery list but there were only three items of grocery on that list.  She then sent an sms to the deceased telling him that those items were not enough.  He called her and said he had sent two smses.  She then dropped the call and thereafter received the second sms which had more items of grocery on the list.  She responded to that sms by writing “sure”.  She bought the groceries at Spar supermarket and when she was at the till she sent an sms to the deceased saying they must not roam around.  At that time she had just paid for the grocery and they would need to meet her at the bus stop to assist her in carrying the groceries home.  Eventually she boarded a taxi and on the way home she phoned the deceased and told him to go and borrow a wheelbarrow as she was on the way.  She called the deceased again telling him that they must come to the bus stop.

[60] When she arrived at the bus stop they were not there.  She then phoned the deceased asking him where they were.  She arrived at the bus stop at about two in the afternoon.  While she was still at the bus stop her mother appeared with other women.  They were coming back from a funeral, they picked up the grocery plastic bags and left some items that were to be put in the wheelbarrow.  Thereafter the deceased and one Asavela and Thando arrived.  Anathi was in the room of the deceased with Thabiso and Lulu.  When she got home she packed the grocery and thereafter went to inspect the toilet hole/pit.  While she was looking at the pit one of the deceased’s friend came to her and told her that they had also assisted in digging the hole.  She decided to give the money to her mother because if she gave it to the deceased he was going to misuse it.

[61] Accused no.1 then called the deceased away from his friends into the house and gave him R250.00 which she handed to her mother in the presence of the deceased.  She then told her mother that the deceased should use the money to reapply for his lost identity document.  She did not stay for long at her home because she had an appointment with the manager of Vuyani Store about school blazers.  At the time she was a member of a committee that dealt with school blazers.  She left early because she wanted to arrive at 15:00 in town.  Indeed she met with the manager of Vuyani Store at 15:00 as agreed but was told to wait for about 10 minutes.

[62] Between 15:15 and 15:30 she received a call from the number 071 923 4642.  She then told the caller that she was still in a meeting and she would call him back once she finished with the meeting.  She then eventually called the deceased at about 16:00.  He complained about the fact that she had given the money to her mother.  He also said he had taken airtime from Anathi and had promised to pay him after she gave him the money.  She then switched off her phone after telling him to grow up.

[63] Accused no.1 testified that there were also sms exchanges between herself and the deceased.  After dropping the call she received an sms asking for airtime.  She sent a R30.00 airtime to that number.  Two or three minutes later the deceased called her thanking her for the airtime as he had borrowed only R5.00 airtime.  She eventually proceeded to her place of residence and on the way she received an sms from the deceased saying that she must plead with her mother to give the deceased a sum of R100.00.  She responded by saying okay.

[64] After the messages the deceased called her again wanting her to call her mother about the R100.00.  Accused no.1’s attention was drawn to a call made at 21:41 on the 20 January 2018.  She confirmed that she called the deceased at that time thinking that he might have gone to a circumcision school because he had earlier talked about the initiates.  The phone was answered by Anathi and she asked him if the deceased was not with him and if they had not gone to the initiates.  Anathi said they had not gone to the initiates and he had left the deceased at home.  The reason the deceased used Anathi’s phone on that day was that he did not have a phone of his own.  He had sold a phone she had bought for him and she communicated with him through her sisters or his friends.

[65] About the Sanlam policy accused no.1 testified that indeed she had a funeral policy in which the deceased was insured.  It was still active at the time of the death of the deceased.  However, after the death of the deceased she did not lodge any claim.  After the death of the deceased she told her sisters and her cousin brother who was based in Gauteng about the policy when they were discussing what each of them was going to contribute in respect of funeral expenses for the deceased.

[66] Before the death of the deceased Nontathu knew about the policy.  When she had a quarrel with her boyfriend she came to stay in her (accused no.1’’s) room for two days.  Nontathu saw her pay slip in which the policies were reflected and commented on the number of the policies.  She explained all those policies to her.  At the time of her arrest Nontathu knew about her insurance policies including the one in which the deceased was covered.  She denied killing the deceased or being involved in any conspiracy to murder the deceased.

[67] Before the cross-examination of accused no.1 an application was made to delay her cross examination because there were certain aspects of her evidence that needed to be verified.  There was also a witness of the accused whose evidence was expected to be short who was readily available.  The delay of the cross examination was agreed to by all the legal representatives of both accused and the state and I duly granted the application.

[68] Mrs Mhlelembana was called as witness for accused no.1.  She testified that accused no.1 has a child with her son and accused no.1 was going to be married to her son.  Accused no.1’s child was staying with her.  Before the 19 January 2018 she phoned accused no.1 and asked her to go with her to SARS offices in Port Shepstone.  Her grandchild was going to make an application for a tax clearance certificate at SARS.  She then went to fetch accused no.1 at her work place.  It was after 10:00 when she arrived at that school and school kids were outside possibly during break.  Eventually they left for Port Shepstone. When they were finished with SARS they went to Shelly Centre because she needed to do some shopping there.  Thereafter they returned home and on the way home accused no.1 bought food at Kentucky Fried Chicken in Port Edward for her family.  They parted ways at Qotyana bus stop at about 19:00. 

[69] The defence continued with the evidence of accused no.1.  She confirmed that she has an account with Standard Bank.  She was shown her Standard Bank statement from the period 23 December 2017 to 22 January 2018.  She confirmed that on the 19 January 2018 as reflected in the bank statement she received her salary.  She also testified about transactions she made at Shelly Centre and at Port Edward.  There were other debit orders that went through her back account.  The defence applied for the bank statement to be admitted as an exhibit.  The state indicated that it was not disputing that she went to Port Shepstone on the 19 January 2018 which was why Mrs Mhlelembana was not really cross examined.  Accused no.1 testified that no withdrawals were made on the 19 January 2018 from her standard bank and capitec accounts.  The capitec bank statement was also admitted as an exhibit.  Accused no.1 ended her evidence in chief by indicating that she could not call Anathi to testify because she learned that he passed away.

[70] The state applied for the further delay of the cross examination of accused no.1 as it needed to have exhibits A1 and A2 sent to a handwriting expert for an examination and report.  The state applied to re-open its case after it received a report from a hand writing expert with regards to the letter allegedly written by accused no.1 which she disputed, exhibits A1 and A2.  Eventually the state called lieutenant colonel Tshivhase, the handwriting expert who dealt with exhibits A1 and A2.   She is a member of the South African Police Service based at the Forensic Science Laboratory in Port Elizabeth working there as a Chief Forensic Analyst.  Her qualifications and experience are not in issue.  She examined exhibits A1 and A2 (the questioned documents) against a number of specimen documents that accused no.1 confirmed to be her documents.  There were also two document that accused no.1 said they were not her documents.

[71] She explained that the questioned documents were written using a pencil and after a certain period, if a document written using a pencil goes through different hands or it is old certain characteristics like the direction of a stroke are difficult to see.  Despite those challenges she was able to examine the questioned documents, exhibits A1 and A2 which she marked Q1 and Q2 against the specimen that were submitted to her and concluded as follows in her report:

“6.3 In light of the above mentioned observations I found the evidence to support the following proposition:

6.3.1 Strong individual correspondences in respect of elements of style (including letter design, form, slant and placements) were observed and identified between the questioned writing, requested specimen writing and collected specimen writing received to support the proposition that the writing in question on the documents marked “Q1” and “Q2” was highly probably written by the writer of the specimen writing on the documents marked “B1” to “B4”, “C1” to “C2”, “D” and “E1” to “E6” (See Annexure A).”

[72] Under cross examination she testified that despite the challenges she experienced as a result of the questioned documents having been written in pencil and having gone through various hands the questioned documents were highly reliable.  She was therefore able to conclude that the design and the form couldn’t give her any other finding except the fact that the known specimen and the questioned writing were written by the same person.  She explained that in some cases they cannot be able to see anything that could lead them to a conclusion in which case they tell the investigating officer that they cannot proceed with the examination and analysis.

[73] The state called Thando Lushaba.  He testified that accused no.1 is his maternal aunt.  He knew the deceased during his life time and they were staying together at the Lushaba homestead.  On Saturday the 20 January 2018 he was at home together with the deceased and Mrs Lushaba, accused no.1’s mother.  On that day there was no toilet pit that was dug at their home.  He testified that there is a toilet at his home and its hole or pit was dug in 2017 by a Mr Bhala.  There was a bereavement at the time in that one of his aunts, Ntombi Lushaba had passed away.

[74] On 20 January 2018 accused no.1 phoned his grandmother, Mrs Lushaba saying that she was bringing groceries home and needed them to be fetched at the bus stop.  During that time the deceased was at home and he was also at home.  He testified that the deceased did not have a phone.  He knew Anathi, he was a young man from their area but has since passed away.  Anathi was not at his home on that day.  He insisted that no hole or toilet pit was dug on the 20 January 2018 and no payment was made for it to anyone at his home.

[75] Under cross-examination he testified that accused no.1 who is her aunt stayed near her workplace while he stayed at their rural homestead at Lukholo locality but she sometimes visited their rural homestead.  He stayed together with the deceased at the same homestead.  As young men, although they stayed together he would sometimes visit his girl-friend and the deceased would visit his own girl-friend but most of the time they were always together.  On 20 January 2018 he and the deceased were together and did not part ways.  There were occasional visits to the neighbours but they were always together on the 20 January 2018.  At night they slept in different structures at home so when he was in his own room at night he would not see the deceased but during the day they stayed together.

[76] Thando testified that no toilet hole was dug and nobody was paid for digging a toilet hole on that day.  The only money accused no.1 paid and gave to her mother was for the deceased to reapply for an identity document and Mrs Lushaba kept that money.  It was put to him that on that day that accused no.1 gave money to her mother to keep for the deceased, she also gave him photo copy papers that he needed for school.  He testified that the photocopy papers were given to him by accused no.1 on a different occasion, a long time back not on that day.  It was further put to him that on that day he demanded money for having assisted in digging the toilet hole and accused no.1 refused and promised to buy him papers when she went to town.  She went to town and bought the papers and brought them back the same day.  Thando insisted this saying there was no such a thing.  Thando insisted that the toilet hole was dug by Mr Bhala assisted by his son in 2017 because the old toilet was full.  He testified that other than the fact that Anathi was a young man from the area they were not friends.  He just knew him.  Anathi was also not the deceased’s friend and was never his friend.  He testified that Anathi passed away about the same time as the deceased but after the deceased had already died.  It was put to Thando that according to accused no.2 Anathi committed suicide because he was suspected of being involved in the deceased’s death.  He testified that he heard those rumours.

[77] Mrs Lushaba, the mother of accused no.1 was recalled following the evidence of accused no.1 which raised certain issues that the state felt needed to be clarified.  She testified that she is 85 years old and accused no.1 is her youngest child.  She testified that on the 20 January 2018 no toilet was dug at her homestead.  The toilet hole was last dug when Ntombi, her late daughter was going to be buried.  That hole was dug by Mr Bhala from what the children told her.  Ntombi passed away shortly before the deceased and she was still mourning the death of Ntombi when the deceased died as they died less than six months apart.  She maintained that on the 20 January 2018 no toilet hole was dug at her premises and maintained that the hole was last dug when Ntombi died.  Even some days before the 20 January 2018 no hole/pit was dug at her homestead.

[78] The state closed its case after the evidence of Mrs Lushaba.  The defence applied for and was granted leave to further lead the evidence of accused no.1 to deal with the evidence given by state witness after she had already testified but before she was cross-examined following issues that arose in her evidence in chief.  It must be remembered that the state had initially closed its case but when accused no.1 testified her evidence raised issues which the state needed to clarify.  This necessitated that Mrs Lushaba be recalled and that another witness, Thando be called to testify on those specific issues.

[79] Accused no.1 testified that a toilet hole was dug on 20 January 2018 at the homestead of her mother.  This evidence did not take the matter any further except for certain nuances like the introduction of a mobile toilet that had been hired which had no bucket which resulted in a hole having to be dug.  She testified that she knows Thando.  She did not know why her mother was disputing the digging of the hole, because nothing happens in their homestead without going through her mother.  She testified that she knows Anathi as the deceased’s friend.

[80] On the evidence of the hand-writing expert accused no.1 testified that the specimen E2 and E5 were not written in her handwriting.  They were written by her former colleague, Ms Mchithwa with whom she taught English.  However, it is not in dispute that all the other specimen were written by her in her own handwriting.

[81] On questions put to her by the legal representative for accused no.2 she testified that after Nontathu stopped working at Barnetts she had a shack opposite Spar Supermarket in which she sold liquor and drugs and in January 2018 she was selling drugs or drugs were sold on her behalf.

[82] Accused no.1 was cross-examined by counsel for the state at length.  She testified that she holds a diploma in education and at the time of her arrest she was a grade 11 and 12 teacher at Shukuma Senior Secondary School.  She has been a teacher since 2009.  She confirmed that at the time of her arrest it was her mother who stayed at her homestead with the deceased, Thando, Zine and a domestic helper.  Thando is her nephew.  His mother who is her sister worked in Pretoria for Sun International.

[83] She testified that her mother had a funeral policy and she took over the payments of that policy.  She found that the deceased was already covered under her mother’s funeral policy which she took over.  That policy was with Sanlam.  It was put to her that according to Sanlam records, she only had a funeral policy for the deceased and her child who was born on 25 April 2016.  She testified that may be there was a mistake on the part of Sanlam because she was told by Sanlam that her mother would be a stand-alone member because of her age.  She testified that her understanding was that her mother would be covered under her (accused no.1’s) name because of her age.  That policy was paid for by her.

[84] She had no other source of income other than her salary which was paid into her Standard Bank account.  The Capitec Bank account was her savings account.   She did not have any financial problems in or about January 2018.  It was put to her that her Standard Bank bank statements reflected that from 23 December 2016 to 22 January 2018 every month she always had a negative balance and was operating an overdraft.  She said that after she opened a cheque account and whenever she withdrew money it would reflect a negative balance.  She did not know why and she could not explain that.  She disputed that for more than a year her monthly salary was insufficient and had to live on the overdraft facility.  She maintained that she was living within her salary.  Standard Bank debited her account not according to what was agreed upon. 

[85] She was taken through her back statements from 23 December 2016 to 23 January 2018 which showed that she received a salary of R11 277,13 into her bank account.  Immediately before receiving that salary she would be having a negative balance of just over R10 000.00 every month.  When her salary was credited there would be a credit balance of just over R1000.00 each month.  In December 2017 she had a negative balance of R10 319.44 when her salary was credited on 08 December 2017 and 9 December 2017 a day after her 13^th cheque was also credited she had a negative balance of R5 392.00.  On 21 December 2017 the negative balance was R8 460.00.  On 19 January 2018 her salary was credited and at that time she had a negative balance of R10 284.67. 

[86] On the basis of this information reflected in her bank statements, it was put to her that she did not live within her means and had to rely on the overdraft facility on which interest accrued at the rate of 23 per cent.  She testified that when she was offered the overdraft facility by the bank she thought the bank would make monthly deductions and she would be able to live within her means.  She could not understand how it was that she was surviving on an overdraft because every month she was able to withdraw money from her salary.  It was then put to her that her bank statements confirmed the version of Nontathu that she had told her that she had financial problems.  She denied having financial problems.

[87] In respect of the crime scene where the body of the deceased was found she testified that she went to the crime scene.  She confirmed that she was using the cell number 083 959 6592 and it was the phone number on which her relatives would contact her.  She used her cellphone which was a Hisense cellphone using that number up until her mother told her to come back home so that the family could start preparations for the funeral of the deceased.  She then left it at her place of residence in Vuyokazi’s room in a wardrobe so that it did not get lost at her homestead because there would be many people.  She could not leave it in her own room because Vuyokazi’s son liked using that room and most of her belongings were in Vuyokazi’s room.  She left the phone itself but took out the sim card and put it in a small Nokia phone that was in Vuyokazi’s room.

[88] It was put to her that during bail proceedings during cross-examination by the prosecutor she had conceded that she changed her number after the body of the deceased was found.  She disputed having made that concession.  She explained that during bail proceedings in court words were being put into her mouth and when she wanted to ask questions she was not able to, because the lady who was asking her questions said she was the prosecutor and she was the one who’s going to ask question and she must answer questions.

[89] She disputed Vuyokazi’s version that on Monday 22 January 2018 she phoned Vuyokazi telling her that she had lost her phone and that it must have been taken by tsotsis in town.  It was put to her that her erstwhile legal representative Mr Mthayi had put to Vuyokazi when he cross-examined her that she could have forgotten that she had put her phone in Vuyokazi’s wardrobe and that was why she said to her she thought it might have been taken by tsotsis.  She had responded that Vuyokazi was lying because the phone was in her wardrobe.  It was put to her that it was never put to Vuyokazi by her former legal representative that she did not tell her that her phone was taken by tsotsis, it was instead, put to her that she could have forgotten that she had put it in Vuyokazi’s wardrobe.  She said that she could not speak on behalf of her former legal representative and it was her first time to be in court.

[90] She confirmed her evidence that she had received a call back from the deceased enquiring when she was coming home because she had instructed them to dig a toilet pit and they were expecting a payment.  She explained that she had instructed the deceased to personally dig the hole and he was therefore expecting a payment.  She insisted that when she got home on the 20 January 2018 she checked and saw that indeed the hole had been dug where her mother had pointed it should be dug as she is the one who decides what must be done in her homestead.  She maintained her evidence that Thando was also present and he also demanded to be paid because he said he had assisted the deceased in digging the toilet hole. 

[91] She testified that Vuyokazi was lying in her evidence.  She was not denying that the dirty clothing she gave Vuyokazi at Mzamba police station contained a note or that she told her about it.  She did tell Vuyokazi about the note that was in her clothes which she gave to Vuyokazi while she was still detained at Mzamba police station.   However, she told Vuyokazi about it when she visited her at Wellington Prison in Mthatha with Bongiwe.  The note she told Vuyokazi about was not the one she read in Court, that is, exhibits A1 and A2.  The note she was referring to contained a request for Vuyokazi to collect and assist her family in having her belongings taken home.  She had noticed that she was wearing some of her clothing and asked if she had seen the note that was among her dirty clothing she had taken on a previous visit to her at Mzamba police station.

[92] She was asked if she had told her erstwhile legal representative that the note that she had written for her was not exhibit A1 and A2 which was read in court.  she replied that she had told Mr Mthayi.  She confirmed that all the documents or specimen handed in by lieutenant colonel Tshivhase as exhibits were written by her save exhibits E2 and E5.  This is important because in her evidence lieutenant colonel Tshivhase had clarified that there was no possibility that exhibits A1 and A2, the questioned documents could have been written by any other person.  I deal further with her evidence later.

[93] She also disputed the evidence of Nontathu about them having discussed the killing of the deceased by accused no.2.  She described as a lie that her communication or the phone calls she made to the phone that was found at the crime scene was in pursuit of a plan to kill the deceased.  She testified that she and Nontathu were both arrested for this case but Nontathu was released the following day and therefore she lied to save her skin.  She further said that Vuyokazi was also lying about the note or the letter, exhibits A1 and A2 because at that time she was not in communication with her and that means Vuyokazi and Nontathu were working together to lie about her.  She denied discussing with Nontathu the killing of the deceased by accused no.2.  She denied discussing her financial constraints with her or giving accused no.2 any money for any reason and denied planning with accused no.2 the killing of the deceased.

[94] Accused no.1 called Thozama Mchithwa to testify.  In her evidence she described accused no.1 as a friend and colleague and they both worked at Shukuma Senior Secondary School.  She confirmed that exhibit E2 is written in her hand writing.  She also confirmed that exhibit E5 was also in her handwriting and that E5 was actually her book and she was the one who wrote on E5.  Even under cross examination by the state she maintained that both exhibits E2 and E5 were written by her in her own hand writing.

[95] Bongiwe Nombanga was also called on behalf of accused no.1.  She testified that the worked at Shukuma Senior Secondary School as a teacher.  She knew accused no.1 who was her colleague.  She went to school on the 15 January 2018 and accused no.1 was also present and when she reported at work accused no.1 was already at school.  At about 10:00 in the morning that day accused no.1 was still present at work and they remained at work and they both knocked off at 15:00 by which time school gates are normally closed.  She further testified that on the 17 January 2018 she was at work at school but she was not sure if accused no.1 was also at work on that day.  Under cross-examination she testified that on 16 and 17 January 2018 she was at work having reported at work at quarter to eight.  However, she was not sure at what time accused no.1 reported for work on the 15 January 2018 because she found her there at work on that day.  On 16 January 2018 they all reported for work at quarter to eight. 

[96] On the 15 January 2018 the schools were reopening for 2018 and on that day she worked with accused no.1.  On that day among other things the stationery was being distributed to the learners and accused no.1 assisted in the distribution of the stationery.  They were still working together after half past ten and they stopped working at 14:00 and they knocked off at 15:00.  When it was put to her that accused no.1’s evidence was that on the 15 January 2018 she left school at 14:00 and therefore she could not have parted ways with her at 15:00 she said she was not sure about the time but normally she was present and she knocked off late.  She disputed that she was misleading the court in saying she and accused no.1 parted ways at 15:00 on 15 January 2018.  She also confirmed that she misreported times in the school attendance register because sometimes they would not sign it for some days and then when they remembered or were reminded, they would sign for all the days they had not signed for at the same time.  It also transpired during her evidence that she and Ms Mchithwa had discussed the evidence they were going to give in court.  They together discussed the fact that they had been called by accused no.1’s attorney.  They also discussed with each other what they remembered about the presence of accused no.1 on 15 and 17 January 2018, the days accused no.1’s attorney had told them to focus on.

[97] The case for accused no.1 was closed and accused no.2 testified in his defence.  He testified that he knew nothing about the killing of the deceased and he was not linked to the murder or the conspiracy to murder the deceased.  He confirmed that Nontathu is his cousin.  In January 2018 he was staying at his home at a place called Casino in Bizana.  In January 2018 he did stay for a few days with Nontathu which he thought it was about three or four days.  Nontathu had phoned his sister and he got a message from his sister.  He called Nontathu who told him that she needed him to come to her at her home.  He indeed went to Nontathu’s homestead.  Nontathu asked him to find people who could sell drugs for her in town.  She did not want him to sell the drugs for her because he misused the money.  She also did not want those people to know that the drugs they were selling belonged to her.

[98] He found a person he trusted and that was Anathi.  He told Nontathu that he had found someone and she then gave him the drugs.  He took the drugs to Anathi who started selling them.  Anathi sold the drugs and gave the money to him.  He took the money from Anathi and gave it to Nontathu who gave him more drugs to take them to Anathi.  He, accused no.2 smoked drugs.  He would crave the drugs and ended up smoking them.  The smoking of the drugs caused problems between himself and Nontathu.  On the 19 January 2018 the drug money had a shortage because he had smoked some of the drugs.  He then decided not to go back to Nontathu.  He did not sleep at Nontathu’s homestead on that day.  He slept at another place but in the morning on the 20 January 2018 he came to town to meet Anathi because there were some few drugs that still remained with Anathi.

[99] Anathi told him that Nontathu had arrived at the place at which he and Anathi were selling drugs in the company of two men that were unknown to Anathi.  He then took the money from Anathi and decided to leave Bizana and he went to Durban.  When he arrived in Durban he stayed with some people he knew from Bizana.  He testified that on the 19 January 2018 he woke up in the morning and came to town and did not return to Nontathu’s homestead.  He last saw Nontathu in the morning on the 19 January 2018.  Therefore he disputed as lies Nontathu’s evidence that on that day she sent him to town and when he came back she noticed that he had money and when she asked him where he got it and he said he got it from accused no.1.  He emphasized that there was nothing that connected him with accused no.1.  He had no knowledge of the conversation between Nontathu and accused no.1 in which Nontathu asked accused no.1 why she gave him the money and accused no.1 said it was for the killing of the deceased.

[100] Accused no.2 further testified that Nontathu lied when she said that when he returned home on Tuesday 23 January 2018 he told her that he was leaving for Lusikisiki, Mount Frere or Port Shepstone.  On that Tuesday he had already been in Durban for a few days because he had left for Durban during the previous weekend.  He denied telling Nontathu that he had killed a person as they never discussed the killing of any person.  About the phone that was found at the crime scene he testified that during the days when Anathi was selling drugs for Nontathu there was a cellphone that was used by Anathi and he also used that very same phone.

[101] That cellphone belonged to Anathi but he also used it.  The last time he used that phone was when he went to Anathi in the morning at about 10:00 on 20 January 2018.  He got confused in counting the money and he used it to count the money and gave it back to Anathi thereafter.  He said he would not dispute the evidence of Nontathu that she called him on that phone on the morning on which the deceased was found dead.  This was because he was not sure if Nontathu knew that, that phone belonged to Anathi but she knew that he did not have a phone.  It therefore could happen that she phoned him on that number because he used to call her from that cellphone which belonged to Anathi.  He also confirmed Nontathu’s evidence that he smoked drugs.

[102] Under cross examination he testified that he stopped schooling at grade 11.  His father and Nontathu’s mother are siblings.  He started selling drugs for Nontathu when she stopped working and her vehicle had broken down and she wanted to have it repaired.  That could be two years before the 20 January 2018, the day on which he left for Durban.  He arrived at Nontathu’s homestead on the 15 January 2018.  That is the date on which she asked him to find people who were going to sell drugs for her and he was going to be the go between, between her and those people.  He testified that he told Nontathu that he had found a person to sell the drugs but did not tell her that that person was Anathi.  He was going to be the one collecting the money from the person who sold the drugs and give it to Nontathu.

[103] Nontathu trusted him because she knew that he had stopped using drugs.  When he had not returned to Nontathu to give her the money and heard on the 19 January 2018 that Nontathu was looking for him he ran away to Umlazi in Durban and arrived the same day on 20 January 2018.  He confirmed that he did not go to his mother who also lived there but went to one Sikhumbuzo who lived in a shack in an informal settlement at V. Section.

[104] He previously used that phone that was found at the crime scene to call a few other people.  He mentioned his girlfriend Lusanda Mtshengu whom he said was his child’s mother.  There would be times that that phone would be in his possession for quite some time but mostly it would be with Anathi.  He did not know the deceased and had never met him.  He last used that phone on Saturday the 20 January 2018 in the morning.  He did not use it to make calls on that day but he used it to count the money he was going to take from Anathi.  He could not confirm or dispute the evidence of Nontathu that on the 21 January 2018 she called that phone in an attempt to reach him saying he was not there.  He could also not dispute or confirm that Nontathu told the police that she phoned that cellphone in an attempt to reach him saying he was not there.  He himself never called Nontathu using that phone.

[105] He confirmed that indeed after he was arrested the police took fingerprints.  Those fingerprints were then scientifically compared with the fingerprints that were lifted from that phone which was found at the crime scene.  The police and his attorney told him that his fingerprints were found on that phone.  It was then put to him that the fact that his fingerprints were found on that found confirmed Nontathu’s version to the police that she was calling that phone because she knew it to be used by him.  He incoherently rambled that he did not have expertise in fingerprints and as such did not know that if his fingerprints are found on that phone it meant it was being used by him.  He clearly did not know how to explain away this piece of evidence.

[106] It was put to accused no.2 that Nontathu had testified that he had told her that he had killed a person and he was running away either to Lusikisiki, or Port Shepstone and was asked whether it was a coincidence that he had indeed left Bizana or was no longer in Bizana on that Monday or Tuesday after he had given that information to Nontathu.  He testified that he left Bizana without Nontathu knowing that he had left.  He further denied being confronted by Nontathu about accused no.1 having intended to use him in the killing of the deceased.  He said that all of Nontathu’s evidence about his discussion with her about the killing of the deceased and him saying he would not go ahead with it after Nontathu had confronted him was all a lie.  It was put to him that it was improbable, on his own version, that he after had previously used Nontathu’s drug money, that Nontathu would have asked him in selling drugs.  He maintained that the reason he left for Durban was because he had used Nontathu’s drug money.  It had nothing to do with the death of the deceased as there was nothing connecting him to it. 

[107] In answering certain questions by the court he testified that he had known Anathi for a long time.  He used to live in Seaview and this is where he knew him from when Anathi lived in his aunt’s place.  They grew up smoking dagga with Anathi.  He testified that he had heard that Sikhumbuzo was arrested in Mbizana for copper theft.  His mother was in Durban and he did not visit her while he was in Durban.  He confirmed that he left for Durban at about 10:00 in the morning on the 20 January 2018.  He had arrived at the place where he met Anathi in the morning, they counted the money and he left.  The case for the defence was eventually closed after the witness, Sikhumbuzo whom accused no.2 intended to call could not be found even with the assistance of the state.

[108] What then was left of the state’s case absent the alleged confession by accused no.1 and the admissions allegedly made by accused no.2?  There was only one crucial witness without whose evidence I do think that very little if anything else mattered.  That is the evidence of Nontathu.  It is her evidence that seems to provide a central point of reference to the rest of the contested evidence of the state witnesses.  I have recorded, in quite some detail above the evidence of Nontathu as I have the evidence of other state witness and that of the accused.  Because of its significance and centrality to the whole case, I consider it not only useful but also necessary that I provide a very short summary of her evidence for ease of comprehension.  In this regard I can do no better, than quote the concise summary of Nontathu’s evidence which is contained in the state’s heads of argument.

[109] It is as follows:

“The key witness implicating both accused in the killing of the deceased is Nontathu Brown.  Her evidence against accused no.1 is as follows:

(i)            On 15 January 2018 accused no.1 told her that she had financial problems and needed some money.  See page 53 para 7 to 11 of Volume 1.

(ii)           Again on 17 January 2018 accused no.1 visited Nontathu and told her that she has insured the deceased.  And if the deceased were to die she would get the money.  She further said she intended using Accused no.2 to kill the deceased.  See page 54 para 24 to page 56 para 14 of Volume 1.

(iii)          On 19 January 2018, Nontathu noticed that accused no.2 had a lot of money.  Accused no.2 told Nontathu that she got the money from Accused no.1.  See page 56 from para 15 page 57 para 6 of Volume 1.

(iv)         Nontathu called accused no.1 who told her that she gave accused no.2 money because she wanted accused no.2 to kill the deceased.  See page 57 para 8 to 12 of Volume 1.

-       Nontathu asked accused no.2 whether he was going to kill the deceased on behalf of accused no.1 but accused no.2 responded by saying he just took the money from accused no.1 but will not kill the deceased.  See page 57 para 12 to 25 of Volume 1.

-       Accused no.2 told Nontathu that he is leaving Bizana because he has killed a person.  See page 58 para 8 to 25 and page 55 para 1 to 3 of Volume 1.  And also see page 64 para 5 to 8 of the same Volume.

-       The cell phone that was found on the scene by the police belonged to her cousin, accused no.2.”

[110] It is perhaps apposite that I mention that the phone that was found near the body of the deceased started ringing quite fortuitously while the police were there at the crime scene.  At some stage after the crime scene experts had finished dealing with the crime scene, sergeant Mzondi phoned the last number that had called that phone.  The person on the other end of the line introduced herself as none other than Nontathu.  At some stage during that conversation Nontathu dropped the call and later switched it off for a reason that is not very clear.  The police traced her and found her at her homestead at Ngcingo locality.  This sequence of events eventually led to accused no.1 who was arrested.  All this happened within days after the body of the deceased was found with multiple stab wounds.

[111] I must state very clearly that the evidence of the state is circumstantial in nature and this applies not only to the evidence of Nontathu but also to all the other witnesses of the state which is encapsulated above.  But before I deal with certain aspects of the state’s case against the accused let me first state the trite legal position and legal reasoning that must inform the decision of the court in a criminal trial whether to convict or acquit an accused and the process the court must follow.  It was stated as follows S v Van der Meyden 1999 (1) SACR 447(W) at 450 A-C:

“The proper test is that the accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent.  The process of reasoning which is appropriate to the application of that test in any particular case, will depend on the nature of the evidence which the court has before it.  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.”

[112] The process of reasoning which leads to a decision whether to convict or acquit must not only account for all the evidence tendered by the state and the accused which must be considered together and not in a piece meal fashion all of that must be done taking into account the rules that are built into the system which are part of our criminal jurisprudence.  Those rules have been restated and refined over many years including during the constitutional dispensation and have passed muster with the Constitution of this country.  If the decision is to convict the triar of fact must be satisfied through a careful application of all the rules that the state has proved the guilt of the accused beyond reasonable doubt.  Anything less is simply insufficient for the purposes of a conviction.

[113] In S v Mavinini 2009 (1) SACR 523 (SCA), [2009] 2 All SA 277 (SCA) para 26 Cameron JA expressed the following salutary sentiments with which I am in respectful agreement:

“It is sometimes said that proof beyond reasonable doubt requires the decision – maker to have ‘moral certainty’ of the guilt of the accused.  Though the notion of moral certainty has been criticised as importing potential confusion in jury trials, it may be helpful in providing a contrast with mathematical or logical or ‘complete’ certainly.  It comes down to this: even if there is some measure of doubt, the decision maker must be prepared not only to take moral responsibility on the evidence and inferences for convicting the accused, but to vouch that the integrity of the system that has produced the conviction – in our case, the rules of evidence interpreted within the precepts of the Bill of Rights – remains intact.  Differently put, subjective moral satisfaction of guilt is not enough: it must be subjective satisfaction attained through proper application of the rules of the system.”

[114] Not only is all the evidence of the state circumstantial, it also largely relies on the evidence of a single witness, Nontathu.  Not only is she a single witness, she was also not present when any discussion took place that might have taken place between accused no.1 and accused no.2.  It does not end there, and as Mr Ngxukumeshe has correctly pointed out, she could, in some ways, be considered to have been an accomplice even if not in the traditional sense of a section 204 witness.  In fact there is evidence that she did spend at least one night in police cells at Mzamba police station.  In some of her evidence, accused no.1 did say that while she did not know why Nontathu would falsely implicate her, and it could not, in any event be expected of her to know what was in the mind of a state witness, she did say that it was possible that Nontathu could implicate her to cover her own skin.  All of this boils down to one essential rule of thumb and that is Nontathu’s evidence must be treated with great caution.

[115] To highlight this very point, Mr Ngxukumeshe, who replaced Mr Mthayi, the erstwhile attorney of accused no.1 referred this court to the old case of S v Hlaphezulu 1965 (4) SA 439 at 440 D whose principles still find application in our criminal jurisprudence where Holmes JA said:

“It is well settled that the testimony of an accomplice requires particular scrutiny because of the cumulative effect of the following factors:

-       First, he is a self-confessed criminal.

-       Second, various considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit or particularly where he has not been sentenced, the hope of clemency.

-       Third, by reason of his inside knowledge, he has a deceptive facility for convincing description-his only fiction being the substitution of the accused for the culprit.  … [T]here has grown up a cautionary rule of practice requiring (a) recognition by the trial court of the foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong conviction, such as a corroboration implicating the accused in the commission of the offence, or the absence of gainsaying evidence from him or his mendacity as a witness, or the implication by the accomplice of someone near or dear to him.”

[116] It is indeed true that the evidence of Nontathu was not without some shortcomings, nor could it be said that she was without blemish in the deceased ultimately losing his life.  For instance on her own evidence she knew about the planned killing of the deceased hatched by accused no.1 and to be executed by accused no.2 before it actually happened.  She did nothing to save the life of the deceased by telling accused no.1 that if the murder was carried out she would expose both accused no.1 and 2.  That could possibly have resulted in accused no.1 instructing accused no.2 not to go ahead with the plan.  Secondly, after it had happened and on her own evidence, accused no.2 told her that he had killed a person and was leaving town for either Lusikisiki, Mt Frere or Port Shepstone.  At this stage she did not confront accused no.2 to establish if the person accused no.2 told her he had killed was the deceased.  After all she knew who the intended target of accused no.1 was, that is the deceased and the reason therefore, to alleviate accused no.1’s financial problems.  The question that must arise quite logically is why did she not immediately report this information to the police who could have prevented accused no.2 from leaving.  According to sergeant Mzondi Nontathu’s phone remained switched off after he had called her.  This is consistent with someone who was trying to conceal the murder of the deceased.

[117] The legal representative for accused no.1 also criticized her evidence that she met accused no.1 between the 15 and 20 January 2018 during which accused no.1’s financial problems were allegedly discussed and plans were hatched to alleviate them.  The argument is that on the 15 January 2018 accused no.1 was at school the whole day and this version is supported by the evidence of her colleague Ms Nombanga.  This argument loses sight of the fact that on that day and on both accused no.1’s and Ms Nombanga’s version accused no.1 did not spend the whole day at school.  Secondly while accused no.1’s evidence was that she went to school and then went to Port Shepstone after 10:00 on the 19 January 2018, she returned on the same day.  Again it is unclear why it would not have been possible for accused no.1 and accused no.2 to meet as Nontathu alleges. 

[118] After all on both accused’s versions they were in town at some stage on the 19 January 2018.  But most importantly Nontathu was not keeping a diary of her meetings with accused no.1.  Her evidence came from her memory in any event and that must be taken into account.  Even if she might be mistaken about the exact dates it does not follow that she was lying about the meetings and discussions.  On the attendance register on which Mr Ngxukumeshe also makes an argument about it proving her presence at school on the relevant dates, on the evidence of all the witnesses called by accused no.1 that attendances register is at best unreliable.  They testified that it would not be completed for some time sometimes and then a person would then complete it for all the previous days. 

[119] As I have said before the evidence of the state is not only circumstantial but Nontathu who is the key witness is a single witness as regards the disputed conversations between herself and accused no.1 in the first instance and the conversation between herself and accused no.2 in the second instance.  All of these features in Nontathu’s evidence call for extreme caution in how it is treated.  In S v Reddy 1996 (2) SACR 1 (A) at 8 c-g the court dealt with the approach to circumstantial evidence authoritatively as follows:

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by the accused is true.  The evidence needs to be considered in its totality.  It is only then that one can apply the off-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored.  These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  The matter is well put in the following remarks of Davis AJA in R v De Villiers 1944 AD 493 at 508-9:

“The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken.  It must carefully weigh the cumulative effect of all of them together and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn.  To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.”

[120] The evidence of Nontathu is not without some considerable corroboration which, considered together with that of the accused puts paid to the possibility of the accused’s explanation being not so improbable as to be false.  The following facts which were either proved, or could not be denied or were self-evident considered cumulatively are beyond reasonable doubt, inconsistent with the innocence of the accused.  Accused no.1 was clearly under financial distress shortly before January 2018 and had been under such distress for a while even before December 2017.  Despite that financial distress, she increased her already precarious financial position by taking a funeral policy on the lives of her child and the deceased for which she had to pay R99.00 on the basis that if the deceased died accused no.1 would be paid by Sanlam R32 400.00.   

[121] This amount would not only extinguish accused no.1’s burdensome overdraft facility but also leave her with a good positive balance even after she would have contributed to the funeral expenses like the rest of the family would have contributed.  That policy was taken on 01 May 2017, a mere 8 months before the deceased was brutally stabbed to death.  The deceased did not meet his untimely death while minding his own business as a young person.  The evidence of Mrs Lushaba, accused no.1’s mother is that the deceased had gone to sleep when at about 21:00 or so on 20 January 2018 she heard people calling the deceased who eventually woke up and left.  He was never seen alive again.  His lifeless body was found the following morning with multiple stab wounds.  The question is, who were the people who woke him up from his sleep.  According to Nontathu’s evidence properly considered in context it must have been accused no.2 and another person.

[122] On the night on which the deceased died, accused no.1and accused no.2 were in regular contact with each other according to the evidence of the cellphone records from about 12:36 shortly after midday on 20 January 2018.  The last of those many cellphone communications which included smses was at 21:45:05 on 20 January 2018.  I hasten to point out that there was no state witness who could say at what time the deceased died.  The body of the deceased was found on Sunday the 21 January 2018.  A mere few metres from the body of the deceased, at the crime scene a cellphone was found.  It is from its activities that the cellphone records were later extracted.  The police later phoned the last number that had called the said cellphone.  It is common cause that that number was that of Nontathu, the key state witness whose evidence was that she was calling her cousin, accused no.2 who had not returned home since Friday evening on the 19 January 2018. 

[123] Accused no.2 admits to having used that cellphone which was found a few metres from the deceased’s lifeless body.  His evidence was that he used it on Saturday the 20 January 2018 to count the money which was the proceeds of drug sales by the late Anathi.  It is unclear how or when Anathi died but it appears that he died shortly after the death of the deceased, when exactly it is unclear.  The fingerprints lifted from that cellphone were indeed those of accused no.2 and this fact is common cause.  I mention accused no.2’s version in this regard only to reject it as being so improbable as to be false.  His version was that that phone belonged to Anathi and he, accused no.2 had used it at about 10:00 on Saturday the 20 January 2018 to count Nontathu’s drug money for sales that Anathi had done.  He thereafter gave the cellphone back to Anathi and left for Durban.  The falsity of this version is exposed by the fact that despite the phone remaining with Anathi from about 10:00 on Saturday morning until the following morning on 21 January 2018 when the deceased’s body was found, accused no.2’s fingerprints remained there throughout.  I must also mention another falsehood, this time in accused no.1’s evidence.  Her evidence was that at about 21:45 she called Anathi on that number and spoke to him about the deceased going to a circumcision school.  This is obviously one of her many falsehoods.

[124] This false version of accused no.1 is clearly an elaborate design between the two accused who seemed to agree with each other that that phone was actually used by Anathi the whole day on Saturday who she said was at her home.  In explicably accused no.1 chose to communicate with the deceased through the late Anathi and not through her own mother for whom she was buying groceries that day.  Thando of the same household as the deceased was not called by accused no.1.  Of course accused no.1 came up with another false story about why she ended up communicating with the deceased.  He had sent her a call back reminding her about the money she had promised for digging a toilet pit. 

[125] It was the evidence of both Mrs Lushaba, accused no.1’s own mother and Thando accused no.1’s own nephew who lived in the same household with the deceased that no digging of a toilet pit took place that Saturday the 20 January 2018 and they were at home the whole day.  They testified that the last time a toilet pit had been dug in that household was four or five months earlier during the funeral preparations of accused no.1’s sister Ntombi who had died.  That toilet pit had been dug by Mr Bhala assisted by his son, not by the deceased and his friends.  It was accused no.1’s own evidence that nothing happens in that household without Mrs Lushaba’s approval including the digging of a toilet pit.  She went further to say that the spot on which the toilet pit was to be dug was pointed out by Mrs Lushaba.  Both Mrs Lushaba and Thando gave clear and credible evidence which not even cross-examination could sway them or create some doubt about its credibility.

[126] Another corroboration of Nontathu’s version came from Vuyokazi, a friend of accused no.1 who not only stayed in the same premises with accused no.1 but, according to accused no.1 she chose to stay in Vuyokazi’s room because Vuyokazi’s son liked using her room.  That is how close they were as friends.  Vuyokazi’s testimony in brief was that accused no.1 had her Hisense cellphone with her when she received a call about something bad having happened at accused no.1’s household.  It turned out that the deceased had been killed.  On Monday the 22 January 2018 accused no.1 told her that she had lost her phone.  On Tuesday 23 January 2018 accused no.1 told her that she must look for her phone in her (Vuyokazi’s) wardrobe.  She found it there.  Accused no.1’s evidence was that Vuyokazi was lying.  She never said she had lost her phone.  This must be the very same cellphone that had been used to call accused no.2 on Saturday 20 January 2018.  Accused no.1 came up with a version that was never put to Vuyokazi.  It was that she had taken out her sim card and put it in Vuyokazi’s old phone which was in that room.  So Vuyokazi must be making up the whole story about a lost phone. 

[127] Vuyokazi also testified that she was directed to a letter or note, exhibit A1 and A2 by accused no.1 which was in accused no.1’s dirty clothing which she had hidden amongst those clothes when she gave them to her whilst still detained at Mzamba police station.  She was later transferred to Wellington Prison in Mthatha.  Vuyokazi again visited her there.  It is then that she was told her about exhibits A1 and A2.  She ultimately gave those exhibits to the police.  Accused no.1’s changed version now was that actually indeed there was a note or letter which she had hidden in those dirty clothes.  But it was not exhibits A1 and A2.  So Vuyokazi must have gone out of her way to create a new note or letter to implicate accused no.1 falsely.  This suggestion by accused no.1 is of course so improbable as to be false.  It was another elaborate attempt or diversionary tactic by accused no.1 to distance herself from that note, exhibits A1 and A2.  The problem with exhibit A1 and A2 even written as vaguely as it was, inter alia made mentioned of the fact that accused no.1 was in contact with a certain young man about creating a story which would exonerate accused no.1 and discredit Nontathu.  That mentioned young men was clearly accused no.2.  A lot of inexplicable things are also written in that letter which would explain why accused no.1 thought it best to simply distance herself from it and lie about the existence of another letter with a different content, I must also add, an innocent content.

[128] The note was subjected to an examination by a handwriting expert.  The evidence of lieutenant colonel Tshivhase, the handwriting expert was that all the submitted specimen over 10 of them which she examined and had been given to the police by or on behalf of accused no.1 were written by the same person as the author of exhibit A1 and A2.  Of course at least 2 of them, it transpired, had been written by and belonged to Ms Thozama Mchithwa, a colleague of accused no.1 with whom she taught English.  Those were exhibits E2 and E5.  It is accepted that those two specimen were not written by accused no.1.

[129] It was argued on behalf accused no.1 that because of this issue which the witness explained in her evidence, I should reject the evidence of lieutenant colonel Tshivhase.  Reliance was sought to be placed on R v Jacobus 1940 TPD 142 in which the court stated that:

“Expert witnesses are witnesses who are allowed by our Courts to speak to their opinion, but they are not Judges of the fact in relation to which they express an opinion.  Judicial Officers should therefore be careful not to allow the opinion of these witnesses to replace their own findings of fact.”

[130] I agree with the legal position articulated in the above case.  I however, disagree with the conclusion sought to be made by Mr Ngxukumeshe on behalf of accused no.1.  There are many reasons for this, one of which is the fact that exactly on the authority of R v Jacobus even if it was proved, and evidence could not be challenged that all the more than 10 specimen were written by accused no.1, it would be wrong to then conclude that accused no.1 is in fact guilty only on that basis.  This is so because even the evidence of handwriting experts must be consonant to all the other evidence failing which the accused cannot be convicted on it even if it is unchallengeable.

[131] In Mduzulwana v Mduzulwana and Others (1470/2017) [2017] ZAECMHC 7 (26 May 2017) para 24 this court said:

“It should be pointed out, however, that there have been cases in which our courts have rejected the opinion of the handwriting experts in favour of the evidence of the witnesses where the probative value of such evidence was found to be more and the evidence credible.  In the case of Levin v Levin and Others [644/09) [2011] ZASCA 114 (3 June 2011)] the Supreme Court of Appeal upheld the decision of the court a quo in which it had been found that the evidence of a handwriting expert was trumped by the direct testimony of the other witnesses.  This was based on the principle that courts should apply caution before accepting handwriting expert evidence and indeed any expert.”

[132] Lest I be misunderstood, I am not rejecting lieutenant colonel Tshivhase’s conclusions and evidence.  On the contrary I am of the view that on the totality of all the evidence before me tendered by the witnesses of the state especially Vuyokazi considered together with the other evidence of state witnesses and the version given by accused no.1, she correctly found that there is no possibility of exhibits A1 and A2 having been written by any other person other than accused no.1.  It is clear that accused no.1 and accused no.2 started very early after the arrest of accused no.1 to create a disjointed false version characterised by contradictions and improbabilities.  This started with the writing of the letter A1 and A2.  The long story of accused no.1 having spoken with the deceased through what both accused said was Anathi’s phone is false.  In fact it was used by accused no.2 through which accused no.1 communicated with accused no.2 until about 21:45.  What about the non-existent toilet pit.  There is no point in numerating all the falsehoods of accused no.1 and 2.  They are just too many to count.

[133] Accused no.1 created a huge false conspiracy theory.  If her evidence is to be believed, active participants in that conspiracy theory would include her own 85 year old mother, her nephew, Thando, her friends Nontathu and Vuyokazi.  This assertion is of course clearly false and I reject it as such.  In the result and upon consideration of all the evidence in this matter I conclude that the state has discharged the onus of proving the guilt of both accused beyond reasonable doubt.

[134] It is clear that both accused were acting in common purpose to achieve the nefarious common objective of killing the deceased.  Indeed the deceased was killed during the night of the 20 January 2018 and his badly wounded lifeless body was found the following day on Sunday 21 January 2018.  The traditional requirements of common purpose are known and need not be restated here.  I am emboldened in arriving at the conclusion that both accused acted in furtherance of a common purpose by the Constitutional Court decision in Tshabalala v S; Ntuli v S 2020 (2) SACR 38 (CC); 2020 (5) SA 1 (CC) paras 48 and 49 in which the legal position was stated thus:

“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.  In the latter instance the liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind.

It is trite that a prior agreement may not be express but may be inferred from surrounding circumstances.  The facts constituting the surrounding circumstances from which the inferences are sought to be drawn must nevertheless be proved beyond reasonable doubt.  A prior agreement to commit a crime may invoke the imputation of conduct, committed by one of the parties to the agreement which falls within their common design, to all the other contracting parties.  Subject to proof of the other definitional elements of the crime, such as unlawfulness and fault, criminal liability may in these circumstances be established.”

[135] In the result, both accused are found guilty of the murder of the deceased Cebo Matutu.

________________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearances

Counsel for the State: S. Nolutshungu

Instructed by: NPA

Mthatha

Counsel for Accused No.1: F. Ngxukumeshe

Instructed by: Legal Aid South Africa

MTHATHA

Counsel for Accused No.2: A. Nohiya

Instructed by: Legal Aid South Africa

MTHATHA

Last heard on: 21 August 2020 & 04 September 2020

Delivered on : 16 November 2020

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