---

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no. 4/2018

In the matter between:

THE STATE and DITHABA PETRUS MAFAHLE & 12 OTHERS

 

CORAM: I VAN RHYN, AJ

HEARD ON:

JUDGMENT BY: I VAN RHYN, AJ

DELIVERED: 2 JULY 2019 & 5 July 2019

 

INTRODUCTION:

[1] The fifteen (15) Accused before Court have been indicted on seven (7) charges which include three (3) counts of murder read with the relevant provisions of Section 51(1) and Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the “CPA”).  The Accused are also charged with three (3) counts or robbery with aggravating circumstances and one (1) count of contravening Section 9(1)(a) of the Prevention of Organized Crime Act 121 of 1998 (“POCA”), alternatively contravention of Section 9(2)(a) of POCA also known as “gang-related offences”.

[2] Counts 1 to 6 of the indictment relate to the attack, murder and robbery of three (3) minor males, the 19-year old Lefa Soaisa, the 16-year old Vuyani Jacobs Makhapela and Mojalefa Nathan Franse who was 17-years old at the time of his death.

[3] The allegations as elaborated upon in the summary provided by the State, against the Accused are that upon or about 30-31 January 2017 and at or near Limo Mall, Bloemside, in the district of Bloemfontein, the Accused who are members of the Born to Kill gang, (the “BTK’s”) met with the three (3) deceased.  The three (3) deceased were members of the Maroma gang.  Under the false pretence that the Accused were also members of the Maroma Gang the three (3) deceased were lured to the “shack” of Accused no. 5 in  the Pieter Swarts Settlement. 

[4] The deceased indicated that they were looking for a specific member of the BTK gang known as Dimeche.  Under the false impression that the Accused were also members of the Maroma gang, the three (3) deceased were informed by the accused that they should all go to Namibia Square to look for members of the BTK gang. 

[5] At Limo Mall the deceased were instructed to sit whereafter the Accuseds’ allegiance with the BTK’s were revealed.  The Accused encircled the three (3) deceased and attacked them with knives.  Some of the Accused removed shoes and a K-way beanie (hat) from the deceased’s bodies which were left at an open space behind Limo Mall where the bodies were later discovered.  Counts 4, 5 and 6 deal with the three (3) charges of robbery with aggravating circumstances as defined in Section 1 of the (“CPA”) read with the provisions of Section 51(2) of the CPA in that on the 30^th to 31^st January 2017 and at or near Lima Mall the Accused did unlawfully and intentionally assault the deceased and with force took from Lefa Soaisa one (1) pair of shoes, from Vuyani Jacobs Makapela, one (1) pair of black and white Adidas shoes and a blue K-way hat and from Mojalefa Nathan Franse one (1) pair of shoes.  Aggravating circumstances being present in that, during the commission of these offences the Accused were in possession of dangerous weapons.

[6] The State alleged that the Accused acted in the execution of a common purpose when performing the acts described in Counts 1 to 7 of the indictment.  The common purpose existed prior to and during the commission of the offences on which the Accused are arraigned.

[7] All the Accused have been charged with Count 7.  The basis of the crimes created by the POCA legislation have bearing on the criminal gang activities and provides that any person who actively participates in or is a member of a criminal gang and who wilfully aids and abets any criminal activity committed for the benefit of, at the direction of, or in association with any criminal gang or who performs any act which is aimed at causing, bringing about, promoting or contributing towards a pattern of criminal gang activity, shall be guilty of an offence.

[8] All the Accused pleaded not guilty to all the charges and elected not to provide plea explanations or to make any admissions.  When the trial commenced Accused no. 14, who was still a minor at the time of his arrest and not held in custody awaiting trial, failed to appear at Court.  A warrant for his arrest was issued upon request of the prosecutor.  The Court was furthermore informed that the charges against Accused no. 2 are withdrawn.  Due to Accused no. 14’s failure to appear an application for a separation of the charges in terms of the provisions of Section 157 of CPA of Accused no. 14, Karabo Kenneth Thita, to facilitate continuation of the case against the other Accused was granted.  For the remainder of the trial only thirteen (13) of the original fifteen (15) Accused were involved.

[9] Advocate Ferreira, who appeared for the State called more than fifty (50) witnesses, some of whom testified more than once during the trial.  Counsel on behalf of the State furthermore led evidence in six (6) trials within a trial and exhibits “A” to “JJJ” were handed in as documentary evidence.  The State also tendered exhibit “1” consisting of a pair of black and white Adidas Superstar shoes (“tekkies”) and exhibit “2” a blue K-way hat as evidence.

[10] All thirteen (13) Accused were legally represented contended that they are innocent. With the exception of one or two  of the Accused, they are not acquainted with each other and only met while being in custody awaiting trial.  Even though it is not denied that they used to be members of the BTK gang before their arrest, they, at least since their arrest, broke all ties with the BTK gang and have no knowledge of the three (3) young males whose bodies were found at Limo Mall.  According to their evidence, anything they did or alleged to have done, whilst in custody, was done under duress due to the assaults perpetrated on them by members of the South African Police Service (“SAPS”) during their arrest up until their detention.  Due to assaults and due to fear of further assaults some of the Accused caused to sign statements against their will which constitutes manufactured evidence against them.  They furthermore aver that all the members of SAPS, for various reasons and with the intent to secure their conviction on the charges, told untruths to this Court.

[11] During the course of the trial the Court gave rulings in six (6) trials within a trial and delivered judgment subsequent to application in terms of the provisions of Section 174 of the CPA launched by several of the Accused.  My reasons for provisionally allowing the pointing outs and/or statements allegedly made by the Accused are contained in this judgment.

[12] Prior to the charges being put to the Accused, the Court appraised the Accused that the provisions of Sections 51(1) and 51(2) of the CPA are applicable.  At the outset of the trial it was pertinently brought to their attention that, in terms of the minimum sentence regime, a minimum sentence of fifteen (15) years will be applicable with regard to the robbery charges and a minimum sentence of life imprisonment for the murder charges, unless compelling and substantial circumstances allows this Court to deviate from the prescribed minimum sentences.

 

THE PREVALANCE OF GANG-RELATED ACTIVITIES IN THE DISTRICT OF BLOEMFONTEIN:

[13] It is appropriate to elaborate on a factor, presented by the State, that has become a growing phenomenon not only on the so-called Cape Flats and Mannenburg, but apparently throughout our country. The offences in this case were manifestations of gang-related violence in the suburbs of Bloemfontein, where the accused and the deceased lived and had grown up.  The State adduced evidence of Captain Mthunzi Dasheka (“Captain Dasheka”) and Warrant Officer Jacobus Cornelius Lombaard, regarding the prevalence of gang-related activities in the Free State Province.  Captain Dasheka, who is stationed at the Crime Intelligence Cluster at Park Road Police Station in Bloemfontein explained, that a constant war between the rival gangs are fought on the streets and countless youngsters from the tender age of 11-years are engulfed in this battle.  During the past eighteen (18) years he had gained extensive experience in the investigation of gang-related crimes and the prevalence of gangsterism in the Bloemfontein area.  Relevant to this matter is the two (2) rival gangs namely the BTK’s and the Maroma gang also referred to as the “Romans”.

[14] Since 2014 the numbers of allegiance with the BTK’s grew tremendously and throughout this case, this Court became acutely conscious of the socio-economical challenges that so many children and young adults face.  The constant pressure and enticement to become involved in gang membership and gang-related activities are factors that are real and therefore I take cognisance thereof.  The reasons for their allegiance to certain gangs are due to unemployment, poverty and obviously also because of the prevailing social norms in the local suburbs, which seem to accept gang culture as part of the way of life.  Since 2014 the incidents of gang-related activities and crimes in the Greater Bloemfontein area escalated each year and the membership of the two (2) rival gangs, the BTK’s and the Romans, grew in numbers.

[15] Captain Dasheka explained that members of the BTK gang tend to be more mature than their counterparts, the Romans, who recruit young boys and girls from the age of 11.  The BTK members range from the age of 16 up to the age of 40 years.  The various gangs operate in certain territories within a suburb where they rule and hold influence, for example, in the Pieter Swarts Township most of the Romans have moved out and the BTK’s rule the area.  Members of these gangs drop out of school at an early age and roam the streets day and night or as described by one of the accused in this matter they “do their rounds” apparently looking for fellow gang members, drugs and guarding their territory.

[16] Members of the BTK gang adhere to a code, they have specific hand signs and obtain promotion within the hierarchy of the BTK’s by committing certain acts of violence for example, to join the BTK gang each prospective member has to commit a murder.  The members of the BTK’s have tattoos, some affix these tattoos on their arms, legs or even their faces where these tattoos are clearly visible and are indicative of their rank and membership to the BTK gang.  Once a member of the BTK’s, there is no way out and you remain a member for life. 

[17] The members of the Romans are generally much younger and give preference to wearing clothing with certain labels such as K-way, Nike, Adidas and Puma.  They also wear Rosaries normally used by members of the Roman Catholic Church.  On photograph 12 and in the closer view on photograph 13 of exhibit “A”, an example of such a Rosary is visible.  The Rosary visible on photograph 13 is made of red beads and a few green ones in between, with a white cross and was discovered close to the bodies of the three (3) young victims behind Lima Mall., Heidedal in Bloemfontein.

[18] The forty seventh (47) witness for the State was Warrant Officer Jacobus Lombaard, a Crime Information Analysis Officer stationed at Bloemspruit Police Station.  Information is gathered from suspects in criminal matters and Warrant Officer Lombaard has interviewed an estimated eighty (80) gang members and also family members of suspects with a view to compile profiles which he then captured on a system for use by SAPS.  Warrant Officer Lombaard became interested in the growing phenomenon of gang activities and started investigating the gang structure, the specific crimes gang members tend to commit and the inner workings of how these gangs operate.  Through his investigations he gained knowledge on the BTK gang, 666 gang and the Natural Born Killers (the “NBK’s”) and also assisted gang members who expressed the desire or wish to leave the gangs and end their membership by providing means to relocate these ex-gang members.  He testified that he encounters BTK cases on a daily basis and has testified in approximately seven (7) High Court cases relating to gang-related crimes in the past year.

[19] Only one of the trials in which he testified related to the Maroma’s.  The Maroma’s came about due to constant attacks and crimes perpetrated against Lesotho citizens living illegally in the Republic of South Africa.  Due to their illegal status, they were prevented from obtaining legal assistance from the SAPS and joined forces to protect themselves from the BTK’s.  Recently, South African Citizens also joined the Maroma’s in an effort to combat the onslaught of the BTK’s in the townships.  The BTK’s is part of a larger gang called the 666 gang.  The BTK’s resort as a separate leg of the 666 and are actually the “money-makers” of the larger conglomerate comprising of the BTK’s, the NBK’s and the 666 gang.  According to the information obtained by Warrant Officer Lombard the 666 gang is a satanic group which encapsulates or comprises western Satanism with African witchcraft.  The 666 gang is accountable to a higher order referred to as the “evil church”.  The “spiritual leaders” control the 666, the BTK’s and the NBK’s”.  The second leg comprises of the NBK’s who are the soldiers.

[20] During 2011 to 2012 a war raged between the BTK’s and the International Junior Portuguese (“IJP’s”) and the IJP’s were overpowered by the BTK’s.  Many of the IJP’s crossed over to the BTK’s and embraced the goals of the BTK’s.  The IJP members were identified by a tattoo on the left or right shoulder and since their allegiance with the BTK’s these tattoos were removed in a horrific way which would leave a plastic surgeon in amazement.  A peace of molten plastic will be placed on the tattoo which left disfiguring scars where the IJPs’ tattoos were removed.

[21] The most prominent crimes committed by members of the BTK’s, are robberies, burglaries and murders.  Warrant Officer Lombaard testified that many of the gang members join voluntarily for protection or to gain wealth, however many minors are forced to join.  These minors are usually from poor dysfunctional families or single parent homes.  A number of gang members are lured into gangs with drugs, while female members seduce young men with sexual favours in an attempt to make gang life seem attractive and glamorous.

[22] Warrant Officer Lombaard corroborated the evidence presented by Captain Dasheka concerning the seven (7) ranks in the BTK gang commencing with the first rank associated with the number “2 – 20 – 21”.  To be accepted as a member of the BTK’s a prospective member has to complete three (3) tasks, firstly show his skill with a knife for example to rob or scare a victim with a knife.  The second task will be to kill a victim, anyone of his own choosing and the third task will be to commit a murder on instruction.  The number “7” is of special significance in the BTK gang. 

 

THE STATE’S CASE:

[23] The first witness in the case against the Accused was Constable Daniel Khumalo, who was stationed at Heidedal Police Station and was on duty on the morning of 1 February 2017 when he received a call from the control office concerning a murder scene behind the Limo Mall.  On his arrival he found three (3) bodies of young black males with obvious stab wounds.  He further noticed that the victims were without shoes.  The area were cordoned off for further investigation. The photo album marked exhibit “A” was provisionally handed in and with reference to the photographs depicting the crime scene Constable Khumalo indicated what he observed regarding the three (3) bodies.  The bodies were found as if positioned in close proximity to each other behind heaps of soil and rubble.  He furthermore observed that the victims’ shoes had been removed as one of the victims still had a blue sock visible on his left foot.

[24] Dimakatso Makate (“Mrs Makate”), a 25-year old female residing in a shack in Pieter Swarts Township testified that she came upon “Chippa”, whom she identified as Accused no. 5 (Lebohang George Teele) on the morning of 1 February 2017.  She had known him for approximately a year and regularly saw him in the vicinity of her place of residence.  She was in the company of a friend called Keke and Accused no. 5 was in the company of another unknown male.  Accused no. 5 was in possession of a white plastic bag containing a pair of Adidas Superstar tekkies.

[25] Mrs Makate referred to questions that Keke put to Accused no. 5 which evidence was provisionally allowed as the State indicated that Keke will be called to testify in this case.  Keke indicated that she owns a similar pair, but white in colour and declined Accused no. 5’s offer to purchase the tekkies.  Mrs Makate then expressed her willingness to purchase the tekkies but explained that she does not have the financial means.  Keke thereupon immediately volunteered a loan in the amount of R100.00. The selling price being R150.00, Mrs Makate concluded an arrangement to pay the remaining R50.00 by the 9^th February 2019, when her husband will be receiving his salary.  The deal was done and Mrs Makate, after obtaining Accused no. 5’s assurance that the tekkies belonged to him and was not stolen merchandise, left with the black tekkies with white stripes on the sides.  The black and white Adidas Superstar tekkies were submitted as exhibit “1” and identified by the witness.

[26] On 9 February 2017 an unknown member of SAPS arrived at Mrs Makate’s place of residence and requested her to hand over the tekkies that she bought on the 1^st February 2017.  In cross-examination it was put to Mrs Makate that Accused no. 5 was in the company of two (2) other males.  Mrs Makate could not dispute the fact that other males could have accompanied Accused no. 5, but she was only aware of one (1) other person.  Accused no. 5’s version of the conversation was that the tekkies belonged to one of his companions and after receiving the R100.00 from Mrs Makate he immediately handed the money to the owner of the tekkies.  It was furthermore denied that Accused no. 5 indicated to Mrs Makate that he was the owner of the tekkies.  Mrs Makate testified that she did not pay the remaining R50.00 to Accused no. 5 due to the fact that the police claimed the tekkies before she made the final payment.

[27] By agreement, the State handed in documentation regarding the identification of the three (3) deceased bodies.  Exhibit “C” concerns the identification of Lefa Soaisa, the deceased on Count 1 by his brother with death register number:  BDR 79/2017.  The deceased was born on 29 July 1997 and resided at Chris Hani Square, Bloemfontein.  Exhibit “D” concerns the identification of the deceased on Count no 2, Vuyani Jacobs Makhapela by his mother, Nombulelo Melita Greinhout of Chris Hani Square, Bloemfontein.  The death register number is:  BDR 80/2017.  Exhibit “E” concerns the identification of the deceased on Count 3, Mojalefa Nathan Franse, with BDR number: 81/2017. 

[28] On 2 February 2017 Dr Vincent De Wet Brandt conducted a post-mortem examination on the body of Lefa Soaisa as per exhibit “KK1” (BDR 79/2017).  The cause of death is recorded as multiple stab wounds, comprising of forty six (46) stab wounds, mostly to the chest, back and right hand of the deceased.  The position of the injuries was indicative of an attack launched from multiple sides on the deceased.  Photographs of the body, depicting the injuries sustained during the attack as well as photographs depicting the clothing worn by the deceased at the time of his death were handed in as exhibit “KK2”.

[29] Dr Brandt conducted a post-mortem examination on the same day, on the body of Vuyani Jacobs Makapela, the 16-year old victim in Count 2.  The post-mortem report was handed in as exhibit “LL1” with reference number BDR 80/2017.  Dr Brandt testified that sixty seven (67) stab wounds, ranging between five (5) – twenty (20) mm in length were found and noted in his report.  The stab wounds were of such severity that it appeared as if no skin remained intact on the left side of the victim’s neck.  Fifty (50) stab wounds were located over the lateral and posterior aspect of the deceased’s neck.  With reference to photograph 7 and 8 of exhibit “A”, depicting the position of the bodies on the crime scene, Dr Brandt opined that not a lot of blood is visible on the photographs and the bodies appeared as if grouped together after they had been killed, possibly elsewhere.

[30] Photographs taken of the body of the deceased and of the clothing worn at the time of his death were handed in and marked exhibit “LL2”. 

[31] Dr Ignatius Stephanus Ferreira conducted the post-mortem examination on the deceased in Count 3, the 17-year old Mojalefa Nathan Franse as per exhibit “NN1” with reference number BDR 81/2017.  On 2 February 2017 Dr Ferreira found that the slender victim weighed a mere 48.9 kg at the time of his death, was the victim of a vicious attack and approximately seventy (70) stab wounds were recorded.  Once again fourteen (14) incision wounds were noted on the left side of the victim’s neck, three (3) incision wounds on the left side of the head and two (2) incision wounds on the left side of the deceased’s face.  Forty (40) stab wounds were located on the victim’s back.    Point 6 of Dr Ferreira’s report refers to diffuse subarachnoid bleeding of the brain, indicative of blunt trauma to the head.  Even though Dr Ferreira had conducted between 1 500 and 2 000 post-mortem examinations he described the injuries found on the body of the deceased as a vicious attack beyond the normal, usually referred to as an “overkill”.

[32] Photographs of the body with reference number BDR 81/2017 depicting the severe stab wounds to the neck, upper back as well as the bleeding found on the brain as well as the clothing of the victim were handed in as exhibit “NN2”. 

[33] During the post-mortem examination conducted on the three (3) deceased, blood samples were taken for the purposes of DNA analyses.  The blood sample taken from the body on Count no 1, (BDR 79/2017) was marked (05D4BA9212MX) and handed to FPO MP Khumalo by Dr Brandt.

[34] The blood sample taken from the body of the deceased in Count no 2, (BDR 80/2017) was marked (05D3BB3501) and handed to FPO MN Stonga.

[35] The blood sample retrieved from the body of the deceased on Count no 3, (BDR 81/2017) was marked (05D3BB3485) and handed to FPO M N Stonga.

[36] The defence did not dispute the evidence placed on record by the State relating to the bodies of the three (3) victims found behind Limo Mall on 1 February 2017 nor the contents of the three (3) post-mortem reports.

[37] The State presented the evidence of Mrs Melita Nombulelo Greinhout, the mother of the deceased relating to Count 2 (Jacobs Vuyani Makapela).  She last saw her son on Monday, 30 January 2017 at approximately 17H00 at their place of residence located at Chris Hani Square, Bloemfontein.  Her son was in the company of his friend, Mojalefa Franse, the deceased in Count 3.  Her son was wearing a black t-shirt, a camouflage trousers and black Adidas Superstar tekkies with white stripes on the sides.  He was wearing a blue hat referred to as a “beanie” with a white mark.  Mrs Greinhout identified the contents of exhibit “1” as the Adidas Superstar tekkies that she bought her son.  The tekkies does not only resemble the same label, colour and markings to those she bought her son but also the size namely size 6.  She paid R600.00 at a Chinese shop located at Central Park for the Adidas tekkies.

[38] Mrs Greinhout identified the blue beanie, exhibit “2” as similar to that worn by her son on the day he disappeared.  It is a blue K-way beanie.  She however did not know where her son obtained the beanie from and once questioned him about this beanie.  He however refrained from answering her questions.

[39] Her son never returned after he left with his friend Mojalefa Franse and the following day she enquired as to his whereabouts from her eldest son and her daughter-in-law who resides at Phase 4, Bloemfontein.  Being unsuccessful in searching for her son, she decided to contact the police.  Detectives of the SAPS, who was accompanied by Mojalefa Franse’s brother arrived at her home to inform her that three (3) bodies had been found behind Limo Mall and she was requested to visit the State mortuary in an effort to identify whether one of the deceased was her missing son.

[40] In an effort to spare this witness the trauma of identifying her butchered son, she was shown photographs, seemingly of the face of the deceased persons and mostly of the clothing worn by the deceased.  The witness was able to identify the body of her son from the black t-shirt and camouflage trousers as well as photographs of his face.  After the burial of her son, members of SAPS requested her to identify the black Adidas Superstar tekkies with white stripes at the Heidedal Police Station.  She at that stage also identified the blue beanie as the property of her son. 

[41] Mrs Greinhout indicated that her son left school in February 2016 due to fear of being attacked and/or intimidated by gangsters.  She however did not have any knowledge of her son’s possible affiliation with a gang or not.  During cross-examination it was put to her that the Adidas Superstar tekkies as well as the blue K-way beanie are both popular pieces of clothing and are commonly worn by members of the public, to which the witness conceded. 

[42] Captain Dasheka testified that subsequent to the discovery of the bodies of the three (3) victims, informers were tasked to gather information in connection with these offences.  On the 9^th February 2017 at 13H30 information led Captain Dasheka and his crime intelligence colleagues to the residence of Accused no. 1 at 5636 Pieter Swarts, Bloemfontein.  Captain Dasheka received information regarding a person called “Seun” or “Lepetla” who turned out to be Accused no. 1, Dithaba Petrus Mafahle. Subsequent to explaining his constitutional rights, Accused no. 1 was arrested and then proffered information which prompted Captain Dasheka to take Accused no. 1 to his office.  Lieutenant Colonel Sefuthi of the detectives unit and Captain Khene and their teams convened at the office of Captain Dasheka and after reaffirming the information obtained from Accused no. 1, the aforementioned members of SAPS as well as members of the Tactical Response Team (“TRT”), accompanied by Accused no. 1 proceeded to house no. 19707, Grassland, Phase 4, Bloemfontein.  At house no. 19707 Accused no. 2, no. 3, no. 4 and 6 were arrested.  Accused no. 2, Mojalefa Karel Shangane is also known as “Bota”, Accused no. 3, Kabelo Simon Senoge is known as “KB”, Accused no. 4, James Teboho Makao is known as “Crazy” and Accused no. 6, Mosa Ernest Mokara is  known as “Mosa”.

[43] Captain Dasheka explained that at the time of their arrival at house no. 19707, the TRT moved in to immobilise the occupants and stabilize the scene in order for Captain Dasheka and the investigation team to enter the premises.  Subsequent to their constitutional rights being explained and effecting their arrest by Captain Dasheka, he left the premises in the care of the investigation team to proceed with a thorough search of the premises.

[44] During cross-examination by Mr Nel on behalf of Accused no. 1, no. 3 and no. 6, it was put to the witness that the accused were assaulted by Captain Dasheka at the time of their arrest and that they were slapped in their faces.  The witness denied the accusation.  During the arrest of Accused no. 3 and no. 6, the door of the premises was broken and some of the accused were also kicked, though no specific allegations in this regard were put to the witness.  The Accused also denied that Captain Dasheka was responsible for their arrest.

[45] Accused no. 5 disputed the evidence of Captain Dasheka that he arrested him and it was put to the witness that Captain Khene was responsible for his arrest.  The Accused, more particularly Accused no. 1, no. 3, no. 4 and no. 6 denied that their constitutional rights were explained to them at the time of the arrest and Accused no. 4 was assaulted at the time of his arrest, but not by this particular witness.  Captain Dasheka testified that the arrest of Accused no. 1 occurred at around 13H30 and Colonel Sefuthi and Captain Khene arrived at his office at approximately 15H30.  It was furthermore put to Captain Dasheka that several of the Accused were assaulted after their arrest at the tourism centre located in Park Road, Bloemfontein.  Accused no. 1’s version was that after his arrest and the arrest of the other Accused they were taken to the Mangaung Police Station and from there to the Tourism Centre.  Accused no. 1’s version was that he was slapped in his face several times and Accused no. 3, no. 6, no. 7 and no. 8 were also assaulted by other members of the SAPS at the Tourism Centre in the presence of Captain Dasheka.

[46] This judgment  does not concern the evidence lead concerning accused      no 1, no 6 , no 9 , no 10 , no 11 , no 12  and no 15  since they were acquitted of all charges on  the 31 May 2019. I will again refer to this aspect.  The evidence by Captain Dasheka pertaining to the arrest of Accused no. 1 placed on record in the main trial and again in a trial within a trial regarding Accused no. 5, no. 7 and no. 8 was not repeated as agreed between the prosecution and the defence and was included in the trial within a trial of Accused no. 1. 

 

TRIAL WITHIN A TRIAL OF ACCUSED NO. 3 AND ACCUSED  NO. 4:

[47] On 14 January 2019 the prosecution presented the evidence of Colonel Sefuthi regarding the warning statements obtained from Accused no. 3, Kabelo Simon Senoge and Accused no. 4, Teboho James Mokoai.  Mr Nel, on behalf of Accused no. 3, indicated that the inadmissibility of the warning statement, allegedly obtained from his client is disputed on the grounds that the statement was not made freely and voluntarily due to assaults by members of the SAPS perpetrated upon Accused no. 3.  Accused no. 3 signed the documents presented to him without being informed of the contents thereof and while certain sections of the warning statement were left blank at the time of affixing his signature to the document.  Mrs Patrinos for accused no 4 contended that he was instructed to sign his warning statement and due to threats of further assaults to be executed by the members of TRT, he affixed his signature to the document without being aware of the contents of the document.

[48] Colonel Tankiso Moses Sefuthi testified in the trial within a trial that followed regarding the warning statement he obtained from Accused no. 3 and the warning statement obtained from Accused no. 4.  The warning statement of Accused no. 3, of which the last three pages were stapled together by Mrs Ferreira was handed in and marked exhibit “OO”.  Colonel Sefuthi who recorded Accused no. 3 and also Accused no. 4’s warning statements testified that on 11 February 2017 at 14H10 and at Mangaung Police Station he held an interview with Accused no. 3.  The witness read the constitutional rights as contained in the pro forma warning statement and then proceeded to obtain Accused no. 3’s personal particulars in order to complete the first section of the document.  The charges against Accused no. 3 were again explained to him and the questions contained under the heading “Certificate by Suspects” were read to Accused no. 3 whereupon the Accused responded to the questions as indicated in the document.  These questions concerns the willingness of the Accused to make a statement regarding the offence and whether the Accused is making the statement voluntarily.  Accused no. 3’s reply to the question whether he has any injuries was noted as follows:

“Yes, pain in my eye.”

Accused no. 3’s reply to the following question whether he was assaulted was noted as:

“No”.

Page 1 and 2 of exhibit “OO” was signed by accused no. 3 in the presence of Colonel Sefuthi.  The witness explained that he read the contents of exhibit “OO” in English but then translated each sentence into Sesotho for the benefit of the accused.  Colonel Sefuthi affixed his signature to page 2 and page 3 of exhibit “OO”.

[49] Colonel Sefuthi witnessed the arrest of accused no. 3 on 9 February 2011 at no. 19707 Grassland by Captain Dasheka and confirmed the evidence by Captain Dasheka that accused no. 3, and for that matter none of the other accused persons before Court were assaulted during the arrest, or subsequent to the arrest.  Mrs Ferreira furthermore handed up, marked as exhibit “PP” the Notice of Rights in terms of the Constitution (“SAPS 14A”) form pertaining to accused no. 3. 

[50] From exhibit “PP” it is evident that Captain Khene read Accused no. 3’s constitutional rights to him on 9 February 2017 at 23H40 at Mangaung Police Station.  The signature of Accused no. 3 and Captain Khene appears on exhibit “PP”.  Exhibit “QQ” was handed up provisionally during the testimony of Colonel Sefuthi.  This particular exhibit is a copy of the occurrence book of commonly known as SAPS 10 indicating where Colonel Sefuthi recorded at entry no. 392 the following:

“Suspect detained.  Lieutenant Colonel M Sefuthi from provincial detectives detains Kabelo Senoge for murder and robbery as per Heidedal CAS 7/2/2017.”

This entry was recorded on Thursday, 9 February 2017 and signed by Colonel Sefuthi at 23H40. 

[51] Colonel Sefuthi explained that the inscription “correctly detained” next to his signature is indicative that the detainee did not have any injuries and was in a good physical condition at the time when he was so detained.  The witness confirmed that the warning statement obtained from accused no. 3 was freely and voluntarily made by the accused without any undue influence. 

[52] With regard to the warning statement obtained from accused no. 4, Colonel Sefuthi testified that on 10 February 2017 at 11H50 and at Bainsvlei Police Station he conducted an interview with Accused no. 4 Teboho James Mokoai and completed the pro forma document provisionally handed in as exhibit “RR”.  The witness explained the procedure followed with Accused no. 4 in obtaining the warning statement, which in essence is exactly the same as placed on record with regard to Accused no. 3.

[53] Accused no. 4 indicated to Colonel Sefuthi that he is willing to make a statement, that he is without any injuries and that he was not assaulted or threatened and therefore the statement is made voluntarily.  Once again, Mrs Ferreira covered the content of the statement of exhibit “RR” when same was handed up as an exhibit.  The witness confirmed his signature on the document and identified Accused no. 4’s signature on the document.  With reference to exhibit “F”, already handed in as an exhibit, Colonel Sefuthi explained that Accused no. 4’s constitutional rights were read to him at the time of his arrival at the cells, prior to being detained.  A copy of the SAP 14 pro forma document completed on 10 February 2017 at 01H29 was handed to accused no. 4 at the time of his detention.  Later the same morning Colonel Sefuthi conducted the interview with accused no. 4 with a view of obtaining his warning statement.  In his evidence he confirmed that the content of exhibit “RR” emanated from accused no. 4 and comprised of a detailed statement concerning the events.  Mrs Ferreira informed the witness that the accused’s defence will be that there were certain threats made towards him whereupon Colonel Sefuthi responded that both accused no. 3 and accused no. 4 made their respective warning statements freely and voluntarily.

[54] A copy of the SAP 10 occurrence book reflecting the date, time and physical condition of accused no. 4 was handed in and received as exhibit “SS”.  On Friday, 10 February 2017 at 01H15, entry reference number 280 reflects the issuing of SAP 14A and the detention of accused no. 4 as well as the fact that no visible injuries were noted.  During cross-examination by accused no. 3’s legal representative, Colonel Sefuthi was extensively questioned on his failure to provide medical assistance to accused no. 3 since his complaint concerning pain in his eyes were noted by the witness.  The answer to this question was rather unsatisfactory in the sense that Colonel Sefuthi indicated that he is not responsible for reporting medical ailments of detainees and the accused should have reported any medical problems to the police officers at the station where he is detained who will ultimately arrange for further medical attention.  Being the investigating officer in charge of the case, one would have expected the witness to at least report the complaint received from Accused no. 3 to the officer in charge at the particular police station, or at least follow up on the complaint to ascertain whether the complaint was attended to.

[55] The second aspect that raised concerns is Colonel Sefuthi’s response to Mr Nel’s question pertaining to the procedure followed when obtaining a confession or pointing out by the investigating officer of the particular case.  According to Colonel Sefuthi it is advisable to request assistance from a colleague when obtaining a confession or conducting a pointing out in order to maintain transparency.  However, according to Colonel Sefuthi when there is little time, the investigating officer will obtain the confession or pointing out himself. 

[56] Accused no. 3’s version that he was punched with fists on both eyes was put to Colonel Sefuthi who disputed this contention.  It was furthermore put to the witness that accused no. 3 was held by his hands and feet and thrown into the air and left to fall to the ground.  This occurred at the time of his arrest.  While lying on the ground he was kicked on his ribs.  It is furthermore denied that the five (5) questions, contained in exhibit “OO” were put to accused no. 3 by the witness.  Furthermore, certain sections of exhibit “OO” was not completed when accused no. 3 affixed his signature to the document.  Due to this fear of being assaulted again, any statement that accused no. 3 may have proffered to Colonel Sefuthi was therefore not freely or voluntarily made.  The version of accused no. 3 was denied by Colonel Sefuthi.  Subsequent to obtaining further instructions from his client, it was also contended by Mr. Nel that the witness was not present at the time of the arrest of accused no. 3 and when accused no. 3 met the witness for the first time at the police station, Colonel Sefuthi introduced himself as Mr Motseki, a detective.  Subsequent to obtaining further instructions from his client, Mr Nel put to Colonel Sefuthi that photographs were taken of the accused at the Mangaung Police Station and these particular photographs will provide proof of his allegation that both his eyes were swollen due to the assault perpetrated on him by members of the SAPS.

[57] The version of accused no. 3 is that photographs were taken of nine (9) of the accused now appearing in Court soon after their arrest.  Colonel Sefuthi was not able to deny the version regarding the photographs but denied that the accused were assaulted in his presence.  During cross-examination by Mr Patrinos, on behalf of accused no. 4 Colonel Sefuthi testified that any assaults on detainees are investigated by the police watch dog, the Independent Police Investigate Directorate (“IPID”) and he again explained that at the time of the arrest of the accused in this case, no assaults occurred.  Mrs Patrinos also questioned Colonel Sefuthi regarding the preferred procedure pertaining to the taking down of a warning statement or confession by the investigating officer of the particular case.  Colonel Sefuthi remarked that there is nothing prohibiting the investigating officer from taking down a warning statement from a detainee but conceded that it might be preferable to request a police officer who is” independent” to rather obtain the statement.

[58] Accused no. 4 denies that the five (5) questions contained in the pro forma warning statement under the heading “Certificate by Suspect” were posed to him.  The written part of the statement furthermore did not emanate from him and Colonel Sefuthi threatened to call in the assistance of the TRT members to assault accused no. 4 in the event of him refusing to sign the already written statement contained in exhibit “RR”.  These contentions were denied by Colonel Sefuthi.  It was put by Mrs Patrinos that her client did not provide the information contained and recorded in exhibit “RR” and he does not even know three (3) of the names mentioned in the statement.  Accused no. 4’s eyes were red at the time of his detention and injuries to his chest underneath his clothing were indeed visible.

[59] Accused no. 3 testified in his trial within a trial and mentioned that he was assaulted by members of the SAPS and TRT at the time of his arrest in Bergman Square.  He explained that the members of the SAPS hit him in his face, on both eyes, with their fists and others held him by his hands and feet and he was thrown into the air and left to fall to the ground.  He was kicked on his ribs and according to accused no. 3 his injuries were clearly visible when he reported his injuries at the clinic at Grootvlei.  Accused no. 3’s testimony was further to the effect that soon after his arrest the accused persons were taken to Mangaung Police Station where photographs of each individual accused were taken and subsequently a photograph of the group of accuseds were also taken.  Accused no. 3 denied that his constitutional rights were explained to him at the time of his arrest but conceded that he was indeed handed a copy of exhibit “PP”, which he signed and which document contains his constitutional rights.  Accused no. 3 testified that Colonel Sefuthi was the police officer who detained him but he emphasized that the injuries to his eyes were visible.  According to accused no. 3 Colonel Sefuthi introduced himself as Mr Motseki, a provincial detective.  The witness indicated to Colonel Sefuthi that he was assaulted by members of SAPS at the time of his arrest, but it appeared to him as if this information was of no concern to Colonel Sefuthi.  The witness signed exhibit “OO” without any knowledge of the content thereof and some portions of the document were left blank.  The content of the document was furthermore not read back to him.  Accused no. 3 testified that he saw the assault on accused no. 4 at the time of their arrest.

[60] During cross-examination by Mrs Ferreira accused no. 3 testified that he is acquainted with accused no. 4 and no. 6.  On 9 February 2019 at approximately 18H00 accused no. 3, who was in the company of accused no. 2, no. 4 and no. 6 arrived at accused no. 4’s place of residence at 19707 Grassland.  The police arrived at the residence of accused no. 4 between 18H00 and 19H00.  The witness testified that the occupants of the premises were assaulted by the police as they entered the premises.  Afterwards the accused were thrown outside the house and cuffed.  Accused no. 3 explained that he was hit in his face and after he fell to the floor, he was grabbed by his hands and feet and thrown into the air.  He was subsequently kicked on his ribs.  The witness testified that the assault upon him was of a severe nature and with full force.  The photographs taken at Mangaung Police Station will serve as evidence of the injuries sustained during these assaults.

[61] The accused was questioned as to the reason why his version that he was punched in the face with fists, thrown into the air and subsequently kicked were not put to Captain Dasheka.  Contrary to his testimony in the trial within the trial it was put to Captain Dasheka that accused no. 3 was slapped in his face at the time of his arrest and the assault perpetrated against him has now escalated into a much more severe form of assault and injuries to his eyes and ribs.  Accused no. 3 responded that he did not even see Captain Dasheka at the time of his arrest, let alone being assaulted by him.  According to his testimony he, accused no. 2, no. 4 and no. 6 were taken in a van from the property to the direction of Phase 4 and thereafter to Pieter Swarts.  At Pieter Swarts he noticed accused no. 5 and no. 7 who were cuffed together.  At a later stage they were taken to Mangaung Police Station where photographs were taken.  Accused no. 3 was furthermore questioned regarding his evidence that he reported his injuries when he arrived at Grootvlei Prison.  The witness testified that he reported to the clinic at three (3) different times and complained about pain in his eyes.  Due to the unavailability of medication at the clinic he was advised that he will be called as soon as medication for his eye injury was available.  Accused no. 3 testified that a record of visits to the clinic is kept at Grootvlei Prison.  He however failed to inform the Magistrate, during his first appearance about the assault upon him and the reason for his swollen eyes.

[62] Accused no. 3 was confronted with the improbability that Colonel Sefuthi, without posing any questions to him, would have known of the pain in his eyes and furthermore would make up an exculpatory version on behalf of accused no. 3 and thereafter force him to sign the warning statement.  Accused no. 3 was furthermore confronted with his belated version regarding his visit to the clinic at Grootvlei Prison, which aspect was only placed on record during cross-examination. 

[63] The prosecution applied to reopen the State’s case in the trial within a trial of accused no. 3 and called Sergeant L.S. Mfazwe to testify.  This witness testified that on 9 February 2017 he was on duty at the Crime Intelligence Unit and was requested to assist with the detention of a suspect arrested during the operation where several suspects were arrested.  Exhibit “SS”, which was provisionally handed in, was identified by this witness as his recording made in the SAPS 10 register regarding the detention of Accused no. 4.  The witness confirmed the information contained in the register that accused no. 4 had no visible injuries and did not report any injuries at the time of his detention at Bainsvlei Police Station.  Sergeant Mfazwe furthermore confirmed his handwriting  on exhibit “F” and testified that he explained accused no. 4’s constitutional rights according to the contents of the SAP 14A and subsequently handed a copy of the SAP 14A to accused no. 4. 

[64] The prosecution handed in exhibit “TT”, a bundle of documents containing the Magistrates’ Court charge sheets, the notes made by the Magistrate on 15 June 2017 that all thirteen (13) accused confirmed their instructions that they are abandoning their bail application and instructions from the Director of Public Prosecutions, dated 21 September 2017, with the request that photographs be taken of all the accused depicting the tattoos on their bodies.  Furthermore the content of the bundle of documents records the appearances of the accused in the Magistrate’s Court and is indicative of the fact that no complaints were lodged of any assaults or injuries during their numerous appearances at the Magistrate’s Court.

[65] The prosecution called Colonel Demakatso Mabitle, the Assistant Manager of Health Care Services at Grootvlei Correctional Services.  She has twelve (12) years’ experience in health care services and explained that she received a request on 16 January 2019, the day prior to her testimony in Court, to search the registers at the clinic at Grootvlei Prison to ascertain whether a detainee with the name Kabelo Simon Senoge (accused no. 3) requested medical assistance at the clinic since February 2017.  Exhibit “UU” comprises of the “Health Risk Assessment” form of accused no.3 and was compiled by Mr Motloung, a professional nurse in the employment of the Department of Correctional Services at Grootvlei.  The exhibit was received provisionally on the basis that Motloung will give evidence pertaining to the information contained in the document.  Exhibit “UU” evidences the questions posed to accused no. 3 and his reply thereto on 14 February 2017 by Mr Motloung regarding his health and/or injuries at the time of his detention.  The “Medical Practitioners’ History Continuation Sheet”, marked exhibit “VV” was provisionally allowed, also on the basis that Mr Motloung will be called to testify regarding the completion of this particular document.  Exhibit “VV” known as the “G 335 A” is a record of visits by a particular detainee to the clinic and complaints received or medical attention provided to the detainee.  It is recorded that on 14 February 2017 at 10 o’clock in the morning, accused no. 3 raised no medical complaints and/or injuries at the time of his detention or  ever since being detained at Grootvlei prison.  Exhibit “WW” evidences that accused no. 3 did not complain of any injuries or ailments at the time of his detention at Grootvlei.  Any complaints received at the time when the warrant for his detention was issued would have been noted on exhibit “WW” or the so-called “J 7”. 

[66] The prosecution handed in exhibit “XX” containing a bundle of lists with names of inmates at Grootvlei Correctional Facility who reported at the clinic and comprises of approximately eleven (11) pages dating from 6 February 2017 to 17 April 2017.  Nowhere on any of these pages could any indication of accused no. 3’s name be traced. 

[67] However, accused no. 3’s version pertaining to the testimony of Colonel Mabitle and the exhibits marked “UU”, “VV”, WW” and “XX”, remained that he was assaulted at the time of his arrest and that he has no recollection of any documentation compiled at the time of his detention at Grootvlei, but that he indeed reported his injuries to his eyes at the clinic. Mr Motloung a professional nurse with twenty four (24) years’ experience at Grootvlei Correctional Services with a Bachelor degree in Nursing, testified that he completed exhibit “UU” and explained the procedure followed after a detainee is admitted at prison.  The witness confirmed that accused no. 3 did not complain of any injuries and no injuries were visible at the time of his detention.  During cross-examination by Mr Nel, it was put to the witness that no interview with accused no. 3 took place at the time of his admission and that the documents, exhibit “UU” and “VV” must have been compiled since the allegations regarding his report to the clinic was placed on record, thus on the day prior to the witness’s testimony in court. 

[68] The testimony of Accused no. 3 pertaining to the procedure followed when he arrived at Grootvlei Prison was that he was interviewed by a lady called Tsidi concerning his medical condition but that she did not complete any documentation during her interview with him.  He did not receive any medical treatment for his swollen and bloodshot eyes at the time when he was detained at Grootvlei Prison.  Accused no. 3 testified that the documents that were handed in by the State, indicating that he was interviewed on the day of his admission to Grootvlei Prison, were actually completed on the day prior to his testimony in Court, namely on 16 January 2019. 

[69] The testimony of accused no. 4 was that he was forced to sign his warning statement, exhibit “RR” by Colonel Sefuthi.  He conceded that his signature appeared on the said exhibit but the contents thereof did not emanate from him.  According to accused no. 4 his constitutional rights were never explained to him but he testified that he signed and received a copy of constitutional rights but failed to read same. 

[70] On Friday 25 January 2019 the Court made the following ruling:

1. In the trial within a trial in which the admissibility of an admission by accused no. 4, made to Colonel Sefuthi was placed in dispute, the State requested leave to cross-examine accused no. 4 on the contents of the statement as contained in exhibit “RR”.

2. Mrs Patrinos, on behalf of accused no. 4 objected to leave being granted on the basis that, until the question of its admissibility has been resolved in the trial within a trial, the contents of the warning statement, exhibit “RR” may not be disclosed to the Court.

3. Having heard and considered the arguments on behalf of the State and accused no. 4 and the case law on this point I ruled that the contents of the statement contained in exhibit “RR” may be disclosed in as far as it is deemed necessary to cross-examine accused no. 4 for the limited purpose, namely to resolve the question of credibility.  In particular, it will not be used for the purpose of considering and deciding the question of guilt or innocence unless it is duly proven to be admissible.  I therefore ruled that Mrs Ferreira on behalf of the State may put questions relating to the contents of the statement to accused no. 4.  The reasons for this ruling are included in the reasons for the ruling pertaining to the trial within the trial regarding the admission of accused no. 4’s warning statement.

[71] During cross-examination of accused no. 4 he conceded that his constitutional rights were indeed explained to him by an unknown member of SAPS.  He also testified that all the names referred to in the statement were already written in the statement at the time when he signed the document. 

[72] Having heard the evidence and considered the arguments on behalf of the prosecution and on behalf of the defence, I ruled that the evidence pertaining to the warning statement, exhibit “OO” and the warning statement exhibit “RR” be provisionally allowed.

[73] In accordance with the general rule, the onus of proving both facts and conclusions relevant to the inquiry into the admissibility of evidence rests on the State and must be discharged beyond reasonable doubt.  Different considerations may apply where Section 35(5) of the Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”) comes into play.  It provides that evidence, obtained in a manner that violates any rights in the Bill of Rights must be excluded if the admission of the evidence, would render the trial unfair or otherwise be detrimental to the administration of justice.  For purposes of this ruling I accepted that the State bears the onus of proving the two (2) requirements in Section 35(5) of the Constitution.  The State sought to introduce a written statement made by accused no. 3, exhibit “OO” to Colonel Sefuthi and a written statement made by accused no. 4, exhibit “RR” also made to Colonel Sefuthi as evidence in this case.  The legal representatives of accused no. 3 and accused no. 4 informed the Court that the contents of these statements were not confessions but that both statements were of an exculpatory nature and neither were made freely and voluntarily.  The requirement that an extracurial statement to someone in authority must be made freely and voluntarily is reinforced by the two provisions in the Constitution, most obviously Section 35(3) under subsection (h) and (j) which guarantee an accused the right to a fair trial by which is also included the right to remain silent (which would be undermined if there is, for instance, coercion) and the right not to be compelled to give self-incriminating evidence; which I understand to include evidence that may damage the accused’s credibility.  It remains evident that the evidence will be prejudicial to both accused and therefore it remains essential to ensure that if, admitted, it was done freely and voluntarily.

[74] The testimony of the witnesses on behalf of the prosecution were that none of the accused were threatened or assaulted in any way during their arrest that occurred on the afternoon and evening of 9 February 2017.  The State witnesses denied that any threats were made to accused no. 3 and accused no. 4 or that they refused to sign the written statements, exhibit “OO” and exhibit “RR”.  Accused no. 3’s version regarding the assaults perpetrated upon him at the time of his arrest escalated in seriousness as the trial progressed and so did his injuries.  Both ccused said that they were merely told to sign the statements but did not have it read back to them nor were they provided with an opportunity to read these statements.

[75] Every one of the witnesses called in the trial within a trial relating to accused no. 3 and accused no. 4 vehemently denied in their evidence that they or any one of them, maltreated the accused in any way.  The exhibits handed in by the prosecution provides an evidential paper trail confirming the several occasions on which each accused’s constitutional rights were explained, the right to legal representation were explained and questions posed regarding threats of violence or injuries sustained since their arrest on 9 February 2017 and during the period of their detention in the police cells and at Grootvlei Prison.

[76] When Accused no. 3 took the stand he contradicted his instructions to counsel regarding the assault upon him at the time of his arrest and the seriousness of his injuries.  It became apparent that accused no. 3’s version regarding the signing of the warning statement is unconvincing and can safely be rejected as false.  Accused no. 3’s initial evidence that he was well aware of signing documents relating to DNS samples and further documents regarding his constitutional rights changed as he gained more confidence and his injuries escalated in seriousness to a point where he could hardly see and had to be assisted by Colonel Sefuthi to hold a pen and sign his warning statement.  He had obviously forgotten his initial evidence regarding his ability to ascertain the contents of the string of documents that he already signed in the short period since his arrest.

[77] Accused no. 4’s version that he was forced to sign an exculpatory statement of which the content did not emanate from him can safely be rejected as unconvincing and false.  Mrs Ferreira’s contention that all the State witnesses were good, credible and reliable and that both exhibit “OO” and exhibit “RR” should be allowed into evidence are supported by the evidence.  On the other hand, both accused no. 3 and Accused no. 4 came across as untruthful and unreliable witnesses.  The Accused clearly concocted their stories of duress, threats of assaults and assaults by the members of SAPS.  I was at the time of my ruling, and, still am, of the opinion that the State succeeded in establishing that the warning statements made by accused no. 3 and accused no. 4 were made freely and voluntarily by both accused, while in sound and sober senses and without having been unduly influenced thereto.

[78] I accordingly allowed the contents of exhibit “OO” and exhibit “RR” into evidence and, as I was not swayed during further evidence in this matter or arguments to come to a contrary conclusion, the provisional ruling to admit both exhibits became a final ruling and the contents of the warning statements will be assessed together with  the other evidence.

[79] The contents of exhibit “OO” were read into the record of the proceedings:

“I, Kabelo Simon Senoge, suspect in this case hereby state that I am in my sound and sober senses, that I know the allegations against me and willing to make the following statement/answer questions voluntarily. On 2017/01/30 in the afternoon I was at Mosa’s place with Mosa and Rasta.  I then went to the nearby shop to buy cigarettes.  Mosa and Rasta came to me and told me that they got a phone call that the Maroma gang members are captured at Phase 3 we must go join the BTK’s because the deceased were looking for Dimeche and we must pretend to be the Maroma.  Other BTK members arrived and we all moved to the direction of Limo Mall except Mosa who moved (eligible).  At the crime scene Dimeche wanted Rasta to also be present because we left him behind.  Rasta was (eligible) and while moving toward the crime scene.  After Rasta’s arrival the three deceased were instructed by Dimeche to sit down.  Dimeche started to stab the first deceased.  Nkomo, Karabo and Ditaba, Messi, Zamele, Lloyd and others, whose names I don’t know also stabbed after Dimeche.  Also Simon and Cosmo stabbed the deceased all of them, as well as Lebeko stabbed.

Myself and Rasta did not take part in the stabbing and we left the whole BTK’s stabbing all three deceased.  We went to report the incident to Mosa’s brother who then told us to move away because he doesn’t want trouble at his place and we went to Bergman Square where I was arrested.”

[80] Exhibit “RR” was read into the record and contained the following statement:

“I Teboho James Mokoai, suspect in this case hereby, state that I am in my sound and sober senses, that I know the allegations against me and willing to make the following statement/answer question voluntarily.  On 2017/01/30 in the afternoon, I was at Mosa’s place.  It was myself, Mosa, Baba and Mosa’s brother with Kabelo when Mosa got a phone call from Lebeko that they have captured the three Maroma gang.  We should join them.  Myself, Mosa and Kabelo went to them.  Coming there, I saw three Maroma gang members seated with them.  I wanted to withdraw and me and Mosa went back to where we were seated.  Dimeche called again and talked to Mosa that we must join them.  Me and Mosa didn’t go join them.  Dimeche called for the second time.  I went alone and leave Mosa behind.  On my arrival to them I tried to stop them, but they started assaulting the Maroma gang with knives.  Me and Kabelo walked away.  They then took the direction of Lima Mall and I don’t know what happened there.  That’s all.”

 

TRIAL WITHIN A TRIAL:  ACCUSED NO. 5, ACCUSED NO. 7 AND ACCUSED NO. 8:

[81] On 11 October 2018 I was informed by Mrs Ferreira on behalf of the Prosecution that she intends leading evidence concerning a pointing out made by accused no. 5 and also evidence regarding certain statements made to a police officer by accused no. 7 and accused no. 8.  Mrs Ferreira also informed me that she discussed these aspects with the defence and was informed that the admissibility of the evidence regarding the pointing out as well as the statements made by accused no. 7 and no. 8 are disputed by the said accused.

[82] The State then proceeded to call the first witness in the trial within the trial, Constable Setjhaba Link Ralekgolela of the Welkom Detective Unit.  He testified that during January 2017 he was stationed at the Navalsig Detective Unit in Bloemfontein.  On 10 February 2017 Colonel Sefuthi telephonically requested the witness and his colleague, Constable Thulo to assist with the pointing out.  They proceeded to Park Road Police Station to collect the suspect who was then taken to hospital for a medical check-up and to complete a J 88 form.  According to Constable Ralekgolela’s recollection of the events the suspect then directed him and Constable Thulo to an unknown mall near Heidedal where he remained in the police vehicle and the suspect and Constable Thulo alighted from the vehicle.  After his colleague and the suspect returned to the vehicle they took the suspect back to the Park Road Police Station.

[83] A copy of the occurrence book register evidencing that Lebohang George Teele (Accused no. 5) was booked out by the witness on 10 February 2017 at 13H40 was submitted and marked exhibit “G”.  Accused no. 5 did not complain of any injuries and the witness could not detect any visible injuries.  The witness testified that accused no. 5 made the pointing out to Captain Strydom who followed the police vehicle in his private vehicle.  The witness was unsure whether a photographer accompanied them during the pointing out as it was his first pointing out that he ever dealt with.  Entry number 624 on the second page of exhibit “G” indicates that the suspect was brought back by Constable Thulo to the Park Road Police Station and the suspect was without visible injuries.  Constable Ralekgolela was unsure whether accused no. 5’s constitutional rights were explained to him prior to the pointing out.  Mr Kgoelenya, on behalf of accused no 5 put it to the witness that accused no. 5‘s rights was not explained on the day in question.   

[84] The second witness in the trial within a trial, Captain Barend Strydom stationed at Welkom Detective Service with thirty one (31) years’ experience in the SAPS testified that on 10 February 2017 he was requested to conduct a pointing out in Bloemfontein.  At his arrival at the Provincial Detective Offices in Bloemfontein he met Colonel Sefuthi and arrangements was then made for the pointing out to proceed from Park Road Police Station.  At Park Road Police Station Constable Ralekgolela and Constable Thulo brought accused no. 5 from the cells whereafter the interview took place.  Constable Thulo acted as an interpreter.  Exhibit “H” was handed in on a provisional basis and consisted of the notes on the pointing out of a scene conducted by this witness.  The witness testified that on 10 February 2017 at 09H30 he was requested by Colonel Sefuthi to assist with the pointing out and at 15H40 at Park Road Police Station accused no. 5 was handed to him to proceed with the pointing out.  The photographer, Constable G P Moleko was also present in the office at the time of the interview and during the pointing out. 

[85] Captain Strydom informed accused no. 5 that he was not obliged to point out any scenes or places and warned him that whatever he may point out or may say will be noted down and photographs will be taken of the scene or places pointed out and may be used as evidence during his trial.  Once again accused no. 5’s rights, pertaining to legal representation and his right to remain silent were explained to him by the witness.  Captain Strydom noted that accused no. 5 wore black trousers, black and green MTN sports top and appeared normal.  Accused no. 5 indicated to Captain Strydom that he is willing to show what he knows and that he was not influenced to make the pointing out.  Captain Strydom reassured accused no. 5 that if he had been forced, threatened or assaulted in any way to make a statement or to point out anything he is able to assist him.  Accused no 5 indicated that he understood, and that they may proceed with the pointing out.  Accused no. 5 furthermore indicated that the incident took place on 2 February 2017 and again indicated his willingness to proceed with the pointing out.

[86] From the office where the interview took place they moved to the State vehicle where photographs were taken.  Captain Strydom sat in the front left passenger seat while accused no. 5 sat behind the driver in the back seat.  Next to accused no. 5 was Detective Constable Thulo who acted as the interpreter and the photographer Constable Moleko accompanied them.  The pointing out started at 15H45 and was completed at 16H50.  Captain Strydom testified that he did not accompany Constable Ralekgolela and accused no. 5 to the National Hospital, but prior to conducting the pointing out, he convinced himself that the person doing the pointing out was free from injuries which information he learned from the completed J 88 medical form.  Exhibit “J”, containing photographs of the pointing out were handed in, however only the initial and the very last two photographs were left unstapled when handed in as an exhibit.  The initial photographs where of accused no. 5 and depicted the tattoos on his body and was furthermore indicative that no injuries, open wounds, blood or scars are visible.  Photograph 8 is a close-up facial photograph of accused no. 5 and no visible injuries are visible on the photograph.

[87] The witness confirmed the content of photograph 21, photograph 23, photograph 24, the full frontal photograph of the accused showing no visible injuries and the odometer of the vehicle.  Mr Kgoelenya cross-examined the witness concerning the contradictions between his evidence and the evidence of Constable Ralekgolela who testified that they left from the National Hospital where Captain Strydom followed the police vehicle in his private vehicle to the scene of the pointing out.  The witness denied the version put to him and testified that he did not proceed in his white double cab bakkie to the scene of the pointing out but everybody travelled in a blue Toyota Corolla motor vehicle which is visible in the photographs.

[88] Colonel Sefuthi testified that accused no. 5 was located at an unnumbered corrugated iron sheet house in Pieter Swarts Township..  He arrested accused no. 5 who was in the company of two (2) other accused.  The witness explained that he informed accused no. 5 that he was busy investigating a murder case and informed him of his constitutional rights in Sesotho.  At Mangaung Police Station and during an interview with accused no. 5 he indicated that he is willing to make a pointing out.  Colonel Sefuthi then arranged with Captain Strydom as well as Constable Thulo and Constable Ralekgolela to proceed with the pointing out on the following day.

[89] During cross-examination by Mr Kgoelenya, accused no 5’s version that he was arrested on the street and not in a shack, was put to the witness.  At the time of his arrest accused no. 5 was immediately instructed to hand over the clothes that he was wearing whereafter the police started searching his shack.  It was furthermore denied that accused no. 5 granted permission to search his house.

[90] It was put to Colonel Sefuthi that accused no. 5 was not interviewed at Mangaung Police Station but was arrested with other accused who were indeed taken to the Mangaung Police Station.  He was however transferred to the Tourism Centre where he was assaulted by Captain Dasheka and members of the TRT.  Captain Sefuthi was present at the Tourism Centre.  A plastic bag was placed over his head, covering his face which nearly suffocated him.  Captain Khene stopped the assault by Captain Dasheka on him.  During cross-examination by Mr Kgolenya on behalf of accused no. 5, exhibit “M”, Colonel Sefuthi’s statement as well as exhibit “N”, accused no. 5’s warning statement were handed in as exhibits.  The warning statement was obtained from accused no. 5 on 11 February 2017 and indicates that accused no. 5 declined to make any statement.  It was placed on record that accused no. 5 was made aware of his rights at about midnight on 10 February 2017.

[91] Captain Alfred Khene of the Detective Unit at Park Road Police Station, who has thirty one (31) years’ experience in the SAPS, confirmed that he took down the warning statement of Accused no. 5.  He confirmed the testimony of Colonel Sefuthi regarding the arrest of accused no. 5.  After the arrest, permission to search the corrugated iron shack was requested and obtained whereafter the shack was searched.  The arrested persons were removed to Park Road Police Station.

[92] Exhibit “K”, the Notice of Rights in terms of the Constitution (“SAPS 14A) indicated that accused no. 5’s rights in terms of Section 5 of the Constitution were read to him on 10 February 2017 at 00H27 at Park Road Police Station.  No indication of any threats or assaults were recorded on exhibit “K”.  During cross-examination by Mr Nel it was denied that the accused were found hiding in the corrugated iron shack..  Captain Khene responded that the shack was locked.  It was put to Captain Khene that accused no. 5 who was in the company of Mzwele, Messi and Seun in the street, saw the white Polo motor vehicle and that Captain Khene was the driver of the vehicle at the time of their arrest.

[93] The next witness in the trial within the trial was Captain Basil Anthony Sandy of the Local Criminal Record Centrum and part of the provincial task team.  Captain Sandy has thirty two (32) years’ experience in the SAPS.  On 9 February 2017 at 20H50, Captain Sandy met up with Colonel Sefuthi and Captain Khene in the Bloemspruit area.  Several vehicles moved in a convoy and Captain Sandy was alone in his vehicle at the rear of the police convoy.  At 21H05 the convoy stopped in front of a corrugated iron shack without a number in Pieter Swarts informal settlement.  Captain Khene was in the company of a young boy and the boy, whose further particulars was unknown to Captain Sandy, pushed open the door of the property where a bed with two (2) pedestals next to each other were found.  Exhibit “O”, containing photographs taken by the witness was handed in and Captain Sandy indicated the corrugated iron shack visible on photographs 1, 2 and 3 in exhibit “O”.  Photograph 4 to photograph 10 depicts a sports bag, found in the left pedestal next to the corrugated iron wall.  Photograph 6 depicts the content of the sports bag, a t-shirt, more clearly visible on photographs 7 to 12.  The t-shirt was removed from the bag as seen on photographs 9 and 10 and was placed in an exhibit bag with number PA3000710996 and marked as exhibit “1A1”.  A pair of beige/brown, Chino, “Oak Ridge” pants, marked exhibit “1A2”, depicted on photographs 14, 15 and 16 were seized and placed in an exhibit bag with number PA3000711002 as depicted on photographs 17 and 18.

[94] The convoy then proceeded to house no. 9045 in Pieter Swarts township. Photographs 21, 22 and 23 shows the inside of this property.  At a third property, house no. 5365, Bloemside 1, depicted on photographs 24 and 25 the witness entered through the kitchen door and a blue washing basket, visible on photograph 26 was shown from which a pair of blue jeans, removed at the top of the heap in the basket and marked as exhibit “3A1” and depicted on photographs 27 to 30 in exhibit “O”.  Next to the blue washing basket was a cupboard from which a yellow t-shirt was removed after it was pointed out to the witness.  The yellow t-shirt (Nike) was marked exhibit “3A2” as shown on photograph 35 and placed into an exhibit bag numbered PA3000706213.  According to the testimony of Captain Sandy a young boy and Colonel Sefuthi then moved to a bedroom where the investigating officer, Colonel Sefuthi, lifted the bedding and underneath the bed a pair of brown shoes, which was marked exhibit “3A3”, as shown on photographs 38 to 39 was removed and packed into exhibit bag PA300071100 as shown on photograph 42.  The exhibits were booked in a register for safekeeping in the exhibit office, SAP 459, with exhibit number 96/2017.  On 14 February 2017 the witness compiled his forensic letter, inspected all the exhibits to ascertain whether all the seals were still intact and sent all the exhibits per courier to the forensic laboratory.  The letter dated 14 February 2017, accompanied the exhibits to the Chief Forensics Science Laboratory and was received as exhibit “P”.  The exhibit log, part of Captain Sandy’s crime scene report, completed on the scene as he collects the exhibits, marked “LCRC reference number 07/02/2017” with a reference number of each exhibit, a description of each exhibit, the place and position where it was found, the date and the packing number was accepted as exhibit “Q”.

[95] During cross-examination by Mr Nel, Captain Sandy indicated that the exhibit bag containing the brown shoes found underneath the bed, was sealed and a photograph depicting the sealed bag, though not included in exhibit “O”, is available on his laptop and was subsequently handed in and marked exhibit “R”.  It was furthermore put to the witness that accused no. 7’s instructions are that the property referred to as House no. 9045 belonged to a man called Lehlohonolo Motsepe, who is much taller than accused no. 7 and he wears a size 8 or size 9 shoe.  The shoes found underneath the bed belong to Lehlohonolo Motsepe, who left the shoes at the house whereafter accused no. 7 kept the shoes underneath his sister’s bed.

[96] According to accused no. 7, he informed  the members of the police that the shoes belonged to the said Lehlohonolo Motsepe at the time the shoes was seized by the witness.  Accused no. 5’s version that he stayed with Thabang Makibinyane in the shack and the sports bag belonged to the said Thabang Makibinyane was also put to this witness, who had no knowledge thereof.  At the time when the sports bag was discovered, accused no. 5 made the police aware of the fact that he is not the owner of the sports bag, nor the contents thereof and it was the property of Thabang Makibinyane.  Captain Dasheka testified in the trial within the trial and explained that on 9^th February 2017 at around 15H30 and subsequent to the arrival of Colonel Sefuthi and Captain Khene, and due to information received after the arrest of accused no. 1, it was decided to proceed with the investigation and to secure further arrests and seize clothing with possible blood stains as soon as possible. Therefore it was decided not to obtain a search warrant at the Magistrate’s Court due to the fact that time was of the essence.  According to Captain Dasheka, it was highly likely that, after the arrest of one member belonging to a gang, the message could soon reach the other members which could lead to the destruction of evidential material.

[97] The witness confirmed his evidence in the main trial that suspects were not threatened, assaulted or manhandled in any way and further denied that any of the accused were taken to the Tourism Centre where they were assaulted.

[98] It was put to Captain Dasheka by Mr Nel on behalf of Accused no. 7 and 8 that the police had sufficient time to obtain a search warrant prior to launching the operation, search of the properties referred to and the seizure of the evidential material referred to by Captain Sandy.  Captain Dasheka was accused of assaulting accused no. 7 at the Tourism Centre by smothering him with a surgical glove, filled with water and held over his nose and mouth, which accusation was denied by Captain Dasheka.  Thereafter Captain Dasheka smothered accused no. 7 with a plastic bag, sprayed with teargas and pulled over his head, which accusation was also denied by Captain Dasheka.

[99] It was put to Captain Dasheka that accused no. 8 was slapped in his face several times and accused no. 1, 3, 6, 7, 8 and 10 were all assaulted by other members of the SAPS at the Tourism Centre.

[100] Warrant Officer R.J. Motseki, who has 26-years’ experience as a member of the SAPS, testified that on 11 February 2017 he was requested to obtain a warning statement from accused no. 7, Pogisho Paul Nathane, also known as Messi.  Page 1 and page 2 of the warning statement marked exhibit “S” was provisionally allowed and the last paragraph on page 2 was covered by Mrs Ferreira.  At 14H15 and at Heidedal Police Station, the witness questioned accused no. 7 whether he understood the charges levelled against him and whether he is prepared to make a statement voluntarily to which accused no. 7 replied that he is willing to make such a statement.  Accused no. 7 did not report any threats of violence, assaults nor any injuries at the time.  After completion of the statement it was read back to him whereafter accused no. 7 signed the statement on several pages.  After completion of the interview and taking down of the statement the witness returned accused no. 7 to the cells.

[101] At 16H30 on the same day, the witness also took down the warning statement of accused no. 8, Zwelinlungile Ntlathi, as per exhibit “T”.  The witness conducted the interview at Heidedal Police Cells and accused no. 8’s rights were explained to him during the interview.  The pro forma document was completed and the accused did indeed provide a statement.  The statement was then read back to accused no. 8 and upon replying that he was satisfied with the contents thereof, signed the statement.  There were no threat of violence or assaults reported by accused no. 8 to the witness and the statement was given freely and voluntarily.

[102] During cross-examination it was disputed that accused no. 7 and 8 were requested to undress to ascertain whether they might have any injuries to their bodies.  The witness confirmed that neither accused no. 7 nor accused no. 8 reported any assaults perpetrated against them.  Both accused no. 7 and 8 denied that they proffered any information to the witness and that the contents of the statements contained in exhibit “S” and exhibit “T” were read back to them after the interviews.  It was put to the witness that both accused no. 7 and 8 were assaulted by members of the SAPS even though they did not display any visible injuries at the time of the interview with the witness.  It was also put to Warrant Officer Motseki that both accused no. 7 and no. 8 were terrified of being assaulted again and it was furthermore denied that the content of the statements were written in the presence of accused no. 7 and 8.  It was put to the witness that both accused no. 7 and 8 merely signed the documents handed to them for their signature without knowing the contents thereof.

[103] Accused no. 5, a 25-year old male who, according to him  resided with Thabang Makibinyane at the time of his arrest on 9 February 2017, testified that he was arrested in the street close to his residential address.  At the time of his arrest he was in the company of accused no. 7 and accused no. 8 as well as Lehlohonolo Motsepe also known as Mediele.  At the time when the police vehicles approached them, Mediele ran away but he was arrested and later released at Mangaung Police Station.  Accused no. 5 was informed that he was arrested in a murder case whereafter they were removed to the Mangaung Police Station.  Accused no. 7 and 8 and Madiele was in the police van with him.  At Mangaung Police Station, Madiele alighted from the police vehicle and Accused no. 5, no. 7 and no. 8 were taken to the Tourism Centre where Captain Dasheka took him into an office and made him lie on his back.  Captain Dasheka sat on his chest and put a plastic bag, filled with pepper spray on his head. 

[104] Accused no. 5 claimed that a statement was obtained from him by Colonel Sefuthi at the Tourism Centre, however this version was never put to Colonel Sefuthi for his response.  Accused no. 5 saw accused no. 1, who was placed in another vehicle at the Tourism Centre whereafter they left the Tourism Centre and went to Bergman Square, to accused no. 4’s residence.  This occurred at around 15H30 to 16H00.  Accused no. 5 was cuffed together with Accused no. 7.  At the residence of Accused no. 4 Captain Dasheka, Colonel Sefuthi, the TRT members and the photographer, Captain Sandy entered the premises.  From there the police took him to his place of residence where he informed the police that he was staying with Thabang Makibinyane at the shack.  This information was relayed to members of the TRT, whom he also saw during the trial when they attended the Court proceedings.  Thabang Makibinyane joined him in 2016 and had been living with him for a period of five (5) to six (6) months.  The last time he saw him was at the time of his arrest.

[105] Accused no. 5 denied granting permission for his shack to be searched by the members of the police.  Thereafter they left to accused no. 7’s place of residence and thereafter to the Mangaung Police Station.  Accused no. 5 conceded that his Notice of Rights as per exhibit “K” was given to him when he was taken to the cells.  Regarding the pointing out as per exhibit “H” he testified that Constable Ralekgolela accompanied him from Park Road Police Station for the pointing out whereafter they went to Limo Mall.  He denied the evidence presented by the State that he was willing to make a pointing out.  He furthermore denied making the pointing out freely and voluntarily as he was instructed to point to certain spots.  According to accused no. 5 he never met Captain Strydom before the pointing out and he found Captain Strydom at the Park Road Police Station while he was completing a form.

[106] Accused no. 5 testified that he indeed sold a pair of tekkies to the witness, Dimakatso Makate. The tekkies belonged to three (3) gentlemen who came to him and requested him to assist with the sale of the tekkies.  He confirmed her evidence that she indeed purchased the tekkies and paid an amount of R100.00.  Having been told that the tekkies belonged to one of the deceased he would not have assisted in the selling of the tekkies.  During cross-examination by Mrs Ferreira, accused no. 5 conceded that there was no assault at the time of his arrest but the assault on him by Captain Dasheka took place at the Tourism Centre.  From the Tourism Centre the arrest of accused no. 3, 4 and no. 6 took place whereafter the members of SAPS returned to his place of residence to search his shack.  In his reply to the question how the police knew to seize the green t-shirt and brown pants at his shack if nobody told the police about these particular items, he replied that he showed them his cupboard, whereupon the police decided which items to seize.  Accused no. 5’s reply to the prosecution’s question why it was put to Colonel Sefuthi that he was ordered to show them his shack and the clothes that he was wearing, accused no. 5 replied that he was indeed asked to indicate where he kept his clothes.  He however denied replying to these particular questions.  Accused no. 5 then testified that when the police came they did not ask him where his shack was located.  They took him to the Tourism Centre, and then left to arrest the other accused whereafter they took him to his shack to search for the clothes.  It was therefore put to accused no. 5 that his version now differs from the version put to Colonel Sefuthi.  It was furthermore put to accused no. 5 that it is unlikely that Colonel Sefuthi, while conducting an illegal search would request a photographer to photograph the illegal search.  Accused no. 5 replied that he does not have the answer to these questions as he was outside during the search and whatever happened inside his shack he does not have any knowledge of.

[107] During cross-examination accused no. 5 testified that the plastic bag that contained pepper spray was held over his face while members of the TRT was holding his hands and legs in order to immobilise him.  It was put to him by Mrs Ferreira that in his evidence in chief he explained that the plastic bag, apart from the pepper spray, also contained water.  Accused no. 5 then informed the Court that when you pour pepper spray into a bag it forms a liquid, something like water and that is why he referred to water inside the bag during his evidence in chief.

[108]   It was put to him that his version that he informed the police that the clothes that were seized belonged to Thabang Makibinyane was not put to Colonel Sefuthi nor Captain Khene when they testified.  Accused no. 5 replied that he did inform members of the TRT at the time of the search but not Colonel Sefuthi nor Captain Khene nor Captain Strydom.  Due to his distrust of the police officers, he did not inform Captain Strydom of any threats or assaults perpetrated against him and did not ask his assistance to arrange protection against any further harm.  Accused no. 5 conceded that he informed the police about the black and white Adidas Superstar tekkies sold to Dimakatso and provided information to the police regarding the sale of the tekkies. 

[109] Accused no. 5 testified that the office where he was tortured at the Tourism Centre was located on the ground floor and there were no other businesses or shops at the particular centrum.  Accused no. 5 was taken to the Tourism Centre during the day at approximately 14H30 to 14H45.  According to accused no. 5, the police vehicle parked in front of the door where they entered the building. He was not able to provide a description of the parking area where the police vehicle stopped in relation to the Tourism Centre and whether the parking area was at the side of the building or not. 

[110] Accused no. 7, Pogisho Paul Nathane, testified that he was arrested while standing with accused no. 5 and no. 8 in the street.  He knew accused no. 8 from the soccer but only met accused no. 5 on that particular day.  Accused no. 7 corroborated accused no. 5’s version that, at the time of the arrest, Madiele ran away and  was caught by Captain Khene. After their arrest they went to Mangaung and did not see Madiele afterwards.  From Mangaung they departed to the Tourism Centre.  Accused no. 7 testified that accused no. 5 was made to lie face down whereafter he changed the version to say that accused no. 5 was laying on his back.  Accused no. 7 was taken into a separate office and was made to lie facing downwards.  Captain Dasheka used a glove with water and placed it on his face to suffocate him.  From the Tourism Centre they went to Bergman Square where Accused no. 2, 3, 4 and 6 were arrested whereafter they returned to accused no. 5’s shack and where he was cuffed with accused no. 5 when they alighted the vehicle.  Accused no. 7 testified that the police requested the clothing that he was wearing on the previous Monday and he agreed to this request.  He testified that the police demanded the shoes that he was wearing on the Monday.He replied that he was still wearing the very same shoes, but the police proceeded to a bedroom where they found a pair of dirty Caravella shoes whereupon he informed the police that the shoes belong to Madiela.  Madiela informed him that the particular pair of shoes were too small and he left the Caravella shoes with the witness and borrowed a pair of flip flops (from accused no. 7). The witness did not provide the information as per exhibit “S” but merely signed the document due to fear of further assaults.  During his evidence in chief accused no. 7 conceded that he indeed received a document containing his rights.  Accused no. 7 confirmed that the contents was read to him but not explained and his signature does indeed appear on the document.

[111] During cross-examination, Accused no. 7 testified that the police were not interested in the shoes that he was wearing on the Monday and they did not remove the shoes from his feet.  Accused no. 7 then testified as follows:

“I then showed them the other shoes that were there.  I took them out under the bed.  They then took them because they were dirty.”

And further:

“I did not give them.  I only showed them that these were the only shoes that are there.  They then took them.”

[112] It was put to the accused that he is adjusting his version regarding the size of the shoes as it was put to Captain Sandy that Lehlohonolo’s shoes were a size 8 or 9, but during his testimony in chief he replied that Lehlohonolo wore a size 7 or 8 shoe.  Accused no. 7 replied that even though Lehlohonolo’s feet were much bigger in size he was still able to comfortably wear his “flip flops” and even kept accused no. 7’s shoes for a period of more than two (2) weeks. However, accused no 7 adjusted his version to a period of a week or a few days. According to accused no. 7 he learned from Captain Dasheka that Lehlohonolo was killed by a person called Satan.

[113] Subsequent to the testimony of accused no. 5 and no. 7 in the trial within the trial the State applied for the reopening of the State’s case and presented the evidence of Johan Abraham Putter, a Captain with the HAWKS and stationed at the Tourism Centre, Bloemfontein. (Park Road, Bloemfontein).  Captain Putter has twenty seven (27) years’ experience and is stationed at the Directorate of Priority Crimes Investigation, also known as Organized Crime.  Their offices are situated on the first Floor of the building which was shared with a training centre.  Access to the first floor is gained by lifts or stairs.  There are two glass doors at the entry leading to a communal entry hall and the offices are situated to the right of the entry hall.  Entry to the offices situated at the Tourism Centre can only be obtained upon signing a register controlled by security guards.  There are approximately twenty five (25) offices occupied by the DPCI and all of the offices are occupied by investigators.  There are no vacant offices. 

[114] Due to the seriousness of the crimes investigated by the DPCI it is a general practice to lock one’s office as soon as you leave your office and therefore it is highly improbable for other SAPS members to gain entry to these offices to assault suspects and if any assaults took place at these offices it would have become known due to the fact that the walls are not soundproof.  The ground floor of the Tourism Centre is occupied by various businesses for example a bus service, an optometrist, a security firm, a hair salon and a restaurant as well as the general inquiry offices of the Tourism Centre.  A pharmacy is also located on the ground floor.

[115] Accused no. 8 Zwelinlungile Ntlathi testified that he was arrested on 9 February 2017 in the street at Pieter Swarts township.  He was accompanied by Madiele, accused no. 5 as well as accused no. 7 whom he knows as “Messi” from playing soccer.    At the time of his arrest his rights were not read to him and he was taken to the Mangaung Police Station whereafter he was also taken to the Tourism Centre with accused no. 5 and no. 7 and testified regarding the allegations that they were assaulted.  Accused no. 8 testified that he did not make a statement as per exhibit “T” but merely signed the statement due to fear of further assaults.  The document was not read back to him and he denies any knowledge of the incident.

[116] Accused no. 8 called his mother, Ellen Hlengiwe Ntlathi to testify as a witness.  She corroborated accused no. 8’s version that the blue K-way beanie was bought by her other son, Simphiwe Jolimvava who lives and works in the Eastern Cape and who gave the particular K-way beanie to accused no. 8 during November 2016 as a Christmas present.  Her son in fact bought three (3) K-way hats which he gave to his siblings for Christmas.  During cross-examination she was able to remember the dates when Simphiwe brought the beanies during November 2016 but was unable to provide clear information regarding the damage to her cell phone, which only happened approximately three (3) months prior to her testimony in court, as being the reason why she was not able to provide the police with the contact number of her son, living in the Eastern Cape.  Accused no. 8, in his testimony in chief testified that his brother brought him the beanie during December 2016, but in the trial within the trial he testified that it was during November 2016.  During her evidence the mother of Accused no. 8 was not aware of the fact that Accused no. 8 failed at school on several occasions and indicated that he was actually a good student.  The witness furthermore testified that soon after Accused no. 8’s arrest she relocated and refrained from informing Accused no. 8 that she no longer stayed at her former address.  It was actually clear that Accused no. 8’s mother did not have contact with Accused no. 8 since his arrest during February 2017, however she was able to provide precise information regarding the three (3) K-way beanies which her children received as presents. That was actually the only aspect of which she was sure of.

[117] On 24 October 2018 I, subsequent hearing the evidence of members of SAPS as well as the evidence of Accused no. 5, 7 and 8 pertaining to severe assaults, threats as well as the fact that their constitutional rights were breached, ruled that the evidence pertaining to the pointing out by accused no. 5 made to Captain Strydom as well as the evidence concerning the statement made to Warrant Officer Motseki by accused no 7 and the statement made by accused no. 8, are provisionally allowed.

[118] All the State witnesses made a favourable impression during their testimony and there were no material contradictions in their evidence.  It was however clear that Constable Ralekgolela, as conceded by Mrs Ferreira, was obviously mistaken concerning the events that took place during the pointing out conducted by Captain Strydom of Accused no. 5.  Constable Ralekgolela was unsure of the procedures that were followed, the sequence of events and the fact that Captain Strydom was driving with the witness in the police vehicle.  He was a poor witness, uncertain about his assertions and obviously confused.  On the other hand, Captain Strydom, who appears to be a highly experienced police officer and who explained that his colleague, Constable Ralekgolela who travelled with him to testify in the trial within a trial, was inexperienced and nervous at the time when he testified.  The other witnesses on behalf of the prosecution corroborated each other in all material respects and I can find no reason to question the reliability of the testimony of each of them.  Accused no. 5, no. 7 as well as accused no. 8 however were generally vague and uncertain about events, which obviously led to accused no. 5’s adaptation of his version pertaining to the pepper spray becoming water through the process of condensation and their vague description of the offices at the Tourism Centre.  In this regard the evidence of Captain Putter pertaining to the description of the location of their offices at the Tourism Centre is accepted as the truth while the testimony of accused no. 5, accused no. 7 and accused no. 8, that no other businesses are located at the Tourism Centre can safely be rejected as false.  It actually became clear that accused no. 5, no. 7 and no. 8 has no indication of where the Tourism Centre is located or the fact that several businesses are located in this double storey building.  It is furthermore highly improbable that the accused were interrogated and tortured in the way described as it was obvious that the version that they were suffocated with a surgical gloves and plastic bags containing liquid pepper spray were fabrications.

[119] Accused no. 7’s version concerning the shoes found underneath his sister’s bed is obviously an adaptation of his initial version that he pointed the shoes to the police but later testified that he did not make any pointing outs at the time and the police searched underneath the bed and found the shoes without his assistance.  Accused no. 7’s version that he handed a pair of “flip flops” to Lehlohonolo, which would have been, according to his own version, too small for Lehlohonolo, is rather opportunistic and is rejected as false.

[120] The Court is fully aware of the possible dangers lurking in the acceptance of the evidence of Accused no. 8’s mother who obviously refrained from visiting her son while incarcerated but provided support for Accused no. 8’s version that his received the K-way beanie as a present from his brother.

[121] The notes pertaining to the pointing out by Accused no. 5 was accepted as exhibit “H1”. The contents read as follows: “Captain Strydom noted that Accused no. 5 gave directions to proceed to an open area where he and his friends met three (3) males who enquired as to the identity of “Match”.  The three (3) males were informed that Accused no. 5 and his friends are members of the BTK group and revealed their BTK tattoos whereafter Match was pointed out to the three males.  Match then instructed the three (3) males to lie down on their sides and to close their eyes.  According to Accused no. 5 they then took out their knives and stabbed all three (3 males in their necks.  He himself and all the members of his BTK group then took “big stones” and threw the stones at the heads of the three males.  Match then took his knife and cut the three victims’ throats.  After realizing that the victims were dead they then left them at the scene, split up and took different directions.  Accused no. 5 then told Captain Strydom that he and his group came back the next morning and found the bodies of the deceased still on the scene.

[122] The notes were signed by Accused no. 5 as well as Captain Strydom.  Further evidence regarding the procedures followed as soon as Captain Strydom and Accused no. 5 returned to the Park Road Police Station were then placed on record.  The contents of exhibit “S1”, the warning statement of Accused no. 7 was then revealed and placed on record. On the second page the contents thereof read as follows”

“On Monday, 1 February 2017 at about ± 20H00 I left my residing place Pieter Swarts and I went to my friend’s shack.  BTK’s where we always meet.  The owner shanti belongs to Lebohang Tele.  Also known as Lebeko.  On my arrival at Lebeko place shanti I found unknown male and Zweli standing outside.  On my arrival this unknown male came to me and told me that the t-shirt that I am wearing is short and my tattoos of BTK can be seen.  And I must not get inside the shanti because they capture three guys of Maroma gangsters.  Then I asked him to explain further.  This unknown male explained to me that this three guys met with them at Bangladesh tuck shop in Phase 4.  They said that they are looking for Dimach.  This three Maroma gangsters.  This unknown male asked them why are they looking for Dimach and they did not answer him and left.  And afterwards this unknown male went to Dimache and told Dimach that this three guys are looking for him.  Then Dimach went to this three guys then asked them whether they are looking for Dimach.  Then this three guys did not answer Dimach.  Then Dimatch while he realized that this three guys are not answering him, he then asked guys it seems as if you belong to BTK’s.  This three guys respond by saying no they do not belong to BTK.  Then Dimatch told them he heard that they are looking for Dimatch.  Then he asked them to which gangster are they belonging.  As they are looking for Dimatch.  They told Dimatch that they belong to Maroma gangster.  Then Dimatch show a sign of Maroma and told them that he also belonged to Maroma gangsters and he is also looking for this Dimatch and also gangsters known as Makauta are also looking for Dimatch at Pieter Swarts.  Dimatch and this three guys went to shack and found BTK members.  Then Dimatch and some BTK’s members and this three guys ‘Maroma’ were smoking ndanda drug inside the shack while I was still outside with this unknown male who was telling me this whole story.  I told this unknown male that I am going to change the t-shirt that I was wearing.  After I have change I met Lavas, Pule and we went back to that shanti where Maroma have been captured.  The same day at about 22H00 we left the shanti, K7, KB, Zweli, Cosmo, Bongani, Zamile, Rasta, Mokome, Lepetla, Lebeko, Frans, Lehlozi, Pina, Dimatch and others are unknown to me as they are residing in Phase 4 and are known to Dimatch.  Cosmo was in possession of knife, Zamile was in possession of a panga, Rasta Mokome was in a possession of a panga, Lebeko was in possession of a long knife, KB was in possession of long knife called stainless steel.  Lehlozi was in possession of a Rambo knife, Poke was in possession of a knife, 3Star and also this unknown Phase 4 BTK were also in possession of knives.  Along the way we are just saying we are going to Dimeche place in Namibia.  On our arrival behind Limo Mall then Dimeche instructed us to sit down so that passing cars must not see us.  Rasta was behind and KT called him with his cell phone and Rasta arrived.  Then after that the Dimeche instructed us to sit in a circle but this three Maroma were a little out of the circle.  Then Dimeche asked them to join the circle properly.  Afterwards they were put inside the circle.  While sitting there Dimeche stand up and hold this three Maroma guys with their hands and told them, guys you have been looking for Dimeche and here I am and if you can scream I am going to kill you.  Then Dimeche said to Cosmo he must borrow him his 3Star knife he is going to cut this guy’s testicles and he took a 3Star from Cosmo and cut the first guy or slaughter him and he give Cosmo his knife back and told him that his knife is slow.  Dimeche took a stainless knife and cut the second one throat with it and Cosmo stabbed the last one who was a little bit younger and fall down after that.  Dimeche again cut his throat.  After that Dimeche said no one is going to chop this three guys Maroma we are only going to stab them.  Then they started to stab them.  Then Bongani asked to break the three guy’s eyes and he only breaks one guy’s eyes with his knife.  Lebohang Tele, Cosmo, KB, Zamile, Poke were part of the people who were stabbing this three guys.  Zwele took a K-way blue hat from one of the deceased.  Cosmo took an All Star tekkies black and white from the deceased.  Lebohang Tele and Bongani Pitso took Adidas called Superstar from the deceased and they were arguing for it.  Then at last Bongani took it but the agreement was that they are going to sell it both of them.  Rasta Mokone took the power land tekkies blue in colour from the deceased.  Myself, Zwele also he has took a blue hat and Soso, Pina, Rasta, Lepetla did not stab the deceased our duty was only to escort.  All people who has took the deceased’s property are the last persons who has left the scene. Cosmo was in possession of a (eligible) Zwele blue K-way hat, Lebohang Tele Pitso Adidas Superstar, Rasta took a power land tekkies.”

 

[123] Exhibit “T”, page 2 was forthwith read into the record and contained the following:

“On Monday, 1 February 2017 at about ± 21H00 I met with Soso in Pieter Swarts.  Soso was with Messi.  Soso informed me that there are three guys at Lebeko’s shanti and that they belong to Maroma gangster and told me that on my arrival I must do the sign of BTK but of … and Soso further told me that he is going to look for other members of BTK then Soso and Messi left and I went to shanti where Maroma gangsters have been captured.  On my arrival I find Lebeko, Cosmo, Dimeche and BTK and this three guys belonging to Maroma gangster and they were smoking ndada drugs.  While sitting there Rasta, Mosdef, KB, Rasta Nkomo arrives.  While relaxing Dimeche was saying we must go and look out for Dimeche.  Afterwards Frans and Messi arrived, Frans went into the shack and Messi remained behind.  Someone informed Messi not to enter the shanti because his tattoo of BTK is visible.  We went outside one by one and Dimeche informed us we are going to coronation.  After we had an agreement that we are going to coronation, Dimeche said that we are going to kill them.  Some few minutes after we have left the shack Dimeche told us that we are no more going to coronation but we are going to Namibia.  This three guys of Maroma were also in our company.  Behind Limo Mall Dimeche instructed us to sit there to take a decision where are we going.  Then Dimeche said we must relax behind Limo Mall to wait for the other group which was still coming.  On arrival of the other group we formed a circle and this three Maroma gangsters were inside the circle.  The Dimeche hold them by their hands and told them guys I am Dimeche you don’t scream or else I am going to kill you.  Then Dimeche instructed them to lie down and these three Maroma lie down.  After that while lying Cosmo took a knife and stabbed one of the guys on the neck then Dimeche took a knife from Cosmo and stabbed this other two and was busy cutting their throats.  Then K7, Frans, Zamile, KB and other unknown BTK stabbed the three Maroma.  Bongani took a knife and stabbed one deceased eyes.  Some of the BTK left and stay behind and I took a K-way hat from the deceased, Cosmo took a black All Star from one deceased.  Lebeko took power land tekkies from the deceased.  After that we left the scene.”

 

TRIAL WITHIN A TRIAL:  ACCUSED NO. 13:

[124] Evidence pertaining to a warning statement obtained from Accused no. 13, Sefale John Molefe were as follows:  Mrs Patrinos who by then also appeared on behalf of Accused no. 13 since Mr Nell’s retirement indicated that Accused no. 13 was informed to sign the warning statement and due to fear of assaults he affixed his signature to the document.  Therefore the element of “freely and voluntarily” is absent.  Warrant Officer Ramodula, who was stationed at Park Road Police Station during February 2017 was called to testify and informed the Court that he was requested to obtain a warning statement from Accused no. 13.  The witness identified his handwriting on exhivit “YY”.  The witness conducted an interview with Accused no. 13 on 22 February 2017 at 13H17 at Heidedal Police Station where the suspect was informed of the witness’s rank and informed of his rights in Sesotho whereafter the certificate by suspect on the first page of exhibit “YY” was completed.

[125] It is evident from the document that the five (5) questions  put to Accused no. 13 were responded to  in the following ways;  that he understands the alleged offence and that he is prepared to make a statement on a voluntarily basis.  Accused no. 13 indicated that he did not suffer any injuries nor was he assaulted or threatened.  During cross-examination Accused no. 13’s version was put that he did not give any statement to the witness.  Accused no. 13’s version was that he was slapped by Sergeant Jona in the face and that he informed Warrant Officer Ramodula of the assault upon him.

[126] The next witness, Sergeant Shadrack Jona is stationed at Provincial Organized Crime with fourteen (14) years’ experience and testified that he does not recall Accused no. 13 and only became involved in this case on the 15^th February 2017. He denied Accused no. 13’s version that he assaulted him or threatened him into making a statement.  Sergeant Jona had no recollection that he attended the Comtech School where Accused no. 13 was arrested and due to the fact that he has knowledge of this particular school, he would have remembered if he was involved in the arrest. 

[127] Sergeant Kenneth Motaung, stationed at Provisional Organized Crime with eighteen (18) years’ experience in the SAPS testified that he was on duty on 21 February 2017 at Heidedal Police Station when Colonel Sefuthi arrived with three (3) or four (4) suspects.  He was tasked to detain three (3) of the suspects and testified that he followed the normal procedure to explain their rights and to check whether they had any injuries.  Exhibit “ZZ”, the SAP 14A of Accused no. 13 was received as an exhibit.  Sergeant Motaung recognized his handwriting on exhibit “ZZ”.  Exhibit “AAA”, the copy of the occurrence book was signed by Sergeant Motaung when he handed the accused over to the cells at Heidedal Police Station.  Accused no. 13 was detained at 15H40 and did not report any police brutality to him nor was any bruises or injuries observed.  The witness was able to identify accused no. 13 in Court and explained that even though he met the suspect two (2) years ago he is able to remember his face.  Colonel Sefuthi testified that he as well as other members were involved in the arrest of Accused no. 13 on 21 February 2017 at Comtech School. 

[128] Accused no. 13 testified that he was 19 years old at the time of his arrest at Comtech School, where he was called to the Principal’s office and met with Captain Kene, Sergeant Jona and Colonel Sefuti.  Accused no. 13 denied that his rights were explained to him at the time of his arrest.  He testified that along the way Sergeant Jona told him that he is not telling the truth about the incident and he was slapped with an open hand on his face, more than once.  His injuries were not visible.  Accused no. 13 identified his signature on Exhibit “YY”, but explained that it was affixed to the document under duress.  Accused no. 13 denied that the questions under the heading “Certificate by Suspect” were posed to him and that he provided the answers recorded on Exhibit “YY”.  He in effect denied that his rights were explained to him and he furthermore cannot recall telling anybody about a murder  and therefore the content of the warning statement did not emanate from him.  During cross examination Accused no. 13 testified that his personal particulars were taken in the Principal’s office at the school and once again in the kombi, but he could not provide a reason why it was necessary for the police to obtain his personal particulars twice.  This aspect was also not put to the State witnesses for their response.  The threat made towards accused no. 13 consisted of a warning that he will be assaulted in the same manner as Constable Jona assaulted him, if he refused to sign the warning statement.  Accused no. 13 could not provide any explanation from whom the content of the warning statement emanated from, if not from him.

[129] On 13 May 2019, the ruling in the trial within a trial of accused no. 13 and subsequent to the evidence of four State witnesses, Warrant Officer Ramadula, Sergeant Jona, Sergeant Kenneth Motaung and Colonel Sefuti as well as the evidence of accused no. 13, was that the contents of the warning statement of Accused no. 13, Sefali John Molefe, Exhibit “YY” is provisionally allowed as evidence in this matter.

[130] The contents of Exhibit “YY” reads as follows:

“On Monday 2017/01/30 I was at my residence at Phase 4 with my friend Lerato.  One of our friends, Lebeko phoned Lerato on his phone and informed him that our gang Group BTK caught some other three guys are at a certain corrugated iron house and they were brought by Dimesh.  We went there and we found the three guys.  We, a group of men belonging to the gang BTKs.  We went near Lemo Mall and these three guys were encircled.  Dimesh asked these guys whether they have knives with them and they said they don’t have any knives with them.  Dimesh asked them again that how can they come to a fight without knives.  Dimesh borrowed a knife from one of the group members and started stabbing one of these guys several times in the neck.  Other gang members also started stabbing all these three guys with knives all over their bodies until all three of them died.  Thereafter we left the scene leaving all the deceased there.  We parted to different direction.  I never participated in the stabbing of these three men.  I don’t know who were those three men that were killed.  The people that I saw stabbing these guys are Dimesh, (illegible), Rasta.  The others I don’t know their names.  That is all.

[131] The State also presented evidence in a trial within a trial pertaining to Accused no. 15, Teboho Solomon Ntsheno, and called several witnesses regarding the arrest of Accused no. 15.  The disputed document was ruled inadmissible and it is therefore unnecessary to recount the testimony of these witnesses. 

 

THE CASE AGAINST THE ACCUSED:

[132] The State in this case has no direct evidence against the accused and argued that due to the fact that the members of the community fear the gangsters, the availability of witnesses, willing to testify against gang members remains a problem.  Mrs Ferreira conceded that the onus rests on the State to prove beyond reasonable doubt that the Accused are guilty as charged on each count.  Only accused no. 5, no. 7 and no. 8 testified in their own defence.  At the last day of the hearing of this matter, on 31 May 2019, and subsequent to the address by Mrs Ferreira as well as the arguments on behalf of the defence, the State conceded that the burden of proof beyond reasonable doubt has not been met with regard to Accused no. 1, no. 6, no. 9, no. 10, no. 11, no. 12 and no. 15 on counts 1 to 7 and that the said accused are entitled to their acquittal. 

[133] Subsequent to hearing the arguments on behalf of the state and the Accused represented by Mr Kgolenya and Mrs Patrinos and in consideration of the right to freedom of movement entrenched in the Constitution, this Court immediately proceeded with the judgment in this matter.  Due to the concession made by Mrs Ferreira that the guilt of the seven accused mentioned on all seven (7) charges were not proved beyond reasonable doubt by the evidence adduced during the trial and furthermore that the accused mentioned, are therefore entitled to their acquittal and due to the unavailability of some of the legal representatives to proceed with the judgment in this matter during June 2019, it was of paramount importance to proceed with the immediate acquittal of the accused so mentioned.  I was satisfied that no evidence, proving their guilt beyond reasonable doubt was placed before this Court and therefore Accused no. 1, no. 6, no. 9, no. 10, no. 11, no. 12 and no. 15 were found not guilty relating to all the charges against them and they were discharged

[134] The trial was postponed to 2 July 2019, and further postponed to 5 July 2019, to proceed and finalize the judgment in this matter. 

[135] The case presented by the State comprised of more than fifty (50) witnesses, however no eyewitnesses testified during this trial. 

[136] At the close of the State’s case Accused no. 1, no. 3, no. 4, no. 6, no. 7, no. 9, no. 10, no. 11, no. 12 and no. 13 applied for their discharge in terms of Section 174 of the CPA in submitting that there was no prima facie case linking them to the charges against them.  Evidence in this case commenced on 8 October 2018 and numerous witnesses on behalf of the State testified and 6 trials within a trial pertaining to statements, pointing outs and admissions by the accused were held. After hearing evidence in a trial within a trial concerning the admissibility of the warning statements made by Accused no. 3 and Accused no. 4, both warning statement were allowed as evidence in this case. 

[137] Subsequent to a trial within a trial the warning statement of Accused no. 7, marked Exhibit “S” and the warning statement of Accused no. 8, Exhibit “T”, were found admissible as evidence. Furthermore the pointing out by accused no 5 was also admitted as evidence.

[138] The warning statement of Accused no. 13, Exhibit “YY” was also ruled to be admissible as evidence in this case.  Regarding Accused no.9, 10, no. 11 and no. 12, no warning statements or other evidence apart from their arrest in this case were placed before this Court.  Section 174 provides the Court with a discretion, which must be exercised judicially in deciding whether to discharge an accused at the conclusion of the State case.  With regard to the general principles that a Court must act judicially, with sound judgment and in the interest of justice and due to the evidence before this Court which connects all the Accused in this matter with the BTK gang through photographs depicting the tattoos on the bodies of the Accused as is evident from the more than 90 photographs comprising exhibit “U” and an inference that all the Accused associated with, at least the BTK gang, if not the NBKs or 666 gang, as well as the items handed in as exhibits which linked some of the Accused to the deceased in count one (1), the application for discharge of the Accused referred to, were refused. 

[139] Mr Kgoelenya, who ultimately argued the case of Accused no. 3, accused no. 5, accused no. 7 and accused no. 8 contended that accused no. 3 did not testify in this trial and the only evidence that links Accused no. 3 to the murder of the three deceased found at Lemo Mall, is contained in the warning statement of accused no. 3, Exhibit “OO”.  Mr Kgolenya argued that the warning statement was provisionally allowed as evidence against accused no. 3 and due to the nature of the warning statement being exculpatory in that accused no. 3 stated that he as well as Rasta did not take part in the stabbing of the deceased and left the other members of the BTKs at the scene, accused no. 3 is entitled to his acquittal.

[140] On behalf of the prosecution, Mrs Ferreira submitted that the State produced sufficient evidence to establish a prima facie case against accused no. 3 and that his failure to testify placed him at risk and that the Court is entitled to draw a negative inference from his silence.  On the evidence before Court accused no. 3 was present at the scene of the murder and robbery and the court cannot speculate in his favour and his association with the rest of the gang as they carried out the offences. 

[141] The same arguments were proffered with regard to the situation of accused no. 4 regarding the available evidence as contained in his warning statement, exhibit “RR”.

[142] Mrs Patrinos, who represented accused no. 4 throughout the trial, contended that the contents of the warning statement, Exhibit “RR”, obtained from accused no. 4 are in essence exculpatory of nature and therefore accused no. 4 should be acquitted of the charges against him.  Accused no. 4 did not testify and none of the accused who testified in the trial implicated accused no. 4 in any way. 

[143] Mrs. Ferreira argued that accused no. 4’s failure to testify placed him at risk and the provisions of the POCO Legislation requires that not only accused no. 4, but also accused no. 3 and accused no. 13, being members of the BTK gang, proves a connection between the accused and the murders that occurred at Limo Mall.  The contents of the statements made by accused no. 3, accused no. 4 as well as accused no. 13 placed them at the scene of the crime and one must therefore accept that the accused knew about the crimes, did not report the crimes committed nor did they disassociate themselves from the BTK gang.  Mrs Ferreira therefore argued that at least Section 9(1) of POCA becomes relevant to this matter.  On behalf of the prosecution it was contended that the court cannot simply accept the content of accused no. 3, accused no. 4 and accused no. 13’s statements for the truth, nor can the court speculate in their favour and therefore their failure to testify posed a real risk to them in the absence of version from them on record.  None of the accused before court came to explain his presence on the crime scene and therefore, so the argument goes, at least accused no. 3, no. 4 and no. 13 were all wilfully aiding and abetting the BTK gang with any criminal activity committed for the benefit of, or at the direction of, or in association with the gang.  Accused no. 3, no. 4 and no. 13 therefore made the statements, not necessarily truthfully but downplaying their roles at the crime scene and in essence to confuse the police and ultimately the court regarding their role in the crimes committed against the deceased. 

[144] Mrs. Patrinos’s argument that taking cognisance of the fact that the police formed a task team from the outset with the view that the murders and crimes relevant to this case were gang related and the perpetrators were BTK members, the police only arrested BTK members as suspects in this case.  The mere fact that an accused was a member of the BTK gang, does not imply guilt pertaining to the crimes outlined in the indictment and therefore the mere fact that an accused can be identified as a BTK member due to the tattoos on his body does not automatically indicate his allegiance with the BTKs nor guilt beyond reasonable doubt.

[145] On behalf of the accused it was argued that an accused is entitled to be acquitted if it is reasonably possible that he might be innocent and even if a court subjectively disbelieve an accused’s version of the events, the court is still required to consider whether there is a reasonable possibility of his version being true[1].  Regarding the warning statement of the accused and also the pointing out by accused no. 5, the legal principles stipulating that admissions of an accused cannot be used against a co-accused remains applicable and the Court was referred to the matter of S v Litako 2014 SACR 431 (SCA).

[146] Warrant Officer Surprise Mnisi’s affidavit in terms of Section 212 of the Criminal Procedure Act, 51 of 1977, handed in by the prosecution as Exhibit “MM” on 1 November 2017, evidences the DNA analyses and results. The findings of Warrant Officer Mnisi can be summarized as follows:

The DNA result from a pair of trousers [blood] (PA3000711002) matches the DNA result from the reference sample (05D3BB3485MX(FSC-1029774)) “BDR81/2017”.

[147] The DNA result from the pair of shoes [blood] (PA3000711000) matches the DNA result from the reference sample (05D4BA9212MX(FSC-1029908)) “BDR79/2017”.

[148] It was not disputed by accused no. 5 that a pair of beige/brown trousers were found at the shack where he resided on 9 February 2019.  The reference sample (05D3BB3485MX) retrieved from the body of Mojalefa Nathan Franse, BDR81/2017 matches the DNA result of the bloodstains found on the trousers. 

[149] The pair of brown shoes seized by the police at the residence of accused no. 7 was tested for blood stains and the DNA results found on the pair of shoes (PA3000711000) matches the DNA results from the reference sample retrieved by Dr. Brandt on 2 February 2017 from the body of the 19 year old Lefa Soaisa mentioned in count 1.

[150] The pointing out by Accused no. 5, conducted by Captain Strydom, connects accused no. 5 with the murder charges, counts 1 – 3 as well as the robbery charges counts 4 – 6.  The DNA evidence furthermore links accused no. 5 to the death of the deceased.  Accused no. 5 did not dispute the sale of the black Adidas Superstar tekkies and was corroborated in this regard by the witness, Dimakatso Makate. 

[151] Accused no. 5’s evidence, that the clothing found in the sport bag belonged to his friend, David Makibinyane, (Exhibit “CC”), also a former BTK member and his evidence that he immediately upon retrieval of the sport bag informed the police as to who the owner of the clothing were, was denied by the State witnesses causes his evidence to be regarded as untruthful.  As Mrs Ferreira argued, accused no. 5’s reliance on an alibi came to late.  Accused no. 5’s testimony that the Adidas tekkies belonged to Sizwe and his friends furthermore came at a late stage during the trial and his failure to present corroborating evidence pertaining to his evidence that he kept his own clothes at his parental home, causes his version to be improbable and actually ridiculous.  It is therefore regarded as false.

[152] Accused no. 7’s version that his Constitutional rights were not read upon his arrest, nor during the pointing out of the clothes and that no permission were obtained to search his parental home can safely be rejected.  Accused no. 7’s is furthermore linked to the death of the 3 victims by the DNS (blood) found on the pair of brown shoes found at his place of residence.  The Court is satisfied that Accused no. 7 is untruthful in his version pertaining to the pointing out of the shoes and in this regard the version that he himself pointed out the shoes to the State witnesses is held to be truthful, reliable and probable. 

[153] The untruthfulness of Accused no. 7 in this respect and the concocted version that the shoes belonged to Medeila, who passed away in the meantime, can safely be rejected as fabricated and false. 

[154] Accused no. 8’s version pertaining to the blue K-Way beanie, pointed out to the police at his place of residence, but which, as the time passed had nothing to do with the murders but was a gift from his elder brother is a further example of a complicated and contrived story by Accused no. 8 since being incarcerated pending trial.  Accused no. 8’s mother was called as a witness by him, but her evidence was not convincing since the State also placed evidence on record that her daughter, Nombuyiselo, attended the Court proceedings on 24 May 2019 as per the register held at the security of which a copy, was handed in, Exhibit “JJJ”.  Accused no. 8’s mother furthermore informed Colonel Sefuthi, according to his testimony that she, prior to his enquiries regarding the beanie, already had knowledge concerning this aspect due to information received from her daughter.  Accused no.8’s mother’s evidence in this regard is therefore rejected.  With regard to the alibis of accused no. 5, no. 7 and no. 8, it would surely have been the first thing that the accused would have told their respective legal representatives who would have canvased the alibi defences at the outset of the trial during October 2018.  The Court therefore accept that accused no. 8 was also being untruthful in his evidence relating to his allegations of assaults and the gift, the blue beanie received from his brother during 2016.

[155] The evidence reveals that the murder and robbery of the three deceased were a well organised joint operation, most likely by all 15 the initial accused as well as other BTK gang members who are not before court. They obviously contacted each other per cell phone and lured the deceased into a trap to the crime scene, as suggested in the summary provided by the State. The accused must have foreseen the possibility that the deceased will be eliminated in pursuit of the common purpose of killing the members of the rival gang and that they, as members of the BTK gang were reckless as regard that result.[2]  Our law recognises a concept known as “the doctrine of common purpose”. In line with this doctrine, an accused may be found guilty of an offence where he or she did not necessarily and actively participate in the physical commission of the crime, if the conduct of such a person fulfils certain requirements.

[156] An example of such an instance is in the case of S v Shaik[3] where the court stated the following: “Our law provides that where two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in execution of that purpose is imputed to the others” It is required among others that the accused actively associates him or herself with the common purpose.[4] The requirements for proof of common purpose were outlined in the case of S v Mgdezi[5] and S v Safatsa[6] as follows: In the first place the accused must have been present at the scene where the violence was being committed. Secondly he must have been aware of the assault. Thirdly, the accused must have intended to make common cause with those who were actually perpetrating the assault. Fourthly the accused must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, the accused must have had the requisite mens rea in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of them being killed and performed his own act of association with recklessness as to whether or not death was to ensue.

[166] Mrs Ferreira submitted that Accused no. 3, no. 4, no. 5, no.7, no. 8 and no. 13 must be convicted on counts 1 – 7 as per the indictment. 

[167] I am not convinced of the guilt of accused no. 3, no. 4 and no. 13. Although the requirement of being present at the scene of the crime  and aware of the attack are met concerning these three accused, the State failed to prove the other three requirement as set out above. Although the accused placed themselves to some extent on the scene, all three of them made exculpatory statements.  There is no evidence before court that they manifested a common purpose with the perpetrators of the assault by performing some act of association with the conduct of the others. To the contrary the three accused stated that they did not participate in the attack on the deceased. This court is not willing to speculate about their participation in these acts. Therefore accused no. 3, no.4 and no. 13 are found not guilty and discharged on all charges against them. 

[168] Regarding accused no. 5, no. 7 and no. 8, I am satisfied that the State has proved, beyond reasonable doubt that the accused are guilty on all counts they were charged with. Therefore accused no 5, no7 and no 8 are found guilty on counts 1-7 as charged. 

 

_______________________

I VAN RHYN, AJ

---