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IN THE HIGH COURT OF SOUTH AFRICA

(LOCAL CIRCUIT DIVISION FOR THE DELMAS CIRCUIT DISTRICT)

Case No. A1267/2006

Registrar Ref. No. CC 414/07

Date:09/06/2008

In the matter of:

THE STATE

versus

THEMBA MOSES TSHABALALA …......................................................Accused 1

MICHAEL MKHUMA..................................................................................Accused 2

BUTI JAN DE KOK.....................................................................................Accused 3

SPHIWE TSOTETSI...................................................................................Accused 4

JUDGMENT

[1] The four accused, Themba Moses Tshabalala (accused 1), Michael Mkhuma, who is also known as Makhekhe (accused 2), Buti Jan de Kok, who is also known as Skebengu (accused 3), and Sphiwe Tsotetsi, who is also known as Masoleng (accused 4), have been arraigned for trial on an indictment containing charges of attempted robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977 (count 1), the murder of the late Ms Mathapelo Lenny Joubert (count 2), the attempted murder of Mr Michael Morekeng Makhubedu (count 3), and the attempted murder of Mr Michael Morekeng Makhubedu (count 4). It is alleged that all the offences were committed on the 23^rd December 2006 at Alrapark, district Nigel.

[2] Adv S Ngobeni appears for the State and Adv E Britz for accused 1, Adv S Rakobela for accused 2, Adv K Alheit for accused 3, and Adv F van der Westhuizen for accused 4.

[3] At the commencement of the proceedings all four accused pleaded not guilty to all the counts and they each made a plea explanation. They also made admissions in terms of section 220 of the Criminal Procedure Act (exhibit “A”), admitting inter alia the identity of the late Ms Mathapelo Lenny Joubert (“the deceased”), her death on the 23^rd December 2006 as a result of injuries which she sustained on the 23^rd December 2006 at Alrapark in the district Nigel, that her body did not sustain further injuries from the time she sustained the injuries on the 23^rd December 2006 until the conducting of a post-mortem examination on the body of the deceased on the 28^th December 2006, the correctness of the facts and findings as recorded in the post-mortem report (exhibit “B”), that the cause of the death of the deceased was a stab wound to her heart, and the correctness of photo album and photos 1 – 8 (exhibit “C”) relating to the scene of the crime and the body of the deceased .

[4] The State called as witnesses Inspector TE Mohlaping, Mr Michael Morekeng Makhubedu, Mrs Aletta Dlamini, Superintendent Letloenyane, and Ms Nomasonto Ngubeni, whereafter the State case was closed. Accused 1 testified and closed his case. Accused 2 did not testify and no witnesses were called in his defence. Accused 3 testified and closed his case. Accused 4 testified and called Ms Sonto Tsotetsi as a witness in his defence whereafter his case was closed.

[5] The undisputed evidence is that, on the evening of the 23^rd December 2006, both Makhubedu and his girl friend who he also described as his wife, the deceased, were stabbed with knives. The deceased died as a result of a stab wound that penetrated her heart, and Makhubedu survived the attack, but he spent about three weeks in hospital. Makhubedu identified accused 1, 2, 3, and 4 as their assailants. They all raise defences of alibi and deny the prosecution’s case on the issue of their involvement in the commission of any of the offences with which they are presently charged.

[6] Makhubedu testified that on the evening of the 23^rd December 2006, at about 10:15 pm, he and the deceased were walking back home to where the deceased resided. They had been to a ‘tuck’ shop’. A person, who Makhubedu identified as accused 3, appeared from the dark behind them as they were walking, and he hit Makhubedu on the shoulder. As Makhubedu looked back, he saw accused 3 with a knife and he demanded money from Makhubedu. When Makhubedu turned around, accused 3 stabbed him three times on the back with the knife. A motor vehicle appeared and accused 3 ran away into the dark. Makhubedu and the deceased continued walking. Suddenly accused 3 approached them for a second time, but this time from about 4 metres in front of them, and in the company of another person whom Makhubedu identified as accused 1. Two other men, whom Makhubedu identified as accused 2 and accused 4, were also approaching them from their rear. They were approximately 6 metres away from them. The deceased ran back in the direction from which she and Makhubedu had been coming, and she turned into a street which could be 3 metres away from where Makhubedu was at the time. Accused 3, with a knife in his hand that he waved from side to side, tried to stab Makhubedu, but he avoided the attack. Accused 1 then stabbed Makhubedu twice, also in his back. Accused 2, 3 and 4 were chasing after the deceased. Makhubedu was able to run away and accused 1 chased after him. Makhubedu called for help at a tavern in the same street. A certain Letta rendered assistance and accompanied him to the scene and also into the street in which the deceased had been running when she was being chased. Walking along that street they first found her clothes and, further on, the deceased lying naked on her stomach in the street. He could see a stab wound in her back. Makhubedu was later taken to hospital. In giving his evidence in chief, Makhubedu was led on certain statements allegedly made by the deceased. I required argument from counsel before the State closed its case as to the admissibility of such statements. I will return to my rulings on the admissibility of such statements.

[7] Dlamini testified that she was on duty at ‘Khosi’s Place’ on the evening in question when Makhubedu arrived and called for help. She and another gentleman assisted and went into the direction which Makhubedu had explained. They were followed by him. As they turned into the particular street they found a piece of clothing with blood on it. Further along the street they found the deceased lying naked face down on the street. When they called out her name, the deceased lifted her head once, but not again. Makhubedu collapsed. They phoned for an ambulance. The detectives arrived.

[8] Inspector Mohlaping testified that on the evening in question he attended at the scene of the incident where he found the naked body of a female person lying on the street. He noticed blood and some of her injuries. He questioned people at the scene, took statements, summoned the photographer, and also members of the mortuary. He also attended at the hospital to which Makhubedu was admitted, but he was not permitted to see him that evening. He again attended at the hospital the next day when he observed that Makhabedu was injured and he obtained a police statement from him.

[9] Superintendent Letloenyane testified that on 26 December 2006, accused 4, who was in custody in connection with an unrelated matter at the time, took him to a farm of a certain Mr Botes where accused 1 was staying in a room. Superintendent Letloenyane found accused 1 and his girl friend in the room, and he arrested accused 1. On the same day Superintendent Letloenyane also arrested accused 2, accused 3, and six other people at the house where accused 2 resided. In giving his evidence in chief, Superintendent Letloenyane also alleged that accused 1 and also accused 2 made certain pointings out and statements to him at the time of their arrests. Counsel for accused 1, 2 and 3 objected to the admissibility of such evidence. Two separate trials-within-a-trial were held in order to decide on the admissibility of such evidence. I return later in this judgment to my rulings which I have made and my reasons therefor.

[10] Ngubeni testified that she and accused 1 had already had a relationship for one year and three months by December 2006. Accused 1 is the father of their child born on 24 June 2007 and the child died at the age of 9 months. Both of them worked at Mr Botha’s farm where they also stayed together from Mondays to Fridays. At weekends they stayed at her now deceased grandmother’s house at No 1696 Zambezi Street, Alrapark, and accused 1 sometimes went to his grandmother in the ‘Wagte’ area. She testified that on 22 December 2006, she, accused 1, and his friend, accused 4, were together in Nigel. Outside a certain tavern called ‘Jabula’, accused 1 handed to her his Okapi knife saying they were not permitted to carry knives into the tavern. Accused 1 and accused 4 went inside the tavern to buy liquor. When leaving they boarded a taxi without Ngubeni and she did not know where they went to. Accused 1 was alone when he returned to Ngubeni’s residence in Alrapark on Saturday, 23 December 2006. He took his knife back and left her between 3:00 and 4:00 pm. She did not know where he went. He returned to her on Sunday at about 11 am. His Okapi knife had blood on it. He appeared stressed and tired and he went to sleep. After he received a telephone call from his brother, accused 1 told Ngubeni that the police were looking for him ‘in connection with yesterday’s story’ and they then went back to the farm. They were not at the farm for long when a police vehicle arrived. Ngubeni was at a nearby house on the farm. She was called to their house by a short police woman, who accompanied her inside. One male police officer was present with accused 1 and they were talking. The police officers requested accused 1’s clothes and the knife. She handed his clothes to them. Captain Letloenyane and the female police officer accompanied her to her residence in Alrapark where she handed accused 1’s knife to them. Accused 1 did not accompany them.

[11] Accused 1 testified that he and another girlfriend of his, Fikile, visited a certain Lucky Tshabalala at his residence from about 6:00 pm on the evening in question. None of them left the house and he and Fikile stayed over for the night. They sat and talked, and went to sleep at about 8:00 pm. He did not see any one of the other accused that evening. The next morning Ngubeni telephoned him and asked that he go to her residence. He and Lucky Tshabala went to her. She was crying and she told him that the lady who stayed next door passed away and ‘certain boys from the Wagte Area is responsible for that.’ He consoled her and she stopped crying. Accused 1 was arrested on the 26^th December 2006, and he later saw accused 2 and 3 at the police station where they were taken by the police.

[12] Accused 3 testified that he resided with his grandmother, who is approximately 90 years of age, in the ‘Wagte’ area in Alrapark. He was home with his grandmother from early evening on the day in question. His grandmother was asleep and she did not see him. He watched television and thereafter went to bed. On the 24^th December 2006 he also remained home doing gardening. He testified that he was arrested by Superintedent Letloenyane and a female police officer, Tshidi, on the 26^th December 2006 for smoking dagga while he was walking in a street at the ‘Wagte’ area. He threw the dagga on the ground when they found him and they did not take it. He was taken to the Alrapark police station where he was placed amongst the other eight persons who were arrested, amongst whom he saw accused 1 and accused 2. They were all taken to the SAPS at Nigel.

[13] Accused 4 testified that he resided in Alrapark. He was at work on the 23^rd December 2006 until about 3:00 – 4:00 pm. having been requested by his employer to work paid overtime. He went home to wash up. He thereafter fetched his girl friend, Emma Majola, at her home in the ‘Wagte’ area, Alrapark, and they walked around together. At about 8:00 pm they went to his home. His sister, Zonto Tsotetsi, and his mother were present upon their arrival, although his mother was already asleep due to illness. He took a plate of food to his room where he remained with his girlfriend and they later went to sleep. He and his girlfriend never left his home during that evening. The next morning he accompanied his girlfriend to her home, whereafter he returned home. On the 24^th December 2006, accused 4 was arrested and detained on an unrelated charge. On the 26^th December 2006, two police detectives took him to Alrapark SAPS. Superintendent Letloenyane enquired from him about Themba (accused 1), and he took the police officers to Themba’s residence in Alrapark, but he was not there, and then to the farm where he showed them where accused 1 stayed. He did not see accused 1 or his girlfriend, and was taken back to Nigel SAPS.

[14] His sister, Ms Sonto Tsotetsi, who was called as a witness in his defence, testified that accused 4 was at home on the 23^rd December 2006. He left at some stage during the day, and later returned with his girlfriend just after 8:00 pm. He thereafter remained at home. She dished up food for him which he took to his bedroom. He slept with his girlfriend. She also testified that he remained at home with his girlfriend the next day, the 24^th December.

[15] I now return to the reasons for my rulings made in respect of the trials- within-a- trial.

(a) As part of his evidence in chief, Superintendent Letloenyane testified that:

(aa) upon his arrival at accused 1’s room on the 26^th December 2006, he explained to accused 1 that he was a police officer and the reason why he was there (in connection with the murder committed at Alrapark); he requested accused 1 to hand over the clothing he was wearing on the day in question whereupon his girlfriend handed over his clothes and they had blood on them; he requested accused 1 to hand over the knife that they had used whereupon he established that they had left it at home in Alrapark; and accused 1 took the police officers to accused 2’s house where they found eight people, including accused 2 and 3, and accused 1 pointed all eight persons out as having been the persons he and accused 4 were with at the time of the incident.

(ab) the eight persons were arrested, including accused 2, and Superintendent Letloenyane requested from accused 2 the clothing that he had worn on the day in question whereupon accused 2 handed over his clothes and they were blood stained.

(b) Accused 1 objected to the admissibility of the pointings out and statements made by him, which, in my view, at least amount to tacit admissions, on the grounds that they were not ‘voluntary’ made by him within the meaning of s. 219A of the Criminal Procedure Act, and they were obtained in violation of his constitutional rights entrenched in s. 35 of the Constitution. Accused 2 denied the pointing out allegedly made by him and he also alleged that his constitutional rights were violated. The fact that an accused denies having made the statement or pointing out in issue does not mean that a trial-within-a-trial does not have to be held [see: S v Ntuli en’n Ander 1995 (1) SACR 158 (T) at p 166c – d.].

(c) The admissibility of the pointings out and statements made by accused 1 (referred to in para (aa) above) formed the subject-matter of the first trial-within-a-trial. The state led the evidence of Superintendent Letloenyane whereafter it closed its case. Accused 1 testified whereafter his case was closed. The alleged pointing out made by accused 2 (referred to in para (ab) above) formed the subject-matter of the second trial-within-a-trial. The state again led the evidence of Superintendent Letloenyane whereafter it closed its case. Accused 2 testified and his brother, Themba, was also called as a witness on his behalf. Accused 3 also objected to the admissibility of the evidence in respect of both matters. He testified at the end of the second trial-within-a-trial and it was agreed that his evidence would form part of both matters. The issues which crystallized in both matters were similar and the two trials-within-a-trial were consolidated for the purpose of argument. I made a ruling in respect of each and indicated that my reasons would be given when I give judgment.

(d) Material parts of the alleged unlawful conduct on the part of the police officers who allegedly attended at accused 1’s house, including those pertaining to Superintendent Letloenyane, were never foreshadowed in the cross-examination of him. Certain statements put on behalf of accused 1 to Superintendent Letloenyane were in conflict with his own evidence. Accused 1 also contradicted himself on material aspects. Only under cross-examination did accused 1 come up with the version that the reason why he was assaulted was because Superintendent Letloenyane wanted him to point out his friends, that those then pointed out by him were the six who were released, and that he was assaulted because Superintendent Letloenyane wanted him to admit that he and his friends committed the murder. The statements of assault were mere vague statements without any details thereof disclosed. I find it unnecessary to analyse the evidence of Superintendent Letloenyane on the issue of the alleged assaults in any detail. It suffices to say that he denied any form of assault or untoward conduct by him or by the other police officers. He prides his rank and said he would never act in such way and certainly not in front of junior officers. I accept his evidence in this regard. The state, in my view, has discharged the onus of proving that the alleged pointings out and admissions made by accused 1 were freely and voluntarily made.

(e) During his evidence given at the first trial-within-a-trial, accused 1 denied that he pointed out the knife and his clothes or that he had made the statements referred to by Superintendent Letloenyane in his evidence in chief in the main trial. Such denial, of course, contradicted the basis on which he initially objected to the admissibility of such evidence. The issue at a trial-within-a-trial, however, is admissibility and not authorship [see: S v Lebone 1965 (2) SA 837 (A), at pp 841H – 842C; S v Mphala and Another 1998 (1) SACR 388 (WLD), at p 395 e – f].

(f) Accused 2’s version at the second trial-within-a-trial was that he was assaulted when he was asked about the whereabouts of accused 1. I find his version in this regard to be highly improbable. The undisputed evidence was that accused 1 had already been arrested by the time accused 2 was approached by the police and arrested. His statements that he was assaulted were also mere vague allegations, and only when cross-examined by Adv Ngobeni did he say he was slapped in the face, his fingers and knees stepped on, and slapped on his head with an ice container. It was put to Superintendent Letloenyane that he also assaulted accused 2, but when accused 2 was cross-examined by Adv Ngobeni, he said that he was not assaulted by Superintendent Letloenyane but by three other police officers. I find it again unnecessary to analyse the evidence of Superintendent Letloenyane on the issue of the alleged assaults in any detail. He denied any form of assault or untoward conduct by him or any of the other police officers, which evidence I accept. The state, in my view, has discharged the onus of proving that the pointings out and admissions made by accused 1 were freely and voluntarily made.

(g) This brings me to the next part of the enquiry, which is the constitutional requirements for the admissibility of the evidence in issue. Accused 1 and accused 2 denied that any of the constitutionally required warnings were furnished to them. Superintendent Letloenyane insisted in both matters that certain rights were furnished to them immediately after their arrests.

(h) The state bears the onus of proving that an accused’s fundamental rights have not been infringed in the process of its obtaining such evidence where an accused alleges that the evidence has been obtained in a manner that infringed his or her constitutional rights [S v Mgcina 2007 (1) SASV 82 (TPA), at pp 93 i – 96 c].

(i) In respect of accused 1, Superintendent Letloenyane’s testimony was as follows in terms of my notes:

“I informed him I was arresting him for a case of murder.

I told him I do not want him to make any statement to me because anything he might say to me might be used against him in court.

I explained to him his right to remain silent.

I informed him that upon his arrival at the police station he can either phone his legal representative concerning the case or a member of his family.”

Superintendent Letloenyane then questioned accused 1 regarding the knife and his clothes. In response to a leading question from Adv Ngobeni whether accused 1 furnished the information freely and voluntarily, he replied:

“I requested him to cooperate with us to solve the problem”

Asked under cross-examination whether accused 1 stated what he wanted to do when he was warned, Superintendent Letloenyane replied that accused 1 did not say.

When Superintendent Letloenyane was cross-examined on the issue whether he informed accused 1 that he was entitled to legal representation prior to making any pointing out and that he, on his version, only informed accused 1 that he was entitled to legal representation when he arrives at the police station, his evidence became very unsatisfactory and self-contradictory. He first replied that he informed accused 1 that if he wanted a legal representative, he could contact one at the police station. He thereafter said that accused 1 could call his legal representative at that stage, but if he was unable to do so, he could contact him when he arrives at the police station.

It also transpired from his evidence that he took accused 1 to a magistrate as a result of certain information furnished to him by accused 1. The state, however, never relied on any written statement obtained from accused 1.

(j) I find it unnecessary to set out Superintendent Letloenyane’s evidence given at the second trial-within-a-trial relating to the warnings which he allegedly furnished to accused 2. They were similar to those allegedly furnished to accused 1, except that he furnished the warnings simultaneously to all present, and, in respect of the right to legal representation, he allegedly warned them as follows in terms of my notes:

“they can get in contact with their legal representatives by phoning the legal representatives, and if they are unable to phone their legal representatives, they will be afforded an opportunity on our arrival at the police station.”

Under cross-examination, Superintendent Letloenyane also testified that accused 2 gave his full co-operation. When asked why a written statement was then not taken from accused 2, he replied as follows in terms of my notes:

“If I continued to take further statements from them that would have contradicted what I have explained to them.”

(k) I find the evidence of Superintendent Letloenyane on the issue of the warnings furnished at the times of the arrest of accused 1 and of accused 2 to be unsatisfactory and suspicious. He adjusted his evidence in the first trial-within-a-trial on a material issue, and he brought his evidence in chief in the second trial-within-a-trial in line with such evidence. The versions of accused 1 and of accused 2 on this issue are, in my view, reasonably possibly true. In other words, the state has not discharged the onus of proving that the fundamental rights of accused 1 and of accused 2 had not been infringed in the process of its obtaining the evidence in issue.

(l) I nevertheless also mention that, even on Superintendent Letloenyane’s own version, the constitutionally required warnings allegedly furnished to accused 1 and to accused 2 were inadequate. They had not been informed that they were entitled to consult lawyers of their own choice or lawyers assigned to them by the state prior to and in connection with the obtaining of the evidence in issue.

(m) In terms of s. 35(3)(j) of the Constitution, an accused has a right not to be compelled to give self-incriminating evidence, which right is ‘inextricably linked to the right of an accused to have a fair trial’ [see: Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) at para 159] and, in terms of ss. 35(1)(a) and (b) of the Constitution, such rights are already protected at the stage of arrest through inter alia the right to be promptly informed of the right to remain silent and of the consequences of not remaining silent (ss. 35(1)(a) and (b)), the right of an arrested person not to be compelled to make any confession or admission that could be used in evidence against him (s. 35(1)(c)), and, in his capacity as a detained person, the right to be informed promptly of his right to choose, and to consult with, a legal practitioner (s. 35(2)(b)) or to have one assigned to him by the state ‘if substantial injustice would otherwise result’ (s. 35(2)(c)). These constitutional rights of accused 1 and of accused 2 were violated, and the disputed evidence must, in terms of s. 35(5) of the Constitution, be excluded ‘if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.’

(n) Adv Ngobeni on behalf of the State relied on S v Lottering 1999 (12) BCLR 1478 (N) in support of his submission that the admission of the evidence obtained pursuant to the absence or inadequate furnishing of the constitutionally required warnings would not result in the accused being deprived of their constitutional right to a fair trial. Before being warned of his rights, the accused in that case made a pointing-out which led to the discovery of the murder weapon in circumstances where it was found by the court that the police had to act expeditiously to recover the weapon before it could be disposed of, where the accused was co-operative and made the pointing-out voluntarily and spontaneously, and where no prejudice had ensued since there was nothing to suggest that the accused would not have made the pointing-out had he been properly advised of his rights.

(o) The facts in Lottering, however, differ materially from the facts of the matters before me. Superintendent Letloenyane did not testify as to any need on his part to have acted urgently. On his own version, he took time to first warn them of their constitutional rights upon their arrests. The clothes and the knife could have been seized without the need to obtain admissions from the accused in connection therewith before they were duly warned of their constitutional rights. On the facts before me I am unable to conclude that the violations of their constitutional rights were not ‘deliberate or flagrant’. In Lottering, at p 1483H, Levinsohn J hastened to add that ‘…each case must be judged on its own facts and the decision in this one must not be construed as a licence to police officers to ignore or overlook the constitutional protection afforded to accused persons.’

(p) To admit the evidence in issue would, on the facts of the matters before me, have resulted in an unfair trial and be detrimental to the administration of justice within the meaning of s. 35(5) of the Constitution and as elucidated in S v Soci 1998 (3) BCLR 376 (E), at pp 393C – 394G.

(q) The accused are charged with murder, attempted murder and attempted robbery. The evidence in issue would have a bearing on whether particularly accused 1 is convicted. All the accused, from my own observation, are young and they are probably unsophisticated and uneducated. Accused 2’s brother, who testified on his behalf and who was also arrested with accused 2 but later released, was asked by Adv Ngobeni which rights were not explained to them. He was unable to tell and he admitted that he does not know anything about rights. The following sentiments expressed by Erasmus J regarding the accused in Soci are, in my view, equally apposite to the accused in the matters before me:

“He is, in short, a person who requires the full measure and protection offered under the Constitution. Not that he has any greater rights than any other citizen. It is just that State officials where they are required to explain their constitutional rights to persons such as the accused, must do so fully and effectively in a manner intelligible to the person concerned. The Court must be satisfied that the person understood the explanation.”

(r) It is also (similar to the situation in Soci, at p 395E – G) not really possible to say what the accused would have or would not have done had they properly and adequately been informed of their constitutional rights. I accept in their favour that they probably would have obtained the services of legal practitioners who would have advised them not to furnish the evidence in issue. They are all legally represented in the proceedings before me and they have raised defences of alibis.

(s) Apposite also to the determination of the matters before me are the remarks of Levinsohn J, at p 1483D – E, in Lottering:

‘The administration of justice would, in my opinion, not countenance a flagrant and deliberate violation of an accused person’s constitutional rights. Any evidence discovered in consequence of such violation ought to be excluded, otherwise the Constitution would become a dead letter.’

(t) To admit the evidence in issue on the particular facts of these matters would ‘licence … police officers to ignore or overlook the constitutional protection afforded to accused persons.’ [Lottering at p 1483 H].

[see: ; S v Mfene and Another 1998 (9) BCLR 1157 (N) ].

(u) I accordingly made the following rulings:

‘1. The alleged pointings out and information given by accused 1 to Superintendent Letloenyane relating to the knife, his clothes, and accused 2 immediately after his arrest are ruled inadmissible.

2. The alleged pointing out and information given by accused 2 to Superintendent Letloenyane relating to his clothes immediately after his arrest are ruled inadmissible.’

[16] I return to my rulings regarding the admissibility of the statements allegedly made by the deceased.

(a) In giving his evidence in chief, Makhubedu was led on certain statements allegedly made by the deceased. When he was stabbed on the first occasion by whom he observed to be accused 3, the deceased, who was not standing far from him, said to him: ‘Let’s go so that I can get help for you. These persons are known to me.” While Makhubedu and the deceased continued to walk home, the deceased, who was giving him support, suddenly let go of him and said: ‘Those people are coming again.’ There was no objection to this evidence.

(b) Adv Britz for accused 1 and Adv Alheit for accused 3 cross-examined Makhubedu inter alia on such statements and on certain contradictions appearing in his prior police statements in respect thereof for the purpose of testing his credibility. When he was referred to a prior police statement wherein he stated that when he returned and found the deceased naked lying on the street ‘she was still alive talking silently facing down.’, Makhubedu replied that the deceased at that time said to him that the person who injured him was Skebengu (accused 3). It was put to him that in terms of his prior police statement the deceased died before she could tell the names of the suspects whereupon he answered ‘She only knew Skebengu.’ This statement is contradicted by his later police statement wherein he stated that at some stage during their ordeal the deceased said ‘here is Themba and Skebengu’. It should be pointed out that Dlamini also testified that the deceased was still alive when they found her lying in the street. But her evidence was that the deceased lifted and lowered her head without saying anything.

(c) I have considered the admissibility of the evidence that the deceased made statements to the effect that the assailants or persons were known to her and that they were coming again under section 3(c) of the Law of Evidence Amendment Act 45 of 1988 and, having regard to the factors listed therein, I am of the opinion that the evidence should be admitted in the interests of justice. The commission of the murder and attempted murders are not in dispute. The accused raise defences of alibi and deny the prosecution’s case on the issue of their involvement in the commission of any of the offences in issue. The statements in this category are not to be admitted on the issue of identification and I contemplate no danger of error or prejudice to the accused in admitting them. On the contrary, the cross-examination on them statements formed part of the testing of the credibility of Makhubedu as a witness and the reliability of his evidence and particularly his identification of the accused. The submission made by adv Ngobeni that such are ‘spontaneous statements’ [see: Zeffertt Paizes St Q Skeen: The South African Law of Evidence (2003) at pp 417 – 419], which would render them admissible in terms of the common law, seems to me to be correct, but I do not consider it necessary to make any finding in this regard.

(d) Having regard to the factors listed in section 3(c) of the Law of Evidence Amendment Act, I am of the opinion that Makhubedu’s evidence that the deceased said to him that the person who injured him was Skebengu (accused 3) should not be admitted in the interests of justice. I deal briefly with such factors:

- the proceedings are criminal in nature;

- the evidence is not sufficiently reliable in nature to warrant its reception since there is no evidence relating to the degree of previous knowledge of accused 3 on the part of the deceased and her ability to have perceived him properly, there is very little evidence on her opportunity for a correct identification, the hearsay identification could not be tested in the proper way and with the necessary caution, and Makhubedu’s ability to accurately transmit on what was conveyed to him by the deceased seems questionable;

- the purpose for which the State wishes to rely on the hearsay evidence tendered by Makhubedu under cross-examination seems to be to corroborate his own identification of accused 3, which is the fundamental issue between the State and accused 3 and, if admitted, will be of crucial importance on the issue of his guilt [see: S v Ramavhale 1996 (1) SACR 639 (A), at p 649 d – e.];

- the probative value of such statement by the deceased is outweighed by its prejudicial effect since there exists a real danger of wrong identification in the circumstances of this matter where Makhubedu’s identification of accused 3 is corroborated by his own evidence of what the deceased would allegedly have informed him without such hearsay evidence being carefully scrutinized.

(e) I accordingly made the following rulings:

‘1. The category of evidence given by Makhubedu in his evidence in chief and under cross-examination that the deceased made statements to the effect that the assailants or persons were known to her and also to the effect that they were coming again, are ruled admissible.

2. Makhubedu’s reply when cross-examined by counsel for accused 1 that the deceased said to him that the person who injured him was Skibengu (accused 3) is ruled inadmissible.’

[17] In S v Van der Meyden 1999 (1) SACR 447 (WLD), this was said at p 448 f–i:

‘The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see, for example, R v Difford 1937 AD 370 at 373 and 383). These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.

In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true.’

[18] The approach to be followed in this case was formulated as follows in S v Chabalala 2003 (1) SACR 134 (SACR), at pp 139 – 140, para 15:

‘The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence. Once that approach is applied to the evidence in the present matter the solution becomes clear.’

[19] The issue in this case is one of identification, and the question is therefore whether there is proof beyond a reasonable doubt that accused 1, 2, 3 and 4 were the persons who committed the serious crimes on the evening of the 23^rd December 2006.

[20] The State case against the accused essentially relies on the direct evidence of Makhubedu in the identification and implication of the four accused, and on the circumstances that accused 1 collected his Okapi knife from Ngubeni during the afternoon on the 23^rd December 2006 and returned with it the next day with blood on; the clothes accused 1, 2, and 4 wore on the 23^rd December 2006 were found by Superintendent Lekhoenyane on the 26^th December 2006 to be blood stained; the accused were all known to each other; accused 4 took Superintendent Lekoenyane to accused 1 when he was arrested on the 26^th December 2006; and accused 3 and 4 were together when they were arrested on the 26^th December 2006.

[21] Relevant to the determination of the issue of identification by Makhubedu is the following dictum by Holmes J.A. in S v Mthetwa 1972 (3) SA 766 (A), at p 768A – C:

“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested.”

[22] The following dictum at p 310 in R v Dladla 1962 (1) SA 307 (A) is also relevant to this determination:

‘In a case where the witness has known the person previously, questions of identifying marks, of facial characteristics, and of clothing are in our view of much less importance than in cases where there was no previous acquaintance with the person sought to be identified. What is important is to test the degree of previous knowledge and the opportunity for a correct identification, having regard to the circumstances in which it was made.’

Also: S v Majiame en Andere 1999 (1) SASV 204 (OPA), at pp 214 d – 215 e.

[23] In S v Mehlape 1963 (2) SA 29 (A), at p 32F – G, this was said:

‘The often patent honesty, sincerity and conviction of an identifying witness remains, however, ever a snare to the judicial officer who does not constantly remind himself of the necessity of dissipating any danger of error in such evidence’

[24] The identification by a witness may be unreliable even if the witness is found to be a good witness, patently honest, intelligent, confident, coherent, and verbally expressive [see: S v Charzen and Another 2006 (2) SACR 143 (SCA).

[25] Makhebedu testified that the street lights were on and he was able to see their assailants. There was, however, also darkness. Makhubedu testified that accused 3 came from the dark and he returned into the dark after the first attack on him. Makhubedu testified that accused 1 was known to him by sight, since accused 1 usually visited his wife who stayed in the same street in which the deceased was staying. Accused 1 denied that he was known to Makhebedu previously. Makhubedu’s version on this issue seems more probable. He testified that the deceased resided with her parents at 11 Zambezi Street Alrapark. Accused 1’s girlfriend, Ngubeni, testified that she resides at 1696 Zambezi Street, Alrapark. Makhubedu testified that accused 2 was known to him since Makhubedu used to visit that area where accused 2 resided and they used to meet at a certain gambling place. Accused 2’s counsel put it to Makhubedu that accused 2 admitted that he and Makhubedu were known to each other. Makhubedu testified that he and accused 3 were known to each other by sight since they lived in the same area and Makhebedu had also seen him at drinking places. Accused 3 denied this. Makhubedu testified that accused 4 was known to him since his brother was a bosom friend of his. Accused 4 also testified that he had seen Makhubedu occasionally.

[26] Inspector Mohlaping obtained a police statement (exhibit “E”) in hospital from Makhubedu on the 24^th December 2006 (the ‘earlier police statement’). There is a contradiction between the evidence of Inspector Mohlaping and that of Makhubedu on whether the earlier police statement was read back to him. Inspector Mohlaping testified that he did, and Makhubedu testified that he did not. Inspector Mohlaping was hardly cross-examined and I have no reason to doubt his credibility as a witness or the reliability of the matters about which he testified. His evidence on this issue is accepted.

[27] In the earlier police statement it was stated that Makhubedu did not know the suspects and that he had not seen them before the incident. Makhubedu testified that such statement was untrue and that he had said this to Inspector Mohlaping because he trusted no-one at the time and he was afraid that if he disclosed the identities of their assailants, such information might be leaked and they might come back ‘to finish [him] off in hospital’.

[28] When Makhubedu was taken through his earlier police statement under cross-examination, he pointed out the various material inaccuracies in it, and he testified that he was not satisfied with his earlier police statement. He suggested to counsel that the earlier police statement should be ignored and the focus should rather be on his later police statement which he made the day after he was discharged from hospital. On the face of it the later statement appears to have been made before a commissioner of oaths on the 30^th May 2007, but such was denied by Makhubedu who insisted that it was made during January 2007 after his discharge from hospital.

[29] Makhubedu’s undisputed evidence in court was that he sustained five stab wounds during the incident and that he was hospitalized for a period of 3 weeks from the night of the incident on the 23^rd December 2006. Inspector Mohlaping testified that when he attended at the hospital on the 24^th December 2006, he requested a police statement from Mr Makhubedu who agreed to give one. Makhubedu testified the police officer should have waited until he was discharged from hospital. He testified that one must respect a police officer and give him answers and he did not consider that he could tell the police officer that he should go and return on another day. He was still in pain, but he decided to give the statement in order to get it done and to get the officer away from him. He intended to make a complete statement to the police as soon as he was discharged from hospital. Other explanations given by him under cross-examination included that he did not sleep the previous evening, he was asleep just before he gave the statement, he suffered from internal bleeding and had pipes in his body at the time, and he also posed the question how can one tell the truth when you experience pain and when you lie in hospital. His explanations are unacceptable. He could equally have given a brief but truthful account of the events to Inspector Mohlaping.

[30] Adv Ngobeni, in a very able argument, referred me to S v Gqulagha 1990 (1) SACR 92 (A); S v Mafaladiso en Andere 2003 (1) SACR 583 (HHA); and S v Govender and Others 2006 (1) SACR 322 (ECD) in support of his submissions that the purpose of police statements was to obtain details of an offence in order to decide to institute a prosecution, they are frequently not taken down with accuracy and completeness, there may be language and cultural differences between the witness and the police officer who takes down the statement, and not every error by a witness and every contradiction affects the credibility of the witness.

[31] The principles referred to by Adv Ngobeni are trite, and are certainly applicable to many of the non-material contradictions between his police statements inter se and between his police statements and his viva voce evidence. He is illiterate. His signature comprises the writing out of his first name Michael in capital letters. His ill-considered and nonsensical answers sometimes given under cross-examination when he was confronted with contradictions are accordingly not surprising [Govender (supra) at p 326 c – j].

[32] But the contradictions between his earlier police statement and his evidence in court relating to the deceased’s exclusive knowledge of the identities of their assailants, her death before she could disclose them, and of his own complete lack of knowledge of their identities, were not caused by a mere error. They are not in the nature ‘of a relatively minor nature and the sort of thing to be expected from honest but imperfect recollection, observation and reconstruction.’ [Gqulagha (supra) at p 98]. Makhubedu made such statements deliberately. They are material to the issue of his identification and implication of all four accused. The aim is not to determine which of his versions is correct, but to evaluate the honesty and reliability of his evidence in court [Mafaladiso (supra) at p 593 f ], including his explanation for having deliberately made such statement to Inspector Mohlaping the day after the incident. Such evaluation must be done on a holistic basis.

[33] It seems that the State called Dlamini as a witness to rebut the attack on Makhubedu’s credibility to the effect that his identification of the accused is a fabrication which occurred at some time between the incidents in question and the trial. The State attempted to prove that Makhubedu made similar statements to Dlamini to those he made when he testified and before he had a motive or an opportunity to fabricate false evidence. Any such statement made to Dlamini is not admissible to show the truth of what it asserts or to corroborate his evidence, but merely to rebut the suggestion or attack on his credibility that his identification of the four accused is fabricated (see: Pincus v Solomon (1) 1942 WLD 237 at p 242; R v Kizi 1950 (4) SA 532 (A), at p 535G – H; S v Bergh 1976 (4) SA 857 (A) at p 868D; S v Moolman 1996 (1) SACR 267 (A) at pp 295 - 6).

[34] In her evidence in chief, Dlamini testified that when they attended at the deceased on the evening in question, she asked Makhubedu whether he had seen who attacked the deceased, and he replied ‘Masoleng and Themba’ and ‘also others’. He said the same to her once after his discharge from hospital. Her evidence that she and Makhubedu were not persons who really spoke to each other is significant. Makhubedu’s explanation for deliberately having lied to Inspector Mohlaping regarding his ignorance of the identities of their assailants because he trusted nobody is contradicted by his conduct in having disclosed certain of their identities to Dlamini.

[35] Makhubedu also testified that while they were walking to get help after the first attack, the deceased said she knew the person and Makhubedu said he did not, and he intended to tell her the truth when he arrived in hospital or was put in an ambulance. This evidence is contradicted by his later police statement wherein he stated that he said ‘I know this man ‘Skebengu’ and the [deceased] said I know him’ at the time when they were approached by accused 3 on the first occasion.

[36] The unreliability of Makhubedu’s identification evidence also appears from various other material contradictions and from certain statements made by him when he testified. I also consider the evidence of Dlamini to be unreliable on material issues, and it certainly did not, in my view, rebut the attack on the credibility of Makhubedu’s identification evidence.

(a) In his earlier police statement it was stated by Makhubedu that two black males initially approached them, one had a knife, Makhubedu was stabbed by the one with the knife, and the deceased said to him they should go and report the matter to the police since she knew the ‘guys’. In giving his evidence he testified that they were initially only approached by one person.

(b) In her police statement it was stated by Dlamini that Makhubedu told her that they were initially approached by two males, he was stabbed, and the deceased told him she knows them. In giving her evidence in chief, she too contradicted her police statement on this issue by testifying that Makhubedu did not tell her how many people attacked them initially at the container. She later testified that Makhubedu told her that many people attacked them at the container.

(c) Makhebedu testified that he was able to identify their assailants on both occasions. Initially it was only accused 3. As I have already mentioned, in his earlier police statement it was stated by Makhubedu that he was unable to identify their assailants. In giving her evidence, Dlamini contradicted Makhubedu. She testified that he told her that they had many attackers at the container and he could not see clearly who they were. In his later police statement it was, however, stated by Makhubedu that there were no people on the street other than the four accused.

(d) Makhubedu testified that they were approached on the second occasion by all four accused. Such is of course in conflict with his earlier statement. It is also in conflict with the police statement of Dlamini who stated that he told her that he was able to see their assailants on the second occasion ‘very well’ and they were Masoleng and Themba. She contradicted her police statement in giving her evidence by saying that he mentioned to her they were Masoleng, Themba and others.

(e) In his evidence in chief, and also when cross-examined by counsel for accused 3, Makhubedu said that accused 2, 3, and 4 chased after the deceased. Under cross-examination by counsel for accused 2, he said that accused 2 and 4 ‘were the ones who approached my wife from the back. That is what I saw. They chased after my wife.’, and no mention was made of accused 3. Under cross-examination by counsel for accused 3 he said that once accused 1 had stabbed him, accused 1 also ran into the same street in which his wife was running. In his later police statement it is stated that accused 2 and 4 chased after the deceased.

(f) During cross-examination by counsel for accused 3, Makhubedu described accused 3’s facial characteristics as light in complexion only, he confirmed that he would have noticed had accused 3 had any peculiar facial features, and he stated that accused 3 had no marks on his face. It was later pointed out to Makhubedu that accused 3 has a distinct scar on across his right cheek from his right ear to the right corner of his mouth. Makhubedu then replied that he had seen the scar before, but he was not able to see the scar at the time of the incident because accused 3 was swaying his face to and fro.

(g) In his evidence in chief Makhubedu testified that the four accused are known to him and he will not falsely accuse them and say they did something which they did not do. He had no grudge against any one of them. Under cross-examination by accused 1’s counsel, Makhubedu said that he had never seen accused 1 walking in the company of any one of the other accused. Under cross-examination by counsel for accused 3 and by counsel for accused 4, he, however, said that the four accused know each other, they always walk together, they don’t work, they are only ‘kwaaddoeners wat ander mense pla.’ When it was pointed out to him that accused 3 was arrested on the 26^th December 2006, Makhubedu commented: ‘Bedoel u die polisie is mal om ‘n onskuldige persoon te arresteer.’

[37] I now consider the circumstantial evidence in corroboration of Makhubedu’s identification evidence.

[38] Ten people, including the four accused, were arrested and detained by the SAPS in connection with the crimes in issue while Makhubedu was still in hospital. He was not instrumental in their arrests. Upon his discharge from hospital, he identified the four accused when all ten detained persons appeared in the magistrates’ court. The other six were released. The mere say so of Makhubedu that he identified the accused when they appeared in court with the six other detainees is worthless in the absence of other information being placed before this court ‘as to the circumstances under which the identification took place and therefore whether it was ‘reliable’.’ [S v Daba 1996 (1) SACR 243 (E), at p 249 d – e ].

[39] Ngubeni impressed me most of all the witnesses who testified at this trial. Her credibility and reliability is accepted. The denials by accused 1 and accused 4 that they were together in town on the 22^nd December 2006 can, in the light of Ngubeni’s evidence, not reasonably possibly be true. Accused 1 and accused 4 admitted that they have known each other. Accused 1 initially denied that he knew accused 2, but he later conceded that he knew him by sight. Accused 1’s evidence on this issue was very unsatisfactory and accused 2 did not testify. Accused 3 testified that he and accused 4 were known to each other. The evidence furthermore establishes that all the accused were arrested in connection with the present charges on the same day, which was the 26^th December 2006. Accused 4 took the police to accused 1. I find accused 3’s evidence relating to his arrest and assault upon him to be improbable. It seems improbable that the police officers in question would not have seized the dagga and would not have caused him to be charged for such had he been arrested for smoking dagga as he alleged. It further seems highly improbable that Superintendent Letloenyane would simply have assaulted him without saying a word, and thereafter included him amongst the others who were arrested. But the circumstances of their association and particularly that of accused 1 and of accused 4 on the 22^nd December 2006, and the circumstances of their arrests on the 26^th December 2006, does not, within the context of all the evidence, implicate any one of them in the commission of the crimes with which they are presently charged.

[40] The circumstances of accused 1 collecting his Okapi knife from Ngubeni during the afternoon on Saturday, 23 December 2006, of returning to her the next day with blood on his knife are certainly in isolation compelling and corroborative of Makhubedu’s version insofar as accused 1 is concerned. It is, however, common cause that Ngubeni handed the knife over to Superintendent Lekoenyane and that the SAPS were in possession of the clothing which accused 1, 2 and 4 wore on the day in question. No material was placed before the court indicating whether any attempts were made by the state to secure DNA identification which might have resulted in real evidence. When I raised my concern in this regard with Adv Ngobeni during his closing argument, he informed me, and I unreservedly accept his word, that no DNA identification was undertaken because the State omitted to have blood samples taken from the deceased’s body. This explanation, of course, does not explain why no attempts were made to secure DNA identification concerning Makhubedu. His evidence was that he was stabbed five times, of which twice by accused 1. The accused are charged with one count of robbery with aggravating circumstances and two counts of attempted murder concerning the assaults on Makhubedu.

[41] The criticism levelled by Adv Rakobela against certain aspects of the investigation is accordingly, in my view, not without merit. I think that it is apposite in this connection to repeat what Slomowitz AJ said in Kubeka (supra), at pp 538G – H:

‘The rule that the State is required to prove guilt beyond a reasonable doubt has on occasion been criticised as being anomalous. On the other hand, the vast majority of lawyers (myself included) subscribe to the view that in the search for the truth it is better that guilty men should go free than that an innocent man should be punished. More especially is this so in capital cases. It should be borne in mind, however, that a Court seeks to do justice not merely to the accused but to society as a whole. If then the police do not fully and properly investigate crimes, especially of the type with which I am here concerned, as a result of which insufficient evidence is made available to the prosecution and in consequence put before the Court, guilty men will go free, not because of the existence of the rule to which I have referred, but simply because cases have been inadequately investigated.’

[42] The legal position in respect of alibi defences was set out as follows by Holmes AJA in R v Hlongwane 1959 (3) SA 337 (A), at pp 340H – 341B:

‘The legal position with regard to an alibi is that there is no onus on an accused to establish it, and if it might reasonably be true he must be acquitted. R v Biya 1952 (4) SA 514 (A). But it is important to point out that in applying this test, the alibi does not have to be considered in isolation. I do not consider that in R v Masemang 1950 (2) SA 488 (A), Van den Heever JA had this in mind when he said at 494 and 495 that the trial Court had not rejected the accused’s alibi evidence “independently”. In my view he merely intended to point out that it is wrong for a trial Court to reason thus: “I believe the Crown witnesses. Ergo, the alibi must be rejected. See also R v Tusini and Another 1953 (4) SA 406 (A) at 414. The correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court’s impressions of the witnesses. In Biya’s case supra, Greenberg JA said at 521 (the italics being mine) “… if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime.”

[43] The evidence of accused 1, 3 and 4 was also unsatisfactory in various respects. I have already alluded to certain of the respects and I do not consider it necessary to set out all the unsatisfactory respects in great detail.

(a) Accused 1 did not impress me as a witness. Unsatisfactory aspects to his evidence include Ngubeni’s alleged motive for testifying that he collected and returned his knife; the alleged assaults by the police on both Ngubeni and he, which was denied by Ngubeni, her knowledge of his relationship with Fikile, which was denied by Ngubeni; the events which took place at the time of his arrest and in respect of which he adjusted his evidence on various issues; and the issue as to whether accused 2 was known to him, which he initially denied but later conceded that he was known to him by sight.

(b) Apart from accused 3’s evidence relating to the circumstances of his arrest and the alleged assaults upon him, his evidence in isolation cannot seriously be criticised.

(c) I have alluded to the unsatisfactory aspects of accused’s 4’s evidence relating to the events on the 22^nd December 2004 when Ngubeni, accused 1 and he were together. His sister, who testified in his defence, contradicted his evidence in various respects. When the conflicts between her version and that of accused 4’s evidence were put to her under cross-examination, she contradicted her evidence and attempted to tailor her evidence to accord with that of her brother.

[44] It is trite that lies in themselves or improbabilities in an accused’s version do not establish the guilt of an accused [see: S v Steynberg 1983 (3) SA 140 (A); S v Mtsweni 1985 (1) SA 590 (A); S v Shackell 2001 (2) SACR 185 (SCA)].

[45] Accused 2 did not testify. The consequence of such an election was stated as follows Holmes JA in Mthetwa (supra), at p 769:

‘Where, however, there is direct prima facie evidence implicating the accused in the commission of the offence, his failure to give evidence, whatever his reason may be for such failure, in general ipso facto tends to strengthen the State case, because there is then nothing to gainsay it, and therefore less reason for doubting its credibility or reliability; see S. v Nkombani and Another, 1963 (4) SA 877 (AD) at p. 893G, and S. v Snyman, 1968 (2) SA 582 (AD) at p. 588G. In the latter case this Court went on to say, at p. 588H,

‘The ultimate requirement, of course, is proof of guilt beyond reasonable doubt; and this depends upon an appraisal of the totality of the facts, including the fact that he did not give evidence.’

[46] Approaching the evidence of Makhubedu with the necessary caution that should be applied to evidence of identification [see: Mthetwa (supra)] and to that of a single witness [S v Sauls and Others 1981 (3) SA 172 (A), at pp 179G – 180G], and weighing up all the relevant elements which point to the guilt of each accused against those indicative of each one’s innocence, I am unable to find that the evidence as a whole establishes the guilt of any one of the accused beyond a reasonable doubt. The identification evidence of Makhubedu, viewed in the context of all the evidence, including the corroborative circumstantial evidence [compare: S v Dweba [2004] 4 All SA 1 (SCA)], the shortcomings in the evidence of accused 1, accused 3, and accused 4, and the election by accused 2 not to testify, is simply not sufficiently trustworthy and reliable to conclude that the evidence establishes the guilt of any one of the accused beyond reasonable doubt. On all the evidence there is a reasonable possibility that the alibi defences put forward by each accused may be true.

[47] I must add that had the identification evidence of Makhubedu been more reliable, then the additional corroborative circumstantial evidence presented by the State might have raised the degree of probability, even in the absence of DNA identification, to exclude the existence of any reasonable doubt that the accused, or some of them, had committed the crimes charged, or some of them [compare: S v Phallo and Others 1999 (2) SACR 558 (SCA), para [10] ]. On the totality of the evidence, I am not satisfied that the truth was told by the eye witness.

[48] In the result accused 1, 2, 3 and 4 are found not guilty on count 1 (robbery with aggravating circumstances), on count 2 (murder), on count 3 (attempted murder), and on count 4 (attempted murder).

P. A. MEYER

JUDGE OF THE HIGH COURT

9 June 2008

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