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IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

 

Case number: K/S 01/2017

                                                  Dates heard: 24-26/10/18; 07 -09/11/18;12-15/11/18; 20/11/18; 21/11/18 24-26/11/18; 10-13/12/2018; 24-26/04/2020;  10-14/06/19; 14/06/19; 29-31/07/2019; 01-08/08/19;  18-19/06/19;24-25/06/19;  15-16/08/19; 23/03/20

   

                                                                               Date delivered: 11 - 12 May 2020

In the matter between: -

THE STATE

v

RICHARD HASANE                                                                      First Accused

TSHAME FRANK BAXANE                                                          Second Accused

ZONIZELO RICHARD MAGAWU                                                 Third Accused

THOMPSON MNCEDISI MPHONDOMISA                                Fourth Accused

MATTHEUWS LEGODU                                                               Fifth Accused

JUDGMENT

Tlaletsi JP

Judgment

Introduction and charges

1.           Accused number 1 is Richard Hasane, a 34-year-old adult male and a South African citizen from house number [….], in the district of Kuruman.

2.          Accused number 2 is Tshame Frank Baxane, a 32-year-old adult male and a South African citizen from house number [….], in the district of Postmasburg.

3.           Accused number 3 is Zonizelo Richard Magawu, a 37-year-old adult male and a South African citizen from house number [….], in the district of Postmasburg

4.            Accused number 4 is Thompson Mncedisi Mphondomisa, a 41-year-old adult male, South African citizen from house number [….], in the district of Postmasburg.

5.               Accused number 5 is Matthews Legodu, a 49-year-old male, South African citizen from house number [….]  in the district of Postmasburg.

6.               There was accused number 6, Paulus Mzeleni Mgcera who the charges against him have been withdrawn. Reference will however be made to him in the course of this judgment as his name came up from time to time in the cause of this trial.

7.               All five accused are appearing in this Court on five charges each.  The first two charges are murder, read with the provisions of section 51 of the Criminal Law Amendment Act, 105 of 1997.  The third charge is kidnapping read with the provisions of section 51 of the Criminal Law Amendment Act.  The fourth charge is contravention of section 3(1) read with sections 1, 120(1) and 121 of the Firearms Control Act, 60 of 2000.   The fifth charge is contravention of section 90 read with sections 1, 120(1) and 121 of the aforesaid Firearms Control Act.

8.               As regards count 1, the State alleges that on or about the 17^th of August 2016 at or near Postmasburg in the district of Postmasburg, the accused unlawfully and intentionally killed Johannes Baaitjie, a male person.  Count 2, it is alleged that on the 17^th day of August 2016 at or near Postmasburg in the district of Postmasburg the accused unlawfully and with the intention to kill shot Shuping Jeffrey Nouse a male person and that the said Shuping Jeffrey Nouse passed away at Kimberley, in the district of Kimberley on 23 August 2016.  Count 3 that of kidnapping, it is alleged that on the same day of 17 August 2016 and at or near Postmasburg in the district of Postmasburg the accused did unlawfully and intentionally deprive Johannes Baaitjie of his freedom of movement.  Count 4, Contravention of section 3(1) of the Firearms Control Act, it is alleged that on 17 August 2016 at or near Postmasburg in the district of Postmasburg the accused were unlawfully and intentionally in possession of a 9mm calibre firearm.  Count 5, Contravention of Section 90 read with section 1, 120(1) and 121 of the Firearms Control Act, the accused were in possession of 9mm calibre ammunition.

9.               It must be mentioned from the outset that the State alleges that accused numbers 2, 3, 4 and 5 as well as former accused number 6 either on their own or with persons unknown to the State conspired to kill Baaitjie; that the murder of Baaitjie was planned and premeditated.  Further, that the accused foresaw the possibility that Baaitjie would not be alone.  They were prepared to kill whoever was with him.  Baaitjie was to be sworn in as a Ward Councillor on Thursday 18 August 2016.  By Killing him, the State alleges that the accused wanted to ensure that a by- election is held in Ward 2 of the Danielskuil Municipality.  This would have given them the opportunity to rest back political control of the Danielskuil Municipality.  In this regard, the State alleges that accused number 5 had the expectation of more lucrative contracts from the Municipality should it not be under the control of the KCF-DA alliance.  The State further alleges that accused number 1 became part of the conspiracy and discussion to kill Baaitjie when he provided transport for accused numbers 2 and 4 to Postmasburg.  The State further alleges that Baaitjie and Nouse were killed by all of the accused, acting as a group of persons, either on their own, or with persons unknown to the state, in the execution or furtherance of a common purpose or conspiracy.  All the accused pleaded not guilty to the charges preferred against them.

10.            The appearances and representations of the accused are as follows:

For accused number 1 is Mr W J. Els, accused number 2 Mr L. Setouto, for accused number 3 Mr Buthelezi who substituted Mr T. Fourie who’s instructions and mandate was terminated by accused number 3 when the trial started. Furthermore, Mr Buthelezi’s instructions were also terminated in the same way after he presented accused number 3’s closing arguments. He is substituted by Mr Moroke. Accused number 4 is represented by Mr H. Steynberg and for accused number 5 is Mrs S. Easthorpe. All the legal representatives are acting on the instructions of the Legal Aid Board of South Africa, Kimberley.  The State is represented by Mr J.J Cloete assisted by Ms.K. Ilanga. 

The Pleas

11.            It is important to place on record that all legal representatives in this matter informed the Court that they did explain, fully, to the accused they represent, respectively, the provisions, purpose and implications of Section 51 (1) of the Criminal Law Amendment Act (generally referred to as the minimum Sentencing Legislation).  In particular, they explained that for counts 1 and 2 the accused, if found guilty of murder in those circumstances, and no substantial and compelling circumstances are found to exist in their cases, they face the possibility of life imprisonment sentence.  They also explained to them the competent verdicts applicable to their charges as well as the principle of common purpose and the alleged conspiracy.

12.             With regards to the plea-explanation for accused number 1 Mr Els addressed the Court from the bar and placed the following on record: that accused number 1 was approached by a certain Tiro Lekgotla (who in this trial is referred to as the so-called section 204 witness for the State) to provide or assist him with transport from Kuruman to Danielskuil.  Accused number 1 made use of his girlfriend’s car and on his girlfriend’s insistence he was the driver of the motor vehicle.  Whilst in Danielskuil he was informed that they now have to go to Postmasburg.  From there Lekgotla took over the driving of the motor vehicle.  In Danielskuil the said Lekgotla picked up two passengers and they travelled to Postmasburg.  Whilst in Postmasburg accused number 1 at some stage alighted from the vehicle to go to a nearby Tavern.  Lekgotla then informed him that he was quickly going to drop these two passengers off.  Accused number 1 realised after they had left that he forgot his wallet and his cell phone in the vehicle.  He had no means to contact anybody.  He waited and after sometime, Lekgotla came back with the vehicle.  Accused number 1 was upset with Lekgotla and drove back via Kathu to Kuruman.  The next day, he continues, accused number 1 was contacted by Lekgotla again and amongst other things insisted that accused number 1 take the vehicle to be washed.  Lekgotla also claimed that he had left his wallet in the vehicle and on inspection they found a bullet and a holster in the vehicle which Lekgotla said belonged to him.  Accused number 1 was arrested on 6 September 2016. He denies killing or in any way being involved in the murder of Johannes Baaitjie and or Shuping Jeffrey Nouse.  He further denies kidnapping Johannes Baaitjie.  Further, he denies the possession of the firearm or ammunition as mentioned in the charge sheet.  He states that he was not involved in the planning or execution before or during or after commission of these crimes.  He merely provided transport for valid and innocent reasons. 

13.            Accused number 1 confirmed that his counsel explained to him the provisions of section 51(1) of the Criminal Law Amendment Act, Competent Verdict, the meaning and implications of Common Purpose and Conspiracy. He also confirmed the explanation of his plea of not guilty placed on record by his counsel as a true and correct reflection of his instructions to him.

14.            On behalf of accused number 2 Mr Setouto placed the following information on record to explain why accused number 2 is pleading not guilty: With regard to count 1and 2, being the murder charges, accused number 2 would say that on the day in question, being 17^th of August 2016 he was at all material times in Danielskuil from the morning of 17^th August 2016 until the following morning of 18 August 2016.  That it will be clear as evidence is lead that accused number 2 on that particular day was moving around Danielskuil and in several places.  As far as counts 4 and 5 are concerned the accused will deny any involvement.  He denies kidnapping Baaitjie, denies having been in possession of a 9mm calibre firearm and further denies having been in possession of a 9mm ammunition.  The aforesaid explanation and further explanation regarding what the minimum sentence, competent verdicts, common purpose and conspiracy entailed were confirmed by accused number 2.

15.            On behalf of accused number 3 Mr Buthelezi also confirmed having explained in detail the provisions and consequences of section 51(1) of the Criminal Law Amendment Act, competent verdicts, common purpose and conspiracy to accused number 3. As to the basis of the pleas of not guilty, he mentioned that accused number 3 bears no knowledge of the 5 counts put to him.  He also denies killing Johannes Baaitjie and Shuping Jeffrey Nouse. Accused number 3 confirmed what Mr Buthelezi placed on record as his instructions to him. 

16.            For accused number 4 Mr Steynberg handed up a written statement which he read onto the record.  In the statement accused number 4 placed the following facts on record: that he understands the charges set out in the indictment and confirms his plea of Not Guilty.  His legal representative has informed him that the minimum sentence is applicable in count 1 and 2.  He further confirms that his legal representative explained the provisions of section 51(1) and 51(2) of Act 105 of 1997 to him.  He also informed him of the competent verdicts applicable to count 1 and 2.  He denies that he committed the offences as set out in counts 1 to 5 of the indictment; he further denies any involvement in the offences and denies that he acted in the furtherance of a common purpose with any of his co-accused to commit the offences, either by way of a prior agreement or by an act of association.  He further states that he was not present when the offences were committed; at the time when the offences were committed on 17 August 2016, he was at Sloja lounge in Danielskuil.  He was at the Sloja Lounge from around 17h00 until Sloja Lounge closed.  He went to sleep after 24h00.  He was not in Postmasburg at any time on 17 August 2016.  He also denies ever being in possession of the 9mm calibre firearm or ammunition for a 9mm firearm in his possession.  The statement was confirmed by accused number 4.  The statement in explanation of his plea was admitted as Exhibit A.

17.            Ms Easthorpe addressed the court from the bar regarding accused number 5, Mr Matthews Legodu.  She confirmed having explained the implications of the Criminal Law Amendment Act as well as the competent verdicts and the implications of common purpose in regard to all the other offences explained to accused number 5.  Regarding the basis of his defence she pointed out that accused number 5 denies committing or participating in any of the charges against him. She mentioned that the various allegations relating to each count will be dealt with in the course of the trial. Accused number 5 confirmed what his legal representative placed on record regarding the implications of the Criminal Law Amendment Act, the common purpose principle, the competent verdicts applicable, as well as the basis of his defence. Before dealing with the evidence it is apposite to state the legal principles applicable and from which the case is to be decided.

The legal principles applicable

18.            It is trite that the burden of proof in criminal proceedings[1] is on the prosecution to prove the guilt of the accused beyond a reasonable doubt. There rest no duty on the accused to prove his/her innocence. In S v Van der Meyden the court correctly held that:

a.    “The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some might be found to be only possibly false or unreliable; but none of it may simply be ignored.”

 

19.            The Supreme Court of Appeal provided guidance in the correct approach to the evaluation of evidence in a criminal trial in S v Chabalala [2] :

b.    “The trial court’s approach to the case was, however, holistic and in this it was undoubtedly right: S v Van Aswegen 2001(2) SACR 97 (SCA). 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…”

 

20.            Reference has already been made to a co-perpetrator and or an accomplice. A perpetrator is a person who commits a crime. Where more than one person commit a crime they are known as co-perpetrators. The liability of each co-perpetrator is based on his/her own act and his/her own intent.[3] In that regard evidence of such an accomplice or co-perpetrator must be approached with caution. The reason for this was aptly enunciated as follows in S v Hlapezula and another.[4]

c.    “First, he is a self-confessed criminal. Second, various considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit or, particularly where he has not been sentenced, the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive facility for convincing – his only fiction being the substitution of the accused for the culprit”.

 

21.         However, it is not necessary for the evidence of an accomplice to be reliable or honest in all respects, for it to be accepted. The court must only be satisfied, after the cautionary rule has been applied, that his version is true beyond a reasonable doubt. In S v Francis[5] the court held thus:

“It is not necessarily expected of an accomplice, before his evidence can be accepted, that he should be wholly consistent and wholly reliable, or even wholly truthful, in all that he says.  The ultimate test is whether, after due consideration of the accomplice’s evidence with the caution which the law enjoins, the Court is satisfied beyond all reasonable doubt that in its essential features the story that he tells is a true one (R v Kristusamy 1945 AD 549 at 556).”

22.            Where corroboration is sought it must be other evidence which supports the evidence of the accomplice witness and on the issues in dispute.[6] Corroboration can be provided by circumstantial evidence and where the accused persons show themselves to be lying witnesses. [7]

23.            The importance of disputing the evidence of witnesses a party does not agree with in cross-examination was confirmed in President of the Republic of South Africa and others v South African Rugby Football Union and others [8] at paragraph 61 where the court held that:

d.    “The institution of cross-examination not only constitutes a right it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.”

 

24.            Where there are co-perpetrators it is not necessary to single out a principal perpetrator. An indirect perpetrator is somebody who commits a crime through the instrumentality of another. A number of persons will be guilty of murder as co-perpetrators if it is clear that each had committed an intentional, unlawful act which is causally connected with the death of the victim. [9]

25.            Where there is a plot or an agreement or a conspiracy between persons to murder a victim, it is not necessary that every conspirator should commit an act which contributes to the death of a victim. Each one will still be liable for the death, even if he/she does not participate in the commission of the offence and even if he/she is not present at the scene of the murder. In S v Cooper and Others[10] the Appellate Division held:

” A conspiracy normally involves an agreement, express or implied, to commit an unlawful act. It has three stages, namely, (1) making or formation, (2) performance or implementation and (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed and the conspirators can be prosecuted even though no performance has taken place. But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of performance or by abandonment or frustration or whatever it may be; per   Lord PEARSON in Director of Public Prosecutions v. Doot and Others, (1973) 1 All E.R. 940 (H.L.) at p. 951. While the conspiratorial agreement is in existence it may be joined by others and some may leave it. The person who joins it is equally guilty; R. v. Murphy, (1837) 8 C. & P. 297 at p. 311 [1837] EngR 1120; (173 E.R. 502 at p. 508). Although the common design is the root of a conspiracy, it is not necessary to prove that the conspirators came together and actually agreed in terms to have the common design and to pursue it by common means and so carry it into execution. The agreement may be shown like any other fact by circumstantial evidence. The detached acts of the different persons accused, including their written correspondence, entries made by them, and other documents in their possession, relative to the main design, will sometimes of necessity be admitted as steps to establish the conspiracy itself. It is generally a matter of inference deduced from certain acts of the parties concerned, done in pursuance of a criminal purpose in common between them. R. v. Briscoe and Scott, (1803) 4 East 164 at p. 171 (102 E.R. 792 at p. 795). If the conspirators pursued, by their acts, the same object, often by the same means, some performing one part of the act and others another part of the same act, so as to complete it with a view to the attainment of the object which they were pursuing, the conclusion may be justified that they have been engaged in a conspiracy to effect that object. The question to be answered is, had they a common design and did they pursue it by a common means?”

 

26.            Where a person was a party to a common purpose or prior agreement to commit a particular crime (like murder), and he/she foresaw the possibility that another crime (another murder), may be committed in the execution of the plan, but he/she persisted, reckless of such consequences, and it occurred, he/she will also be guilty of the second murder. [11]

27.            Where a participant in a common purpose commits an act which causes the death of the deceased, and the other participants have the necessary intention, the act of the one who caused the death of the deceased, is regarded as the act of all the participants. Each participant should have involved himself or herself actively with the achievement of the common purpose. [12]

28.            An accessory after the fact is someone who unlawfully and intentionally, after the completion of the crime, associates him/herself with the commission of the crime by helping the perpetrator to evade justice. [13]

29.            A court is entitled to consider the conduct of an accused after the event to determine whether he/she associated him/herself with the murders and also to determine what his/her state of mind was when the murders were committed. [14]

30.            In deciding whether a group of persons jointly possessed a firearm and ammunition, the State must establish facts from which it can be properly be inferred that the group had the intention to exercise possession of the firearm through the actual detentor and the actual detentor had the intention to hold the firearm on behalf of the group[15] .

31.             It is of fundamental importance to record that at the beginning of the trial there were no admissions in terms of section 220 of the Criminal Procedure Act made by the accused.  This resulted in the state facing a mammoth task of having to tender evidence on each and every aspect of the case, including the chain evidence on the discovery and identity and of the bodies of the deceased, the causes of their death, the discovery and collection of the exhibits and evidential material and samples, the sending thereof to the respective forensic laboratories, the handling and the analysis processes they were subjected to.  

 

The State Case

32.            Mr Johannes Hermann Kotze testified that he resides in Postmasburg.  He is a farmer, project manager and a member of the local neighbourhood watch.  He received a telephone call at about 6:30 from his employee, Williams Makhile who was on his way home to Bloemfontein.   He reported about a body of a person lying next to the road about two to three kilometres to Groenwater who appeared not to be alive.  Mr Kotze conveyed the report to Mr Blackie Swartz who was the person in charge of the neighbourhood watch at the time.

33.            Mr Johan Henry Swartz is a sports grounds manager at Postmasburg High and Primary schools and also a member of the Community Policing Forum.  He received a report from Mr Kotze on 18 August 2016 about a person that was lying on the side of the road to Groenwater.  He promised Mr Kotze to report the incident to the police.  He indeed phoned the SAPS in Postmasburg though he can’t recall the name of the police officer he spoke to.

34.            Police officer Israel Gaonalerole Pule Mosakga testified.  He is attached to the Local Criminal Record Centre (LCRC) in Kuruman.  He is employed as a draughtsman and photographer.  His evidence pertains to the two scenes that will be referred to later at which he took photographs and drew up a key thereto and a sketch plan that was subsequently handed in as Exhibit B.  Reference will be made to this Exhibit B extensively in the course of the evidence. 

 

35.            The next witness was Constable Jacobs Sipho Kies.  He is a member of the South African Police Services (SAPS) attached to the Northern Cape Provincial Crime Scene Management Task team.  His duties entail draughtsmanship, photography, the lifting of fingerprints and related investigations in the whole of the Northern Cape Province.  He testified that he was called to a scene next to a school where he took photographs and prepared a photo album and key thereto which was handed up as Exhibit C.  Similarly, his evidence regarding the photos he took at the scene would be referred to extensively during the course of the Judgement.  There are certain evidential material (exhibits) that he picked up at the scene that were tagged and later sent for analysis at the Laboratory. 

36.            The next witness was Constable Tshepo Mogoiwa.  He is a member of the SAPS, currently stationed at the Northern Cape Provincial Crime Scene Management and Task Team. He was called to a scene on the road leading to Groenwater on Friday 19 August 2016.  He took photographs at the scene and compiled a photo album, Exhibit C. They are photos 01 to 10 of the photo album. He further went to Danielskuil to take photos 11 up to 44.  He also attended a post-mortem examinations performed by Dr Stark in Kimberley on 22 August 2016.  The photos are numbered 45 to 68.

37.            On 24 August 2016 he attended at Postmasburg and Danielskuil where he took photos to record the collection of exhibits as shown in photos 69 to 98. On 25 August 2016 he attended a second post mortem examination conducted by Dr Stark in Kimberley, photos 99 to 116.  On the 31 August 2016 some aerial photographs of certain points in Postmasburg and Danielskuil and on the road between the two places were taken.  These aerial photographs formed part of the album that Constable Mogoiwa prepared as photos 117 to 122. He prepared a sketch plan and key thereto. He read the key and explained the photos into the record. In light of the fact that his evidence was not questioned by counsel who put certain questions to him in cross examination, it is not necessary to record it as it is part of the record. Reference will be made to these photographs and the album in the course of the judgment.

38.            The next witness was Warrant Officer Edward Peter Fortuin who was employed by the SAPS as a photographer at the local records centre in Kuruman.  On the 22^nd August 2016 at 16h40 he took photographs of a business called Z & S Sound & Cell phone, 10 Main Street Danielskuil (the Cell phone shop).  The photographs that he took were compiled into an album.  The third photo album was admitted as Exhibit E. The witness further assisted in the investigation of this matter by investigating a silver grey VW Jetta, with vehicle registration number CJJ821NC on 20 September 2016.  He took photographs of the motor vehicle which he compiled into a photo album which was admitted as Exhibit F.  The witness prepared a statement in terms of section 212 of the Act which is set out on pages 91 and 93 of Volume 2 of the transcript[16]. 

39.            Mrs Dora Baaitjie who is the wife of the deceased, Johannes Baaitjie.  Before her evidence was tendered, Mr Cloete on behalf of the State addressed the Court indicating that some of her evidence was of hearsay nature and applied that part of the evidence be admitted in terms of Section 3(4) of the Law of Evidence Amendment Act 45 of 1988.  There was no objection on behalf of accused number 1 up to 4.  Although initially there was what could be an objection on behalf of accused number 5, it turned out to be a mere misunderstanding and Mrs Easthorpe for accused number 5 consented to the evidence being tendered. 

 

40.            Mrs Dora Baaitjie testified that she is 48 years old and has been married to the deceased for 25 years.  They have 3 sons namely, the twins, Denver and Donovan aged 25 years, and Jody who is 21 years old.  Her husband was a Councillor for the Democratic Alliance (DA).  He was a contractor by trade doing mainly construction, cleaning, paving and other small jobs. 

41.            She testified that on 17 August 2016 she was at home.  Her husband left at around 5pm. He indicated to her that a certain man had phoned him regarding some paving work valued at R800 000-00 and the caller would take only 10% of that amount.  He indicated to her that the man said they must meet at about 6pm at a business Hub in Postmasburg.  Her husband took Shuping Nouse to accompany him, the reason being that his own contract papers were incomplete.  He left in his Ford Ranger van.  Before he left ,his vehicle had not been parked inside his garage but on the premises where it was visible to any passer-by. 

42.            Mrs Baaitjie mentioned that just after 6pm her husband phoned her and in the conversation she asked him whether the person had arrived.  He replied that the person called and said they were on their way and he should wait a bit.  Her husband’s cell phone number was 061 300 2183.  She mentioned that with this call it was the last time that she spoke to her husband.  She later called him around 7pm and two times thereafter around 9pm.  The phone was just ringing and not being answered.  She made several telephone calls in the cause of the night and the phone just kept on ringing without a response.

43.            The following day on 18 August 2016 she woke up at 05:00. She woke the children up as well. She prepared herself for the day.  She called her husband but the phone rang unanswered.  She called her uncle and told him that her husband did not return home the previous night.  The uncle came to her house. She explained to him the circumstances under which he left the previous day.  The uncle went to obtain a number from Nouse Shuping’s mother so that he could call Nouse.    He called but the phone of Nouse went to voicemail. 

44.            Mrs Baaitjie called her other uncle who lived in Postmasburg, named Hendrik Baaitjie.  She requested him to look around for her husband’s van in the area.  Hendrik started at the business hub where he called and reported that the van was not there.  Later he called her and asked her to urgently come to Postmasburg. 

45.            Mrs Baaitjie left with her other uncle, Piet Pienaar for Postmasburg. As they approached Groenwater, they saw a Police van parked on the side of the road.  The van meant nothing to them and proceeded to Postmasburg.  They ultimately arrived at the school where she saw several people in the area.  She was asked to identify a jacket which she identified as belonging to her husband.  The jacket is on photos 48, 49 of Exhibit C.   Her husband was wearing the said jacket when he left for Postmasburg.  She also mentioned that her husband used to have a blue hat, with DA colours which he kept on the head rest of the van.  She also identified a Nokia cell phone, Exhibit 7, as belonging to her husband.  She mentioned that her husband was supposed to be sworn in as a Ward Councillor on the 18^th of August 2016.

46.            Mr Hendrik Baaitjie is the cousin of the deceased Baaitjie.  At about 05:00 he received a call from Mrs Dorah Baaitjie about the disappearance of her husband.  She requested him to look for his van at a mine house and around Postmasburg.  At the mine house (Kolomela Hub) he did not find the van.  He drove along Griekwastad road, searching.  He saw a van parked next to a school.  It had a DA sticker.  He came closer and saw a person seated at the back on the left side.  He asked him what was happening.  The man did not respond. His eyes were wide opened.  Mr Baaitjie drove straight to the SAPS offices to report his discovery.  The police confirmed that they already received telephone calls regarding some people and were looking for them.    He drove behind the police motor vehicle back to the scene where he stood aside and observed what was happening.

47.            The next witness is Tshonto Christopher Kgomanyane.  He is a member of the SAPS, Visible Policing unit holding a rank of Sergeant stationed at Postmasburg. He received a call just after 06:00 when he reported for duty from a person named Blackie Swart.  The latter reported about a male person said to be lying next to the road near Groenwater.  As Kgomonyane was preparing his documents to attend to the report, his other colleague Schalk, received a report about a van with an injured passenger parked next to a school in Postmasburg.  Sergeant Kgomanyane took two of his colleagues namely, Constables Belauw and Munzelele to accompany him.  Along the road they came across a place where a male person was laying on the side of the road with his stomach and face down.  He estimated the distance to be plus minus 23 to 24 km from Postmasburg.  He identified the place on photos 1 to 3 of exhibit B. He contacted the Police Station for them to arrange an ambulance and the forensic personnel to come to the scene.  Whilst there, Warrant Officer Motsaga from the LCRC in Kuruman arrived.  According to Sergeant Kgomanyane he observed that on this body there was what he described as possible bullet wound on the side of the neck.  When they turned the body over he noticed that the body had about 4 other wounds which were possibly bullet wounds.  From this body there was a trail of black, or dark substance that looked to him like either oil or blood, which ran from where the body was into the main tarred road and going a distance in the direction of Postmasburg.  He followed this trail for some distance but returned before it could end. He estimated the trail to be about 500 metres. It was from where the body was lying and leading to the direction of Postmasburg or vice versa.

48.            Sergeant Ohentse Macdonald Schalk testified that on the 18^th August 2016 in the morning he was on duty as a Charge Office Commander. He received a telephone call from a person who introduces himself as Baaitjie. He reported that he had noticed a van parked next to the Postmasburg High School with a passenger who appeared to have been injured.  As there were no other police officers at the station, as some attended the scene that Sergeant Kgomanyane attended to, Sergeant Schalk drove alone to the scene described by Mr Baaitjie.  On arrival he found a Ford Ranger van parked at the scene. He noticed a blood stain on the right hand side door of the Ford Ranger van.  The said Ford Ranger van is one depicted on photos 1, 2, 3, 4, 5, and 6 of Exhibit C.  Inside the van on the rear passenger seat he saw a male person seated in there.  He noticed that this person was not moving.  His face had some blood stains. He was leaning on the left hand side of the rear passenger seat with his legs on top of the seat.  His eyes were closed.  Sergeant Schalk knocked on the window and he noticed that this person was trying to turn but had difficulty.  He also steadily removed his legs from the seat onto the floor of the van.  His eyes were at this stage still closed. Sergeant Schalk opened the right rear door. He tried to enquire from this person what happened. This person tried to indicate with his hands what happened.  The Sergeant could not understand what he was trying to explain as he did so with great difficulty.  There was no sound coming from his mouth.  He ultimately opened his eyes.  The Sergeant observed that there was a hole on the right temple which was bleeding. Below the left ear he noticed another hole similar to the other hole, also bleeding.

 

49.            Sergeant Schalk contacted the police station with his cell phone for them to arrange for an ambulance to assist the injured person.  Outside the vehicle he noticed a bullet cartridge on the right hand side of the back or behind the motor vehicle.  He also noticed a bluish cap lying next to the motor vehicle.  The bluish cap is the one he identified on photos 39 and 40 of Exhibit C.  He also noticed a black and white hat which he identified on photos 36 and 37 of Exhibit C.  Further, he noticed a handkerchief lying next to the motor vehicle with some blood stains.  This he identified on photos 42 and 43 of Exhibit C.  Upon further observation he noticed a tracksuit top near the crèche adjacent to this school. He identified the tracksuit top on photos 48 and 49 of Exhibit C.

 

50.            Sergeant Molelekeng, who was the detective on standby arrived and he handed the scene over to him.  At this stage people had started to gather as they noticed that something had happened there.  Netcare ambulance also arrived at the scene. An official who identified himself as Alexander, assisted the injured person.  He took him out of the motor vehicle and placed him on the stretcher.  He took out two cell phones from his pockets which he handed over to Sergeant Schalk.  Sergeant Schalk handed the two cell phones to Detective-Sergeant Molelekeng.  The injured person ultimately taken to hospital.  Whilst there a lady who identified herself as Chantel Baaitjie informed Sergeant Schalk that the van and the jacket that were discovered belonged to her husband who left home the previous day with a man named Nouse. Sergeant Schalk asked her how this Nouse looked like.  Her description matched the person that had just been taken to hospital. Next to the jacket that was found at the scene was an empty Castle light beer bottle which had some moisture in it.  On the area around the van there were also some marks of a motor vehicle which appeared to have been spinning or driving roughly around. 

 

51.            Deane Casual Diphoko is a Detective/Sergeant in SAPS stationed at Postmasburg. He has sixteen years’ service. On 18 August 2016 he was on duty. He was called to a scene at a place around the school for investigations. Upon arrival he noticed a Ford Ranger van parked on the scene. The scene was already cordoned off. Sergeant Schalk was already on the scene and he briefed him of the events. The injured person was no longer on the scene. Detective/Sergeant Diphoko looked around and noticed a jacket lying next to the primary school gate. Next to it was a bottle of Castle Lite beer. He searched the jacket to determine whether it could be related to what happened at the scene. In the pocket he found a cell phone and a key of a Ford Motor vehicle. These he identified as the ones depicted on photos 26,27,48,49, and 51 of Exhibit C. He left the jacket where he found it but took the keys and the cell phone. He handed the items to Sergeant Molelekeng as the main member of SAPS on the scene. The cell phone was still on.

 

52.            Also present at the scene were members of the Crime Intelligence Unit from Upington. The cell phone was opened and required no password. One of the Upington police officers send a message to herself and forwarded the same message from the cell phone to someone else unknown to Detective/Sergeant Diphoko. Members of the Directorate for Priority Crime Investigation (the Hawks) arrived at the scene. Lieutenant-Colonel Louwrens (Colonel Louwrens) was one of them. They arrived after the witness had already had interactions with the Crime Intelligence Unit at the scene.

 

53.            Graneo Frans Molelekeng is a Detective/Sergeant at SAPS and was on duty at Postmasburg on 18 August 2016.  Around 07:00 he received a telephone call relating to a scene on the road near Groenwater, from the charge office.  He left for the scene and on arrival he found members of the SAPS uniform division present. Among them was Sergeant Kgomanyane.  He saw a body of a person lying next to the road covered with a sheet.  He opened the covering sheet and noticed what appeared to be gunshot wounds on the back of the head and on the side of the body.  On turning the body at the request of Motsaga who was taking photos, he noticed a wound/hole on the forehead.  Next to the body was a training shoe, which is on photos 2, 11, 12 and 13 of Exhibit “B”.  He also noticed a trail of blood from where the body was found leading to the tarred road and for about 600m in the direction of Postmasburg where he came from.

 

54.            Detective Sergeant Molelekeng received a call reporting about a scene next to a school in Postmasburg.  He immediately proceeded to that scene.  He found the LCRC officers busy taking pictures and some collecting evidential material.   Sergeant Schalk was in charge of the scene. 

 

55.            Sergeant Molelekeng testified that he received two cell phones from Sergeant Schalk and one cell phone from Detective/Sergeant Diphoko which was on.  He opened it to view both incoming and outgoing calls, if any.  He found a message received by that Nokia phone.  The message referred to a meeting that was supposed to take place at Kolomela Hub having to do with tenders to the value of R800 000-00.  A person was also to receive 10% of that amount and that the recipient of the message said he should come alone.  He opened the phone to see if he could find leads for investigation and to possibly apply for records in terms of section 205 of the Act.  Sergeant Molelekeng identified the Kolomela Hub, which was known to him already at the time, in photo 119 of Exhibit B.  When he received the two cell phones from Sergeant Schalk and the one from Detective/ Sergeant Diphoko, members of the Hawks had not yet arrived at the scene.  It was only the Crime Intelligence Unit members from Upington present at the scene.  A lady Captain from the Crime Intelligence unit showed him her appointment certificate upon his demand when she requested to have a look at the Nokia cell phone.  He thereafter handed the phone to her.  He is not sure whether the lady Captain send to her phone a “please call me” message from that phone to try and identify its number or did something else.  She however gave the cell phone back to him after she finished handling it. 

 

56.            After finishing at the scene, Sergeant Molelekeng and all other police officers, including the Crime Intelligence unit proceeded to the Postmasburg police station. Members of the Hawks also arrived.  He later handed over the three cell phones to Warrant Officer Van der Merwe of the Hawks.  Lieutenant Colonel Louwrens and Sergeant Moshe were also present. He recalled under cross-examination that someone who could be a brother to the deceased in count 1, told him that the jacket belonged to the deceased Baaitjie.

 

57.            Mosimanegape Mcdonald Sekgweleo is a Warrant Officer at SAPS attached to the Crime Intelligence section stationed at Kimberley.  Their duties entail gathering information and providing it to the detectives investigating crime.  On 18 August 2016 he was sent to Postmasburg to assist in the investigation of an alleged crime.  He arrived at a scene next to a school having driven past what would have been another scene on the road next to Groenwater.  At the time that road was clear.  He found Captain Ramela with two detective officers from Postmasburg.  She reported to him that the only lead she received was the message on the cell phone of the deceased.  Captain Ramela requested one of the detective officers to send to her phone the said message.  Warrant Officer Sekgweleo in turn received the cell phone number from Captain Ramela through “WhatsApp” at his request.  He also read the message that was sent to Captain Ramela.

 

58.            Warrant Officer Sekgweleo testified that there was also a group of people from the Save Tsantsabane Coalition at the scene.  One of them Thetamane, was a member of the Tsansabane Black Business Council.  He requested him to check the number and the name “Jonathan” on their database.  Thetamane dialled the number from two of his cell phones to check if he had the number on his phone, and it did not reflect.  Both calls went to voice mail.  He promised to check the number at their office.  Warrant Officer Sekgweleo spoke to Norman Pullers to check the numbers.  In the meantime, Lieutenant/Colonel Louwrens called the detectives and requested them to bring the cell phones to him.  They drove to the police station.  Colonel Louwrens told them that was taking the investigations over and they should back off.

 

59.            Lieutenant-Colonel Molebiemang Getrude Ramela (hereinafter Colonel Ramela) was Captain in the Crime Intelligence Unit based in Upington.  On 18 August 2016 she received an instruction from her Commander to go to Postmasburg for investigations.  She was accompanied by three of her colleagues from Upington.  She got directions to the scene from the Postmasburg Police Station and went to the school, where she found Detective/Sergeant Molelekeng and his colleagues.  In her discussions with Detective/ Sergeant Molelekeng he reported about the two cell phones from the deceased’s car.   She requested him to dial her number with that phone so that the cell phone numbers could be exposed.  After that she sent the cell numbers to her office so that they can launch an application in terms of section 205 of the Act as instructed by her Commander in Upington.[17]  Detective/Sergeant Molelekeng further reported that there is also a message on that cell phone.  She read the message and requested him to send to her that message so that she could forward same to her commander in Upington as well.  They did so.  She used her official number 082 260 1855 for the messages.  Soon thereafter Detective/Sergeant Molelekeng received a phone call reporting that there were police officers from Kimberley who wanted to see them.  They immediately proceeded to the Postmasburg police station.

 

60.            At the police station Colonel Louwrens told them that he was now taking the investigation over, they should discontinue their investigations and that whatever information they had retrieved or found should be handed over to him.  He undertook to later go to Upington to obtain her statement and whatever items they obtained.  She mentioned that indeed the following day (Friday, 19 August 2016)[18] Colonel Louwrens came to Upington for that purpose. They therefore did not proceed with the section 205 application as her Commander had undertaken.  Colonel Louwrens further told her Commander of the changes going forward.  Colonel Louwrens retrieved the message from her phone and told her to delete everything to do with the case, which she did.

 

61.            Under cross-examination Colonel Ramela mentioned that she was only showed two cell phones but that she never touched any of the cell phones[19].  When it was pointed out to her that her statement is dated 14 November 2016 and not 19 August 2016 as it should be the case according to her evidence, she explained that Colonel Louwrens phoned her at some stage from Kimberley and told her to change the date on the statement and that the contents will remain the same.[20]  She can’t recall the date and month when she received the phone call form Colonel Louwrens.

 

62.            The State called Norman Richard Pullers.    Mr Pullers used to be involved in politics in local government as a member of Congress of the People party (COPE), for the period 2011 – 2014.  He later joined an organization called Save Tsantsabane Coalition.  The Coalition contested local elections in Postmasburg.  They had a good working relationship with Kgatelopele Community Project which also contested elections.  On 18 August 2016 Mr Pullers was on his way to Danielskuil to attend a ceremony where the counsellors who had been elected in the recent elections were to be inaugurated.  Along the way around Groenwater, he saw a police vehicle parked on the side of the road.  There was also an ambulance and several people around.  They also stopped to enquire what was happening. They had a good working relationship with the police, particularly Crime Intelligence unit.  As a leader in the community he was part of the people who were fighting the scourge of drugs in Danielskuil.  He asked what was happening and was told that a councillor named Baaitjie had been shot and killed. Mr Pullers phoned a member of Crime Intelligence known to him as Casey and asked him if he was aware of the incident.  Casey decided to come to Danielskuil from Upington where he is based.

 

63.            Mr Pullers continued with his trip to Danielskuil where the event was supposed to be held.  The event did not take place and they left for Postmasburg.  He had already learnt about another incident where the person had been shot next to a school which was connected to the councillor Baaitjie incident.  At the scene at the High School he met Moss,[21] also of Crime Intelligence based in Kimberley. Moss is one of the police officers he worked with in the fight against crime.  Moss showed him an SMS message and asked him if he knew Jonathan.  Mr Pullers reported that the only Jonathan he knew was the one who used to work at Komani and not Kolomela Hub.  Moss gave him the cell phone number for him to phone.  Pullers phoned the cell phone number with his two cell phones.  Both were not answered.  He was referred to a call data on Exhibit “R”, page 22 where he was shown that there was a call from 076 099 5436 which made a call at 13:45. The second one was cell phone number 071 994 7582 wherein a call was made at 13:48.  Mr Pullers confirmed that both are his cell phone numbers he used to make the two calls to the number that was given to him by Moss. Although Mr Pullers was cross examined for some time by Mr Buthelezi nothing really came out from all the cross examination. The cross examination centred around his general knowledge of the tender systems at the Municipality and the activities of the Save Tsantsabane organisation.  Although he was not sure who Mosimanegape was, he confirmed that he did make calls at the request of a member of Crime Intelligence unit being Moss, who he did not know his surname.  

 

64.            Mr Gerhard Coetzer testified that he is a retired SAPS Detective Warrant Officer who was stationed at Danielskuil.  On 18 August 2016 just after 6:00 he received information about people from Danielskuil who were shot/killed in Postmasburg.  At about 07:00 he drove to Postmasburg to find out.  He went to the scene where he found the police already busy with investigations.  He knew the deceased Baaitjie but not Jeffrey Nouse.  At about 11:00 he returned to Danielskuil.  In the course of investigations, he assisted Colonel Louwrens by pointing out certain places and also fetched people from whom statements were obtained.  He was however not in charge of the investigations.

 

65.            Of significance, it was put to him by Mr Setouto on behalf of accused number 2 that on 18 August 2016 he went to accused number 2’s house at around past 07:00 and took his cell phone with SIM card numbers 082 761 0085 claiming that he had been sent by Colonel Louwrens; that Coetzer said he was conducting investigations on the house breaking case.  He returned the cell phone at about past 13:00. Mr Coetzer disputed everything that was put to him.  He mentioned that he only went to the scene at Postmasburg and returned at 11:00.  He was not part of the investigations.  He did not go to any other place.  Mr Setouto put to him that according to the call data for accused number 2’s cell phone 082 761 0085 in Exhibit “R”, on 18 August 2016 from 06:48:05 until around 13:34:24 no calls were made from accused number 2’s phone.  Mr Coetzer had no comment as he knew nothing about call data.

 

66.            Thapelo Howard Moshe is a Detective/Sergeant of the Priority Crime Investigations unit (HAWKS) under the command of Colonel Louwrens.  On 18 August 2016 he went to Postmasburg with Colonel Louwrens and Warrant Officer Van der Merwe.  They went to Postmasburg for the second time that day at night to look for accused number 3, Mr Magawu.  On Friday 19 August 2016 he visited a scene next to the road leading to Groenwater with Colonel Louwrens and Warrant Officer Van der Merwe.  That was a place where the body of the deceased Baaitjie was recovered.  Some items for investigations were found at the scene.  They called Captain McAnda from the forensic unit to come to the scene.  Whilst waiting for him, Colonel Louwrens’ phone rang.  The two rushed to Danielskuil Police Station and Detective Sergeant Moshe was left alone at the scene.  Captain McAnda arrived with his team that included Constable Mogoiwa. They took photographs of the scene and what was discovered.  Detective/Sergeant Moshe thereafter left for Danielskuil with one of the other police officers from Postmasburg who had come to the scene.  He is also the police official who went to arrest erstwhile accused number 6, Paulus Mgcera on 11 October 2016 at Danielskuil accompanied by then policer officer Coetzer.  He was not home at the time. He was however later arrested at the ANC Provincial Offices in Kimberley.  He was not present when accused number 1 was arrested on 6 September 2016.  He does not know Tiro Lekgotla.

 

67.            Ms Lebogang Kamesia Nouse resides in Danielskuil.  The deceased Shuping Jeffrey Nouse is her son.  They lived together in the same house.  He was not married.  He had a handicapped child.  He left with the deceased Baaitjie in the afternoon of 17 August 2016.  He never came back.  She was unable to contact him because he left with Ms Nouse’s cell phone. 

 

68.            The following morning on the 18^th August 2016, Ms Nouse received a message from the deceased Baaitjie’ sister that Baaitjie had been shot and he was found in Postmasburg.  She went to Abdul who was working with the deceased Nouse and requested him to take her to the scene.  They rushed to Groenwater.  Whilst there, one of the police officers reported to them that the person who was with Baaitjie is in Postmasburg hospital but that arrangements to transport him to Kimberley were underway.  They left for Postmasburg.  Along the way they came across an ambulance coming from the opposite direction.  She concluded that it was conveying her son.  They rushed to Postmasburg to fill up petrol and drove straight to Robert Sobukwe Hospital in Kimberley.  They found Jeffrey Nouse lying at the emergency unit.  She stayed with him for six days in hospital.  On this day she left for home to check what was happening as she left no one at home.  At midnight she received a call reporting about his passing away.   (The witness was emotional and broke into tears).  That was on 23 August 2016.  The following day on the 24^th of August 2016, she returned to hospital and found him at the mortuary.  Jeffrey Nouse was not involved in politics.

 

69.            Mr Wikus Willem Wilhelm is employed by Netcare 911 as a BLS medic.  He worked with Breville Alexander who had since immigrated to England.  On 18 August 2016 at about 08:00 they received a call about somebody who was shot in front of a High School.  They found a silver double cab Ford Ranger with a DA sticker.  In the van it was a person who had gunshot wounds.  They took him out of the vehicle after putting him on oxygen and stopping his bleeding.  He was placed in the ambulance and transported to Postmasburg hospital.  They handed the patient to Dr Viljoen.  The person tried to speak but could not succeed.  He confirmed photos 101, 102, 103 and 104 of Exhibit “D” as depicting the person he is referring to and who under his care, did not sustain any injuries.

 

70.            Isabel Maritsa Viljoen is a medical practitioner who was attached to the Postmasburg Provincial Hospital at the relevant time. On the morning of 18 August 2016 she attended to a patient, Jeffrey Nouse who was badly injured with gunshot wounds.  He could not talk but could only respond by squeezing her hand or open his eyes when she requested him to do so.  He was also paralyzed on the right side.  She sat with him in the ambulance as he was transported to Robert Sobukwe Hospital in Kimberley the same day.  She took some pictures with her cell phone.  She identified the patient on photos 101, 102, 103, and 104 of Exhibit “D”.  She later learnt that the patient had died.

 

71.              Gert Steyn is a medical practitioner who was at all relevant times working at Robert Sobukwe Hospital.  An affidavit prepared in terms of section 212(7) of the Act was without objection admitted as Exhibit Z.  He was part of the team that attended to Jeffrey Nouse at the ICU on 18 August 2016 at 12h20.  The patient presented with a marked decrease in the level of consciousness.  He had a paralysis of the right side of his body and sluggish pupils on the side.  He had an injury to the left side of the brain, a bullet wound behind the left ear and one on the right cheek area.  He had a big stroke on the left side of his brain due to the disruption of the blood flow as a result of the injury to the internal carotid artery; had fractures to his C1 vertebrae and facial fractures due to the trajectory of the wound.  He was certified dead on 23 August 2016 at 11h55 pm.

 

72.            Simon Setlholo is a mortuary attendant at Robert Sobukwe Hospital.  He kept a register of all bodies in the mortuary detailing the particulars and circumstances of the bodies received and kept at the mortuary. On 24 August 2016 Beauty Mosinki, the forensic officer, received the body of Jeffrey Nouse from him.  During the handover the body did not sustain any injuries.

 

73.            The State called Ms Bontle Cordelia Mosinki who is a forensic pathology officer at Robert Sobukwe Hospital.  On 24 August 2016 she received and booked the body of Shuping Jeffrey Nouse into the mortuary from Simon Setlholo.  On 25 August 2016 she handed the body over to Doctor Karin Stark to perform the post-mortem examination.  The body was identified by Ms Lebogang Nouse.  Her statement in terms of section 212 of the Act was admitted as Exhibit X, and copies of the identify documents of Ms Nouse and the deceased Jeffrey Nouse as Exhibits X1 and X2, respectively.  She further identified the body of the deceased Jeffrey Nouse on photos 99, 100, 101, 102 and 104 of Exhibit D.

 

74.            The state handed up an affidavit of Boitumelo Malumbazo prepared in terms of Section 212(7) of the Act as Exhibit “Y”. There was no objection from the defence.  The deponent avers that on 18 August 2016 at Postmasburg he received from Detective /Sergeant Molelekeng the body of a deceased later described as Johannes Baaitjie to the mortuary.  On 22 August 2016 he transported the body to Kimberley where a post-mortem examination was performed by Dr Stark.  Whilst in the possession and care of the deponent the body sustained no further injuries.

 

75.            The State tendered the evidence of Johannes Lodewyk Coetzee who is a technical Contract Project Manager at Kolomela hub/offices in Postmasburg.  His duties entail supporting local black empowerment, black contractor empowerment etc.  They assist with Social Economic Development Plans, Social Labour Plans and Company Social Investment Projects and management proposal support to the Municipality.  By virtue of his position he has access to records of contractors that are awarded contracts at his institution.  He went through the records and could not find any award or tender for paving to the value of R800 000-00 since February 2016 to the end of the year.  In 2016 there were contracts for a water pipeline and reticulation for Gatkoppies reservoir and boreholes.  They also did a project for accommodation for doctors at the district hospital.

 

76.            Mr Elkin Ancelo Topkin testified that he is employed by the Independent Electoral Commission (IEC) South Africa in the Northern Cape.  They organise and manage National, Provincial and Local governments elections.  The previous elections were held in 2011 and the latest Local Government Elections were held on 3 August 2016.  Kgatelopele Municipality is comprised of Danielskuil, Kuilsville and Sloja.

 

77.                 He prepared an affidavit for his evidence.  It was accepted as Exhibit “U”.  He mentioned that the results of the 2016 local government elections led to seven councillors, comprising of four ward seats and three proportional representative (PR) seats.  The seats were allocated as follows:  African National Congress (ANC) three seats; Democratic Alliance (DA) two seats.  Paulus Mgcera was the one ANC PR councillor.  The deceased Baaitjie was a Ward Councillors for the DA.

 

78.             Mr Topkin testified that prior 2016 Kgatelopele had the ANC as a party that won more seats, enough to take control of the municipality.  In terms of section 26 of the Municipal Structures Act, 1978 a vacancy shall exist if inter alia, a ward councillor dies.  In this case the seat that was occupied by the deceased Baaitjie was declared vacant and a by-election was subsequently held on 9 November 2016.  It was contested by the ANC, Economic Freedom Fighters (EFF) and the DA which became the ultimate winner.

 

79.            Dr Karen Stark is a forensic Pathologist who conducted post-mortem examinations on the bodies of the deceased Johannes Baaitjie and Jeffrey Nouse at Robert Sobukwe Hospital in Kimberley on 22 August 2016.  In light of the admissions in terms of section 212 of the Act that were later made, I shall not burden this judgment with the full details of her evidence. Her full evidence is part of the record.  The post -mortem examination process was photographed by Constable Mogoiwa and the photos are to be found in Exhibit ‘D’.  

 

80.            For the deceased Johannes Baaitjie, the post-mortem report on the medico-legal examination was admitted as Exhibit ‘NN’. The Chief post-mortem findings are the following:

“the body of a coloured male with signs of blunt trauma as well as three gunshots applied to the body.  A perforating gunshot wound of the head with a wound tract from left posterior to right anterior.  A perforating gunshot from the left chest through the 9^th rib, the diaphragm, the posterior heart, the inferior vena cava, the right lung, the 5^th rib of the right chest with a grazed wound of the arm.  And then a penetrating gunshot from the left lateral abdomen through the posterior lumbar vertebrae with a projectile lodged in the right posterior lower back.  Number 5, an injured brain, lungs and heart; and number 6, accumulated blood in the chest cavity and the cause of death, multiple gunshots.”

 

81.            The wound on the head was 5 x 5mm and was at 1490mm measured from the sole of the foot and 30mm to the left of the posterior midline.  She mentioned that this wound shows that the barrel of the firearm was at a distance less than 1cm when it was fired because of the tattooing- photo 59 and 60 of Exhibit “D” there is inward bevelling of bone on the left of the occipital bone of the skull.

 

82.            The gunshot wound on the lateral side of the chest was 9 x 9mm and positioned at 1165 mm measured from the left sole of the foot and 300mm to the left of the anterior midline.  This was also a close range shot of less than 1cm.

 

83.             The 9 x 9mm gunshot wound in the lateral side of the abdomen, 950mm measured from the left sole of the foot and 200mm to the left of the posterior midline was also a close range wound being less than 1cm.  There was also a wound tract through the posterior second and third lumbar vertebrae which is consistent with the left lateral side abdomen wound referred to above.  A projectile was retrieved at the right posterior lower back-as-shown in photo 64.

 

84.            There was a dried out abrasion of 130 x 50mm over the right temporal area of the scalp – photo 57 and photo 130 of Exhibit 2 – which was caused by blunt force trauma.  This is consistent with the deceased engaged in some sort of struggle with the other people who administered some blunt trauma to this head.

 

85.            Abrasions on the tip of his nose consistent with blunt trauma or on a surface possibly during a struggle or contact with the hard surface.  A deep laceration in the midline of the inner lip caused by teeth, possibly during assault.

 

86.            An abrasion with dried out skin of 230 x 14 mm over the left posterior shoulder blade and abrasion with dried out skin over the whole left upper arm; an abrasion with dried out skin of 180 x 120mm over the right lateral arm – these injuries are consistent with a person getting out or falling out of a moving vehicle onto the tarred road surface.  They were caused ante-mortem (before death).

 

87.            The large abrasion of 550 x 280mm over the whole anterior chest and abdomen sparing umbilicus consistent with a person being dragged over a tarred road surface or gravel surface.  An abrasion of 150 x 60mm on the upper part of the right buttock consistent with a person being dragged over a hard surface.

 

88.            Abrasions over the knuckles of the left hand; laceration on the lateral side of the fifth finger; fracture of the base of the fifth metacarpal bone meaning the “pinky finger” was broken.  The finger injury is consistent with blunt force trauma possibly, tramping on the hand.

 

89.            Horizontal abrasion over the right anterior knee; a dried out abrasion of 140 x 30mm over the lateral part of the right upper leg; a dried out abrasion of 140 x 50mm over the lateral side of the right calf.  These injuries are consistent with a person falling out of a moving vehicle or being dragged over a hard surface.

 

90.            Linear abrasions over the right lateral calf; laceration of 802 x 50mm over the right toe with exposure of the underlying tibias’ anterior tendon. The injury is consistent with a toe being dragged on the tared road surface for some distance.  This view is supported by the shoe that was damaged and the injury on the dorsal part of the left foot which is a deep laceration and not a mere bruising.

 

91.            The blood sample was taken sealed and given to Constable Mogoiwa together with a projectile retrieved at the lower back of the body, and the buccal swap sample from the mouth.  The kidneys were pale, meaning there was loss of blood.

 

92.            Dr Stark testified as follows regarding the injuries on the body of the deceased Jeffrey Nouse.  The external appearance of the body, a gunshot wound of 8 x 8mm in the right cheek, 1620mm measured from the right sole of the foot and 100mm to the right of the anterior midline.  An abrasion ring of 3mm around the central defect and tattooing in a radius of 30mm over the lateral part of the defect.  This wound is consistent with an entrance gunshot wound.  This was an immediate range gunshot, i.e. more than a centimetre distance. A slit like gunshot wound of 5mm in length in the left side of the neck over the mastoid process, 1630mm measured from the left sole of the foot and 180mm to the left of the anterior midline.  The wound edges were irregular.  There was no soot deposition or tattooing present and this wound is consistent with an exit gunshot wound to the one already referred to. 

 

93.            Dr Stark mentioned that the brain was oedematous with flat gyri.  She explained that the brain consists of gyri and sulci.  Sulci is the valleys wherein the blood vessels are, and the gyri is the outer part which makes convulsions.  The brain weighed 1352 grams.  Usually it should be between 900 grams and 1100 grams.  The brain tissue had a pink colour and a very soft consistency on cut section and this is consistent with brain necrosis which means the brain tissue was dead. The pharynx is the soft tissue, in the swallow area.  There was a haemorrhagic wound tract through the posterior pharynx with tissue destruction and haemorrhage in the surrounding soft tissue consistent with the gunshot wounds identified above.  The lips and the gums were also pale in colour. 

 

94.            She testified that there was haemorrhage in the soft tissue and the muscles of the left neck. The left neck is where the exit wound was just below the mastoid process, with destruction of the tissue and a thrombus in the internal carotid artery.  This is a very important blood vessel that takes oxygenated blood to the brain.  There was a clot in this artery, and that actually cut off the blood supply to the brain, hence the dead brain tissue, all caused by the gunshot wound.  The lungs were also oedematous and congested, meaning that there was a lot of fluid in them.  The lower lobe of the right lung was grey in colour and it was friable on touch on the cut section which is consistent with Adult Respiratory Distress Syndrome (ARDS).  This happens usually in people who have been hospitalised for a long time.  They develop a sort of infection in the lungs and the lungs become very heavy.  Both kidneys were pale in colour.

 

95.            Dr Stark took a blood swab, sealed it and handed it to Constable Mogoiwa for DNA analysis.  Her chief post-mortem findings are the body of a black adult male with a perforating gunshot of the face; a wound tract extending from the right to the left mastoid process with fractures of the mandible and the facial bones, soft tissue and muscle destruction; a thrombus in the left internal carotid artery and brain necrosis.  The cause of death is complications of the gunshot of the face.  The report was admitted as Exhibit “OO”.

 

96.            The State called Sherilee Megan Fleming (Palm)[22].  She is a Warrant Officer attached to the Forensic Science Laboratory in Cape Town, where she is employed as a Forensic Analyst.  During August 2016 she was a member of the Kimberley Crime Scene investigation team where she was employed as a crime scene examiner. She was working under the command of Captain Andre McAnda in 2016.  She attended scenes in the investigation of this matter for the purposes of examination and securing of exhibits.  She prepared a forensic statement which was commissioned on 7 September 2016 and was admitted as Exhibit “BB” with no objection by any of the accused. 

 

97.            On 18 August 2016 she attended a scene at Postmasburg at an open field between Wonderland school and the sports grounds.  Present at the scene was police officer Kies.  The scene she attended is depicted in Photos 1, 2, 3, 4, 5, and 6 of Exhibit C.  She processed the crime scene on the 18 August 2016 at 12 during the day.   She collected the following Exhibits: 1 cartridge case packaged and sealed in Exhibit bag PA5001752306 and she marked it Exhibit “B1”.  Pieces of broken glass and stone covered with presumable blood packaged and sealed in exhibit bag numbered PA 6002309043 and she marked it Exhibit B.  This is found on photos 30, 31 and 32 of Exhibit C.    One stone covered with presumable blood packaged in a bag sealed with number PA6002309029 marked Exhibit B3.  It is depicted in photos 33, 34 and 35 of Exhibit C.  One white and black woollen hat covered with presumable blood packaged and sealed in exhibit bag number PA5001752290 marked exhibit B4 and it is depicted in photos 36, 37 and 38 of Exhibit C.  One blue hat packaged and sealed in exhibit bag number PA6002309045 and marked it Exhibit B5.  This is found on photos 39, 40 and 41 of Exhibit C.  One multi-coloured check handkerchief packaged and sealed with PA6002309044 marked exhibit B6. It is depicted on photos 42, 43 and 44 of Exhibit C.  One stone covered with presumable blood, packaged and sealed in exhibit bag number PA6002309028 and marked it Exhibit “B7”. The stone is depicted on photos 45, 46 and 47 of Exhibit C. One grey jacket packaged and sealed in exhibit bag number PA3001008805 and marked Exhibit “B8”. The item is depicted on photos 48’ 48 and 50 of Exhibit C.

 

98.            On 18 August 2016 at 13:23 Warrant Officer Fleming processed a silver Ford Ranger with Registration number CGX 576 NC at Postmasburg police station and collected the following exhibits from the vehicle:  One piece of cut out neon green material with presumable blood packaged and sealed in exhibit bag number PA600239030 marked as Exhibit B11.   This is in photos 55, 56 and 57 which show the collection of Exhibit B11.  One DC swabbing evidence collection kit, with serial number 14DCAY9004 containing two swabs with presumable blood packaged and sealed in exhibit bag number PA4002031154 marked as Exhibit B12. It is depicted on photos 58, 59, 60, 61 and 62 of Exhibit "C"[23].  One DC swabbing, evidence collection kit, with serial number 14DCAY9009 containing two swabs with presumable blood packaged and sealed in exhibit number PA4002031159 marked as Exhibit B13.  It is depicted in photos 63, 64, 65, 66, 67 and 68 of Exhibit "C[24]".    One DC swabbing, evidence collection kit with serial number 14DCAY9010 containing two swabs with presumable blood packaged and sealed in exhibit bag number PA4002031160 marked as exhibit B14 depicted on photos 69, 70, 71, 72, 73 and 74 of Exhibit C.  One gunshot residue evidence collection kit with serial number 13S1M1253XX packaged and sealed and marked as exhibit B15 depicted on photos 75, 76, 77 and 78 of Exhibit C. 

 

99.            On 19 August 2016 Warrant Officer Fleming, assisted by Constable Mogoiwa as a photographer, processed a scene on R385 Road between Danielskuil and Postmasburg which is just outside Groenwater where the deceased was found on the 18 August 2016 and collected the following exhibits from the scene: One projectile packaged and sealed in exhibit bag number PA6002308829 marked as Exhibit B16 which is depicted on photos 4, 5 and 6 of Exhibit "D". One silver beer bottle cap packaged and sealed in exhibit bag number PA6002308848 marked Exhibit B17 depicted on photos 7 and 8 of Exhibit "D".  One silver beer bottle cap packaged and sealed in exhibit bag number PA6002308849 marked exhibit B18.  It is depicted on photos 7 and 8 of Exhibit "D".[25]

 

100.         On 23 August 2016 at 07:45 in the morning Warrant Officer Fleming received the following exhibits from Constable Mogoiwa who attended the post-mortem examinations in Kimberley on 22 august 2016 conducted by Dr Stark. One projectile sealed in exhibit bag number PA6002308834 marked Exhibit B23 depicted on photos 67 and 68 of Exhibit "D". One DB, DNA Reference Sample Collection Kit, taken from the deceased, packaged and sealed in exhibit bag number PA4002663537 marked Exhibit B24.  

 

101.         On 25 August 2016 at 08:09 in the morning, Warrant/Officer Fleming attended the post-mortem at Kimberley Mortuary and received the following exhibit from Dr Starke which was then packaged and sealed by Warrant Officer Fleming.  One swab, taken as a control sample, packaged and sealed in exhibit bag number PA5001752484 marked Exhibit B30.  Depicted on photos 114, 115 and 116 of Exhibit "D". 

 

102.         On 05 September 2016 at 13:40 Warrant Officer Fleming processed the 660ml Castle Lite Beer bottle and collected the following and one DC swabbing evidence collection kit, with serial number 14DCAY9003 containing two swabs packaged and sealed in exhibit bag number PA4002031153 marked Exhibit B31 and depicted on photos 26 and 27 of Exhibit C.  Warrant Officer Fleming mentioned that Exhibit B9 and B10 were collected by Constable Kies and taken to the finger print laboratory for analysis for fingerprints.  

 

103.         Exhibits B2, B3, B4, B5, B6, B7, B8, B11, B12, B13, B15, B18, B21, B22 and B24 were packaged in official exhibit bags PW3000579240 marked as Postmasburg CAS88/08/2016 and Kimberley LCRC 235/08/2016 and delivered by Skynet courier services company with Waybill number 089901312157, 009935421805, 009935421760 to the Laboratory. In a nutshell all the exhibits which were recovered at the scenes were prepared by Warrant Officer Fleming for sending to the Laboratory.  She also prepared covering letters for the said exhibits which were also admitted without any objections as exhibits before the court.  They all fall under Exhibit BB. The covering letters and Waybills from Skynet were admitted as Exhibits BB1 to BB4 respectively.

 

104.         The next witness was JJG Nel a police officer who played a role by receiving Exhibits at various times and having to transport them to various destinations as instructed by the investigating officer in this case.  He prepared a statement marked A83.  In particular, he testified that on 20 September 2016 he received some exhibits from Warrant Officer Fortuin from the Local Criminal Record Centre in Kuruman.  They were sealed in a Forensic bag.  The following serial numbers were attached to these packs as  PA4001872315; PA4001867138; PAB000413983; PAB000413980 and PAB000413982 respectively.  On 22 September 2016 he drove to Plattekloof to hand over the exhibits at the forensic laboratory is in Cape Town. He mentioned that whilst the exhibits were under his care they were not tampered with in any way.   He handed them in at the reception of the forensic Laboratory.  He received an acknowledgement of receipt and same was admitted as Exhibit “AA”.  Under cross examination by Mr Buthelezi it also transpired that Mr Nel also received three bags from Warrant Officer Van der Merwe to deliver to the Laboratory. 

 

105.         The next witness for the state was Mishka Eckstein, she is a Senior Administrative Clerk at the South African Police Services attached to the Forensic Science Laboratory stationed at Plattekloof. She prepared an affidavit in terms of section 212 of the Act which was admitted as exhibit CC without any objection from the defence.  She testified on the 22 September 2018.  She received five sealed evidence bags with seal numbers PAB000413983, PAB000413980, PAB000413982, PA4001872315 and PA4001867138 from Captain J.J.G. Nel.   She registered Postmasburg CAS 88/8/2016 on the FSL Admin system and LAB number 381772/16 was generated.  She was satisfied that the seals were intact and corresponded with the covering letter. The Postmasburg CAS 88/8/2016 docket was handed over to the Biologist administration component for analysis on 23 September 2016.  The bag was handed for safe keeping until the analysis were conducted. It transpired during cross examination by Mr Buthelezi on behalf of accused number 3 that she also received some buccals which were not in the same bags.

 

106.         The next Witness is Warrant Officer Lonwabo Mpumelela Mbanguta.  He is employed by the South African Police Service attached to the biology unit as a forensic analyst at Plattekloof. He prepared an affidavit in terms of section 212 of the Act admitted as Exhibit DD without objection by the defence.  On 26 September 2016 he received several sealed evidence bags with serial numbers PAB000413983, PAB000413982, PAB4001872315, 13DCAD9439TF, 13DCAD9439, 13DCAD9439(under spare wheel- watch outlet hole), PAB000413980, PA4001867138, 13DCAD5007TF, 13DCAD5007(inside boot of vehicle pin lock hole) which he marked D1, and 13DCAD5007 which he marked D2. The purpose of receiving these items was for him to perform an analysis.

 

107.         He also during the cause of his duties on 13 October 2016 received one sealed bag with seal number PA4001666071 containing a sealed evidence bag PA5001752484 and one swab holder not sealed containing one control blood sample.

 

108.          He mentioned that he examined the relevant exhibits by a process requiring competency in biology and the results are given in the table that was attached to his affidavit.  For carpet A, a possible high friction was removed.  There was no possible blood detected on it.  For car Carpet marked B there was possible high friction removed and there was possible blood detected; swab marked D1 was not tested; swab marked D2 was also not tested.  A plastic cover marked D swab and C1 and C2 were not tested. A plastic cover marked D, possible high friction was removed and possible blood was found on it.  Swab marked D1 and D2 were not tested. Swab marked D2 was also not tested.  The exhibits and reference samples were at all times in his safekeeping. During this period and when they were opened and during examination and analysis they were not contaminated or tampered with. After completion of his official duties he handed the docket with contents over to the administration component of the biology unit of the Forensic Science Laboratory. His affidavit was commissioned on 17 February 2017.

 

109.         Warrant Officer Mbanguta mentioned that when he received and opened the swabs C1, C2, and D1 and D2, he noticed that there was a mould that was growing on the swabs, and according to their procedure if the sample is mouldy, they do not test it because they are not likely to find any DNA on it.   Warrant Officer Mbanguta further explained the protocol that they follow in the laboratory which would prevent the contamination of exhibits in detail.  He further mentioned that his examinations were known as preliminary testing.  The later analysis and the comparative analysis is done by other analysts.

 

110.          The next witness is Sameerah Kagee.  She is a Warrant Officer in the South African Police Service attached to the biology unit of the Forensic Science Laboratory at Plattekloof as a Forensic Analyst.  She prepared an affidavit in terms of section 212 of the Act which was handed up, without any objection, as Exhibit EE.  She outlined several exhibits that she received for analysis.  She analysed the said exhibits and her findings are found on the report that is attached to her affidavit. In short, possible skin cells and blood was found in: Glass and Stone B2; Stone B3; Hat B4; Hat B5; Handkerchief B6; Stone B7 and Material B11. Possible skin cells only, were found in Cap B17; Cap B18; Tissue B21 and Cap B22. Possible blood only, was detected in Swabs B11 to B14.

 

111.         Warrant Officer Kagee concluded her evidence by stating that she followed the applicable protocols in the laboratory and that whilst all the samples and swabs were in her possession, were neither contaminated nor wrongly tempered with. The samples in which nothing was found were packaged and dispatched back to the investigating officer and play no further role. Those in which the results were positive are kept in the docket. Where necessary, cuttings of the materials are made for convenience. She thereafter retuned the docket together with the exhibit samples to the administration section of the laboratory. She was not cross examined. 

 

112.         The next witness for the state is Kristee Rose Heynes.  She is a Warrant Officer in the South African Police Service, attached to the biology section of the Forensic Science Laboratory in Plattekloof.  She is employed as Forensic Analyst and a reporting officer at the Forensic Laboratory.  As a forensic analyst she interprets DNA profiles from forensic exhibits that are received at the laboratory.  As a reporting officer she makes the final DNA interpretation and thereafter prepare an affidavit in terms of section 212 of the Act which is used in court when she testifies.  She has vast experience in the field of Biological Sciences (9 years).  For this particular case she mentioned that she received Exhibits at four different dates. 

 

113.         She mentioned that in their laboratory they compare DNA obtained or isolated from various Crime Samples such as blood or skin cells on forensic exhibits and they compare it to DNA obtained from various reference samples. The samples can be from the inside of someone’s cheek or blood drawn, whichever way they choose to obtain those reference samples, and they compare those and the final interpretation that is done is the comparison of DNA profiles obtained from crime samples and that of reference samples to establish whether the donor is the same person. 

 

114.         Warrant Officer Heynes prepared a table in which she made an illustration of the DNA profiles from various exhibits as well as the reference samples of the two deceased’s and the description of the results in table one which is given at paragraph 4.1 and 4.2 on page 3 of her affidavit.    On page 3 of her affidavit at 4.1 she concluded that the DNA results from possible blood on material B11, swabs B12, swabs B13 and swabs B14 match the DNA result of the reference sample S Nouse. The most conservative occurrence for this DNA result is 1 in 2.8 times 10 squared(x4) trillion people.  At 4.2 the DNA results from the possible blood on carpet B2 and B3 and possible blood on plastic cover D2 match the DNA results of the reference sample J Baaitjie. The most conservative occurrence for this DNA result is 1 in 3.7 times to the six times trillion people. Put differently, she found that the DNA material of S. Nouse matched the swabs obtained from the Ford Ranger.  Further, that the DNA material of J. Baaitjie matched the swabs obtained from the carpet of the motor vehicle located in the boot of the Jetta motor vehicle.[26]

 

115.         It is important to state at this stage that the evidence of the witnesses referred to so far is either common cause or was not seriously disputed. Where it was questioned, no alternative version was put forward. This of cause is not surprising because of the nature of the defences put forward by the accused. Some of the evidence tendered later became the subject of the formal admissions made by the accused. In the result the evidence can be safely be accepted as correct. I now proceed to deal evidence tendered by the state which raised some controversies.

 

116.         The State called Georgewell Boitumelo Kaleche. To avoid confusion, he will be referred to as Boitumelo. He is 38 years old employed by the Department of COGHSTA in Kimberley.  He is a resident of Danielskuil.  He knows all the accused accept for accused number 1.  On 17 August 2016 in the morning, he went to the Danielskuil central business district with his wife and children.  The family was on their way to Kuruman and he was to remain in Danielskuil.  He went to a shop to buy a music system.  By a music system he is referring to an Amplifier and a Speaker.  The shop he went to is shown on Exhibit “E”.  He arrived there between 08:00 and 09:00. Whilst in the shop accused number 3, Mr Magawu entered the shop.   Boitumelo was happy to see accused number 3 because he saw an opportunity to request transportation of the music system to his house.  He had however, arranged with a taxi driver Mr Jan for help.  Accused number 3 agreed to assist. 

 

117.         Boitumelo testified that he overheard accused number 3 telling the shop owner that he had lost his cell phone and that he wanted to do a SIM swop.  By that he understood that it had to do with obtaining a cell phone SIM card.  The music system was connected and test played.  In the meantime, Jan who had been arranged to assist with a taxi arrived.  Boitumelo released him to go as he had now had an arrangement with accused number 3.  

 

118.         The music system was dismantled after the testing and was taken into the Avanza motor vehicle that accused number 3 was driving.  Along the way he offered to buy alcohol for accused number 3, could not turn the offer down.  They stopped at a liquor store where Boitumelo bought a six pack of Castle Lite beers for accused number 3 and bought black label for himself.  From there they drove straight to Boitumelo’s house.  On arrival, Boitumelo connected the music system and played it inside the house. He gave accused number 3 one of the bottles of Castle Lite beers that he had bought.  Whilst listening to the music, accused number 3 called him outside and borrowed a R100.00 from him. He indicated that he wanted to purchase petrol for the motor vehicle. Boitumelo promised to give him the money.  He mentioned that at the time accused number 3 had been busy on the phone.  He does not recall whether he initiated or received that call.  He left him outside and returned to the house.  After some time, he gave accused number 3 the R100.00 that he promised him, and accused number 3 left with the Avanza. 

 

119.         Boitumelo explained that at the shop the accused was talking about a cell C and MTN SIM card. According to his knowledge he was using MTN as the service provider.  When accused number 3 left, it was still in the morning.  He returned later in the afternoon at around 5pm.  This time he came with accused number 2, Frank Baxane.  They spent some time at his place.  At some stage they went to buy additional alcohol.  They left late in the afternoon when the night started to set in.  Those who left were accused number 2 and 3 using the Avanza motor vehicle.  He mentioned that, that day he also saw accused number 5 who came to fetch accused number 3.  He was driving a Black car of the make of a Ford Figo.  He managed to see him, because he was sitting on the passenger seat of the Ford Figo and he opened the window to call accused number 3[27].   There was however someone driving that he could not identify because it was a bit dark inside the car.  The Ford Figo motor vehicle followed the Avanza of accused number 3 when they left. 

 

120.         Exhibit 3 being a video footage of the cell phone shop was played.  In the video footage Boitumelo identified himself, accused number 3, as well as Jan the taxi driver. 

 

121.         Under cross examination he mentioned that he started consuming alcohol that morning before he went to that shop.  He agreed that a certain Basil Moeng also came to his place. Dubi Rooi Baaitjie was also at his place.   The lady named Mamikie was also present.  It was pointed out to him that on that day there was a lot of alcohol consumption as well as the smoking of what they call “oka” pipe.  Accused number 2’s version was put to him and most of the time Boitumelo indicated that that’s not how he remembers.  He however, did not exclude the possibility of such happenings.  He indicated that he at some stage had a nap.  The nap was occasioned by the drinking of alcohol and the smoking of the oka pipe. 

 

122.         Mr Buthelezi in his cross examination asked him if he had seen the colour of the cell phone that accused number 3 was using.  He replied that it appeared to have been a greyish or black phone and cannot remember its make.  He did not hear the type of phone accused number 3 told the shop keeper that he lost.  He further mentioned that from the shop up to when accused number 3 was on the phone at his place he does not remember any phone call that was made.  Asked what time did he wake up, he replied that he woke up around 8 pm.  He was asked whether he was still awake when accused number 3 arrived in the Avanza.  He replied that he arrived before he slept.  Asked whether he was under the influence, he indicated that he was moderately drunk.  He mentioned that when the Avanza left it was starting to be dark.  It was put to him by Mr Buthelezi that accused number 5 arrived at his place with a black City Golf motor vehicle.  He disputed that aspect.  It was put to him that the area around his place was dark. He replied that there were spot lights or high mast lights in the area, which illuminated his place. 

 

123.          Mrs Easthorpe on behalf of accused number 5 put to him that accused number 5 came there in a dark blue City Golf.  The witness replied that he does not know that. She put to him that he cannot dispute that and he agreed. It was further put to him that the time when accused number 5 left that place was between 7pm and 8pm. The witness replied that it could be possible. He indicated that the discussion between accused number 3 and accused number 2 if they took place he did not hear them as he was not with them. 

 

124.         The State called Ms Pamela Phindiswa Plaatje (Plaatje).  She testified that she does not know accused number 1.  She knows accused number 2 very well and they used to sing in the same choir at school where they both attended.  She knows accused number 3 well as she was a volunteer in the ANC where he was involved.  She also knows accused number 4 because they once sat together with other friends on a social occasion.  She also knows accused number 5 as he was involved in the ANC activities when she was a volunteer.

 

125.         On 17 August 2016 at around 10:00 she arrived at the Kaleche’s home.  Mrs Kaleche was not present.  She found her husband Boitumelo, Golo, Dize and Dan.  She sat with them drinking alcohol and smoking the oka pipe.  Boitumelo requested her to clean a sheep’s head and feet. The two are commonly known as “aval”. She complied.  After finishing, it was cut into pieces.  Golo started to prepare the wood for fire.  He used a blunt axe he borrowed from Martha’s place.  Accused number 3 borrowed him his sharp axe from the Toyota Avanza.  Later Mrs Kaleche arrived.  She shouted whose car was parked there as she does not have a car.  Her husband told her to leave accused number 3 and others as they are his friends.

 

126.         Later accused numbers 2 and 3 left. They had been sitting with them around the fire.  The two later returned accompanied by Basil who was driving a black van.  After some time accused number 3 and 2 left leaving Basil behind.  Later, accused number 3 returned with a bottle of Smirnoff 1818.  Dize walked to a tavern called 1818 to buy beers.  Boitumelo who had taken a nap woke up.  It was then decided that Dize be phoned so that he could include Black Label beers to cater for Boitumelo. Dize said someone must then come to help him carry the liquor.  Accused number 3 offered his keys and handed them over to Golo to use the Avanza and they left.

 

127.         In the meantime, accused number 2 arrived.  He told accused number 3 that accused number 5 wanted him and handed the cell phone over to him.  They went a side and spoke on the phone.  Tumi and Dize arrived.  Accused number 3 asked where the Avanza was.  Golo said accused number 5 took the keys and said his cars do not convey alcohol.  Accused number 3 left saying he is going to get his car.  Accused number 2 remained behind.  Later accused number 3 returned with the Avanza.  He was followed by a black Ford Figo.  Accused number 3 alighted from the Avanza and called accused number 2. He stood up and left with accused number 3 in the Avanza.  That was the last time she saw them.  It was already sunset. 

 

128.         Inside the Avanza was accused numbers 5 and 4 as well.    She did not see who was inside the Ford Figo as it was dark.  She was seeing the Ford Figo for the first time.  Accused number 2 was wearing an orange jacket with reflectors.  He had gone home to change his clothes.  When he left with accused number 2 and returned with Basil he was still wearing the orange jacket.  However, when he left with accused number 3, he was now wearing a long black coat.  That was at the time accused number 2 handed the phone to accused number 3 and said accused number 5 wanted to speak to him.

 

129.         Ms Plaatjie testified that on 24 August 2016 accused number 4 arrived with Valdesh at the Kaleche home where she was with her sister, Mrs Kaleche.  Accused number 4 mentioned to them that accused number 3 was requesting that they meet in Kimberley as they know that accused number 3 had been in their company throughout the night. They were expected to give a statement to that effect and accused number 5 will provide transport to convey them to Kimberley.  Mrs Kaleche replied that she was not going to take any decision without her husband and that he must return later. He never returned that day.

 

130.         Under cross-examination Ms Plaatjie was not sure of the various times as she did not take note of the times.  It was put to her on behalf of accused number 3 that he was at the Kaleche home and he left around past 8 pm and went straight home to sleep.   He was not there at the Kaleche’s for the whole night.  She mentioned that she only saw accused number 4 in the car and he never entered the premises.  It was already sunset but the fire illuminated the place to see the people around. She also mentioned that accused number 5 was driving the Avanza.[28]

 

131.         She further insisted that accused number 4 came with Valdesh during the week and indicated that accused number 3 was due to appear in court the following day.

 

132.         Dineo Nation Kaleche (Mrs Kaleche) is the wife to Boitumelo who has already testified in this case.  She confirmed that on 17 August 2016 she went to Kuruman with her children.  She returned and arrived at home at about 16:00.  On arrival she found a Toyota Avanza parked in front of her house.  Inside the house she found her husband, accused numbers 3, and 2, Sam Johanne, Mamikie Plaatje, Alridge Jonas and Dize Mokgoro.  They were all known to her at the time.

 

133.         Mrs Kaleche requested Ms Plaatje (also known as Mamikie) to clean the sheep head.  The others were drinking alcoholic drinks.  She told accused number 2 and 3 that they are not used to coming to her place and asked why they were at her place; that she does not own a car and they should remove their car from her premises and leave.  The two did not leave.  She testified that at some stage accused number 3 left and returned accompanied by Basil Moeng.  Basil later left. Sometime thereafter accused number 2 and 3 left.  Later Dize Mokgoro went to buy more alcohol.  Accused numbers 2 and 3 returned still using the Toyota Avanza.

 

134.         Dize Mokgoro phoned Alridge Jonas from 21 Jump Street tavern and told him that he had a lot of beers and needed some assistance. Alridge stood up to leave. Accused number 3 offered him the keys to use the Avanza.  Alridge (Golo) took the keys and left.  A few minutes later Alridge and Dize returned carrying the drinks with their hands.  Alridge reported that Juluka (accused number 5) took the car keys from him telling him that his car does not convey alcohol.  Accused number 3 remarked that accused number 5 is “getting too used to him” and that the car is also his and he is going to take it back.  He stood up and walked away.  He returned driving the Avanza followed by a black Ford Figo.  Accused number 3 alighted from the Avanza and called Accused number 2.  The two got into the Avanza and left, followed by the Black Ford Figo.  She could not see clearly who was in the Black Ford Figo because the windows were tinted.  That was the last time she saw them.  It was already sunset.

 

135.         By Wednesday 24 August 2016 she had already learnt from the News media that accused number 3 had been arrested on allegations of the murder of a councillor.  At 16:40 or 18:50 accused number 4 came to her place accompanied by Valdesh.  Accused number 4 said to her that she had seen what was happening on TV’s; that accused number 3 is accused of murder and she knows very well that he was at her place.  She agreed that he was indeed at her place.  She asked him why was he telling her all this.  Accused number 4 replied that accused number 3 told his lawyer that on the 17^th he was at Mrs Kaleche’s house and he wanted her to come and confirm that he was at her place.  He further said transport is not a problem because accused number 5 will offer transport to convey them to Kimberley.  She replied that her husband was not present; that she did not want to get involved because of the allegations she learnt surrounding his arrest.

 

136.         Mrs Kaleche’s statement to the police was handed up by Mr Setouto and same was admitted as Exhibit “V”.  A point was made that in her statement she mentioned that accused number 4 told her that accused number 3’s lawyer called him and said he wanted Mrs Kaleche to make a statement stating that accused number 3 was at her place for the entire Wednesday the 17 August 2016, whereas when she testified in Court she said it was accused number 3 who sent accused number 4 to tell her (Mrs Kaleche) that she must make the statement to that effect.  She confirmed that she was told that it was accused number 3 who sent accused number 4 to her. 

 

137.         It was put to her on behalf of accused number 4 that he came to her accompanied by Valdesh on Sunday 21^st and not 24^th; that he was to take them to Postmasburg and then he came the following day on the 22^nd and she refused to go with them.  She disputed what was put to her and mentioned that on that day accused number 3 was to appear in court and accused number 2 alighted from one of the taxis that had formed a motor cade and asked them to join and they refused.

 

138.         It was put to her that accused number 5 came to her place in a blue City Golf.  She insisted that she only saw a Ford Figo with tinted windows and did not see the people inside.

                 

139.         The next witness is Rudolph Johannes Louwrens.  He is Lieutenant-Colonel in the South African Police Service attached to the Directorate of Priority Crime Investigations stationed in Kimberley. He is the Commander of the Sub- Component of the Organised Crime in Kimberley which is known as National Bureau of Illegal Firearms Control and Priority Violent Crimes (NBIFCPVC).  He has thirty-five years’ service in the Police Service,  thirty years of which is investigation of serious crime such as murder and armed robbery.  The unit that he is attached to is commonly known as the HAWKS. For convenience, I will refer to Lieutenant-Colonel Louwrens as Colonel Louwrens. At the time of his engagement in this case he was holding the rank of Captain. He testified that on the 18^th August 2016 at around 10: 00 or 11:00 he was called to the office of Brigadier Mafalala.  The later was at the time second in command of the HAWKS structure in the Northern Cape.  He assigned him to undertake the investigation of an incident that happened in Postmasburg.  The same afternoon between 13:00 and 14:00. Colonel Louwrens travelled to Postmasburg accompanied by Warrant Officer Van der Merwe and Sergeant Moshe. 

 

140.         On arrival at Postmasburg they went to the Police Station. Colonel Louwrens met Mrs Dora Baaitjie. He interviewed her and from the interview he learned that a body of a male person that was found on the road to Groenwater was of her husband, Mr Baaitjie.  She further reported that her husband was invited to a meeting which was to take place at 18:00 on 17 August 2016 at Kolomela Hub parking area in Postmasburg.  She also mentioned that the meeting had to do with a job that was to be given to her husband totalling R800 000-00.  It was to be a paving work.  She further reported that her husband was supposed to be sworn in as a counsellor representing the Democratic Alliance (DA) at the Danielskuil Local Municipality on the 18^th August 2016.  He obtained the cell phone numbers of Mr Baaitjie from Mrs Dora Baaitjie being: 061 300 2183.  Mrs Baaitjie also informed Colonel Louwrens that Mr Baaitjie took Mr Nouse along to the meeting that was to be held at 18:00 on the 17^th August 2016 because Mr Nouse had himself registered to tender for work that is put to tender. 

 

141.         After this interview Colonel Louwrens had a discussion with Constable Molelekeng.  From Constable Molelekeng he learned that the body of Mr Baaitjie was found on the road around Groenwater laying facing down with a bullet wound on the back.  He also learned that Mr Baaitjie’s Ford Ranger van was found the morning of 18^th August 2016 on an open piece of land near the school in Postmasburg.  The motor vehicle had a passenger on the rear seat who happens to be Mr Nouse.  The latter was injured and was taken to hospital the same morning.  From him two cell phones were found.  The finding of these cell phones led Colonel Louwrens to preliminarily conclude that the motive of the offences was not robbery.  In his experience if it had to do with robbery as motive, at least the cell phones would have been taken.

 

142.         Colonel Louwrens was given a cell phone that was said to belong to the deceased Baaitjie. On switching it on, he came across a message that was sent to that cell phone on 17 August 2016 at 14:13.  The message was sent by a person identified as “Werk by i man”.  The exact message read thus: “Mr Baaitjies look I will give the job and its budget is R800 000 so you mus qoute arround that sum. And I must get 10% of that, but its between me nd u nd pls come alone as this can’t be revealed to anyone else I could lose the job, we meet at 18:00 at Kolomela business hub parking.  Regards Jonathan.”  The message was handed in as Exhibit K, being the screenshot of the cell phone, depicting the message. 

 

143.         Colonel Louwrens established further that the person described as “Werk by i man” used the phone number that was registered on the phone book of this phone, namely +2762 370 0114.  The screenshot of the Contacts was admitted as Exhibit L.  It became clear to Colonel Louwrens that this number had contact with the phone of Mr Baaitjie before this message was sent because of the letters and number +27 that preceded the cell phone number of the sender, “Werk by i man”.  +27 is an international code for South Africa for cell phone connection numbers. 

 

144.         Colonel Louwrens also met a female member of the South African Police Services, Upington, being Captain Ramela attached to the Crime Intelligence Unit.  He advised her that he is now the investigating officer of the case and that she should be aware of their task as crime intelligence which is to provide him with whatever relevant information for the investigation of the case.

 

145.         According to Colonel Louwrens the information on the cell phone of the deceased appeared to him to be an important lead for his investigations.  He returned to Kimberley with the cell phone and prepared his application in terms of section 205 of the Act.  The purpose was to get authority from the Director of Public Prosecutions (DPP) and the authority of the Magistrate for him to contact the service provider Cell C to provide the call data and other relevant information for the cell phone number that sent a message to the deceased’s cell phone.  He obtained the Magistrate’s authority between 18:00 and 19:00.   He immediately forwarded his request to Cell C.  That same evening Cell C provided him with documents containing the information he requested. 

 

146.         From the information received from Cell C, he discovered that the message that was sent to the deceased Baaitjie’s cell phone, was done through a Nokia N70 handset.  According to the witness there were two other cell phone numbers which had been used on the said Nokia N70.  One of those numbers was registered (RICA) in the names of accused number 3, being Mr Magawu.  The second number that was used in the handset Nokia N70 was number 082 667 6133 which was serviced by Vodacom Network.  Colonel entered the said number on his personal cell phone and it immediately indicated the name Ash.  He then remembered that he received a call-back on 15 August 2016 from this number and he registered it on his cell phone as Ash.  The said call-back that he received on 15 August 2016 had to do with an investigation he was busy with at the time.  He requested one of the suspects involved in that investigation to make a call to someone using his cell phone.  That person later called Colonel Louwrens’ cell phone using that number. He concluded that he was returning the call with a different number.  The reason he registered it as Ash was because he already had a person a person registered as Ashley and to avoid confusion he did not register it as Ashley, but Ash.

 

147.          Colonel Louwrens thereafter checked the WhatsApp profile picture attached to the number of Ash on his cell phone.  It produced a photograph of a person.  He noticed that, that number had been active on the WhatsApp message system on 6 August 2016 at 01:17.  The photograph that it produced was that of accused number 3 who was already known to him. Colonel Louwrens knew him because of his previous investigations on an unrelated matter.  The photograph was admitted as Exhibit M. The very same evening Colonel Louwrens drove back to Danielskuil. 

 

148.         In the early hours of 19 August 2016 at around 12h30 towards 01h00 Colonel Louwrens together with other members of the police went to accused number 3’s home at Sloja in Danielskuil.  He could not find accused number 3 at his home.  He only found his alleged girlfriend who claimed not know where accused number 3 was.  Because at that stage Colonel Louwrens had information that accused number 3 was using accused number 5’ (Mr Legodu) motor vehicle, he proceeded to accused number 5’s place at around 01h05 the same morning.  At this stage accused number 5 was not a suspect in the case. Accused number 5 told Colonel Louwrens that he did not know where accused number 3 was.  Colonel Louwrens asked him the cell phone numbers that accused number 3 was using.  He mentioned 2 numbers namely, 0818011667 and number 0826676133.  Colonel Louwrens asked him to phone accused number 3.  He did, but his phone was off. He asked accused number 5 when last he had contact with accused number 3.  He replied that he last contacted him on those numbers on Wednesday, 17 August 2016.  Colonel Louwrens requested accused number 5 to accompany him to the offices of the Detectives in Danielskuil so that he could obtain his statement relating to his contact with accused number 3 on the said date using number 082 667 6133.   Accused number 5 agreed and at 01h50 that morning his statement was completed. 

 

149.         Because of some information that came to the attention of Colonel Louwrens, he that very morning at 06:00 went to the deceased, Johannes Baaitjie’s home to look for his son Jody Baaitjie and Justin Moses.  The information he received made him to suspect that accused number 5 could be involved in this case.  The information he received from Jody Baaitjie and Dunston Moses was, inter alia, to the effect that on the 17^th August 2016 accused number 5’s Wildtrak Ford Ranger van was seen passing the deceased Baaitjie’s home at high speed and that later his Avanza was also seen, driving passing the same street at high speed driven by accused number 3. Colonel Louwrens had also noted that one of the two cell phone numbers provided to him by accused number 5 as his own numbers, had contact with the suspect number that sent the message to the deceased Baaitjie. 

 

150.         Colonel Louwrens went back to accused number 5 and confronted him with the information that he had obtained.  With the consent of accused number 5 he took possession of his Ford Ranger Widltrak van as well as the Toyota Avanza which was being used by his brother at the time.  The two vehicles were inspected by the forensic officers and nothing of significance that could take the investigations of this case forward could be found. 

 

151.         Colonel Louwrens arranged with Constable Molelekeng to take him to the spot where the body of Baaitjie was found on the road in the area of Groenwater.  At 09h40 they met at that place.  He noticed that there was a patch on the ground of what appeared to be blood.  He requested Warrant Officer Van der Merwe to look for a stick that he could use to scratch on the blood patch to see if a projectile could be found.  Warrant Officer Van der Merwe obliged and a 9mm projectile was found. Colonel Louwrens arranged that Captain McAnda should come to the scene so that he could take photographs of the projectile on the scene.  As he was waiting for Captain McAnda to come, he received a telephonic report from Warrant Officer Coetzer that accused number 3 had presented himself at the Danielskuil Police Station.  Colonel Louwrens together with Warrant Officer Van der Merwe immediately left for Danielskuil, leaving Sergeant Moshe at the scene.  On arrival in Danielskuil they went straight to the Detective offices. They instructed the TRT Unit to fetch accused number 3 from the police station and bring him to the Detective Offices where he was.

 

152.         Colonel Louwrens met accused number 3 at 11h00. At this stage of the evidence Mr Cloete placed it on record that Mr Buthelezi, appearing on behalf of accused number 3 intends objecting to the evidence relating to the interview he had with Colonel Louwrens and requested the Court to give him the opportunity to do so. Mr Buthelezi submitted that his instructions are that accused number 3 denied ever making any “admission statement” to Colonel Louwrens. That he admits that he appended his signature on that “admission statement” but he could not read what Colonel Louwrens wrote on the statement; he told Colonel Louwrens that he will make a statement in the presence of his attorney and that the only thing that he told Colonel Louwrens was about his whereabouts on 17 August 2016. The court mero motu gave Mr Buthelezi an opportunity to approach accused number 3 to ascertain whether that was all the basis of his objection to the evidence and he did so. It became clear that the objection only related to the credibility of the witness on what transpired between him and accused number 3 and what he told him. It did not relate to the admissibility of the evidence. Credibility can be challenged through the normal process of cross-examination and evidence. The prosecution was consequently allowed to tender the evidence.

 

153.         Colonel Louwrens testified that he told accused number 3 that he was arresting him for the murder of Johannes Baaitjie who was allegedly killed on 17 August 2016 on a road in Groentwater, and also charge him for attempted murder of Mr Nouse who was found injured in a van next to a school in Postmasburg on the same day.  He further told accused number 3 that Mr Nouse was still alive at the hospital and I quote “en hy het gepraat” meaning that he told what happened.  He knew that he was not telling accused number 3 the truth when he said that Nouse had told everything, but merely used the lie as an investigation technique. He mentioned that accused number 3 did not react. Colonel Louwrens then explained his constitutional rights relating to an arrest in detail.  Accused number 3 elected not to engage the services of a legal representative.  He however told him that “I think I must tell you where I was that day”.  He asked him if he was prepared to reduce that to writing.  Accused number 3 declined to make a written statement but preferred to tell him.

 

154.         According to Colonel Louwrens accused number 3 informed him that he lost his cell phone.  He was not sure whether it was on a Saturday or on Wednesday. It was however a Samsung cell phone. On Wednesday morning he went to a shop selling cell phones next to AMC funerals.  He found the younger brother to the owner of the business.  He reported to him that he had lost his cell phone and that should anyone come there selling a cell phone they should immediately contact him.  He gave them a number 082 667 6133.  As he was about to leave the shop Boitumelo who had come to buy a Music System called him.  Boitumelo asked him for advice on the Music System to buy.  He advised him to buy a stronger (powerful) one, referring to the speakers.  He conveyed Boitumelo’s Music System in the Toyota Avanza motor vehicle.  On the direction of Boitumelo they stopped at DK Liquor store. Boitumelo bought him a 6 pack of 440ml Castle Lite cans.  From there they went to Boitumelo’s place of residence.  He drank one beer and as he felt hungry he went to his place to look for some food.  He could only have a piece of polony as there was no bread and returned to Boitumelo’s place.  He found Tumi, also known as Golo, and someone else he does not know his name and Dan.  Mamikie who is Golo’s girlfriend was also there busy cleaning an “aval”.     Accused number 3 drank all 5 beers that he had left.  He borrowed Golo an axe from the Toyota Avanza motor vehicle for him to chop some fire wood.  Basil arrived. Accused number 3 requested Basil to buy him a case of Castle Lite 660ml beers. He said he did not have cash.  They went to Ace’s Bar in an Avanza driven by accused number 3.  Tshame (accused number 2) was present. Basil drove his black Corsa.  They arrived at Ace’s place at around 17h15 and found the liquor store was temporarily closed.  They then left for 21 Jump Street which is also a tavern belonging to Ace.  At 21 Jump Street they called for Lebogang who came after 10 minutes.  Basil spoke to him aside.  Tshame said to Basil he should buy a Smirnoff 1818 bottle plus a 12 x 660ml Castle Lite beers.  From there they returned to Boitumelo’s place.  Going there was accused number 3, Tshame, Basil and Lebogang.  They were at Boitumelo’s place from after 5 pm and he was there until late that night.  He arrived at his residential place that Wednesday at 12h53, which was past midnight to 1 am.  His spouse was at home and she opened the door for him.

 

155.          Colonel Louwrens asked Accused number 3 about the cell phone he was using.  He gave him two numbers.  One was 071 850 9434 and 082 667 6133.  He asked him if he had any other number that he used and he replied that he did not have.  He asked him again when did he loose his Samsung cell phone and he replied that it could be Saturday after the elections. He further asked him what phone instrument he used after losing a Samsung phone.  He indicated that he was using a Pep Stores phone which is a Mobicell.   He asked him where that phone was and accused number 3 indicated that it was also gone.  He further indicated that from Monday he did not have a cell phone.  He asked him if there is any other thing he wanted to mention and accused number 3 indicated that the previous day, more or less past 9, or past 10 in the morning the Municipal Manager informed the whole community in the hall that Mr Baaitjie was killed in or around Groenwater. Colonel Louwrens asked him about the exact date he lost his phone.  He also gave him a calendar to confirm the date.  Looking at the calendar he was not sure if it was a Friday or a Saturday. He then said it was in fact the morning of the Saturday, the 12^th August 2016.  He then said “no” and apologised and said it was Saturday the 5^th in the morning.  Colonel Louwrens asked him if he was willing to put his explanation in a statement and he agreed. Colonel Louwrens was taking notes as he was speaking to accused number 3.  The notes were admitted as Exhibit “N”.  There are three pages of Exhibit “N” which we marked A, B and C respectively. 

 

156.         A written Warning Statement of accused number 3 was admitted as Exhibit “O” and the typed version thereof as Exhibit “O1”.  In the statement according to Colonel Louwrens, accused number 3 indicates that he was not involved in the incidents of that day.  That day referring to Wednesday 17 August 2016, and that he was at his friends’.  He only heard the following day at the proposed swearing in of Counsellors from the Municipal Manager of the commission of these offences.  He further indicated that as a state official he is prepared to assist the state to track down the offenders.  He is able to assist in the investigation because in their offices they do gain some information from the community about perpetrators of crime.

 

157.          Colonel Louwrens asked him how many cell phone numbers he used in the past month of August 2016.  He replied that he used two.  Asked about the numbers he used he mentioned 082 667 6133 and 071 850 9434.  He asked him to describe the handset in which these numbers were used during August 2016.  He replied that in the Samsung Grand New Plus, Nokia and he can’t remember the name of the other old Nokia and also the Mobicel Cell phone.  Asked whether it was only the three handsets, he replied in the affirmative.  Asked whether he used two SIM cards in all three handsets he replied that excluding the MTN 071 850 9434 as it was lost with the Samsung Grand New Plus handset.  Asked about the other SIM card, he replied that 082 667 6133 was used most of the time in the Nokia and the Mobicel handset.  Asked whether the number 082 667 6133 was ever used in the Samsung Grand New Plus handset he replied that he thinks so.  Asked when he lost the Samsung Grand New Plus he replied that he suspects that it was taken out of his pocket at a Tavern on the 5^th of August 2016, Saturday evening.  Asked whether he would like to add anything, he said “No Captain,” and that on Monday 15^th August 2016 the Nokia handset was taken or stolen from the Avanza motor vehicle belonging to accused number 5 which he was using during the time of the elections.  Asked where he slept the night of the 18^th August 2016 he replied that at the hotel.  Asked who booked the hotel he replied that a girlfriend named Motlalepule Tshabisile booked that room which was paid by accused number 5.  Present at the hotel was a friend of “Itse” Itshenkeng Rooi.  When Colonel Louwrens told him that on 19 August 2016 around 01:05 in the morning he was at accused number (5), Mathews Legodi’s place and that the latter could not indicate where he was, accused number 3 replied that number 5 did not know that he slept at the hotel.  He asked him when last he had a cell phone or used a cell phone.  He replied that it was from Monday the 15^th August 2016.  Asked if he still wanted to say something he responded that he also borrowed an amount of R300 from one Charles who is the person who owned a van in the previous case that they had.  He indicated that he was with him as well as Tshame.  He mentioned that he told them that he heard that a Counsellor had been murdered and that the other person, that is Tshame, replied that he had already heard about it the previous day.  All these happened on Friday the 19^th of August 2016. 

 

158.         On Monday the 22^nd August 2016 accused number 3 appeared before court at Danielskuil.  The same day, Colonel Louwrens went to the cell phone shop that accused number 3 mentioned to him that he went to on the 17^th August 2016.  On arrival at the cell phone shop he noticed that there were surveillance cameras installed and asked the owner, Mr Ali whether they were in a working condition.  Mr Ali replied that they were.  He requested Mr Ali to play the tapes of the said CCTV surveillance cameras for the 17^th August 2016.  He identified that shop in Exhibit E. 

 

159.         Mr Ali played the tapes for Colonel Louwrens.  He observed that accused number 3 entered the shop at 09h20.  He approached Mr Ali at the counter.  He spoke to him and thereafter went back to the entrance of the shop.  He met a person later identified as Boitumelo who was busy with a transaction relating to speakers.  Thereafter accused number 3 returned to the counter, spoke to Mr Ali.  Mr Ali was observed bending behind the counter and holding a string of bluish items from which he cut one piece and handed it over to accused number 3 and kept the rest. Colonel Louwrens asked Mr Ali to show him the items that he kept back.  He complied and gave him a string of 3 SIM cards attached to one another.  The incident of handing over to accused number 3 of an item from the string happened at 09:30:15. Immediately thereafter at 09:30:56 accused number 3 is seen taking out a cell phone from his pocket.  At 09:31:09 he is holding the cell phone on his right hand and placed it on his right ear and thereafter he put it back into his pocket and moved towards the counter and thereafter they left the shop together with Boitumelo[29].  This incident was interesting to Colonel Louwrens because he was told by accused number 3 that he did not have a cell phone on the said day.  Accused number 3 left the shop at 09:32:40. 

 

160.         Upon studying the 3 SIM cards Colonel Louwrens observed the following:  All three SIM cards that he received from Mr Ali were serviced by Cell C.  The suspect number that sent the message to the deceased Baaitjie was also serviced by Cell C.  The serial numbers of that cell phone that sent the message which is 062 370 0114 had the serial number 9914 101 50590.  Of importance are the 3 last numbers 590.  The other three SIM cards that he received from Mr Ali had similar numbers except the last three numbers.  The one ended with 587 the other with 588 and the other with 589. They followed a sequence.  The conclusion was, therefore, because the one that was used to communicate with the deceased Baaitjie’s cell phone ended with 590, it must have been the fourth from the package of four as it chronologically followed the numbers left at the shop.  Also of significance is the fact that at about 09:58 on 17 August 2016 the same cell number made a telephone contact with that of Mr Baaitjie and the call lasted for 181 seconds.  This means at the time when the number had a telephone contact with Mr Baaitjie it was 09:58. On the video that was played accused  number 3 left Mr Ali’s shop at 09:32:40.   The SIM cards received from Mr Ali were handed in as Exhibit 8.

 

161.         After these events Colonel Louwrens sent Warrant Officer Nortje to the cell phone shop to download the video material that he viewed.[30]  The video material was viewed in Court and admitted as Exhibit 3. What we observed is consistent with what Colonel Louwrens narrated to the Court. Similarly, Warrant Officer Nortje downloaded the video material at Kolomela Hub.

 

162.         Colonel Louwrens testified that he proceeded with his investigations by launching an application in terms of section 205 of the Act to obtain information/data relating to cell phone number 062 370 0114 (the suspect number) from Cell C.  Upon receipt of the relevant documents from Cell C he studied the information and established that cell phone number 064 6005 668 had contact with the suspect cell phone number 062 370 0114.  In particular, he realised that on 17 August 2016 that number ending with 5668, moved from Kuruman to Danielskuil and from Danielskuil to Postmasburg and later from Postmasburg to Danielskuil and Groenwater and later to Kuruman.  This information was obtained from Cell C records relating to cell phone number 064 600 5668 which was as per RICA information registered in the name of Tiro Lekgotla (section 204 witness).  At this time Mr Nouse had sadly passed on 23 August 2016 and as a result Colonel Louwrens was investigating a case of double murder. 

 

163.         Colonel Louwrens requested Lekgotla to come to his office.  Lekgotla testified and his evidence as to how he happened to come to Colonel Louwrens office will be clarified at a later stage.  At this stage it suffice to say that he went to Colonel Louwrens’ offices accompanied by his attorney Mr Butch Schoeman.  Colonel Louwrens asked him if he knew Mr Magawu, accused number 3 and Lekgotla denied any knowledge .  He was shown the cell phone records and warned that he was not playing open cards.  His attorney Mr Schoeman requested to be given an opportunity to consult his client in private. He was given the 30 minutes he requested.  An office was arranged for their private consultation.

 

164.         Later Mr Schoeman reported to Colonel Louwrens that Lekgotla was prepared to tell everything that happened.  Lekgotla told Colonel Louwrens what he knew about the case.  Colonel Louwrens was satisfied with his narrative and decided to make a strong recommendation to advocate Barnard of the Director of Public Prosecutions, Northern Cape, that Lekgotla be used as a witness in terms of section 204 of the Act. He believed that he would assist in the investigation of the case.  Authority was duly granted for Lekgotla to be used as a section 204 witness.  As a result, a written witness statement was obtained from him.  The statement lasted from 11h30 until 18h30 in the evening.  During his statement mention was made of Mr Mphondomisa who is accused number 4.  In addition, mention was made of a firearm and an amount of R20 000 which was to be paid to Lekgotla. 

 

165.         On 3 September 2016 Colonel Louwrens engaged Lekgotla to meet accused number 4 (Mphondomisa) to explore the possibility of getting hold of the firearm which could have been used in the commission of the offences as well as the amount of R20 000 which was to be paid to him for his role in the crime.  An application was made to Mr Barnard in terms of section 252 of the Act.  The reason for that was that Lekgotla should lawfully possess the firearm should he successfully obtain it from accused number 4 or any other person connected therewith.  At that stage Lekgotla had also indicated that he had received an amount of R1000.00 through an e-wallet with cell phone particulars that made the transaction through an FNB account of Mr Legodu, accused number 5.  As to what transpired between the alleged meeting between Lekgotla, Mphondomisa and Legodu, will become clearer when dealing with the evidence of Lekgotla.  Suffice to say that the police gave him a device to record the activities at that meeting. Lekgotla also used his two cell phones to record the discussions he allegedly had with accused numbers 4 and 5. 

 

166.         As a result of the information obtained from Lekgotla and the discussions he allegedly had with accused 4 and 5, on 6 September 2016 at 06h00, Colonel Louwrens attended at accused number 4’s home in Sloja in Danielskuil and arrested him in connection with the two murders.  Accused number 4 denied his involvement in the case. Colonel Louwrens testified that he asked him about the cell phone number he used at the time. He indicated that he could not remember the number out of his head.  There was a dark blue Golf motor vehicle on the premises which he said it belonged to accused number 5.  He reported that he was supposed to travel to Kimberley with the said motor vehicle to attend to what accused number 5 had sent him to do.  On the same day, 6 September 2016 around 18h25, Colonel Louwrens went to accused number 5’s place and arrested him in connection with the two murders.  Accused number 5 disputed his involvement in the two murders. 

 

167.         From there Colonel Louwrens went to accused number 1, Richard Hasane’s place where he found 2 male persons. Accused number 1 was absent.  He was phoned to come to his place by Colonel Louwrens. He told him he was there to arrest him in connection with the two murders.  He arrived there driving a blue Audi with the number plate “Bongz”.  There was also a BMW and a Golf parked on the premises. Colonel Louwrens asked him where was the Jetta that Lekgotla said belonged to accused number 1’s girlfriend which was used to transport people from Danielskuil to Postmasburg and back.  Accused number 1 confirmed that the vehicle belonged to his girlfriend and was not available at that stage because his wife drove it to Eastern Cape.  Asked where in particular in the Eastern Cape, he, according to Colonel Louwrens, changed and said it was at Hotazel at the mine where the girlfriend was working. Colonel Louwrens testified that they agreed to go to Hotazel. Accused number 1 directed them to the place. Along the way he remarked that: “ek het nie skotte gehoor nie maar `n mens was in die boot gelaai in Postmasburg.  Buite Postmasburg het daardie reg gekry om uit die boot te kom in die ry, dat hy en Lekgotla daar besluit het om weg te ry.”  By this he meant that he did not hear the shots; the person was loaded in the boot in Postmasburg. Outside Postmasburg he got it right to get out of the boot whilst driving and he and Lekgotla decided there and then to drive away.  Asked about the fired cartridge and holster that he destroyed and the fired cartridge that he flushed, he denied anything of the sort.  Along the way accused number 1 took Colonel Louwrens to the place where his girlfriend resided.  She was present and confirmed that she had a Jetta motor vehicle which she showed to Colonel Louwrens. She was shocked to hear what happened when told by Colonel Louwrens. With the consent of the owner, Colonel Louwrens seized and removed the Jetta motor vehicle for further investigations. 

 

168.         Colonel Louwrens requested Constable Sekgeri of the Local Criminal Centre to take the Jetta some photos. She also took pictures of the boot as well as the rear seat with the back rest opened as Lekgotla told him how it was opened to shoot at the person who was in the boot. The photos were admitted as Exhibits “P”.

 

169.         Warrant Officer Fortuin took some swabs for DNA investigations and were sent to the Forensic Science Laboratory from the Jetta. The results were that no DNA material could be found. This was surprising to Colonel Louwrens who directed that they should do further tests including taking out the carpet in the boot and send it for analysis. This was done and the results were positive. He further testified that accused number 1 told him that he took the Jetta for a wash. He took him to the place where it was washed in Kuruman. However, a young man who washed it could not be found among the group that was at the car wash place.

 

170.         Colonel Louwrens testified that he noticed accused number 5’s number 0826171424 had contact with the suspect number on 17 August 2016 at 18:19. He was definitely sure that the number belonged to accused number 5 because it is one of the cell phone numbers he disclosed to him the early hours of the 19^th August 2016 when he was looking for accused number 3 at his place. He further studied the data relating to accused number 5’s number 0714494322 and noticed the following: the number had contact with 0827610085 thirteen times on 17 August 2016 from 17:58. He then successfully processed an application in terms of section 205 of the Act. By this time, he had already learnt from Lekgotla that there was someone else who accompanied them to Postmasburg on 17 August 2016.

171.         He then studied the data relating to 0827610085 he received from the network provider. He found that the number was in Danielskuil on the 17^th august 2016. However, at 19:30 it was within the Postmasburg tower coverage area. At 19:56 to 20:26 it was serviced by Groenwater tower. The time 19:56 was about the time when Lekgotla was in Groenwater. The registration particulars (RICA) of the number was in the names of Marie Theteme.

 

172.         On 5 October 2016 Colonel Louwrens went to Marie Theteme. She confirmed that the number was registered in her names the year 2011 and ever since it was used by accused number 2 who was her boyfriend at the time. On 5 October 2016 Colonel Louwrens visited accused number 2 at his place and arrested him. He denied his involvement in the case. He obtained the number of the cell phone that he had in his possession. He found two more cell phones in his house. He said one of the cell phones belonged to his girlfriend Masego Pholo. He asked him where his number 0827610085 was. He replied that he lost it about three to four months ago. According to Colonel Louwrens that number was already known to him. It happened that on 25 April 2016 he met accused number 2 at Danielskuil detective branch offices. Accused number 2 arrived driving a white Golf motor vehicle belonging to accused number 3. He asked him his particulars and he provided him with his names and the cell phone number. He noted them in the docket he was handling at the time. Accused number 2 was not a suspect in that case which is unrelated to the case under discussion.

 

173.         Having learned from accused number 2 that Masego Pholo was employed at Idwala mine, Colonel Louwrens went to look for her. He asked her what was the cell phone number of accused number 2. Her immediate response was that he lost his phone three months ago. He laughed and said when he arrested him he was having a cell phone in his possession and she can just as well disclose it. She agreed to accompany him to the detective offices in Danielskuil. With her consent he scrolled her cell phone and noticed that she had contact with cell phone number 0827610085. He asked her whose number it was and she replied that she does not know. He said to her that he does not believe that she does not know the number when there were several contacts with it. He requested Constable Horing who was present to explain to her in Setswana what he was saying. Ms Pholo made an about turn and said she was taking her chances and said the number belong to accused number 2.

 

174.         Later an identity parade was arranged for accused number 2. The one arranged for 17 October 2016 did not take place and was rearranged for a later date. A sixth person was also arrested. As indicated charges against him were later withdrawn because the witness who implicated him, Bricks Pholo died.

 

175.         Lekgotla later accompanied Colonel Louwrens for pointing out at various places in Danielskuil, Postmasburg and Groenwater. Colonel Louwrens conducted tests at Groenwater where the body of the deceased Baaitjie was found and at the field next to the school where the deceased Nouse was found. He used his phone and of another police officer to make calls from these points. He thereafter obtained records of these calls from the service providers Vodacom and Cell-C. They showed that calls made from those points were covered by the towers covering those areas and were operational.

176.         On 25 November 2016 it came to the attention of Colonel Louwrens that Warrant Officer Henk Van der Merwe was to obtain a statement from one of the witnesses Aruna Rossouw. The latter reported that an irregularity happened at the instance of Warrant Officer Van der Merwe which would have the effect of compromising the integrity of the investigations. It had to do with a CD that had some recordings which she was to be send to Pretoria for transcription. Warrant Officer Van der Merwe was to obtain her affidavit as part of the so-called chain evidence. The CD was not contained in a forensic bag. Despite that, Warrant Officer Van der Merwe prepared her statement to reflect that it was in a forensic bag and sealed. Unimpressed by his conduct, Colonel Louwrens reported him to the acting commander at the time so that he should be removed from the investigations of this case with immediate effect. He was immediately taken out of the case.

 

177.         In the cause of the investigations Colonel Louwrens checked whether any of the accused had a licensed firearm. None of them had been issued with a licence to possess a firearm. Colonel Louwrens testified that according to the information he received accused number 3 was the branch secretary of the ANC in Danielskuil. He was also employed as an Administrator at the ANC offices at the time. He was also one of the ANC candidates in the local elections which were held in the first week of August 2016. He was contesting Ward 2 in Sloja. The information he received at the time was that accused numbers 2 and 3 were volunteers assisting the ANC in the elections. Former accused number 6, Mgcera was also a candidate and a councillor, and he was a candidate for being the Mayor if the ANC had a majority control of the council in Danielskuil. Colonel Louwrens mentioned that he checked whether accused number 5’s Toyota Avanza and Ford Ranger Wildtrak were fitted with tracking devices to check their movements. They were not installed with any tracking devices.[31]

 

178.         From the cell phone record of the deceased Baaitjie Colonel Louwrens noticed a number that had contact with it and he followed the number up. On the 7 November 2016 he went to Upington to see the person who was using that number. The following day at 08:00 he met Colonel Ramela in her office. She explained to him that that activity was when she forwarded the message from the cell phone on 18 August 2016 when she was at the scene for further investigations. Colonel Louwrens requested her to provide him with a statement to that effect. She emailed the statement on14 November 2016.

 

179.         Exhibit 4 marked “Street view to the left” at Kolomela Hub in Postmasburg was played in Court.[32] At 18:10:42 a van with a DA sticker on the right hand door is seen moving on the road and turned towards the trees. It parked at 18:02:43. It is identified as belonging to the deceased Baaitjie. It made a U-turn at the pepper trees.

 

180.          Exhibit 6 marked “Street view straight” was also played in Court. At 19:08:22 a Jetta motor vehicle is seen moving in the area. The second clip on Exhibit 6 between 19:15 to 19:15:45 is the Ford Ranger van with a DA sticker on right hand side door belonging to the deceased Baaitjie.[33]

 

181.         Colonel Louwrens testified that he obtained some documents having the handwriting of accused number 5 from Kgatelopele Municipality. The aim was to send them for forensic analysis with a document he obtained from Lekgotla allegedly having accused number 5’s handwriting. They were sent under a covering letter admitted as exhibit Q.

  

182.         I now pause to deal with the evidence of Colonel Louwrens relating to the so-called cell phone and call data.  He made several applications to the cell phone network providers to provide information on specified dates for certain cell phone numbers. He processed the applications in terms of the procedure and authority prescribed by section 205 of the Act to the Director of Public Prosecutions and to Magistrates who authorised the subpoenas to be served on the network service providers to officially provide the data. 

 

183.         The data provided by the cell phone providers were contained in stacks of documents.  For the convenience of his investigations and for his evidence to be systematically presented to Court, he prepared a summary of the information for each relevant cell phone number.  The report was admitted as Exhibit R.  I have no doubt that his summary was not only helpful to the Court but to all the parties concerned.  It obviated the necessity of having to trawl through voluminous documents with fine print.  There also were documents relating to RICA indicating in whose names are the different cell phone numbers involved were registered. 

 

184.         There are technical terms used in the cell phone data environment which were explained by Colonel Louwrens as well as witnesses from the network service providers and Mr Moller, formerly of the SAPS.  These terms will be dealt with in the evidence of Ms Du Plessis from a service provider later in this judgment.

 

 

185.         First I deal with the deceased Baaitjie’s cell phone number 0613002183.[34] Though it was not registered in his name, it is common cause that he is the one who used it. On 10 August 2016 at 08:07:07 accused number 3’s number 0826676133 called the deceased number for 150 seconds. The deceased was serviced by a tower in Danielskuil. On 17 August 2016 the suspect number 062 3700 114 called Baaitjie’s number at 09:58:54 and the call duration was 181 seconds. At 10:49:48 the deceased’s number called the suspect number for call duration of two seconds. At 12:51:59 the deceased number called the suspect number for three seconds. At 14:21:20 and 14:21:23 the suspect number send an SMS to Baaitjie’s number who was in Danielskuil at the time. The same time is reflected in the call data of the suspect number as 14:21. However, the time reflected on the phone of Baaitjie is 14:13. According to Colonel Louwrens this means that Baaitjie’s time on the phone was out by eight minutes because the time to be relied upon is the call data time which is provided by the network service providers which is standard and is always accurate. The two cell phone numbers were serviced by the Danielskuil tower.[35]

 

186.         At 17:27:20 the suspect number called Baaitjie’s number and call duration is 16 seconds and both numbers were serviced by Danielskuil tower. At 18:14:07 Baaitjie’s number contacted the suspect number with call duration of 45 seconds. Baaitjie’s number was now serviced by Postmasburg tower. The suspect number was at the time serviced by Danielskuil tower. At 18:38:04 the suspect number contacted Baaitjie’s number for call duration of 14 seconds. Baaitjie’s number was within the Postmasburg tower coverage and the suspect number was within Danielskuil tower coverage. At 19:15:15 Baaitjie’s number contacted the suspect number for two seconds still within Postmasburg tower coverage. At 19:22:53 Baaitjie’s number contacted the suspect number for a call duration of 48 seconds. Of significance both numbers were now serviced by the Postmasburg tower. Furthermore, the activity before this one on the suspect number’s statement was at 18:48 and it was serviced by the Danielskuil tower[36].

 

187.         On the same 17 August 2016 at 19:26:41 Baaitjie’s number called the suspect number for call duration of seven seconds. Both numbers were within Postmasburg tower coverage area[37]. At 19:28:13 the suspect number made a call to the number of the deceased, Baaitjie and the call duration was 18 seconds.  The number of Mr Baaitjie was serviced by the Postmasburg tower and so was the suspect number.  The activities that followed on the call data of the deceased number after 19:28 are CFMTC which is an indication that either the phone was off or the phone was not being answered.  On the 18 August 2016 there was an activity on the deceased number at 13:21:15 and 13:21:19 which indicates an outgoing short message service (SMS).  According to Colonel Louwrens this indicated that the message was sent to the phone of Captain Ramela of the Crime Intelligence Unit.  It will be remembered that when Captain Ramela testified she also confirmed that she received the message that was on the deceased cell phone to herself at the scene.  There is also an activity on the deceased phone on 17 August 2016 at 19:04 being a call made from the deceased Baaitjie phone to 078 122 1185.  This activity, according to Dora Baaitjie, is a call she received from the deceased when he reported to her that he was still waiting for the person he was supposed to meet regarding the tender.  There was another call that was made from the deceased’s phone to the 060 number.  According to Colonel Louwrens when he investigated this number he established that it belonged to one Thabo who lives in Mafikeng who was called by the deceased Baaitjie to be on standby regarding this tender that he was to receive. 

 

188.         The next cell phone number that Colonel Louwrens testified about relates to the suspect number which is 062 370 0114.[38] It will be remembered that earlier on Colonel Louwrens testified that this number was saved on the deceased Baaitjie’s cell phone under the name “Werk by i man”.  At 09:57 on 17 August 2016 there is an activity on this phone number wherein airtime was loaded. The phone was at this time in Danielskuil. There are two incoming calls thereafter. According to Colonel Louwrens, those calls came from the same person being the service provider indicating that airtime is recharged and that it has been loaded and what extra airtime is provided for free. The fourth entry indicates an enquiry balance for the airtime that had been loaded. At 09:58 there is a transaction with the deceased Baaitjie’s cell number, which had lasted 181 seconds. This corresponds with the evidence already referred to earlier on. It shall not be necessary to repeat the call data transactions that had already been referred to between the suspect number and the deceased Baaitjie’s cell phone. The communication between the two numbers is not placed in dispute, and is as such common cause.

 

189.         At 14:21 is an SMS sent to Baaitjie’s number. At 14:39 the suspect number contacted the number of former accused number 6. At 14:43 the suspect number called number 083 351 0924 and the call duration is 26 seconds. This number belonged to Lekgotla who is the section 204 witness. At 17:27 the suspect number called the deceased Baaitjie’s number with a call duration of 16 seconds and the suspect number was in Danielskuil. The next activity was at 17:45 which is an outgoing call from the suspect number to the number belonging to accused number 4, namely 083 856 2686 and the call duration is 33 seconds. At 17:51 number 064 6005 668 belonging to Lekgotla made a call to the suspect’s number and the call duration was 27 seconds. At 17:53 the suspect number made contact with accused number 4’s number and the call duration was 18 seconds.[39]

 

190.         At 18:03 one of Lekgotla Lekgotla’s numbers called the suspect number and the duration is 10 seconds. At 18:14 the deceased’s number called the suspect number and the duration was 45 seconds. With this activity the suspect number was still in Danielskuil. However, the deceased’s number as indicated already was in Postmasburg. At 18:19 there is an outgoing call from the suspect number to one of the numbers of accused number 5 ending with 4322 and the call duration is 21 seconds. Accused number 5’s number was served by Danielskuil CEN tower. [40] The next activity, 18:38 the suspect number contacted the number of the deceased and the duration is 14 seconds and the suspect number was still in Danielskuil. The deceased Baaitjie was at that time as indicated already served by the Postmasburg tower.

 

191.         At 18:49 Lekgotla’s number tried to contact the suspect number but it was call forward. Lekgotla’s number again called the suspect number and the duration was 2 seconds. Thereafter, there was an incoming SMS that was received by the suspect number. This activity was at 19:22. It is significant to note that the last activity that was 18:49 was when the suspect number was in Danielskuil. The next activity was at 19:22 with the suspect number. The call duration is 48 seconds and the two numbers were now in Postmasburg.  The next activities are with the deceased’s number and I have already referred thereto that both these numbers were served by the Postmasburg tower.

 

192.         On 18 August at 13:45 and 13:48 there were calls directed at the suspect number from 076 009 5436 and 071 994 7582. Both these calls are reflected as call forward, which means either the phone was not answered or was off. According to Colonel Louwrens, one of the numbers belongs to one Mr Norman Pullers. He made a call on the instruction of the member of the Crime Intelligence Unit to see if he could obtain information on that number. He highlighted that it is important to note further that the suspect cell number was used on a handset with IMEI number: 358080018933250 which is identified as a Nokia N70 handset. It is also important to note that the SIM card that was put in this phone, Nokia N70, was being used for the very first time on 17 August at 09:57:31 before noon, and the last date of use is 17 August 2016 at 07:28:13 past midday or after noon.[41] The suspect SIM card used on this Nokia N70 ends with the number 590 which connects it to the other three SIM cards which were retrieved by Colonel Louwrens from the cell phone shop of Mr Ali because of the sequence of the numbering being 588 and 587. He obtained these SIM cards from the cell phone on 22 August at 14:15. The SIM card of the suspect number according to the RICA documents, was registered at 17:14 on 20 July 2016. This means that on 17 August 2016, when it was used for the first time on the Nokia N70, it had already been registered or rather “RICA’d”. The rest of the SIM cards retrieved from the cell phone shop were accepted as exhibit ‘8’.

 

193.         Colonel Louwrens testified about the usage profile of the Nokia N70. According to the documents the Nokia N70 handset was also used with other cell phone numbers, the first being 082 667 6133, that belonged to accused number 3.[42]  This is the number that Colonel Louwrens already had in his cell phone which reflected the number to belong to accused number 3 when he punched it onto his cell phone.  The next 074 955 1945 was also RICA’d in the name of accused number 3 and had been used in the same Nokia N70. There is also cell phone number 081 801 1667 which according to Colonel Louwrens he was told by accused number 5 that it is the number that belongs to accused number 3. The usage profile concludes that there is also another Cell C number used with the handset.[43]

 

194.         Colonel Louwrens referred us to a further document in exhibit ‘R’ relating to the usage profile of the cell phone number 082 667 6133 belonging to accused number 3.  This information relates to the mobile devices in which this SIM card was used.  He testified that this number was used on the Nokia N70 from 23 October 2016 at 17:26:49 until 19 February 2016 at 21:00:05.  Again, the cell phone number was used on the Nokia N70 from 25 May 2016 at 07:11:14 until 17 August 2016 at 17:17:47.  This suggests that the calls that were made to the deceased Baaitjie as well as the SMS that was sent to him, were made by use of the Nokia N70 on 17 August 2016.  The GPRS streaming calls that the number of accused number 3 ending with 6133 was also used in the Nokia N70 on 26 May 2016 at 13:52:04 until 12 August 2016 at 11:59:44. The GPRS stream refers to inter alia, logging onto the internet or WhatsApp or any other kind of access that is available on the cell phone functions.   It would normally be when one is requesting information like account or data balances from the network provider.

 

195.         Colonel Louwrens also referred to exhibit ‘M’ being a statement he obtained from accused number 5 in which he inter alia indicated the numbers that he knew to belong to accused number 3. In the statement he indicated that accused number 3 also used numbers 081 801 1667 and 082 667 6133. According to Colonel Louwrens, when he asked accused number 5 when last did he contact accused number 3 that day, he searched for the information on his cell phone and indicated that on 17 August 2016 at the following times, 20:39, 19:48, 16:40, 16:12, 15:55 and 15:51. According to him, accused number 5 indicated that he used his number 082 617 1424 at these times to contact accused number 3 on his number 082 667 6133. He added that with the calls at 20:39, 19:48 and 16:40 accused number 3 did answer. Further, he phoned him on the 081 801 1667 number during the week and accused number 3 did answer. Colonel Louwrens mentioned that he finished taking the statement of accused number 5 at 01:08:50 and at that time he also requested him to contact accused number 3 but he did not answer his phone.

 

196.         Colonel Louwrens discussed the cell number 082 667 6133 belonging to accused number 3. The relevant activities on the data statement referred to, will be the activities starting on 16 August 2016. At 13:03:37, cell phone number 082 617 1424 belonging to accused number 5 contacted the number of accused number 3 and the call duration was 25 seconds. The tower that accused number 3 was receiving at that time, was Danielskuil. The next activity at 13:17:15 number 072 594 4900 belonging to the erstwhile accused number 6, Mr Mgcera contacted the number of accused number 3 and the call duration was 19 seconds and the tower serving accused number 3 was Danielskuil. At 17:23:42 former accused number 6 contacted the number of accused number 3 and the call duration is 57 seconds. The tower was still Danielskuil for accused number 3. At 19:18:35 accused number 6 contacted accused 3’s number and the call duration is 49 seconds. The tower servicing accused number 3 was Danielskuil. At 19:52 accused number 3 contacted former accused number 6 with a call duration of 34 seconds and the tower was still Danielskuil.

 

197.         The following day on 17 August 2016 in the morning at 08:28:35, accused number 3 contacted former accused number 6 for 16 seconds using the tower of Danielskuil. At 08:30:37 erstwhile accused number 6 contacted accused number 3’s number for 28 seconds receiving the call under the Danielskuil tower. For all these calls accused number 3 was using the Nokia N70 handset[44]. At 09:53:19 erstwhile accused number 6’s number contacted that of accused number 3 for 12 seconds, number 3 being serviced by Danielskuil tower. At 10:07:18 erstwhile accused number 6’s number contacted accused number 3 for 86 seconds being serviced by the Danielskuil tower. At 10:35:34 erstwhile accused number 6’s number contacted accused number 3 for 8 seconds. Accused number 3 was still under the coverage of the Danielskuil tower. At 10:52:39, cell number 083 684 8901 belonging to Lekgotla, contacted the number of accused number 3 and the call duration of 94 seconds and being serviced by the Danielskuil tower.

 

198.         At 13:53:08, accused number 3’s number contacted erstwhile accused number 6’s number for 61 seconds using a tower in Danielskuil. At 13:55:46 the number 083 856 2686 belonging to accused number 4, Mr Mpondomisa, contacted accused number 3’s number for 35 seconds and he was receiving Danielskuil tower. At 13:58:32 accused number 3’s number contacted erstwhile number 6’s number for 30 seconds, still using the Danielskuil tower. At 15:50:54, accused number 3 contacted cell phone number 082 617 1424 belonging to accused number 5 for 5 seconds and number 3 was using the Danielskuil tower. At 15:54:47 accused number 3’s number contacted accused number 5 on his number 082 617 1424 for 2 seconds, and using the tower of Danielskuil. At 16:17:41 accused number 3’s number contacted the number of accused number 5, which ends with the numbers 4322 for 17 seconds and using the Danielskuil tower.

 

199.         On the same day, 17 August 2016, at 16:39:34 accused number 5’s number that ends with number 1424 contacted accused number 3’s number for 72 seconds and accused number 3’s number was serviced by the Danielskuil tower. At 16:47:11 the number that ends with 5668 belonging to Lekgotla contacted accused number 3’s number and the call duration was 32 seconds with Danielskuil tower servicing accused number 3’s number. At 17:01:34 Lekgotla’s number ending with 5668 contacted accused number 3’s number for 22 seconds, the latter being serviced by the Danielskuil tower.

 

200.         Then on the following day, on 18 August 2016, at 08:28:21 accused number 3’s number contacted the number 074 769 5971 belonging to Lekgotla for 123 seconds, number 3’s number being serviced by the Danielskuil tower.[45] The handset that was used by accused number 3’s number, was the handset that was used by accused number 2 the previous day for his calls. For this to be possible, it was indicated that the same number of accused number 3 ending with 6133 was used in the Nokia N70 up to 17 August 2016 at 17:17:47. The corresponding reference to this transaction will be found from pages 101 of exhibit ‘R’ which is the user profile of the cell phone number of accused number 2. At pages 104 to 105, it is indicated that his cell phone number was being used on the Nokia 201 ASHA that is known to be belonging to accused number 2.[46] Thereafter, on the 18^th, in the morning, after these activities, the cell number of accused number 2, was then used on his cell phone handset. The records reflect that on 18 August 2016, from 08:27:03 until 08:35:03, the Nokia 201 ASHA was used by accused number 3’s number. On the times already mentioned, the Nokia 201 ASHA belonging to accused number 2, was used by accused number 3 for those activities and thereafter it was given back to accused number 2 because his number was then used on the Nokia 201 ASHA thereafter. The next activity used by accused number 2 was at 08:37.39.[47]

 

201.         Colonel Louwrens referred us to the activities of 14 August 2016 relating to the usage profile of accused number 3’s number ending with 6133[48]. It showed that on 14 August 2016 from 16:39:22 the number of accused number 3 received the Danielskuil tower until 22:55:23. On 14 August 2016, at 07:19:46, former accused number 6, Mgcera’s number contacted accused number 3’s number, for 20 seconds. Accused number 3’s number was in Danielskuil. On 14 August 2016 at 07:28:24 an SMS was sent by accused number 3’s number to Mgcera’s number. Accused number 3’s number was receiving the SMS through the Danielskuil tower. Just to clarify, Colonel Louwrens indicated that there is Owendale tower which is just outside Danielskuil in the direction of Postmasburg and after Owendale, one gets to Groenwater tower. From Groenwater one reaches Postmasburg.

 

202.         On 14 August 2016, at 08:20, accused number 3’s number contacted the number of accused number 5 that ends with 1424. The duration of the call was two seconds with the Owendale tower servicing accused number 3’s cell phone number. On 15 August 2016, at 08:31:18, the number of accused number 5 ending with 1424 contacted the number of accused number 3 for 59 seconds. At 08:32:51 accused number 3’s number contacted the number of accused number 4, for 16 seconds. At 08:38:29 accused number 5’s number that ends with 1424 contacted accused number 3’s number for 15 seconds. At 08:40:20 accused number 3 contacted accused number 4’s number for 1 second. At 08:48:14 accused number 5’s number contacted accused number 4’s number for 29 seconds. This number was contacted by that of accused number 3. At 09:11:54 accused number 3’s number contacted the number of accused number 5 that ends with 1424 for 11 seconds.

 

203.         The next number that Colonel Louwrens testified about is cell phone number 064 600 5668 that belongs to Lekgotla, which is serviced by the Vodacom network.[49] Starting with the activities of 17 August 2016, the data reflects that this number ending with 5668 belonging to Lekgotla, was serviced by the tower Mothibistad CEN from 15:53:30 to 15:55:10. From 16:47:12 until 17:01:34 he used the tower at Kuruman. From 17:51:39 to 18:51:25 he was in the area of Danielskuil. From 19:47:47 that number received the Groenwater tower.

 

204.         On the same 17 August, from 16:47:12 this number of Lekgotla contacted the number of accused number 3 that ends with 6133 and the call duration is 32 seconds. Lekgotla was receiving the Kuruman tower at that stage. At 16:51:34, this number 5668 of Lekgotla contacted the number that ends with 2686 belonging to accused number 4 for 66 seconds and it indicates that Lekgotla’s number at that stage was in Kuruman. At 17:01:34 Lekgotla’s number that ends with 5668 contacted accused number 3’s number ending with 6133 for 22 seconds and Lekgotla’s number indicates that he was serviced by the Kuruman tower. At 17:51:39, Lekgotla’s number ending with 5668 contacted number 062 377 0114 which is the suspect number. And the call duration is 26 seconds and the tower indicated where Lekgotla was at that stage, as being in Danielskuil.

 

205.         Then at 18:03:04 this number contacted the suspect number that ends with 114 with a call duration of eight seconds and Lekgotla’s number was at Danielskuil.  At 18:35:26 Lekgotla’s number contacted that of accused number 4 for 10 seconds and the tower Lekgotla was receiving coverage from is Danielskuil. At 18:47:29 Lekgotla’s number contacted the number of accused number 4 for five seconds, still using the Danielskuil tower. At 18:49 Lekgotla’s number contacted the suspect’s number for one second still using the Danielskuil tower. At 18:51:25 Lekgotla’s number contacted number 4’s number for two seconds. Lekgotla’s number was in Danielskuil. At 19:47:47 Lekgotla’ number contacted the number of his brother, 083 521 4832. The call duration is 19 seconds and Lekgotla was now receiving Groenwater tower. Accused number 2’s number also received a call at the same time at 19:56:42 until 20:26:32 being serviced by the Groenwater tower as well. The significance of this aspect, according to the State, is that accused number 2 all this time was in the area of Groenwater where Lekgotla was.

 

206.         The next activity by Lekgotla’s number after he had called his brother, was at 19:51:12 when he called his brother but at that time he was now using the coverage of Beeshoek tower. The call was forwarded to cell number 083 351 0924 and the duration was nine seconds. This number ending with 0924 also belongs to Lekgotla. Beeshoek is in the direction of Kuruman from Postmasburg. At 19:57:53 Lekgotla called a number ending with 227, belonging to Mr Nkwe, the traditional healer/doctor. He thereafter called his brother and  made further two calls to Mr Nkwe.

 

207.         The next number is 0833510924 belonging to Lekgotla. On 17 August 2016 at 12:43:41 accused number 3’s number ending with 6133 contacted the number of Lekgotla ending in 8901 and the call was forwarded to his number ending with 0924. The call lasted 9 seconds. At 14:43:46 the suspect number contacted Lekgotla’s number ending with 8901 and the call was forwarded to the number ending with 0924, with a call duration of 26 seconds. On 19 August 2016 at 07:48:38, the number of accused number 4 contacted the number ending with 8901 belonging to Lekgotla, but the call was forwarded to the number 0924 the duration of the call lasting 62 seconds.[50]   With these activities it is shown that Lekgotla diverted his number ending with 8901 to his number ending with 0924.

 

208.         The next cell phone number is number 074 769 5971 which also belonged to Lekgotla. The records reveal that on 18 August 2016 at 08:28:21 the number of accused number 3 ending with 6133 contacted this number of Lekgotla and the call duration was 123 seconds, the tower indicating that Lekgotla was at Mothibistad East CEN 5 tower. Then at 18:19 this number of Lekgotla was contacted by accused number 4 with a call duration of 94 seconds and Lekgotla was serviced by the Mothibistad CEN 6 tower. Also on 18 August 2016 at 16:45:07 Lekgotla’s number contacted the number of accused number 1 that ends with 4378 and it indicates that Lekgotla was using the coverage of the Seodin tower. This tower is also in the Kuruman area. The call duration is two seconds.[51]

 

56.       The next cell number is 083 856 2686 which according to Lekgotla belongs to accused number 4.[52] It is however not RICA’d in the name of accused number 4. According to Colonel Louwrens the cell phone data shows that this number had several contacts with the co-accuseds for the period 5 August 2016 to 15 August 2016. In short, Colonel Louwrens testified that this number had no contact with the number of accused number 5 ending with 1424. But with the number of accused number 3 ending with 6133, had 12 contacts and with the number ending with 9434 belonging to accused number 3, only one contact for that period.  With accused number 3’s number ending with 667 there was no contact.   With the number of accused number 2, which ends with 10085, there were five contacts and with the number that ends with 4575 of accused number 2, there was no contact. Then on 17 August 2016 at 12:00:17 the number 8901 of Lekgotla contacted this number of accused number 4 with a call duration of 273 seconds. At 12:06:32 Lekgotla’s number ending with 8901 contacted accused number 4’s number for 50 seconds. At 12:36:17 Lekgotla’s number contacted accused number 4’s number for 157 seconds. At 12:49:52 Lekgotla’s number again contacted accused number 4’s number for 67 seconds. At 13:30:56 Lekgotla’s number contacted accused number 4’s number for 113 seconds. At 13:43:11 Lekgotla’s number contacted accused number 4’s number for 44 seconds.

209.         On 17 August 2016 at 13:55:46 the number of accused number 4 contacted the number of accused number 3 that ends with 6133 and the call duration was 25 seconds. At 14:23:23 Lekgotla’s number ending with 8901 contacted the number of accused number 4 for 23 seconds. At 15:28:29 Lekgotla’s number contacted 8901, the number of accused number 4 for 39 seconds. At 16:51:34, Lekgotla’s number contacted number 4’s number that ends with 5668 for 67 seconds. At 17:45:52 the suspect number that ends with 0114 contacted the number of accused number 4 for 33 seconds.

 

210.          On 17 August 2016 at 17:53:08 the suspect number ending with 0114 contacted the number of accused number 4 for 18 seconds. At 18:35:26 the number 5668 of Lekgotla contacted the number of accused number 4 for 12 seconds. At 18:54:16 the number ending with 10085 of accused number 2 contacted accused number 4’s number for five seconds. Still on 17 August 2016, now at 18:47:29, the number ending with 5668 of Lekgotla contacted accused number 4’s number for 46 seconds.[53] At 18:49:56 the number of accused number 2 ending with 10085 contacted accused number 4’s number for 14 seconds. At 18:51:25 Lekgotla’s number ending with 5668 contacted the number of accused number 4, however, the call is indicated as call forward.

 

211.         According to the statement, after the activity of 17 August 2016, at the time 18:51:25 accused number 4’s number had no activity or the phone was not answered up until 21:15:18 when it contacted the number of accused number 1. It also indicates a call forward and then on 18 August 2016, at 11:18:57, the number of accused number 5 that ends with 4322 contacted accused number 4’s number for 32 seconds.  At 11:27:39 the number ending with 4322 of accused number 5 contacted accused number 4’s number for 38 seconds.

 

212.         On 18 August 2016 at 18:19:29 the number 083 856 2686 belonging to accused number 4 made contact with the number 074 769 5971 which is Lekgotla’s number. The duration of the call was 95 seconds. At 18:39:45 the number of accused number 5 that ends with 4322 contacted the number of accused number 4 and the call duration was 31 seconds. At 18:41:21 the number for accused number 4 contacted the number that ends with 10085 belonging to accused number 2 and the call duration was 18 seconds. At 18:52:59 the number of accused number 5 that ends with 4322 contacted the number of accused number 4 and the call duration was 355 seconds.

 

213.         On 18 August 2016 at 19:06:08 the number of accused number 2 contacted the number of accused number 4 which indicated call forward. The following day on 19 August 2016, at 02:43:36, accused number 2’s number contacted the number of accused number 4 and the call duration was 69 seconds. It is to be noted that this call was made the morning when Colonel Louwrens took a statement of accused number 5 starting from 01:50 at the police station and later that morning released him.   The suspicion is that this call may have been triggered by Colonel Louwrens’ interrogation of accused number 5 meaning that accused number 2 and number 4 had been made aware of the interrogation that early morning.

 

214.         On 19 August 2016 at 02:50:46 the number 4322 of accused number 5 contacted the number of accused number 4 and the call duration was 916 seconds. At 04:08:05 the number of accused number 5, 4322, contacted the number of accused number 4 and the call duration was 166 seconds. A few minutes later, 04:14:01 the number of accused number 5 contacted accused number 4’s number for 46 seconds. Soon thereafter at 04:15:25, accused number 5’s number contacted accused number 4’s number for 62 seconds. At 04:17:24 accused number 5’s number contacted accused number 4’s number for 52 seconds. At 07:06:58 accused number 5’s number contacted accused number 4’s number again and the call duration was 172 seconds. At 07:47:44 accused number 4’s number contacted the number that ends with 5971 belonging to Lekgotla and the call duration is 3 seconds. At 08:03:49 accused number 5’s number contacted accused number 4’s number and the call duration was 44 seconds. At 08:35:56 accused number 4’s number contacted the number of accused number 2 with a call duration of 24 seconds. At 08:36:52 accused number 4’s number contacted accused number 2’s number and the call duration was 70 seconds. At 09:04:41 accused number 4’s number contacted accused number 2’s number with a call duration of 22 seconds. At 09:39:42 accused number 4’s number contacted accused number 2’s number for the call duration of 35 seconds. The time was corrected by Colonel Louwrens that it should have been at 06:45 pm meaning that it was a call that was made late in the afternoon.

 

215.         The next cell phone number is that of accused number 2, being 082 761 0085. The period to be covered by the cell phone data are the activities from 15 August 2016 from 07:42:47 up to 22 August 2016 at 20:09:57. In addition, that number was used on the Nokia 201 ASHA handset. The evidence indicates that that handset on 17 August 2016 was in Postmasburg. The following day, the same handset was used in the morning of 18 August 2016 with few activities on the number ending with 6133 belonging to accused number 3. This means that the SIM card of accused number 3 was inserted and used in the Nokia 201 ASHA belonging to accused number 2 on 18 August 2016 and the same Nokia 201 ASHA was in the vicinity of Postmasburg on 17 August 2016. For Colonel Louwrens to say that this number belongs to accused number 2 (082 761 0085) is because on 25 April 2016, Colonel Louwrens met accused number 2 at the detective branch offices in Danielskuil. He made an entry in the diary of the docket that he was handling at that time. Amongst others, accused number 2 gave him this number as belonging to him. The RICA records and data indicate that this cell phone number was used from 6 February 2016 at 19:22:26 until 23 September 2016 at 07:00:19 and it had 2234 successful activities.

 

216.         On 15 August 2016 at 17:25:14 the number of accused number 4 made contact with the number of accused number 2 for seven seconds. On 16 August 2016 at 18:46:14 the number of accused number 2 sent an SMS to the number belonging to his girlfriend, Ms Pholo. On 17 August 2016 at 17:55:59 the number of accused number 2’s girlfriend contacted the number of accused number 2. On 17 August 2016, at 18:45:16 the number of accused number 2 contacted the number of accused number 4 and the call duration was five seconds. At that time accused number 2 was covered by the Danielskuil tower. On 17 August 2016 at 18:49:46 the number of accused number 2 contacted the number of accused number 4 for 13 seconds and accused number 2’s number indicates that he was under the coverage of Danielskuil. At 19:30:13 there is an SMS that accused number 2 received and the tower indicates that he was in Postmasburg. Page 22 of Exhibit “R” is the call data of the suspect number. Entries 19:26 and 19:28 indicate that the suspect number was also in Postmasburg at the time.

 

217.          At 19:56:42 the number belonging to accused number 2 contacted number 071 850 9434 which belonged to accused number 3 and the call duration is three seconds. At that time the coverage tower for accused number 2’s number was Groenwater. At 19:58:00 the number belonging to accused number 2 contacted the number of accused number 5 that ends with 4322 with a call duration of 10 seconds and coverage tower for accused number 2’s number was Groenwater. The corresponding entry of this activity found in accused number 5’s statement at page 177 of Exhibit “R” indicates that at that time he was covered by the Danielskuil tower. At 20:00:08 the number of accused number 2 contacted the number 4322 belonging to accused number 5 and the call duration is five seconds and number 2 was still under the Groenwater tower.   At 19:47:47 the number of Lekgotla at that time was also in Groenwater if one refers to the cell phone data of his cell phone[54].

 

218.         At 20:18:20 there is an outgoing call from accused number 5’s cell phone to the number of accused number 2 with the coverage of accused number 5’s number being Owendale tower. As indicated earlier, Owendale is a place between Danielskuil and Groenwater. At 20:18:57 the number of accused number 5 again called the number belonging to accused number 2 and the number of accused number 5 received the Papkuil tower coverage. At 20:18:57 the number of accused number 5 contacted the number of accused number 2. At that stage accused number 5’s number received the Papkuil tower.[55] The next activity then is 20:21:45 when accused number 5’s number also contacted the number of accused number 2 and the tower indication is Owendale. At 20:26:32 the number of accused number 5 again contacted the number of accused number 2 and then it is indicated that the number of accused number 5 received the Groenwater tower. The next activity is at 20:26:32 which indicates that accused 5’s number was still receiving the Groenwater tower. At 21:14:19 the next activity on accused number 2’s number shows that he was now in the Danielskuil coverage. The activity on accused number 5’s number shows that at 21:25:51 he was also covered by the Danielskuil tower.

 

219.          At 21:37:03 the number ending with 4322 belonging to accused number 5 contacted the number belonging to accused number 2 for a call duration of 33 seconds. The corresponding entry shows that accused number 2 as well as accused number 5’s numbers were both under the Danielskuil coverage area. At 21:47:32, the number of accused number 2 contacted his girlfriend’s number and the call duration is 70 seconds.

 

220.         On 18 August 2016 at 15:38:55 the number belonging to erstwhile accused number 6 contacted the number belonging to accused number 2 for the call duration of 37 seconds. At 16:00:55 erstwhile accused number 6’s number again contacted number 2’s number for 39 seconds. At 18:41:21 accused number 4’s number contacted accused number 2’s number, call duration 18 seconds. At 09:06:08 number 2’s number contacted number 4’s number for duration of 1 second.

 

221.         On 19 August 2016 in the early hours of the morning at 02:37:24 the number of accused number 2 contacted number 071 850 9434, being the number belonging to accused number 3. At 02:43:36 accused number 2’s number contacted the number of accused number 4 for call duration of 68 seconds. At 06:53:23 the number belonging to erstwhile accused number 6 contacted the number of accused number 2 for 93 seconds. Colonel Louwrens drew our attention to the fact that these calls were made after he had met accused number 5 in the early hours of the morning at his house and took him to the police station to obtain his statement.

 

222.         On 19 August 2016, at 08:35:56 the number belonging to accused number 4 contacted the number of accused number 2 for 23 seconds. At 08:36:52 number 4’s number contacted accused number 2’s number for 69 seconds. At 09:44:41 the number of accused number 4 made contact with the number of accused number 2 for 21 seconds.   At 09:39:42 number 4’s number contacted accused number 2’s number for 30 seconds. At 14:49:42 number 4322, belonging to accused number 5 contacted the number belonging to accused number 2 for 20 seconds. At 18:23:57 the number belonging to accused number 2 contacted the number belonging to accused number 5 for one second. Immediately thereafter at 18:24:14 the number of accused number 2 contacted the number of accused number 5 and the call duration was 107 seconds.

 

223.         Colonel Louwrens testified about the call data relating to number 072 594 4900 belonging to erstwhile accused number 6, Paulus Mgcera.[56] He showed that there were several cell phone contacts between Mgcera and the other accused excluding accused number 1 for the period 14 August to 16 August 2016. There were also contacts on 17 August 2016. Of significance he referred to the contact made at 09:50 and 09:53 between Mgcera and accused number 3. He showed that at 09:50:14 accused number 3’s number ending with 6133 contacted the number of Mr Mgcera. It is significant to note that this call made by this number ending with 6133 at this time was used in the Nokia N70. A few minutes later, at 09:58 the suspect number ending with 114 was placed in the Nokia N70 and contacted the number belonging to the deceased Baaitjie for 181 seconds. By this it is meant that the Nokia N70 used the number belonging to accused number 3 ending with 6133 to contact Mr Mgcera at 09:50:14 and soon thereafter the same Nokia N70 using the suspect number from Cell C, contacted Mr Baaitjie for 181 seconds[57].

 

224.         On 17 August 2016 at 14:39:08 the suspect Cell C number 062 370 0114 contacted Mgcera’s number and the call duration was 17 seconds. On 18 August 2016 Mgcera made contact with accused number 5’s number that ends with 1424 at the following times: 07:32:08, 08:01:32, 12:21:17, 15:42:07, 15:59:17 and 16:12:16. On the same day, the number of Mgcera contacted the number belonging to accused number 2 on two occasions being 15:35:55 and 16:00:55. On 19 August 2016 the number of Mgcera contacted the number of accused number 5 that ends with 4322 at the following times: 07:21:09, 07:25:06, 07:26:17, 07:53:11, 07:58:37, 09:07:29, 11:29:50, 11:58:43, 12:20:31, 13:09:02, 13:43:50, 14:47:29. On 19 August 2016 at 06:53:23 the number of Mgcera contacted the number belonging to accused number 2 for 93 seconds.

 

225.         The next number covered by Colonel Louwrens is 060 353 4378 belonging to accused number 1[58]. Data shows that the number was on 17 August 2016 in Kuruman and Mothibistad. However, from 18:23:16 up to 18:43:58 it was in Danielskuil coverage area. At 18:54:38 this number received the Owendale Eskom tower. This is in the area of Danielskuil. At 21:23:31 this number of accused number 1 received the Hoërskool Kalahari tower which is in Kuruman. On 17 August 2016 the number had contact with the number of Lekgotla that ends with 8901 on the following occasions: 12:05:14, 12:39:41, 15:18:59, and 15:19:50. On 18 August 2016 the number of accused number 1 had contact with the number of Lekgotla that ends with 8901 at the following times: 08:34:00, 08:43:42, 08:45:40, 08:49:25, 09:02:22, 09:10:55 and further 16:34:29, 16:35:14, 16:48:59, 16:49:57, 18:05:19, 18:05:28, 18:05:37, 18:08:48, 18:09:29.

 

226.         Colonel Louwrens dealt with the cell phone number 082 617 1424 belonging to accused number 5.[59] The Network provider is Vodacom and the RICA registration is in accused number 5’s names.  The activities of 14 August 2016 from 08:20:56 until 21:18:29. On this day at 17:27:27 the number contacted the number of Mgcera for a call duration of 16 seconds.  At 18:14:34 Mgcera contacted this number for 20 seconds.  At 20:00:14 this number contacted Mgcera for 192 seconds.  On 16 August 2016, at 13:02:09 the number 1424 contacted Mgcera for 32 seconds.  At 13:03:37 it had contact with accused number 3’s number ending with 6133 for 25 seconds.  At 18:18:34 Mgcera contacted this number for 33 seconds.  At 20:09:06.  accused number 5’s number contacted Mgcera for 624 seconds.

 

227.         On 17 August 2016 accused number 5’s number ending with 1424 contacted Mgcera’s number for 99 seconds at 09:51:13. At 11:20:01 Mgcera’s number contacted number 5 for 10 seconds.  At 11:34:05 Mgcera contacted the number for 16 seconds.  At 11:43:22 the number contacted that of Mgcera for 33 seconds.  At 15:50:54 and 15:54:47 accused number 3’s number contacted that of 1424 but the transaction is recorded as call forward.  At 16:39:34 the number 1424 contacted accused number 3’s for 72 seconds.   At 18:02:27 Mgcera’s number contacted 1424 for four seconds.  At 19:10:30 Mgcera’s number contacted the number 1424 for 63 seconds.  At 19:24:01 Mgcera contacted 1424 for 186 seconds.  Thereafter, from 19:24:01 up until 21:13:54 the number 1424 had no activities.

 

228.         On 18 August 2016 at 07:32:08 Mgcera’s number contacted the number for 82 seconds. At 08:01:53 the number 1424 contacted Mgcera’s number for 55 seconds.  At 08:50:20 the number 1424 contacted Mgcera’s number for eight seconds. On 19 August 2016 at 01:06:09 the number ending with 1424 contacted the number of accused number 3’s 081 801 1667 for a call duration of 2 seconds.  According to Colonel Louwrens this call was made at his request when he interviewed number 5 at his house when he was looking of accused number 3.  Colonel Louwrens pointed out further that the number 081 801 1667 belonging to accused number 3 was used in the Nokia N70.  This means that three of accused number 3’s cell phone numbers were used in the Nokia N70.  The call duration is reflected as 22 seconds. However, the records from Vodacom reflect that the number was not in use or was inactive at the time the call was made to it. It therefore does not necessarily mean that there was a conversation for 22 seconds.

 

229.         Colonel Louwrens handed up a document marked exhibit ‘R1’ which is a profile usage of cell phone number 081 801 1667 belonging to accused number 3. What can be deduced from exhibit ‘R1’ is that this number 081 801 1667 was not in use for the periods 26 to 27 July 2016 and 16 to 19 August 2016.

 

230.         The next cell phone number testified to by Colonel Louwrens is 072 449 4322 belonging to accused number 5.[60]  The number was not active on 14 August 2016 from 09:36:04 up until 12:49:02. On the same date from 13:09:11 until 13:53:42 received the Owendale tower. From 17:03:59 to 21:38:21 it received the Danielskuil tower.

 

231.         The cell phone data indicates that on 16 August 2016 at 08:17:40 the number of erstwhile accused number 6 Mgcera, contacted this number for 120 seconds. On 17 August 2016 at 18:19:02 the suspect’s number 062 370 0114 which contacted the deceased Baaitjie, contacted the number of accused number 5 for 21 seconds. At 19:58 the number of accused number 2 (0827610085) contacted this number of accused number 5 and it indicates that the number of accused number 5 with this activity was in Danielskuil. The rest of the calls between these numbers of accused number 2 and accused number 5 have already been referred to by Colonel Louwrens when he dealt with the cell phone number of accused number 2. Of importance, he demonstrated that there were several contacts between the two numbers when accused number 2 was at Groenwater. Later accused number 5’s number received the Groenwater tower and later the two numbers were under the Danielskuil tower coverage.

 

232.         On 17 August 2016 at 21:56:22 the number that ends with 4322 of accused number 5 had contact with number 081 836 3576 belonging to accused number 1 and the call duration was 69 seconds[61].

 

233.         On 18 August 2016 at 11:18:57 and 11:27:39, this number of accused number 5 contacted the number of accused number 4 and the duration was 31 and 37 seconds respectively. On 18 August 2016 at 12:21:17 the number of Mgcera contacted the number of accused number 5 for 71 seconds. The same day, at 15:42:07 the number of Mgcera contacted the number of accused number 5 for 29 seconds. At 15:59:17 Mgcera’s number was contacted by the number of accused number 5 for 13 seconds. At 16:12:16 Mgcera’s number contacted accused number 5’s number for 28 seconds. At 18:39:35 accused number 5’s number contacted accused number 4’s number for 30 seconds. At 18:52:59 accused number 5’s number contacted accused number 4’s number for 354 seconds.

 

234.         On 19 August 2016 at 18:23:57 and at 18:24:14 the number of accused number 2 contacted the number that ends with 4322 of accused number 5 for 107 seconds. Reference was made to an FNB bank statement belonging to accused number 5. The bank statement had a transaction at number 9 on the page 193 of Exhibit “R” where an amount of R1 000.00 was paid on cell phone number 074 769 5971 belonging to Lekgotla. The transaction took place on 23 August 2016.

 

235.         Colonel Louwrens dealt with the cell phone number belonging to Mr Nkwe who is a traditional healer/doctor. The number is 079 245 8227.[62] The number’s statement indicates that on 17 August 2016 at 19:57:53 it received a call from the number of Lekgotla, ending with 5668, and the duration of the call was 51 seconds. Mr Nkwe’s number was at that time receiving the Seodin tower which is in Kuruman. At the time of this activity Lekgotla’s number was covered by the Groenwater tower. At 20:03:32 the number of Mr Nkwe contacted the number of Lekgotla and the duration is 77 seconds. Mr Nkwe’s number was still in Kuruman at that time. The number of Mr Nkwe once again contacted that of Lekgotla on 17 August 2016 at 20:06:14 for 74 seconds. Then the number 082 684 8901 belonging to Lekgotla contacted the number of Mr Nkwe at 21:24:32 and 22:40:27 with call durations of six and 65 seconds respectively.

 

236.         The next number is 078 200 6500 belonging to accused number 1. The statement indicates that there was no activity on this number on 17 August 2016.

 

237.         The next number is 078 603 0122 belonging to Mr Nkwe. The usage profile for this number reveals that this number was used on the Nokia N70 cell phone that we know is the one that was used to send a message to the deceased Baaitjie[63].

 

238.          The next cell phone number is 081 836 3576 which according to Lekgotla belongs to accused number 1. The data statement indicates that on 17 August 2016 this number was contacted about four times by the number of Lekgotla ending with 8901 at the times 15:20:11, 15:22:47, 16:09:16 and 16:31:00. It also indicates that on 17 August 2016 at 21:15:18 the number belonging to accused number 1 contacted this number of accused number 4 and the call duration is 4 seconds[64]. This call went to call forward and is to be found on page 219 of Exhibit “R”. The corresponding entry on this activity is on page 83 being the call data for accused number 4. The call received at 09:15:18 pm went to call forward. Colonel Louwrens testified already that on that day the phone of accused number 4 was switched off from 06:51:25 pm when Lekgotla attempted to call him.   Colonel Louwrens mentioned that according to Lekgotla, this call that accused number 1 made to accused number 4 was at the request of accused number 2 when they were to go to Postmasburg from Danielskuil and accused number 4 was delaying to come.

 

239.         On 17 August 2016 at 21:56:22 the number of accused number 5 that ends with 4322 contacted the number of accused number 1 and the call duration is 69 seconds[65]. The tower used by accused number 5’s number on the corresponding entry on his cell phone data is reflected as Danielskuil. This concludes the evidence in chief of Colonel Louwrens on the cell phone data aspects and what followed is his cross-examination that will be dealt with separately at a later stage as part of analysis.

 

240.    Tiro Mcantire Lekgotla was called to testify. Mr Cloete on behalf of the state informed the court that the witness will be required by the prosecution to answer some questions which may incriminate him with regard to the same offences as set out in the indictment and requests that the witness be informed and warned about the provisions of section 204 of Act.  He was duly warned, and he confirmed that he understood. He undertook to answer all questions including those incriminating him to the best of his ability, frankly, truthfully, honestly and fully; that in the event that he fails to do so he will not be indemnified from prosecution on any charge relating to this case. Should he answer all questions frankly, truthfully and honestly to his knowledge and ability he may be indemnified from prosecution on those charges.

 

241.    He is 32 years old, passed matric in 2005. He also studied for Certificate in Public Management Resource in 2007 and Diploma in Public Management. He however, did not graduate because he did not do his practical training. He ultimately completed the studies in 2010. During August 2016 he was employed by Mining Support and Development establishment as a supervisor and later financial officer. During August 2016 he was not reporting to his workplace as he had a labour dispute with the employer. He was however, still being paid his salary. The dispute related to a process to reduce his salary by the employer due to the poor financial situation the company experienced at the time.

 

242.    He knows accused number 1 from Mothibistadt as “Bongz”. He was well known in the community for his beautiful motor vehicle and good quality music system he installed in it. He met accused number 2 for the first time on 17 August 2016 and later on 3 September 2016. He also knows accused 3. He also met him for the first time on 17 August 2016 in Danielskuil. He met accused number 4 in 2012. He knew him as Charlie. He is one of the employees that he found when he joined the company he was working for. They could have met about twice socially. They mostly met at work as colleagues. Accused number 4 later left the company and joined John Riggs. They both kept their respective cell phone numbers. He only met accused number 5 on 3 September 2016 in Danielskuil. Before September the 3^rd he merely saw him in the area of the mines.

 

243.    Just before the 2016 elections, Lekgotla remembers phoning accused number 4 and asked him about his whereabouts, as he had not seen him for some time. He asked him if he was still employed. He replied that he was still employed but at that moment he was busy putting up the posters. He asked him posters for what and he said the ones for his brother who had been nominated as ANC candidate in the upcoming municipal elections. He said the name of his brother is Zet.

 

244.     Lekgotla testified that on 16 August 2016 he received a phone call from a strange number. He answered the phone and the caller said that he is talking to Charlie. He also recognised him by the voice that it was indeed Charlie, accused number 4. He mentioned that he wanted him to assist with transport. He asked him transport for what. He said they have a deal in Postmasburg. He asked him when, he said the next day which was the 17^th. He asked him why he does not try to find transport where he was in Danielskuil because it would be nearer. He said he tried to get transport locally but did not succeed. He asked him what the deal was about. He just laughed and remarked that he is asking too much. What crossed his mind at that moment was that they wanted to do something against the law because why would someone want to use transport from Kuruman which is 80km from Danielskuil, for him to be transported from Danielskuil to Postmasburg and from Postmasburg back to Danielskuil.

 

245.     At the time Lekgotla owned a VW Polo TSI. He indicated to accused number 4 that he did not have his motor vehicle at the time as he had borrowed it to his friend who had to transport people to work that week. They had exchanged motor vehicles. Lekgotla was using his van and he had Lekgotla’s VW Polo. That van also belonged to his father. Accused number 4 requested him to make a plan to get him transport. Lekgotla promised to try.

 

246.    Later that day, 16 August Lekgotla met accused number 1. He told him of people that needed transport from Danielskuil to Postmasburg and back and asked him how much he would charge them if he was to assist. Accused number 1 replied that he does not know. He asked him why those people do not want transport in Danielskuil where they were which will be closer to their destination. He asked him for what purpose was the transport required. Lekgotla told him that they said to him they have a deal in Postmasburg. Their role would be to pick them up in Danielskuil and off load them somewhere in Postmasburg and wait for them. They will go and attend to their deal, afterwards return to the car and they will transport them back to Danielskuil. That is what he was told by accused number 4. Accused number 1 responded that Lekgotla should use his discretion as to how much should they be charged. They parted company on that note.

 

247.    The next conversation Lekgotla had with accused number 4 he promised to pay R20 000.00 for the transport. He does not remember whether he called or received a call from him. He also does not recall whether it was on the 16^th or the following day. Lekgotla was surprised by the amount offered. He asked him why so much money. The answer was that they have a deal in Postmasburg with a DA person. He said Zet, was supposed to be a councillor but it seems as if it is not going to happen because DA had received more seats in the municipality. Whilst the conversation was on accused number 4 told him to hold on and to talk to his “Bro”. Lekgotla asked him who his “Bro” is. He replied that his “Bro” is Zet. Zet took the phone and said he was supposed to be a councillor but the DA has received more seats than the ANC and the DA person will the following day on 17 August, be sworn in officially as a councillor, meaning that from there on there will be no jobs available. Lekgotla replied that it is difficult. Zet then said no “you are not doing anything. You are just going to transport us to Postmasburg, me and Charlie we will do the work. After we completed the work, we will come back to the motor vehicle and you will transport us back to Danielskuil”.

 

248.    Lekgotla testified that what came to his mind was that the thing they were going to do was illegal, a person might be killed or assaulted. Because their participation would be just to transport them and they are not going to see what is actually going to happen on the other side and the high amount of money to be paid to them, he agreed.

 

249.    Lekgotla met accused number 1 and he reported to him everything that he discussed with them. Accused number 1 was also surprised about the exorbitant amount of money offered. Lekgotla did not tell him what came to his mind namely, that a person might be assaulted or killed. The two decided to assist them with transport. Accused number 1 offered to use the Jetta motor vehicle belonging to his wife. There was no agreement as to how the R20 00.00 would be shared between the two of them.

 

250.     Lekgotla testified that the following day he had a telephonic communication with accused 4. They agreed that they will come to Danielskuil and fetch them. He later received a phone call reflecting the numbers he did not know and were also not on his phone contacts. He answered, the person said, “it is Zet”. He said Lekgotla should henceforth use the numbers appearing on his phone screen to communicate with them. He recognised the voice as being of the Zet he spoke to the previous day. Later Lekgotla called the number provided and asked if they were ready and they could come. Zet answered and said they should wait a bit they were still busy. It was during the day, and Lekgotla was with accused number 1 at the time.

 

251.    Lekgotla later called accused number 4 and told him that he had just called the new number provided to him and spoke to Zet; that he asked him whether they could come, and he said they were still busy. Accused number 4 confirmed that they were indeed busy. Lekgotla made a call again to that new number. He spoke to Zet and asked him if they want transport, if so, they must come or if not, they must abandon everything. Zet said they should come to Danielskuil, and they should phone on arrival. Lekgotla left the single cab van that he was driving at the wife of accused number 1’s place. They got into the Jetta and drove to Leach Garage; they filled up diesel to the value of R650.00 paid for by Lekgotla. It was already after 4pm and they left Kuruman for Danielskuil. A photo album admitted as Exhibit TT was used during the course of the evidence of Lekgotla to confirm the places he pointed out. He made these pointing out on 9 February 2017.

 

252.    Lekgotla had three cell phones with him. He took the one that had airtime and left the other two in the van, one of which was connected to a charger. On the way he never received nor made a call. They arrived in Danielskuil and stopped at the Caltex garage. Lekgotla entered the shop and bought a soft beverage. Afterwards he phoned the number provided and Zet answered. Lekgotla told him that they had arrived in Danielskuil, they are at the Garage. Zet said they should come to the township area Sloja, they will see a tuck shop as they approach accused number 4’s place. They must not come to the house but should park at the tuck shop. Lekgotla did not remember well where the tuck shop was but the explanation that its closer to accused number 4’s place would make it easy for him to identify it. He knew more or less where accused number 4 stayed. He was last at his place sometime in 2015. That was the only time. They drove to Sloja.

 

253.    They stopped at the tuck shop as instructed. The witness marked the house of accused number 4 on photo 7 of Exhibit “TT”. Lekgotla phoned the number provided and told Zet that they had arrived. Zet said they would be coming to them soon. He saw a white Wildtrak double cab van and a Toyota Avanza on accused number 4’s premises. Accused number 4 went to the Wildtrak and cleaned its carpet and thereafter returned to the house. Lekgotla identified the Wildtrak on photos 35 and 36 of Exhibit “D” and the Avanza on photos 11 and 12 of Exhibit: D”.

 

254.    Lekgotla saw accused number 3 accompanied by accused number 2 leaving the house and got into the Avanza. Accused number 3 drove towards where the Jetta was parked. They greeted them from inside the Avanza. They got out of the Avanza and came to the Jetta. They attempted to open the doors and accused number 1 told them that the right rear door was not functioning, and they should use the other door. Accused number 2 entered first followed by accused number 3. The latter introduced himself as Zet. Lekgotla recognised him by his voice that he has been communicating with that it is indeed Zet. He pointed at accused number 2 and said he is his friend, Frank.  It was the first time that Lekgotla saw and met the two. The only time he had knowledge of Zet was his photo on the election posters as an ANC candidate when he was in a taxi travelling from Kuruman via Lime Acres. Lekgotla confirmed the poster he is referring to on photos 2618 and 2619 of Exhibit “2”.

 

255.    Accused number 2 did not speak at all when he got into the vehicle. He had a strong smell of alcohol. While sitting in the car accused number 3 started to talk. Accused number 1 lit a cigarette. Because Lekgotla does not smoke he got out of the car. Accused number1 said “oh my brother I forgot that you do not smoke”. They all got out of the car. They stood next to the Jetta in a semi-circle. They could see each other’s faces. The light was bright enough. The source of light was the sun, although it was setting. Accused number 3 spoke to Lekgotla and accused number 1. He mentioned that he was no longer going because the top dogs said to him if he goes along, he will be the first suspect. He was referring to going to Postmasburg. While there Lekgotla saw another car enter accused number 4’s premises. It was a white single long base van. Accused number 3 said the two will take Charlie and his friend, accused 2 and transport them to Postmasburg. They will get out of the motor vehicle, and the two will go and do the deal and after completing the deal they will come back, get into the car and they will transport them back to Danielskuil. Lekgotla asked him why he does not accompany them and be part of the trip. His response was that the top dogs said that he must not accompany them. Bongz, accused number 1 was also present when this conversation took place. He said nothing.

 

256.    The Wildtrak van left accused number 4’s premises after the long base van had left. Accused number 2 went to the Avanza. On his return he came with four 750 ml bottles of Castle Lite beer. He put them at the back seat of the Jetta. Accused number 3 got into the Avanza and he drove off. Accused number 2 told them to drive further on and wait for accused 4 at the T junction. Accused number 1 said Lekgotla should drive. Lekgotla took over the driving and went to stop at the T junction. It is depicted on photos 9 and 10. Whilst there, accused number 2 said accused number 4 was taking too long, and delaying them. He told Lekgotla to phone him and ask him where he was. Lekgotla took the phone and phoned Charlie. He asked him where he was. He said he is at Kuilsville; he will be there just now. They waited for some time and accused number 2 repeated that accused number 4 was taking long. He was drinking from the beers which he put in the vehicle before they left the tuck shop. Lekgotla phoned accused number 3 and he replied that he is on his way. He phoned accused 3 on this number ending in 114 (the suspect number). The reason for phoning accused number 3 was to establish from him how far was accused 4 because accused number 2 was saying that accused 4 was delaying them. The answer button was pressed but nobody spoke on the other side and it went off.

 

257.    Lekgotla phoned accused 4 to ask him how far he was. His phone went on to voicemail. While sitting there, after two or three minutes accused number 4 arrived driving the Wildtrak van. He did not see clearly whether there were other people inside that Wildtrak van. He got out of the Wildtrak van, went to the left rear window of the Jetta, and handed a firearm to accused number 2. He mentioned that he would come back and drove off. It was a 9mm pistol. Accused number 1 was in the motor vehicle on the left front passenger seat next to Lekgotla when this happened.

 

258.    After a while accused number 3 arrived driving the Avanza accompanied by accused number 4. Accused number 4 got out of the Avanza and got into the Jetta. He asked accused number 3 where the phone is. Accused number 3 supported and mentioned that they must use the phone which was used. Accused number 3 handed over a black Nokia cell phone to accused number 4. Accused number 3 drove off with the Avanza. Lekgotla got onto the road. He was driving to Postmasburg. When they arrived at the T junction as depicted on photo numbers 11 and 12, he turned right in the direction of Postmasburg. The people who were having conversation was accused numbers 4 and 2. Accused number 2 was saying to accused number 4 that he delayed them. There was a bit of argument between the two and accused number 4 said to accused number 2 that he is drunk. Nothing was said further. They were listening to the radio.

 

259.    Accused number 4 told Lekgotla to drive into town. At a stop sign which is depicted on photo 18 and 19, accused number 4 told him to turn left. He turned left. While driving he saw a board written Kolonel Mine. Accused number 2 said “daar is die bakkie”, referring to a motor vehicle which would have parked on photos 20 and 21 as a reconstructed scene. In the photo there is a minibus replacing Ford Ranger van. There were two men standing in front of the Ford Ranger van. Accused number 2 further said “let us get off here and go and do our thing”. Lekgotla drove past the van to a certain place where there are some graves, as he depicted in photo numbers 22 and 23. According to Lekgotla, apart from the two persons standing in front of the Ford Ranger van there were other people on the street. When they got to that place next the graves and all got out of the Jetta and passed some water. There was an argument between accused numbers 2 and 4 while busy relieving themselves. Accused number 2 was saying that they should get off there and go to do what they were supposed to do. From there all of them went back into the car.

 

260.    Accused number 4 directed Lekgotla to drive forward and turn left as depicted on photo number 27. He complied. The black Nokia phone which they received from accused number 3 rang and accused number 4 said “hier bel hy”, meaning he is calling. He further said that the phone be handed over to Lekgotla because his voice is similar or closer to that of the person who spoke to him earlier. Accused number 4 told Lekgotla to tell the caller to come to the old school, which is situated on the road leading to Griekwastad. Lekgotla did as told. The caller replied by saying he is coming.

 

261.    The Ford Ranger van proceeded to the direction of Griekwastad. Accused number 4 told Lekgotla to phone him and tell him to drive to the grounds nearer to the school premises. Lekgotla obliged. The person on the phone agreed. To recap, it was not part of the plan for Lekgotla and accused number 1 to get anywhere close to the DA man and to speak to the person. The plan was to drop accused 2 and 4 at a place and wait for their return. Lekgotla testified that he was now fearing for his own life and as a result complied with instructions. He did not know accused number 2 and saw him as a person who was not afraid to do anything harmful. When all these were happening accused number 1 did not object about the deviation.

 

262.    Lekgotla testified that the Ford Ranger van came and stopped next to the Jetta. The first person who got out was the driver. He was a short person. When he got out accused number 4 said to Lekgotla to get out and go to greet them. When he got out accused number 1 also got out of the car and he accompanied him. The second person came out also from the passenger seat of the Ford Ranger van and was in possession of a file. Lekgotla and accused number 1 approached them. They stood with them as demonstrated in photo numbers 31, 32, 33, 34, 34, 35 and 36.

 

263.       The taller man opened the file. On that file Lekgotla noticed a company registration certificate and tax clearance number. The short one took out his phone and switched its torch/light on, used it to illuminate the documents because it was a little bit dark at that time. Whilst the four were concentrating on the files, Lekgotla heard footsteps, saw accused number 4 already being behind the taller guy. When he lifted his head and looked in his direction the firearm went off. Lekgotla and accused number 1 ran in the direction of the Jetta. For some few seconds Lekgotla lost his mind but after some few seconds he recovered.

 

264.    At the time accused number 4 creped to them, Lekgotla and accused number 1 were engaged in conversation with the two men. The taller one was telling them about his company. Lekgotla could not warn them of the danger because he would have destroyed the plan and likely to be killed himself. When Lekgotla regained his full senses/orientation, he saw the tall guy lying on the ground. When he looked around to check where accused numbers 2 and 4 were, he noticed them some distance from where he was, and were holding the short one. Lekgotla heard the voice of accused number 4 say bring the car, or “bring die kar”. Accused number 1 rushed to the driver seat and Lekgotla got into the passenger seat of the Jetta and drove to their direction. The keys had been left hanging in the ignition by Lekgotla when he went to meet the two men. When the car arrived at them, they tapped on the boot and they said: “open the boot”. Lekgotla got out and opened the boot as is depicted on photos 37 and 38. They placed the short person inside the boot. At the time the short person had been pinned down and was defenceless. He said nothing and was breathing heavily. After he was placed in the boot Lekgotla returned to the Jetta on the left passenger front seat. The first person that entered the back seat was accused number 2 and was followed by accused 4. They both used the left rear door as the right one did not open.

 

265.     Accused number 1 drove off from there and accused 4 was the one who was directing him from the park and to turn left. He drove until the stop sign and turned right. Whilst driving Lekgotla realised that they were on the road leading to Kimberley and Danielskuil. That is the same road they used from Danielskuil to Postmasburg. The last time he looked at the speedometer the motor vehicle was moving at a speed of 200km/h. From the parking area at the school the person who was in the boot kept on screaming and kicking or hitting the boot from the inside. Accused numbers 2 and 4 told him to keep quiet, using the Afrikaans words “bly stil”.

 

266.    As they were travelling on the main road from Postmasburg to Kimberley Lekgotla asked accused number 4 what he had done. He replied: “nee man, nee man”, meaning no man. Accused number 2 asked him why he did not shoot the other one also just there. Accused number 4 replied that the firearm jammed. Accused number 2 advised him to take the magazine out and try it. Accused number 4 was busy with the firearm at that time. Lekgotla testified that he concentrated on the road being concerned that the Jetta’s shocks were not in good condition, was travelling at high speed and the road is also known for stray animals.

 

267.    Suddenly accused number 2 said “he opened the boot”. He was referring to the person who was inside the boot. They screamed at him to close the boot. Accused number 4 asked accused number 2 how to shoot him. He advised him to drop the seat back rest. Accused number 4 dropped the seat back rest he was sitting on. Accused number 2 told him to shoot the man. The firearm was cogged or bridged by accused number 4 but the firearm did not shoot. Accused number 2 asked him if it had jammed again and said: “shoot the man, man. Try it again”. As Lekgotla was looking to the front, he heard the firearm going off. He looked at the back and looked again at the front and then the firearm went for the second time off. Accused number 4 had his head and body up to his shoulder inside the boot through the opening he created by dropping the back rest of the seat. After a short while accused number 2 mentioned that the man fell out of the boot. Lekgotla looked behind but could not see anything because the boot lid/ cover was opened and obscured his view. Accused number 4 instructed accused number 1 to make a U-turn. He complied without saying anything. They found the man who was in the boot lying on the tar road surface. The car was stopped a short distance from the man so that the light should not illuminate him. Lekgotla, accused numbers 2 and 4 got out of the car and went to where he was lying on the tar. Accused number 2 suggested that he be removed from the road. The two dragged him out of the road down the slope.

 

268.    In the meantime, Lekgotla rushed back to the Jetta told and accused number 1 to drive off the place. Accused number 1 asked him if they are leaving them in the large (bush). Lekgotla replied that they are men, they will sort themselves out – they will see how they get home. There was a motor vehicle which was approaching from behind which appeared to belong to the mines. The two drove back to Postmasburg. The reason being that the motor vehicle was already facing that direction and they would rather use an alternative route to Kuruman. Accused number 1 was driving the motor vehicle at a high speed.

 

269.    Lekgotla testified that the place where they left accused numbers 2 and 4 is not far from Groenwater. After passing Postmasburg Lekgotla called his brother to request him the telephone numbers of a traditional healer, Mr Maphunye Nkwe. He wanted to phone Nkwe and consult him about the incident that had just taken place.  He regarded it as bad luck deserving interpretation and analysis by a traditional healer. His brother provided him with the requested cell phone numbers. He called Nkwe at least more than once.

 

270.    Along the way accused number 1 asked what is it that happened, he is frightened. Lekgotla replied that he is equally surprised and frightened. Accused number 1 mentioned that he wishes that there is no bullet hole in the car. Lekgotla replied that is also his wish.

 

271.     They drove up to accused number 1’s place where they got the Jetta. They opened the boot and saw blood stains on the right rear bumper, at the back and also inside the boot. They searched further and found a cell phone, a camouflage holster, one cartridge and one live ammunition. Lekgotla picked them up. Accused number 1 took them from him and entered the house saying he was going to flush them. Accused number 1 washed off the blood stains from the car. Lekgotla advised him to wash the blood stains thoroughly from the car. He took the van he had left and drove away. Along the way he called his girlfriend and picked her up and drove to Mothibistad. He mentioned that he had never used accused number 1’s phone before he left. One of his cell phones was fully charged and the other one was flat. Later that night he received a call from accused number 1 who told him that he was scared.

 

272.    Lekgotla testified that on the 18^th accused number 4 phoned him. He asked him where he was. He replied that he was home. He asked him what time he arrive home. Lekgotla asked him how they left the place where they left them. He told him that he phoned Juluka (accused no 5) to fetch them where they left them. He mentioned further that he walked for a long distance in the bush and that he finally shot him on the head, and that he cried like a bull. He was referring to the short man who was in the boot. We now know that it was the deceased Baaitjie in the boot.

 

273.    Later that day accused number 4 again called Lekgotla to find out if they were fine. Lekgotla asked him why did the plan change. He said “man, do not be a little boy, be a man, do not be a little boy”. Lekgotla mentioned that he wants his money that he paid for the diesel, R650.00. He replied that he worries for nothing, he has got connections with the police, with the Hawks and also with rich people.

 

274.    After some time Lekgotla received a message on his phone. It was an E-wallet and the sender was Mr Legodu. In due course Lekgotla had a conversation with accused number 4. He enquired whether he received the money. Lekgotla confirmed receipt of the money and asked who Mr Legodu was. He replied that Mr Legodu is Juluka. Lekgotla testified that he did not ask him about the R20 000.00 because he did not see the need for that money anymore, as people have lost their lives in that incident. All he wanted was the return for his disbursement.

 

275.    Lekgotla testified that on the 17^th he left with the cell phone that they discovered in the Jetta. He handed it over to Nkwe. He gave it to him when he came to charge his phone at his parental home. Nkwe does not have electricity connection at his place and charges his cell phone at Lekgotla’s parental home. He gave him the Nokia N70 phone to use temporarily whist having his on the charger. Lekgotla took the SIM card from the phone before handing it over to Nkwe and threw it away. Lekgotla mentioned that in the course of his communications with accused number 4 he told him about the things that were left behind. He told him to destroy them. Lekgotla then burned the cell phone Nokia N70 and the holster.

 

276.    Lekgotla testified that he felt bad about what happened and was asking himself what to do or whom to speak to because accused number 4 and others already told him that they have connections. He decided not to let other people suffer because of his actions. He came to Kimberley and met an attorney, Mr Schoeman who was arranged by his brother. They met at the local Magistrate court building. He explained what happened to him. He was advised to be taken to the Hawks offices. Whilst still with Mr Schoeman, Lekgotla received a call from Colonel Louwrens. He introduced himself as Captain Louwrens from the Hawks and enquired whether he is speaking to Tiro Lekgotla. He confirmed. Captain Louwrens told him that they are looking for him. Lekgotla replied that he was on his way to their offices and is accompanied by Mr Schoeman, his brother and mother.

 

277.    Colonel Louwrens informed him that he is a suspect in a double murder case which took place in Postmasburg and between Postmasburg and Groenwater. He read his constitutional rights to him and enquired from him whether he will be in a position to answer the questions that he intends to ask him. Mr Schoeman interrupted, and he requested him to ask the questions so that they can hear what the questions entail. Captain Louwrens asked whether he knows Zet Magawu who has been arrested. Lekgotla replied that he does not know him. Colonel Louwrens showed him the cell phone records that showed that there was communication between his phone and that of Magawu. After Mr Schoeman had seen the records, he asked the captain to give them some time in privacy. They went to another room. It was then decided that he should cooperate with the police. Asked why he lied and said he did not know Magawu, he replied that he had been advised by Mr Schoeman that he must not say anything that would put him in trouble, he is the one who will be doing most of the talking.

 

278.    On that same day of 1 September 2016, he told Captain Louwrens everything that happened. He was then informed that the state is prepared to afford him the status of a witness in terms of section 204 of the Act. A statement was taken from him the next day on 02 September 2016.

 

279.    Lekgotla testified that Colonel Louwrens suggested that he send him to Danielskuil and make enquiries about the money which was to be paid to them and if possible, obtain the firearm which was used to commit the crimes on the 17^th of August 2016. He agreed.

 

280.    It is not disputed that Colonel Louwrens obtained authorization in terms of section 252(A) of the Act from the office of the Director of public Prosecutions. The aim was to have an undercover operation by Lekgotla to see if he could obtain the firearm used in the commission of the offences from the accused and further obtain the R20 000.00 they were according to him promised. It was also to authorize Lekgotla to lawfully possess the firearm should he be successful in obtaining it. He was also armed with a recording device.

 

281.    For convenience sake and practical reasons, and not to prejudice the accused involved, the Prosecution and the defence agreed that the evidence be provisionally tendered, and its admission be dealt with at the conclusion of the trial. This approach was also justified by the fact that the accused involved denied ever meeting Lekgotla on 3 September 2016. Reliance was placed on the decision, reasoning and conclusion in S v Mtsabo 2009(1), SACA 513 SCA and related cases. The Court was persuaded by the reasons provided for the arrangement and saw no need to deal with the admissibility of the evidence separately and allowed the evidence to be tendered and be dealt with at the end of the case.

 

282.    Captain Louwrens and Warrant Officer Van der Merwe the met Lekgotla at a road leading to Gamagara to set up the operation on 03 September 2016. They gave him a device to use to record their activities. It had a video and audio recording capability. Lekgotla called accused number 4 to tell him that he was coming to Danielskuil. The phone went on voicemail, but he nevertheless went.

 

283.    He went to accused 4’s house. He found him accompanied by another person with dreadlocks. He was washing the Wildtrak Ford Ranger, white in colour. He greeted accused number 4 who said he did well by visiting him. Lekgotla said to him he was just passing by from Jan Kempdorp and was on his way to his mother. Accused number 4 told him that he spoke to the person who is supposed to pay the money. Lekgotla asked him who that person is. He said he is Juluka. He asked him where is Juluka. He said Juluka is at his farm. Accused number 4 mentioned that they need to put pressure on him to pay. He must tell him that if he does not pay accused number 1 will report what happened to the police. Lekgotla asked him to phone Juluka. He did phone. Apparently Juluka said he was at the Corporation (Koporasie).

 

284.     Lekgotla testified that accused number 4 showed him documents from his workplace with CCMA case particulars. In those documents he noticed that he was accused of being in possession of an illegal firearm(s) at his workplace. He asked him about the allegation, and he replied that they are talking nonsense, there is nothing like that. Lekgotla asked him whether the Hawks members ever went to his workplace when they were looking for him. He said no, they did not visit him at his workplace. He got the information that they were looking for him and he visited their offices. Accused number 4 suggested that they should go to the corporation in town to meet Juluka. The dreadlock person was not part of the conversation. The two got into Lekgotla’s motor vehicle and drove away. Accused number 4 directed him how to get to the corporation.

 

285.     Lekgotla testified that whilst in the company of accused number 4 at his place he had the device given to him activated. They were outside in a windy weather. This contributed to the device not working as it was supposed to. He could also not just point the camera at him as he would be suspicious and put his life in danger.

 

286.    They stopped at the Corporation, accused number 5 came. Accused number 4 got out of the car and went to the back seat. Accused number 5 got into the motor vehicle and greeted. After he greeted, accused number 4 said to accused number 5 that Lekgotla is the one who accompanied them. Accused number 5 requested that he be taken to the township for him to organise transport for church people. They drove back to accused number 4’s house in the township. Accused number 5 requested Lekgotla take him to one of his taxi drivers. Accused number 4 got off nearer to his house, as he still had to go and complete the cleaning of the van. Lekgotla took accused number 5 to his taxi driver’s place. They found the taxi driver and he joined them en route to the church. At the church the two alighted and met church people. From there they returned to the car and dropped the taxi driver at his home.

 

287.     From there they proceeded to accused number 4’s place. On arrival Lekgotla enquired about the money. Accused number 5 mentioned that the situation was slow, and he could not make any transactions from his bank account. He enquired from him what the problem was. He said one cannot trust “these people” they may have his cell phones tapped. Lekgotla switched the motor vehicle air conditioner on as it was very hot inside the motor vehicle. Lekgotla said to him he heard from accused 4 that they have their people in the Hawks and the police. He mentioned that Charlie and others got a tip off from someone.

 

288.    Lekgotla testified that he recorded his conversation with accused number 5 with his two cell phones. The recording was played in Court and the transcript admitted as Exhibit XX and the Compact Disc (CD) as Exhibit 10. Accused number 5 disputes that he is the person speaking on the recording. For a better understanding of the conversation and to decide on the conflicting versions between the State and accused number 5 a summary of the conversation directly from the recording and not from Lekgotla is imperative. For the sake of convenience, I refer to the person that Lekgotla said it is accused number 5 as Mr X pending the determination at a later stage who the person can possibly be. The conversation went as hereunder.

 

289.         The recording starts with the greetings and Mr X says they should go to the location he wants to see Shorty as they want transport. Lekgotla then said he has been phoning Charlie (accused no: 4) and said man, have you absconded. Mr X said he told him to be careful, because they have nothing in their possession, they are trying by all means to “bug” the phones; the information they received is that they are intercepting phone calls and listening to conversations. He therefore told him to speak briefly only.

 

290.         Lekgotla said he had been phoning several times. Mr X says they told us to be careful of this thing. He does not want it to lead to that one thing. He further says because you (Lekgotla) and him (accused no: 4) are okay (sharp), and that in fact Lekgotla was used ------ asked “I am?” Mr X says at the motor vehicle – you were only used, but he is putting it summarily so that it should not lead there, he says that they want him to arrange. Lekgotla interjected and said what arrangement have they done with the money? Mr X says he said he is taking responsibility. Lekgotla says Yes, and Mr X says he is trying to make the trace disappear. He was trying to kill the trace so that traces should not be many. He further says that if you go there and there the one starts speaking to that one and that one, difficulties occur.

 

291.         Mr X speaks on the phone and says “Hey Bro Short, I am at the school, you can go back to the church I am coming. I am now trying to arrange a bus.”  Mr X says to Lekgotla: No I will do it. I say to you that a person will not be able to escape where you put him. You have to have a sharp eye, a sharp eye as to who is being given. Lekgotla says he does not know how this issue is to be worked out. Mr X responds that about that he is the one to give out, there are problems/difficulties.

 

292.         Lekgotla asks about someone he has forgotten his name. Mr X says Zet. Lekgotla confirms: Zonizelo, Bra Zet; he asks how is his thing going to be worked out, how is it going/progressing. Mr X replies that he will be released on the 22nd; there is no evidence at all. He further said the people are doing delaying tactics, they said they have three witnesses. They took his statement as to how did the Avanza came into Magawu’s possession.

 

293.         Mr X was interrupted by speaking on the phone saying he want to help the man. He then gives instructions to someone to go and collect “Oom Abel” he must hurry up because he wants the person he is speaking to on the phone to transport the mine “skof” (shift people) and thereafter to transport the Lime Acres “skof”, he must hurry up and stop telling him stories. He then says Oom Abel is at his house. Lekgotla says to Mr X they say why you gave him the Avanza. Mr X replies that “yes, you see”. Even other gents, some in their statements say they were with Zet on that day. He then says, they turned them and said these guys are state witnesses, because they are not saying anything that is implicating that man. They make them state witnesses. They are now all over the place they are looking around, so they are using delaying tactics; by saying they have three witnesses. He further says Lekgotla does not understand they are playing a game. They said they have three witnesses and request the court to give them a little chance. On the 22nd, they have nothing they are buying time to see what they can get. Therefore, on the 22nd there will be no “justification”.

 

294.         Lekgotla asks, in that case what happens, do they grant bail or withdraw the case. Mr X replies that they grant bail because they can’t first withdraw the case, they say further investigations.

 

295.         Mr X tells Lekgotla that he wants to quickly see one guy and they should travel in Lekgotla’s motor vehicle. He wants to sort out transport issue and get out of it. Lekgotla agreed. Lekgotla further says that he is afraid of that man of that transport, he might say “ye-ye”. Mr X replies that I understand your panicking, and that our being all over might start issues; he instructs him to turn. He wants a man of the bus to transport people.

 

296.         Lekgotla says when he asked Charlie - in fact when this thing was planned, he said he also does not know he was only told. Mr X asks which one. Lekgotla replies, that of that man. He just called him and say he is asking for transport. We request transport to drop us there, they do their job and return to the motor vehicle. Lekgotla says he was so frightened, if he did not wet himself! At this stage it appears Mr X left the car and later returned. He says they should turn at some guys. Lekgotla says to him that he heard Charlie say they have someone within the HAWKS who is working with them, has he heard or said anything. Mr X says there is nothing. He further says that he warned him to be careful because the phones are being listened to and can be traced through towers. However, all is dead. The car stopped and Mr X got out, according to Lekgotla he went into a church.

 

297.         Later, Lekgotla mentions that had he known the time he would not have come. He went to see his mother and he has been trying to contact Charlie telephonically without success, he decided to pass by. Mr X replied that he did well by passing that side. Mr X later said the previous day he said to those people he will sort out with them; to make it straight. Lekgotla interjected and asked if there are other people. Mr X replied that he is referring to where the money should come from. He said to make things simple he would not like much- he should make things right. He then mentioned that it’s about losing by the organisation, Lekgotla asked, of the ANC? Mr X confirmed. He further said that they had to realise that the only way is to “take this one” for them to go to the elections, they can work harder. But the thing is, this man has to be Mayor; there is someone who has to be the Mayor. “If we win, even for you, hunger will be a thing of the past, even you too, hunger/starvation is over. We will be on the payroll of that guy. Remember I am a contractor. He will be pleased that they got their Municipality back. The planning is from Upington.

 

298.         Mr X then says that he told the gents that they should take two, so that if they are two; Lekgotla asked who? Mr X replied, the hit men. He then said that for the hit men to be involved was because of time, time was over or late. Lekgotla then mentioned that when Charlie phoned him he said they are requesting transport. He knew that Lekgotla is not reporting at work because he is asking for transport, they are going to drop someone they will go and do the job and return to car and leave.

 

299.         The door of the car opened and Mr X spoke to a male person about their unrelated things. After that the conversation between the two continued. Mr X then says: to tell the truth, he did not know that they are the ones who were going to do the job; because other gents delayed, they were out of time that is the reason that they looked for other people. In response, Lekgotla says that Charlie bad. He further mentions that he met Charlie in 2012 and he did not know that he is that bad/sharp. Mr X agreed and says that he took his thing and he took it crudely/ crookedly- that he used his thing/gun. Mr X further says he can borrow his to someone but he takes out some of the parts from it and replace them with other ones/ “blind”, it will not be shown on the cartridges- because he does not trust them, when they pull a mission somewhere, when they trace, it should not lead to him. These are small things to him.

 

300.         Mr X says Charlie told him that when he turned he saw Lekgotla suck/go down. Lekgotla confirms that he sucked and his mind switched off. When he looked he saw the man down, when he looked other side he saw them catching the other one. They were hitting him and he was frightened. One said “hey bring daai ‘f’ car. He says did not that side of Charlie, he did not know if he could end up hitting him as well. Mr X says it was because the time was up and that is why they had to do the job. He, Mr X, had been refusing that they should do the work.

 

301.         Lekgotla mentioned that the thing that happened is causing him sleepless nights, it was first time he saw a person do such thing on his face, since he was born. He does not even eat, that day he only drank water. Mr X tells him not to do that and advises him to take a small bottle of coke (my size) and pour a bit of sugar in it, shake it and drink it. It will take out what is troubling him. Lekgotla says the man he was with is also frightened, because they did not know that it will be in their presence, they were only to drop them.

 

302.         Mr X mentions that he told them that they must consider what will happen if the person does not come alone; these things have to be two, they must tell those gents/majita to bring two things, in case they are two should be once off- kwaa! Kwaa! To be able to go, you understand! This man, my worry was an eye-witness when there is another one. They then made that thing like that. He further says that is the reason they phoned him he did not know – for them to be collected. He then decided not to use his car but of those Gents/Majita, because they had already arrived. They went to pick them up at Groenwater. He then told those Gents/Majita that they are not to enter the location, they should go straight to sleep at the hotel. Then the following day they must leave “klaar”. Mr X further advises Lekgotla to sleep at night, drink pain killers. Lekgotla says he has lost weight. Mr X replies that he is not used to him to be able to notice if he lost weight. Lekgotla says Charlie knows him, he said to him he lost weight, he said man we are used to these things. Mr X says you will be okay; it will take a short while. He further advised him to sleep a bit during the day for the body to relax, because he is dehydrating, must eat, even if it’s just a little.

 

303.         Mr X mentions that he did that job on Thursday, to show them how it is done. They brought them an R-5. They wanted them to remove him; he said leave him. They went past in a car – he wore a coat and changed behind – The man passed behind him and entered the house, when he stood at the window he then released it – and hit him – He then shows Lekgotla a bullet and says he hit with only one and points an estimation of the distance the house was from them. He took him inside the house; “GUP”.

 

304.         Lekgotla mentions that Charlie showed him a paper of Rhodes Flat and concluded that it was another job. Mr X mentions that they made a mistake there. He was also not aware and reprimanded them that they are only starting to get work and why are they doing “sh…t”. They then said it is information they got some time ago and they saw that man having withdrawn money from the bank, and concluded that money was in the safe. They went for the safe to open it to get money. When they opened, there was no money but big weapons, Hunting Riffle. That is the reason they rushed to take this man, it’s because of the previous case; they think it’s him who did this job. He is not there – and things stolen are not Riffles – that is the reason he says he is going to go out. All people testify where they were with him, he was not where you say he went.

 

305.         After Lekgotla mentioned that he had not seen Charlie in a long time and he did not tell him what he was now involved in, Mr X mentioned that this thing disturbed him for about five days and he wonders why, because he did not take part in it, and he did not see what happened; then he said it’s because he goes along with the big ones – Matona´ - it must affect him as well. The thing is they want to work hard so that the man can win the elections. He then points at someone he says he want to take him out with an R1- he is a police officer – he will destroy him with an R1 – theses things are simple -  That is why he does not want these things to get into someone’s blood system because you get used to them.

 

306.         Lekgotla says he did not take a look, he ran away and the one he was with, Bongs also ran away, the others chased and caught him. The other one. Mr X mentions that they should have hit him just there as well – he then demonstrates how one uses “that thing” and finish the job”.

 

307.         Lekgotla asks about the money. Mr X asks how much? - Lekgotla replies that Charlie said R20 000.00 on the phone. Mr X proposes that to avoid tails, because today it’s the 3rd, Hendricks (or John Riggs) pays on the seventh, on the eighth when he phones him; Lekgotla interjects and says he does not have his phone numbers. Mr X mentions that Lekgotla does have his phone numbers. Lekgotla asks if he phoned him? Mr X says he sent him an e-wallet. Lekgotla says he deleted that message. Mr X was starting to mention his numbers, Lekgotla requests him to write them down.

 

308.         Mr X says that if Tiro calls he must mention that he is going to bring goats. He will respond by asking if he should he come to fetch them.  He should say to him to come and fetch them and bring money as well. The purpose is that if someone is listening to the conversation he will hear other things, that it’s about goats. Lekgotla should then say that now that he has got a van, can’t he bring them. He will then reply that he will come with a van and will arrive at a particular time at his place. Lekgotla should then say but you once said you will come and you said I should reserve some cattle for you, and he has five cattle for him. He has six cattle he wants to sell them at an auction. Mr X will then reply that why he should not sell those cattle, it’s draught season -, he can come the following day to fetch the money --- he will mention that he does not have transport. He will look for transport later. Mr X will then provide own his transport, and tow a trailer to convey the cattle. Whoever is listening will conclude that these people are talking about cattle. He will ask him the amount to be paid and he should say because of the drought he is requesting R4 000.00 for each, and as they are six, he can give him R20 000.00. If they are “tapping” the phone they will hear other things. They know that he is farming. Mr X will then say he will use a trailer because it’s not a lot. Lekgotla should then say he is serious he needs money to repair his motor vehicle. Mr X will then say he can come to fetch some money. Mr X will reply that he will transfer the money into his bank account. Lekgotla should reply that he should not do that, his account is on an overdraft, it will deplete/swallow his money; he therefore wants cash. Mr X will then look for cash and the matter will be closed. They parted on that note.

 

309.         The state presented evidence regarding an Identification parade for accused number 2. It is common cause that at the proceedings before the Magistrate accused number 2’s then legal representative, Mrs Lofty Eaton, indicated to the court that she had agreed with accused number 2 to attend the Identification Parade in her absence. Accused number 2 confirmed and an extracts of the proceedings covering this aspect were in this Court admitted as Exhibit ZZ. Mr Setouto confirmed that the contents of the document are not disputed.

 

310.         The Identification Parade was held on 17 November 2016 at the Kimberley Police Station. Warrant Officer Kesekang Vincent Lehi testified that he was tasked to take pictures of the parade and compiled an album of the photos he took which was admitted as Exhibit “AAA”. The parade was conducted by Captain Virtue. There was a one-way mirror room from where the witnesses were to point at the person to identify. Warrant Officer Lehi was in the room where the persons paraded were kept. Warrant Officer Lehi met Warrant Officer Henk Van der Merwe who took him to the place of the parade on his arrival from their LCRC offices which are not at the same building, Kimberley Police station where the parade was held.

311.         Captain Leon Virtue has thirty-four years’ service in the police service. He is attached to the detective branch which is independent of the DPCI (HAWKS). On 17 November 2016 he conducted the Identification Parade. He completed a prescribed SAP329 form for identification parades. He completed the form as he went along the process of the parade. He interviewed accused number 2 and explained his rights to legal representation and he elected not to have one present. He also explained to him the alleged charges against him and the purpose of the identification parade. He was also told that he is free to make any reasonable request regarding the parade and he made none. He asked him together with the other persons in the parade if they were satisfied with the parade and the answer was that they are satisfied. Captain Virtue wrote down the names, ages, gender and addresses of the persons who were in the parade and the names into the record.

 

312.         He testified that the witness that was to identify a person in the parade, if present, was brought by the Witness Protection Services to the parade. He allowed people who were part of the parade to choose their positions in the numbers allocated. There were eight male persons in the parade of almost the same age, height, build and appearance. Tiro Lekgotla who was the witness pointed out accused number 2 as the person involved in the case within 20 seconds. He pointed him through the one-way mirror. A picture of the person pointed was taken after he was requested to step forward (photos 3 and 4 of Exhibit AAA). It was only him and Lekgotla in the office. The form completed by Captain Virtue was admitted as Exhibit BBB.

 

313.         Under cross examination by Mr Setouto, Captain Virtue testified that on the 1^st November 2016 a Warrant Officer who he knew to be the investigating officer came to his office to request him to arrange for the identification parade and provided him with information of what the case was about. He also told him the name of the suspect. He however, did not see him on the date of the parade. He found the participants at the parade office and no one’s hands or legs were cuffed. The witness was first to be brought to his office, after that he left him with the two people who brought him and went to the parade room to attend to the participants. It was put to him that persons on positions 11 to 14 appear darker than 8 and 9. He agreed that they appear a little bit darker, something he did not indicate in paragraph 17 of Exhibit BBB. He mentioned that the differences in the participants’ height were too slight. They were however, generally of the same complexion, height, age and built.

 

314.          The State called Ms Hilda Du Plessis.  She is employed by Cell C Limited, which is a cell phone service provider.  She is employed in the capacity of Manager: Forensic Liaison services.  She is stationed at Midrand.  As Manager: Forensic Liaison Service her duties entail assisting investigating officers of the SAPS in the investigation of crime where they require cell phone number information that is suspected to have been used in the cause of the commission of crime.  Prior to working for Cell C she worked in the same position for MTN for a period of 20 years.  She underwent several training courses with MTN.  She, inter alia, did a Global System for Mobile Equipment Systems Survey training and basic radio and optimisation training.  She also did Business Law and Business Management courses with International School of London.  She has done Criminal Justice and Forensic Audit course with the University of Johannesburg.   She had done Global Information System training which is to plot the information on a map.  She did Criminal Profiling course with the University of South Africa.  She had now been working for Cell C for a period of 3 years.  She underwent a Basic Radio Planning and Optimisation training with Cell C. This Optimisation training has to do with the base stations which is the working of the base stations. 

 

315.         For the purposes of her evidence Ms Du Plessis prepared a certificate and a certification both in terms of Section 15 of the Electronic Communications and Transactions Act, 25 of 2002.  In this certificate she states that she is responsible for inter alia, the supply of information and call data on the Cell C network pursuant to a request received from the South African Police Service, law enforcement agencies and other institutions.  She provided Cell C information regarding Postmasburg CAS 88/08/2016 on a request contained in CCR 38/11/2016 on cell phone numbers 0836646737 and 0613002183, and also on CCR 56/8/2016 on cellular telephone number 0613002183 and 0840001593.  Further, she supplied Cell C information on CCR 39/8/2016 on cellular telephone number 0623700114 and on CCR02/09/2016 on cellular telephone number 0747695971.

 

316.          Ms Du Plessis mentioned that the CCR number that she has referred to is a reference number allocated by the nodal point of the SAPS when they apply for a section 205 Subpoena.  They use that number for their record keeping and is generated by the SAPS.   According to them, the legal document that should be used for a section 205 application of the Act, is Form C.  They are able to supply call data information even if the CCR number is not available.  What is important to them is that for as long as there is a section 205 subpoena with the relevant information regarding the investigating officer, the date stamp of the Magistrate and that of the Prosecutor. They on that information provide the required Cell C information.  The CCR number can be provided to them at a later stage.

 

317.         She confirmed that she provided data at the request of Colonel Louwrens.  Under normal circumstances the information can be made available within 24 to 48 hours.  But they do have emergency cases where the information can be made available at short notice, for example, within two hours, depending on the volume required.  Emergency cases are those that include, kidnapping, murder, cash in transit robbery and any other serious violent crime. They also refer to these cases as life-and-limb situations. 

 

318.         She mentioned that the call data is generated in a Portable Document Format (PDF) which is stored and communicated by the service provider and cannot be altered, manipulated or tampered with by anyone while on the service.  The manner in which the integrity of the call data was maintained is therefore reliable as contemplated in Section 53 of the Electronic Communications and Transaction Act, 25 of 2002.  She explained that when the information is on the server, nobody can have access to that service or can extract that information because there are millions of transactions that are going through on the server. 

 

319.         She mentioned that “call data records” are produced by a computer. It details all calls and transactions that go through the switch board or exchange. The records contain the number making the call, the date and time of the calls made and received, the duration of the call and the call type; whether the call was successful or unsuccessful, SMS made or received or any other internet activity. The networks are used to transport the call data to a central point for processing. The information is extracted from the central point and provided to the investigation officer. Every call made is automatically generated by the network onto the exchange to the cell phone called or second party.

 

320.         She confirmed that the information that she supplied to Colonel Louwrens for those numbers, which is contained in the print outs reflect electronic representations within the meaning of data as it appears in the Electronic Communications and Transaction Act, 25 of 2002 and also represent data generated, sent, received or stored by electronic means or a stored record as is contemplated in the definition of data message in the Electronic Communications and Transactions act.  The certificate in terms of section 15(4) of the aforesaid Act was admitted as Exhibit “GG”. [66]  There was no objection to the admission of the certificate.

 

321.         Ms Du Plessis was referred to Exhibit “R” at pages 5 and 6 and she confirmed that those were the subpoenas that she received at Cell C and on the strength of which she provided information.  She referred to a document on page 6 which is signed by the Magistrate on the 22 August 2016.  With the two subpoenas that she received she was satisfied that they were sufficient to provide information as she did.  The manner in which the integrity of the call data was maintained is therefore reliable as contemplated in Section 53 of the Electronic Communications and Transactions Act, 25 of 2002.  

 

322.         Ms Du Plessis was required to explain some of the technical terminology and abbreviations/acronyms used in their environment.  MSISDN refers to Mobile Subscriber Integrated Services Digital Network and she explained that it is a cellular telephone number that was used in their records; IMEI number refers to the Handset that was used and stands for International Mobile Equipment Identity. It has 15 digits and Cell C only uses 14 digits. The Date and Time column refers to the time and the date when the call was made or received.  Other Party shows the number that was either dialled or made a call or any other activity that was made from that cell phone number or the other cell phone number.  Third Party column refers to when the phone was not used or when there was call forwarding that went into voicemail; the cell phone number that will appear in that column or if the cell phone was diverted to another number then the number will appear in the Third Party column. The Call Type column is the activity that is happening on the phone, whether it was internet connection, or an incoming call or outgoing call or an incoming SMS or an outgoing SMS.  The Duration Column is the length of time that the call lasted.  She mentioned that incoming or an outgoing SMS will always show milliseconds.  There is a Cell Number column which is the identification code for the tower that generated the activity from the cell phone number and they have different identification codes.  Handset name and type column refers to the name and the model and what type of handset was used with the cell phone number and the IMEI number.  MTC stands for Model Terminating Call which refers to an incoming call.     

 

323.         She further explained that the towers are broken into 3 different panels/sectors designed in a clockwise operation.  The one panel always covers the north which is called sector 1.  The second panel is sector 2 and covers a southern direction. Panel 3 or sector 3 covers more to the western side direction.  The normal standard for the panel is to be set up in a northern direction at a 0 degree. The second panel will be at a 120 degree and the third panel sector 3 will be placed at a 240 degrees. 

 

324.          Ms Du Plessis was taken through the activities of the phone numbers appearing on Exhibit R on pages 10 and 11 regarding the numbers ending with 2183 and 0114   and she confirmed the transactions as a true reflection and accurate reflection of what transpired.  Ms Du Plessis was referred to pages 10 and 11 of Exhibit R and in particular to the call that was made from the cell number ending with 2183 which is now common cause that it belonged to the deceased Baaitjie.  At 19:26:41 there was call made from this number 2183 to the number ending with 0114 (Suspect number) that lasted 7 seconds.  At this stage this phone ending with 2183 was under the coverage of a tower in Postmasburg.  The next call was at 19:28:13 which was an incoming call from the suspect number to this 2183 number that lasted 18 seconds.  At this stage the 2183 phone was still under Postmasburg tower.  Ms Du Plessis referred to two images that she had prepared for her evidence which were admitted as Exhibit HH1 and HH2 respectively.  In the two images there is an indication which is marked with 2 yellow pins to show the tower of Postmasburg as well as the tower Posmasburg.  She mentioned that the distance between Postmasburg and Groenwater tower is predicted as 25.43 kilometres.  The distance between Posmasburg and Postmasburg is about 600m.   She mentioned that the 2 towers were shared between Vodacom and Cell C network and possibly with MTN.  She mentioned that because the number ending with 2183 was for one call served by Posmasburg and a few minutes later by Postmasburg, indicates that there was some movement between the 2 towers by this cell phone.  The movement was from Posmasburg area into Postmasburg area.

 

325.         The next activity on page 11 of exhibit R is a call that was made 23 minutes after midnight which was now on the 18 August 2016 at 23:09.   The relevant tower at that time was Posmasburg, which means that the cell phone had now moved back into the reception area of Posmasburg area.  This is made possible by the significant time between the call that was made at 19:28:13 and 00:23:09. From there, there was no activity on this phone which suggest that the phone was not being used or simply, it did not either receive or make any call or SMS messages.  It also means that this phone could have moved back into the Posmasburg area tower long before midnight.  It is to be noted that on a cell phone, if there is no activity there will not be any indication as to which tower serviced the cell phone.    The towers are identified only where there is an activity on the cell phone.   This means the report is only based on the data activity.

 

326.         Ms Du Plessis was referred to page 13 of Exhibit R.  She was referred to the last two activities at 15:21:51 relating to the same number ending with 2183.   Before then there was an outgoing SMS from the 2183 number being sent to a number ending with 1855 lasting 4 seconds at 13:21:15. Four seconds later there was another message registered at 13:21:19.  Seeing that the difference between the 2 times is 4 seconds, Ms Du Plessis indicated that it must have been 2 separate messages that were sent on this number at different times.  The transaction at 15:21:51 was an incoming call that went through to voicemail box as a call forward.    The tower that covered this 2183 number for this transaction is Danielskuil.  It was put to her that according to the evidence of Colonel Louwrens he collected this particular cell phone at Postmasburg and the same afternoon drove back to Kimberley.  For him to drive back to Kimberley he had to pass Danielskuil.[67]  She confirmed that it is possible that this activity happened when Colonel Louwrens was on his way back to Kimberley passing Danielskuil.  She was referred to page 15 of Exhibit R indicating the RICA details of this number and she pointed out that it is not in the names of the deceased Baaitjie and she mentioned that it happens that false information is at times provided for RICA particulars.

 

327.         On something that became contentious it was indicated to the witness that Colonel Louwrens sent this subpoena to get information on 18 August 2018 without it having a CCR number and that this CCR number was only obtained by Colonel Louwrens the next day from the Nodal point in Kimberley.  This aspect was confirmed by the witness.  She further pointed out that on 18 August 2016 at 03:28 pm in the afternoon she was provided with the CCR number per email address which read and I quote “Capt Charlie said I must send you the CCR number of the Subpoena on Postmasburg CAS 88/8/2016, Murder.  Our reference number of it is CCR39/08/2016”.    This CAS number is the same as the one of this case that Colonel Louwrens was investigating.  It also referred to the same IMEI number (Handset 358080018933250).[68]  It required information relating to this IMEI number for the 17 August 2016 and that it was previously used with a Vodacom SIM card.  This email was admitted at Exhibit JJ.

 

328.         Ms Du Plessis testified that this Exhibit JJ email was received from Northern Cape Province, Crime Intelligence Unit – Office of Communication and Interception Monitoring (CIU- OCO) and the person who sent it had email address Mepio@saps.gov.za.  Mepi is the co-ordinator at the POCO that sent the email with the information.

 

329.         She confirmed that when Colonel Louwrens emailed the subpoena in terms of section 205 on 18 August 2016 in the late afternoon, by that time she already had the CCR number as she had received Exhibit JJ.   She was referred to page 22 of Exhibit R on the activities of 17 August 2016 at 09:57 and pointed out that the times indicated do not have seconds.   She mentioned that because of the emergency of the situation and that she was in a hurry to get the information to Colonel Louwrens, she forgot to format the report into seconds as well.  That is the reason why it only shows hours and minutes.  On page 22 of Exhibit R is the call data for the suspect number (0114).  According to Ms Du Plessis the activity at 9:57 indicates that a voucher was loaded with airtime.  Since the call type is used as USSD, is an indication that internet was used to buy the airtime at this particular instance.  At that time this number was in Danielskuil. 

 

330.         The next activity was an incoming SMS from a centre code which was a notification that airtime was being loaded onto the phone.  Then at 9:58 there is an activity which is for a balance check to see what airtime was still in the phone[69].  Thereafter, an outgoing call made from this 0114 number to the cell phone ending with 2183 which lasted 181 seconds and the 0114 number was still in Danielskuil.  The next four activities at 10:49, 12:51 and 12:51 were incoming calls that went to the voicemail box of the 0114 number.  This means that the phone was answered.  The calls were from the number ending with 2183 belonging to the deceased Baaitjie.  She mentioned that the conversation of 181 seconds would have used up all the airtime that was purchased earlier on.  At 14:03 a voucher for airtime was loaded however, a wrong number was used.  That transaction was repeated with a correct voucher number entered successfully.  At 14:03 there was a notification to the 0114 number that airtime was loaded.  Another voucher for more airtime was loaded at 14:04. At 14:39 there was an outgoing call from the number ending with 0114 to the cell phone number of 072 594 4900 which lasted 17 seconds and the coverage area for the already named call was Danielskuil.  At 14:21 is an outgoing SMS sent to the number 061 300 2183 of the deceased Baaitjie from 0114 cell phone.  At 14:43 is an outgoing call from the cell phone number ending in 0114 to the cell phone number ending with 7092 that lasted 26 seconds and the cell phone number 0114 was still in the Danielskuil area.  At 17:27 outgoing call 0114 to number ending 2183 lasting 16 seconds still within Danielskuil coverage area.  At 17:51 is a call received from 064 600 5668 to 114 which lasted for 27 seconds still within the Danielskuil tower coverage area.  At 17:53 the 114 number made a call to the number ending with 5686.  At 18:03 it received a call from the number ending with 5668 which lasted 10 seconds.    At 18:14 the 114 number received a call from 2183 which lasted 45 seconds.  At 18:19 the 114 made a call to the number ending with 322 and the conversation lasted 21 seconds.  At 18:49 there is an incoming SMS 27144 which according to the evidence indicates an internet activity.  These transactions are happening at Danielskuil.  At page 22 Exhibit R, at 19:50:15 there is no activity on the 114 number.  Ms Du Plessis explained that if a person makes a missed call to another number it will appear on your records as an outgoing call but it will not show on the receiver’s phone number call data because there was no connection made to that phone number.  At 19:23 is an incoming call from the phone number ending with 2183 to the cell phone number 0114 that lasted 48 seconds and the 0114 number was at the time in the Postmasburg coverage area.  At 19:26 there was also an incoming call with the number ending with 2183 to the number 0114 that lasted 8 seconds also under the coverage of Postmasburg tower.  At 19:28 there is an outgoing call from the number ending in 0114 to the cell phone 2183 that lasted 19 seconds also in Postmasburg coverage area. 

 

331.         Ms Du Plessis was referred to page 23 of Exhibit R which is a usage profile of the number ending with the number 0114.  This number was first used on the date of 17 August 2016 at 09:57:31 am.  The last used date was on the same 17 August 2016 at 07:28:13 pm in (19:28:13).   

 

332.         She testified that if the phone is in Danielskuil it will not benefit from the tower within the coverage area of Postmasburg, because the distance is too far and there will be clutter in between like mountains, hills, buildings or trees that will ricochet the frequency back to the phone.  Furthermore, if in Danielskuil one cannot be covered by towers which are not in Danielskuil for example, Postmasburg.  As to the typical reach of a cell phone tower, she indicated that in a densely build up area it will reach a maximum of 2km.  It might extend to 5km but that is in very rare occasions because there is a lot of towers that are now built and in an open area the maximum that it will reach is 15km. An example is the areas of Mthatha where it can reach 35km.  If there are several towers, it is always the tower closest to the cell phone which would have the strongest signal and that will be the dominant server at the time when the call or a message is made or received.     

 

333.         It was pointed out to the witness by Mr Els on behalf of accused number 1 that the deceased and his wife Dora Baaitjie testified that she made several calls to the deceased’s cell phone throughout the night of the 17 August 2016 and that he did not answer.  In particular, she mentioned that she called her husband from a cell phone number ending with 1165 to his 2183 number at about 7 pm and at about 9 pm that same evening, however there is only one activity between the two cell phones which is at 19:04.  Ms Du Plessis replied that if indeed the calls were made they would have been automatically recorded.  Further, that the 1165 number is possibly MTN number, therefore, if there were any calls from that number to the 2183 number it would have reflected on the MTN number as well.  Since it is not showing she doubts that these calls were made. 

 

334.         Mr Buthelezi asked her to explain the situation when it is indicated that the network is busy.  She replied that it means at that point in time all the slots on the transmission are full and that one cannot make any call.  But if one calls a minute or a second later a slot might be opened and will be accommodated to make the call.  An attempt to make the call during “network busy” will not be reflected on the call data because the call was not successfully made.  Asked what happens if the tower has a fault, she replied that there are alarms that are set at towers and if there is any problem the alarm will notify the network provider and Radio planners will immediately check what the problem is and attend to it.  Regarding lack of electricity or power failure she replied that each tower has got its back up system and if something goes wrong with power supply the backup system will immediately take effect. 

335.         On the email she received, Exhibit JJ, she indicated that she received it on 18 August 2016 at 15:28.  She mentioned that she could have received a call from Colonel Louwrens after 6 pm on the 18 August 2016 asking her whether she could supply information late that night and because she was already at work trying to deal with her backlog work she was available to assist.  It is then that Colonel Louwrens sent to her a section 205 subpoena.  By that time, she had already received the CCR number from Mepi through the email, Exhibit JJ.  She could not explain how Mepi knew that the CCR number was required.  She also mentioned that whilst a person is driving and using a cell phone there will be different towers that will pick up the signal from tower to tower as one is driving.

 

336.          In response to a question from Ms Easthorpe on behalf of accused number 5 she conceded that with the call data and the tower one cannot give an accurate spot where the person is but can only give you the area within which a person was at the time an engagement on the cell phone was made.  She was asked what could be the factors that would affect transmission she mentioned that weather conditions do affect transmission. It was put to her that it does not mean that because you are closest to a particular tower, that tower would have the strongest signal and that neighbouring towers can have a stronger signal which can connect to that phone.  She replied that the closest tower to a cell phone is the one that would provide signal because it’s the one that will have a strong signal and that’s how the system works.  She agreed that the “geographical factors” would also affect the range.    She mentioned that factors that might be there will only affect the connection but have nothing to do with the strength of what the tower is sending out, i.e., the strength of the frequency that is being sent out.  She said it is just that they cause a clutter in between such as buildings or trees and that will only have an effect on the connection but not with the strength of the tower.  She mentioned that a tower that is 23km away can definitely not be stronger than a tower that is 3km away from the handset.  She was asked about load sharing.  The question was in fact that, if a tower that is 5km away fails the one that is 10km away will pick up the signal.  She replied that load sharing has been abolished since 2005 and multiple towers were built within areas to eliminate the possibility that the strength of a tower or signal should stretch that far.  She was asked about a coverage range and she replied that coverage range is the geographical area where the tower has been set out and the signal range is the area around the vicinity around the tower.

 

337.         The state called Mr Tsholoang Gavin Golele.  He testified that he is a specialist in the Law Enforcement Agency Support Division of Vodacom. He is a Radio Network Optimiser and also responsible for the release of call data by use of a directive.  He has a National Diploma in Electronic Communication and had several trainings on specific fields.  He has been working for Vodacom from 2016 and the field in which he is has been there from 2007.  He was previously employed by a company named ATEO Corporations. He confirmed that the section 205 subpoenas directed at Vodacom were indeed received by Vodacom and that, because they met all their requirements they did produce the required data and RICA particulars for the cell phone numbers ending with the following numbers 6133, 5668, 4900, 0085, 1424, 4322, 8227 and 3576.   He knows Petronella Heyneke who is the manager in the component in which he is working.  He mentioned that Vodacom normally produced their call data in PDF and Excel format.  The one provided in this case were in PDF format.  This is the information contained in Exhibit R pertaining to the numbers mentioned above.  

 

338.         Mr Golele prepared a document which was admitted as Exhibit KK, being identification of several towers relevant to this case and their presumed coverage areas.  He also prepared a document admitted as Exhibit LL which has the towers that he identified in Exhibit KK but has now shown the coverage prediction map of these towers.  He referred to Danielskuil and Owendale towers and indicated that they do overlap.  Overlap is done by part of the sectors of the towers and not on sectors of the towers that overlap, because others are facing at opposite and different directions.   He further indicated that Owendale and Groenwater overlap, and Groenwater and Lohatla CC.  There is however no overlapping between Groenwater and Danielskuil.  He explained that overlap simply means handover.   The handover is basically that if a person is on a call within one tower having a signal, as he moves away from that tower into the direction of the other tower, the latter tower will take over coverage of the signal.  It means one is being handed over for purposes of the use of the gadget.  When handover takes place, the person will not notice it. It happens automatically and silently.  He indicated that there is no overlap between Papkuil and Groenwater.

 

339.         Reference was made to Exhibit R page 43 being a call data for the number ending with 6133 belonging to accused number 3.  On 18 August 2016 at 06:18:55 until 17:17:47 it used the Danielskuil tower coverage.  It used the IMEI number ending with 33250 only on that day.  On 18 August 2016 at 08:27:03 a different IMEI number ending with 5994 was used.  At page 22 of Exhibit R the suspect number 0114 used the same IMEI number that was used by the number ending with 6133 belonging to accused number 3.  At page 53 of Exhibit R relating to the cell phone number ending with 5668 belonging to Lekgotla, it shows that  on 17 August 2016 at 15:52:30 Mothibistad tower was used at 18:49:08; Danielskuil tower at 19:47:47; Groenwater tower at 19:52:38 Beeshoek CEN1 MTN used, at 19:57:53 Beeshoek tower, at 19:59:29 Groenwater Cen 2 and later Lohatla.  He mentioned that given the tower predicted coverage area depicted in exhibit LL this number 5668 of Lekgotla was in motion moving between all these towers.

 

340.         He was referred to Exhibit R page 103 relating to a number ending with 0085 belonging to accused number 2. At 09:43:20 up to 18:58:47 it used the Danielskuil tower.  Then at 19:30:13 it used Postmasburg tower, which is a distance of about 50 – 60km from Danielskuil.  Page 104 at 20:26:32 it is within Groenwater coverage area which is after plus minus 30 minutes.  At 21:14:19 it uses Danielskuil tower.  Mr Golele mentioned that it is definitely impossible to pick up Groenwater tower if one is in Danielskuil and there is also no overlap between these two, meaning there cannot even be any handover from Danielskuil tower coverage to Groenwater tower coverage.

 

341.         He was referred to cell phone number ending with 4900 belonging to Paulus Mgcera, former number 6.  On 17 August 2016 the first call was made at 07:23:54 which is on page 128, 129 and 130 of Exhibit R, until 22:15:52.  He received and made several calls between these dates. However, on 17 August 2016 all his activities are under one coverage area being Danielskuil.

 

342.         Reference was also made to Exhibit R page 156, the number ending with 1424 belonging to accused number 5 on 17 August 2016 at 19:24:01 it used Danielskuil coverage, at 21:13:54 it was also Danielskuil coverage area.

 

343.         Reference was made to Exhibit R, page 175 for the number ending with 4322 also belonging to accused number 5.  On 17 August 2016 at 11:35:05 it was using Danielskuil coverage area until 20:06:23. At 20:18:20 it used Owendale NW; at 20:18:57 it used the Papkuil tower; at 20:21:45 Owendale; at 20:26:32 Groenwater and at 21:25:51 Danielskuil.  This is to be compared with the number ending with 0085 belonging to accused number 2 which also at 20:26:32 was also at Groenwater.  It therefore means that at this time the number of accused number 5 and accused number 2 were under the same coverage area at the same time being Groenwater tower.  It also shows that the number 4322 belonging to accused number 5 must have moved between the towers Danielskuil, Owendale, Papkuil, Groenwater and Danielskuil on the times mentioned. 

 

344.          The next reference was made to pages 219 of Exhibit R for the number ending with 3576 belonging to accused number 1.  At 21:15:18 an outgoing call to 2686 of accused number 4.  At 21:56:22 number 3576 received a call from 4322 of accused number 5 while the coverage was under Mogojane tower.  

 

345.         Mr Golele confirmed that Lime Acres had its own two towers which he showed on Exhibit NN.  There is an overlap between Lime Acres and Groenwater.  This means that if one travels from Lime Acres to Groenwater there will be a handover at some stage.  And the tower that will be reflected will be the one that originated the call.   The handover tower will not be reflected.  Mr Golele was asked to explain the situation of an “off-set”.  He mentioned that if one is in the exact centre of two competing towers coverage areas, there will be an offset, meaning that the tower with the strongest signal will automatically set in and be the one providing the signal.  He however mentioned that it is a situation that hardly happens because they have configured the towers not to have this kind of situation. They set them up in such a way that one of the two towers should have a stronger signal than the other one.

 

346.         Mr Cloete put to Mr Golele the version of accused number 5 as was put to Colonel Louwrens and requested his comment.  It was mentioned that according to Ms Easthorpe, accused number 5 never went to Groenwater on that particular date, he went to Lime Acres to pick up contract employees at Finsch Mine, and that Colonel Louwrens replied by saying that he would have expected that accused number 5 would have been picked up by the Lime Acres tower.  Mr Golele explained that if you are in Lime Acres obviously you will be using the towers in Lime Acres.  That is the reason why there is a tower in Lime Acres to cover the people in that area.  You can therefore not be served by Groenwater if you are in Limber Acres.  Lime Acres is the dominant tower in that area, or its area of operation.  It will be the same if you are in Groenwater, it is the dominant tower in that area and it will service a number that is within its area. He further mentioned that the distance between Groenwater and Lime Acres are indicated as 15.5km.  

 

347.         The next witness is Johanna Petronella Heyneke.  She is employed by Vodacom in the capacity of Forensic Law Enforcement Agency Support Component. She is also amongst others, the administrator of the network event monitoring system which is the system which is used to generate the call data records on which the call data records are generated.  She received a subpoena from Colonel Louwrens issued in terms of section 205 of the Act on 06 September 2019. She confirmed that she provided the call data and RICA registration particulars of the cell phone number ending with 7026.  She was requested to provide data for incoming and outgoing calls on this number for the period 15 August 2016 until 20 August 2016 and from 01 September 2016 until 08 September 2016.  She however, did not provide the information for the period 1 September until 8 September 2016 because she misread the subpoena due to the lack of time to prepare her evidence.  She was however, in possession of her Laptop computer and made the evidence required available.  She prepared an affidavit/certification in terms of section 15(4) of the Electronic Communications and Transactions Act 25 of 2002.  Her affidavit was admitted as exhibit QQ.  Her affidavit was read into the record and like the others, I will not repeat the entire affidavit.[70]

 

348.         She testified that the SIM card ending with 7026 was used in the Samsung J81008 handset with IMEI ending with 94947 and the inception date of this particular SIM card was 25 August 2016 and it was used in this particular handset until 7 September 2016.  It had a success rate of 630 transactions being incoming and outgoing calls.   There was no information on incoming and outgoing calls from 15 August 2016 until 20 August 2016 as the inception date was only 25 August 2016.   The subpoena in terms of section 205 served on her was admitted as Exhibit PP.

 

349.         Ms Heyneke was referred to page 177 of Exhibit R regarding the call data of the number ending with 4322 belonging to accused number 5.  She was required to explain a situation that Mr Golele was unable to explain.   What it showed is that on 17 August 2016 at 20:06:23 going down until the time 21:25:51 there are several towers reflected namely, Danielskuil, Owendale, Papkuil, Owendale, Groenwater and Danielskuil.  Between Danielskuil, Owendale and then Papkuil and Owendale which is from 20:18:20 until 20:21:45 there is a matter of few seconds and there is then Owendale - Papkuil and Owendale.  This appears to be an anomaly because the distance between Danielskuil and Papkuil in Exhibit KK is reflected as 35.5km and the distance between Papkuil and Owendale is indicated as 35.2km.  It also does not appear to accord with Exhibit LL being a predicted coverage map prepared by Mr Golele. 

 

350.         In response to this, Ms Heyneke prepared a predicted coverage map admitted as Exhibit RR.  She mentioned that the red dot on Exhibit LL at the right hand corner of the map, which shows the stronger signal of Papkuil does not contain the whole coverage area or base station.     The red area contains the strongest signal which is between 70 - 84 DBM (Decibel Milliwatts).  The blue parts indicate medium signal strength between 85 – 97 DBM’s.  The yellow part contains the very weak part of the signal between 98 -102 DBM’s.  So if one has to measure the red parts indicated on the map, the distance will be approximately 8km, the blue part distance is approximately 11km and the yellow part is approximately 6km bringing it to 25km.  Therefore, Exhibit KK page 9 that indicates 85km is not incorrect. It is a total footprint of the base station.    Responding to the anomaly shown at page 177 of Exhibit RR she mentioned that there is a handover from the Owendale base station to the Papkuil base station where the footprint goes together, and looking on the data at page 177, the person using that particular phone was travelling and lost a signal and he made a call to exactly the same number and continued the call.  The call dropped and it shows that a call was missed.  The call dropped while the person was most probably using the phone and it must have been very close to the handover area. That is the reason why the Papkuil tower was registered.  There is approximately 37 seconds difference between Papkuil and Owendale base station 20:18:57 and 20:22:18 and 20:22:21 and 20:21:45. In short the person was moving, he was on a call, the call dropped due to lower signal levels, and he redialled the same number within split seconds he picked up another base station because he was in transit.  It was put to her on behalf of accused number 5 that calls reflected at page 177 were made by accused number 5 however, he did not go to Papkuil or Owendale or Groenwater, and he made the calls when he went to Lime Acres.  Ms Heyneke replied that one cannot be in Danielskuil and pick up the Lime Acres base station.  He will either not be able to phone and receive a message on his/her phone. It will show no signal or not be able to phone at all. So one cannot be in one town and utilise the base station of another town.  She further mentioned that there are towers between Danielskuil and Postmasburg and also Owendale and Groenwater which makes it even more impossible to be in Lime Acres and use the base station of Danielskuil.[71] 

 

351.         Ms Heyneke was further referred to page 104 of Exhibit R being the call data of the number ending with 0085 belonging to accused number 2, specifically the calls that he made that are shown to be from Postmasburg, whereas according to accused number 2 he was never in Postmasburg, he was in Danielskuil.   This therefore according to him, he picked up the tower in Postmasburg whilst he was making the call in Danielskuil.  Ms Heyneke responded that it is absolutely impossible.   The call data that Ms Heyneke promised to provide was handed in as Exhibit QQ1. 

 

352.         The next witness called by the State was Mr Francios Samuel Moller.  He is employed at SBV Security Company in the capacity of Digital Forensic Investigator analyst.  His duties entail the investigation of mobile devices, such as cell phones, SIM cards, Memory cards and anything related to mobile devices.  The second part of his functions entails analysis of the data obtained from the mobile devices as well as communication data obtained from different service providers.  Prior to his current employment by SBV, he used to be employed by the SAPS and resigned during March 2017, at that time holding the rank of Lieutenant- Colonel.  He had at that time served at SAPS for 27 years.  He was based in Pretoria in the capacity also of Digital Forensic Investigator Analyst.

 

353.         He was approached by Colonel Louwrens to provide assistance in this case.  This request was made to him whilst he was still a Police Officer.  There is therefore no justification for one to claim that he cannot be used as a witness, only because he is employed by a private security company.  The request by Colonel Louwrens was for him to provide an analysis of the cell phone communications relevant to this case.  He prepared an affidavit with several annexures.  For the purposes of the analysis he used IBM12 Analyst Notebook Software so that he could compile the timeline analysis.  He provided an analysis per each cell phone that is involved in this case indicating the number of times, places from which calls were made and received, the towers used, the duration of the communications, and the nature of the communications.  He also analysed the usage of the cell phone handset used by the suspect number being Nokia N70 and all the other SIM cards that were placed in the said handset.  He testified that the Nokia N70 was first utilised in 2014 with the number 082 219 6047.  It was only utilised on that specific day.  The next number used in the Nokia N70 was 078 118 8125 which was on 17 October 2014.  The next number was 081 801 1667 which is indicated as belonging to accused number 3.  It was utilised in this handset from 11 November 2015 at 13:19:51 up until 02 February 2016 at 07:06:56. The next number used in the handset was 072 838 5600 and the start date was 8 March 2016 at 14:22:11 and the last time it was used was on 6 June 2016 at 10:07:57.  The next number used was 082 667 6133 which is indicated as belonging to accused number 3.  The first starting period for this number was 23 October 2014 at 17:26:49 until 19 February 2016 at 21:00:05. The second period starts from 25 May 2016 at 07:11:14 and it was last used on 17 August 2016 at 17:17:47. The next number used on the handset was 062 370 0114 (suspect number) from 17 August 2016 at 09:57:31 and it was last used on 17 August 2016 at 19:28:13 by this number. The last number utilised in this handset was 078 603 0122 and it was used for 1 day being 18 August 2016.  The affidavit of Mr Moller was accepted as Exhibit SS together with its Annexures.

354.          In response to a question that the cell phone of the deceased Baaitjie had several people holding it and may have tampered with the evidence, he mentioned that if one has done a function or transaction on the cell phone, one cannot manipulate the information.  One can only open the message delete it or forward it to another cell phone.  In essence the evidence of Mr Moller coincided with the volume of evidence already tendered by Colonel Louwrens and other witnesses pertaining to the call data and the cell phone positions regarding towers etc. It bears no repetition.

 

355.         The State called Mrs Rosemary Terblanche. Her evidence was tendered as a result of what had transpired during cross-examination of Colonel Louwrens by Mr Buthelezi on behalf of accused number 3. Mrs Terblanche’s appointment as a Magistrate and her approval of the section 205 subpoena was placed in dispute. Mrs Terblanche testified that she is a Magistrate in Kimberley holding the rank of Senior Magistrate. She has been in that position since 17 or 18 November 2008. The certificate issued by the Minister of Justice and Constitutional Development appointing her as a Magistrate was admitted as exhibit ‘JJJ’. She testified further that she was appointed by the Chief Magistrate, Kimberley, as additional Magistrate for all towns in the Northern Cape. Her certificate of appointment was admitted as exhibit ‘KKK’. She confirmed that she is the one who signed the section 205 subpoena on the 18th. She does work overtime at times, depending on what she is required to do.

 

356.         The State handed up a certificate/affidavit in terms of sections 15(3) and 15(4) of the Electronic Communications & Transactions Act, 25 of 2002. This affidavit was prepared by Awicash Singh. Awicash Singh is employed by MTN and confirmed that they had received subpoenas to issue some of the information from MTN which is contained in exhibit ‘R’. The affidavit was admitted as exhibit ‘CCC’.

 

357.         Towards the conclusion of the list of witnesses to be called by the Prosecution, the accused made certain admissions in terms of section 220 of the Act. The first written statement was made by accused number 1 which was read into the record. The admissions for all five accused are the same, save for certain parts of their statements at paragraphs 8, 9 and 10. The statement states the  following: -

 

a.    It is admitted that the deceased in count 1 was an adult male person, Johannes Baaitjie.

 

b.    It is admitted that the body of the deceased, Johannes Baaitjie, did not sustain any other wounds or injuries since it was removed from the scene as indicated on Exhibit ‘B’ where it was found until the post-mortem examination, Exhibit ‘NN’ performed by Dr Karin Stark on 22 August 2016.

 

c.    It is admitted that blood belonging to the deceased, Johannes Baaitjie, was found on the carpet and plastic cover removed from the boot of the Jetta motor vehicle depicted on Exhibit ‘P’.

 

d.    It is admitted that the projectile found at point ‘A’ of photos 1 and 2 of Exhibit ‘D’ and the projectile removed from the body of the deceased, Johannes Baaitjie, (photos 65 and 66 of Exhibit ‘B’) were fired from the same firearm.

 

e.    It is admitted that the deceased in count 2 was an adult male person, Shuping Jeffrey Nouse.

 

f.     It is admitted that the body of the deceased, Shuping Jeffrey Nouse, did not sustain any further wounds or injuries (apart from medical interventions), since it was removed from the scene as indicated on Exhibit ‘C’ where it was found until the post-mortem examination of Exhibit ‘OO’ performed by Dr Karin Stark on 25 August 2016.

 

g.    It is admitted that blood belonging to the deceased, Shuping Jeffrey Nouse, was found on material and swabs taken from the Ford Ranger double cab that is depicted on Exhibit ‘C’.

 

358.         The contents of the affidavit deposed to by Awicah Singh on 3 October 2018, Exhibit ‘CCC” are admitted as true and correct. On behalf of accused number 1 it was pointed out that paragraph 9 does not apply to him and is only applicable to accused number 5. The statement on behalf of Mr Hasane, accused number 1, was admitted as Exhibit ‘DDD’.

 

 

359.         Mr Setouto, on behalf of accused number 2, also prepared a statement which was admitted as Exhibit ‘EEE’. In terms of Exhibit ‘EEE’, all the paragraphs except for paragraphs 9 and 10 are applicable to his client, accused number 2.

 

360.         Mr Buthelezi also handed up a statement in terms of section 220 of the Act on behalf of accused number 3, which was admitted as Exhibit ‘FFF’. The paragraphs and contents are similar to the previous exhibits on the subject, save for paragraphs 3, 9 and 10 which are placed in dispute.  In short, the accused indicates that with regard to paragraph 3, he bears no knowledge of the facts where it states that the blood of the deceased, Johannes Baaitjie, was found on the carpet and plastic cover removed from the boot of the Jetta motor vehicle depicted on Exhibit ‘P’. Paragraphs 9 and 10 are not applicable to him.

 

361.         Mr Steynberg also handed up Exhibit ‘GGG’ being admissions made by accused number 4. In terms of the statement, accused number 4 agrees with paragraphs 1 to 8 as contained in the other exhibits relating to the subject.

 

362.         Mrs Easthorpe, on behalf of accused number 5, also handed up a statement which was admitted as Exhibit ‘HHH’. The contents are also similar to those of the previous exhibits on the subject. Relating to paragraph 9, accused number 5 admits that the number 072 449 4322 as it appears on exhibit ‘UUA’, is in his handwriting. He is the one who wrote what is contained in that document.

 

 

The State closed its case.

 

363.         Mr Buthelezi, on behalf accused number 3, stood up with instructions from his client to bring an application for discharge in terms of section 174 of the Act. Mr Buthelezi read a lengthy document that was prepared in relation to the application for discharge. In essence, and in a nutshell, the basis of the application should have been whether the State had, at that stage, placed evidence before Court upon which a reasonable court might convict. It was pointed out that the State’s case was weak and that the witnesses’ credibility had been attacked. The application was opposed by the State. I made a ruling not to accede to the application for discharge in terms of section174. Indeed, the test is whether there is evidence upon which a reasonable Court, acting carefully, can convict, and if the answer is in the negative, whether there is a reasonable possibility that the evidence of the State might be supplemented during the defence case. In this case, we have more than one accused person. There are aspects which have been placed on record which prima facie, link the accused number 3 to the commission of the offences in this case. These are inter alia, that the SIM card that was used to lure the deceased from Daniëlskuil to Postmasburg was obtained by accused number 3; that the handset in which the SIM card which was used to lure the two deceased to the scene admittedly belonged to him; that accused number 3 had arranged transport for the would-be killers; that he was part of the group that had several communications before and during the commission of the offence; that he had provided the cell phone that was ultimately used by witness Lekgotla and others at the time of the commission of the offence. These are some of the aspects of the case which link accused number 3 to the offence. It was therefore in accordance with the law that he not be discharged at that stage.

 

DEFENCE CASE

364.         Accused number 1, Mr Richard Hasane, testified that he is 36 years old, did Grade 12 at school and further studied for a National Certificate in Sales & Marketing. He is from Giyani in Limpopo. He came to the Northern Cape in 2001. His home language is Xitsonga. He could also speak Setswana, isiZulu, isiXhosa, Tshivenda and English during 2016. He had no knowledge of Afrikaans. When he arrived in 2001, he initially lived in Kimberley and moved to Kuruman in 2004. At the time of his arrest, he was employed at a mine in Koffiefontein where he started working during June 2016. From December 2015 he was not employed. He had a house in Mothibistad, but spent most of his time in Kuruman town with his girlfriend, who had been allocated a house by her employer, a mining company. The arrangement was that he worked two weeks in Koffiefontein and the other two weeks he would spend in Kuruman, not at work. In 2016 he possessed four motor vehicles, being an Audi, a Jetta, a BMW and a Golf 1. Three of the motor vehicles were registered in his name. The Golf 1 had a personalised registration number being “BONGZ NC” derived from his name Bongani. In 2016 he was using four cell phones. One was on contract and the other three on prepaid. Three were with MTN and one with Vodacom as service providers. He cannot remember all the numbers but one started with 076 and the other with 081. He first met Lekgotla in June 2016.

 

365.         He remembers that one day he had parked his silver Polo TSI with registration “BONGZ 4 GP” in town. As he was about to drive off an unfamiliar person came to him and knocked on the window. He opened the window and the person greeted him by saying “Hello Bongz”. This person told him “I know your house in Mothibistad, I also know your motor vehicle that has powerful sound system” and further that he knows that he is working at the Blackrock Mine. Accused number 1 asked him how he knew him and where he stays. He mentioned that he normally passes at his place. He corrected him and said that he is no longer employed at Blackrock Mine but at Koffiefontein. This person asked him for his cell phone numbers and he gave him a number. If he recalls correctly, it could have been the number starting with 060 which was an MTN number. He did not take this person’s numbers.

 

366.         This person indeed called him a few days later. This person asked him where he was. His reply was that he was in town. He asked specifically where in town. He replied that he was in front of Leach Park. The person said he wanted to see him and asked whether he could come over. Accused number 1 replied that he could come. After some time, the person arrived. It was indeed the same person he met previously who happens to be Lekgotla. He showed Lekgotla the residential complex at which he was staying in Kuruman. Lekgotla told him that he had a business. He asked him what kind of business. He replied that he was selling stones and he asked if he could assist him with the sale of these stones. Accused number 1 said he does not know people who could be buyers.  Lekgotla told him that he is well-known and famous and should be able to think of someone. Accused number 1 told him that he knew of a coloured person staying in Wrenchville, who had indicated that he had some knowledge of stones. Lekgotla said he was going to leave the stone with him so that he can see the person he is referring to.

 

367.         The stone was covered with a tissue paper. Accused number 1 left for Koffiefontein where he was working. Whilst there he received a call from Lekgotla asking him about the progress he was making on the sale of the stone. He told him that he had not yet met the buyer, but will be coming home the following week, which was a Saturday in July.

 

368.         The following week he came home. He had a project of renovating a primary school in Tsineng. Whilst there, he received a call from Lekgotla who asked him where he was. He told him about his whereabouts. Lekgotla asked him about the stones and he told Lekgotla that he had not yet got the buyer. Lekgotla indicated that he had a buyer and wanted the stone. He told him that he could not come home, but asked him to go to the complex where he stayed and he will open the gate remotely with his phone and he will ask his girlfriend to meet him at the house to hand him the stone. Accused number 1 testified that he then called his girlfriend and indicated to her that a person would be coming to the house.  Indeed, according to him, things went as arranged. Lekgotla went and obtained the stone from the girlfriend.[72]

 

369.         The next time he met Lekgotla was on 16 August 2016 in Kuruman. He was sitting at his place with his younger brother and cousin, drinking beers. Lekgotla drove past and immediately reversed to his premises. Lekgotla got out of the van. He was alone. Accused number 1 walked towards him and stood outside the van with him. They exchanged greetings. Lekgotla asked him when did he return from Koffiefontein and he said Sunday. Lekgotla told him that he had some problems at his workplace and had been suspended for committing fraud. He was, however, still receiving his salary but with no allowances. He asked Lekgotla to whom the van he was driving belonged. He mentioned that it belonged to him but that he did not use it frequently. He lent his Polo to someone who had gone to Pretoria. Lekgotla saw the Audi and the BMW on the premises. He asked accused number 1 to whom did the BMW belong. He told him that it belonged to him. About the Audi he mentioned that he had to arrange with his cousin to buy the Audi for him as he was blacklisted with the Credit Bureau. Lekgotla mentioned that he should have told him about this problem because he knows people in Pretoria where he lived who are capable of removing or clearing names from the blacklist.

 

370.         Lekgotla mentioned that if accused number 1 needs a firearm he must tell him because he has connections with people who sell firearms in Pretoria. As proof, he took his phone and dialled a number. He spoke to someone and thereafter he told accused number 1 that he had just enquired whether they had firearms for sale at hand. The connection indicated that they only have big and not small firearms. Lekgotla mentioned that he has financial problems as he was no longer receiving his allowances and the money he was receiving was not enough to provide for his needs. He mentioned that he had an arrangement with guys from Pretoria to rob a white man on that day the 16th August 2016 in Reivilo. He mentioned that an employee of the white man tipped them that the white man had money at his farm and disclosed where he kept it. Lekgotla received a call and when he was done talking, he mentioned that the call was from the guys from Pretoria reporting that they had arrived. They parted ways and never met again on the 16th.

 

371.         Accused number 1 testified further that he slept in Kuruman on 16 August 2016. The following morning, he went to Maruping village where he had a tender for a tennis court. Whilst there, he received a call from Lekgotla who asked him where he was and he disclosed his location. Lekgotla said he wanted to see him and enquired as to when was he going to be in Mothibistad. He said he will phone Lekgotla when he is in Mothibistad which would be between 11:00 and 13:00 that day. Around midday, he drove to Mothibistad. On the street leading to his house, he drove past a van. The van followed him and parked next to him. Lekgotla got out of the van. Lekgotla asked accused number 1 to assist him with transport to Daniëlskuil. When he asked Lekgotla what he was going to do in Daniëlskuil, Lekgotla replied that he is going to fetch two of his friends. He had promised them that he would assist them with transport on his return from Groenwater where his mother resides. He asked him why he can’t use the van because the three of them would fit in it comfortably. After having said that the van was too small, Lekgotla changed his answer and said that it was heavy on petrol. He told him that he cannot assist him with the two cars, because both the Audi and Golf required service. He told him that he has a friend by the name of Gauteng, who normally assists in transporting people and goods. He called Gauteng and he mentioned that he was in Vryburg but is willing to assist. He asked him what time the man wanted transport and he said at five o’ clock. He asked how much the man was willing to pay and he said they will discuss that when they meet. He mentioned that whenever he and Lekgotla spoke, it was always in Setswana and not any other language. The two then parted company.

 

372.         When Lekgotla left, accused number 1 went into the premises and sat with his cousin and brother. Lekgotla phoned and asked about Gauteng. He told him that he had not arrived yet. He mentioned that Lekgotla phoned many times enquiring about the transport.

 

373.         In the course of the day, accused number 1 left to collect his girlfriend in Kuruman. He also went to his friend, Dr Mcwebu. He was driving an Audi. He was in conversation with his friend when Lekgotla phoned again to enquire about the transport to be provided by Gauteng. He told Lekgotla that he was on his way to his residence. He went home and whilst home, Lekgotla arrived. He left with Lekgotla with his Audi to fetch his girlfriend at Hi-Q Garage. She normally knocked off between 16:00 and 17:00. Having collected her, they went home. At the premises a Jetta was parked in front of the garage. Lekgotla asked him to whom the Jetta belonged and he replied that it belonged to his girlfriend. He asked him why he does not borrow it from his girlfriend.

 

374.         Accused number 1 went to his girlfriend and told her that Lekgotla was borrowing the Jetta. She asked why he does not use the van he was driving. He replied that he had said that it is heavy on petrol. She asked whether he wanted to help him and he said he was willing. She then asked if he was going by himself. He said no, he will be accompanying him. At the time accused number 1 was expecting two men from Pretoria, being Thuli and Motsepe, who were visiting him in Kuruman for the first time. He agreed to accompany Lekgotla when he heard that they were only just passing Schweizer-Reneke and Daniëlskuil was only 80 km away and as such he could return before they could reach Kuruman from Schweizer-Reneke. He left the house and he found Lekgotla outside speaking Afrikaans on the phone. He did not understand Afrikaans and as such he did not understand what he was saying on the phone. They got into the Jetta and drove to Leach Garage where they filled up diesel which Lekgotla paid for. It was his condition that for him to assist Lekgotla, Lekgotla must fill up the tank of the Jetta with diesel. He estimated that a full tank would cost about R1, 000.00. He wanted R1, 000.00 from him, but Lekgotla did not have cash. The idea was to fill up with R700.00 and keep R300.00. Lekgotla said he will swipe his card and promised to pay him the balance in cash.

 

375.         Accused number 1 drove to Leach Garage and parked in front of a liquor store. He entered the liquor store to buy a six-pack of 440 ml bottles of Windhoek Draught. He bought a 1 litre bottle of Ginger Stoney for Lekgotla who said he does not drink alcohol. He also bought for himself a packet of 20 Peter Stuyvesant cigarettes.  They drove via Dr Mcwebu’s house and dropped something for him at his gate. He phoned Gauteng and Gauteng said he was between Vryburg and Kuruman. He estimated his time of arrival in Kuruman to be 6 o’ clock. He told Gauteng that he had decided to assist Lekgotla. He drove towards Daniëlskuil. Along the way, Lekgotla kept on speaking on the phone. He could not understand what he was saying as he was communicating in Afrikaans. They ultimately arrived in Daniëlskuil. The time could be estimated at around 6 pm. The sun was beginning to set.

 

376.         He stopped at the garage and entered the shop to by himself something to eat. He bought two sandwiches and returned to the car. He sat in the driver’s seat whilst eating his sandwich. Lekgotla was busy on the phone, still speaking in Afrikaans. After the call, Lekgotla mentioned that the plan has changed and he has to collect these people at the crossing at Postmasburg. Lekgotla offered to drive the vehicle to give him an opportunity to eat. He mentioned to Lekgotla that they should not drive further on as he is expecting people from Pretoria who are working for the Road Accident Fund. Lekgotla mentioned that the people he is collecting from Postmasburg actually live in Postmasburg and he is the one who had said they must go to Daniëlskuil. He offered to pay accused number 1 an extra R1, 000.00 for proceeding to Postmasburg. Accused number 1 agreed and he drove from the garage to the township. They drove past the mine and stopped for a while at a crossing in the direction of the township. Lekgotla got out of the motor vehicle with the phone in his hand. After some time, he returned to the car and mentioned that he does not have airtime and that the people are not where he had expected them to be at the crossing. He suggested that they go to the tuck shop to buy airtime.

 

377.         Lekgotla drove onto the road leading into the township. He stopped and parked the vehicle about 10 meters from the tuck shop. He entered the shop where he spent some time. On his return he came accompanied by a male person. Accused number 1 could not see this person clearly as he was not concentrating on them. They stood outside the car for some time having a conversation. Thereafter the man left and Lekgotla came to the car. When he came to the car, Lekgotla was speaking on the phone again. He boarded the car and complained that the people they were supposed to fetch were not there and they said he must go to the crossing and wait. He made a U-turn and drove back to the crossing where they were earlier on. They stopped there until it got a little bit dark.

 

378.         In between Lekgotla was busy on the phone while they were waiting. After some time, a white van approached from the direction of the town. Lekgotla mentioned that it is a police vehicle. He pointed at a person he said is his friend who got out of the said police van alone. He greeted from the outside and spoke to Lekgotla. He could only see that he was wearing a black jacket and that it is a male person at the time he was talking to Lekgotla from outside of the vehicle. He attempted to open the rear right door and accused number 1 told Lekgotla to tell him that the door does not work and that he must use the left rear door. He did so and the man boarded the Jetta at the rear left side. He did not see his face. They were talking in Afrikaans. After some time, a motor vehicle approached from behind. He could see through the lights that it was a motor vehicle (headlamps). Then a person came from the motor vehicle. He spoke to Lekgotla through the window of the motor vehicle and also attempted to open the rear right door. Lekgotla informed him that the door is not functioning and that he must use the left rear door. This person turned and walked towards the back of the Jetta they were travelling in. After two minutes he opened the left rear door and entered and sat behind accused number 1 who was a passenger in the front seat. According to accused number 1 neither of these men spoke to him. They only spoke to Lekgotla and only in Afrikaans which he could not understand.

 

379.         They left Danielskuil at around 7 pm and did not stop until they reached Postmasburg. They drove passed a VW garage on the right. Lekgotla stopped and parked on the left side of the road. They communicated for a short while and Lekgotla alighted the Jetta. The left rear door opened and the two men also alighted. Accused number 1 was left alone in the vehicle. He searched for a beer under his seat but could not find one as he had consumed all of them. He remembered that the last time he had been there at the VW garage to bring a motor vehicle, there was a liquor store and a tavern nearby. He decided to go and buy himself some beers. He told Lekgotla that he is going to the tavern to buy beers and that he will collect him there to proceed with their trip. A minute thereafter he noticed the Jetta driving slowly towards him. Lekgotla said to him that he is just hurrying to quickly drop the guys at the township and he will find him at the tavern on his return. He promised not to be long. He told Lekgotla that it is fine, he can go, and he left. The bottle store was closed and he entered the tavern. Inside the tavern he searched his pocket and realised that he had left his wallet in the motor vehicle and did not have any coins in his possession. His 060 cell phone with a flat battery was in his pocket. The 078 cell phone was left in the motor vehicle. He found people inside the tavern playing snooker. The tavern was not full. After 5 to 10 minutes he went out of the tavern as he did not have any money.

 

380.         He went to a four way-stop to wait for Lekgotla. He kept him standing there for about 30 to 60 minutes. He saw a motor vehicle coming from the direction from which they earlier approached Postmasburg.  Lekgotla could recognise him where he was standing as he was not far from the road. He stopped and accused number 1 boarded the Jetta. He asked Lekgotla why he had taken so long. Lekgotla did not answer. He was now alone in the car. Accused number 1 took his cell phone and looked at the screen and noticed that he had several missed calls on his 078 number. He ordered Lekgotla out of the driver’s seat and he took over the driving. He drove to Kuruman via Kathu. This was around 8 pm. He went via Lohatla as it is the shortest route to Kuruman from Postmasburg. He was not instructed to use that road, he did so on own accord as he had used it before. Along the way Lekgotla was speaking on the phone in Setswana, but he could not follow the discussion. They drove to his premises in Kuruman. They both got out of the Jetta and he went to knock on the front door. There was no response and he went to knock at the kitchen window at the back of the house. There was still no response. He returned to Lekgotla just in front of the garage. At that time, he thought that there was nobody inside the house, because normally the Audi would be parked outside the house and it was not there. The door of the garage was difficult to open and he normally used force to open it. That door was locked. He forced the garage door open slightly so that he could enter.

 

381.         When he entered the garage he found the Audi parked inside the garage to make room for the Jetta to be parked in front of the garage. He went to the bedroom and found his girlfriend sleeping. He tried to speak to her by asking her whether the people from Pretoria had arrived. She did not respond. He had locked the Jetta as he entered the house and when he came back he found Lekgotla next to the Jetta, busy wiping something off the surface of the car. He told Lekgotla that he is going with him to Mothibistad because his girlfriend does not want to speak to him. He asked Lekgotla what he was doing. He said they might have driven into birds or some animal on their way to Kuruman because there are some bloodstains on the bumper. He said it is fine and Lekgotla should drop him at Mothibistad where he lives. The area where the Jetta was parked was illuminated by lights on the premises. They were not very clear. One had to get close to the Jetta to see what was on it.

 

382.         Accused number 1 got into Lekgotla’s van and Lekgotla drove out of the premises towards Mothibistad. Just before they left the town, Lekgotla asked to use his cell phone as there was someone he wanted to check something with quickly. It was between 9 and 10 pm. He lent him his phone to make a call. He dialled the numbers and after some time said he could not get hold of that person.

 

383.         According to accused number 1 because the battery for his cell phone with the number 060 was flat, he exchanged it with a battery of a similar phone at his girlfriend’s house. As they were driving, Lekgotla indicated that he wanted to drive through Seodin to see one of his friends. At Seodin they went to some premises with a two roomed house. Just what he forgot is that from his premises in Kuruman he took three bottles of beer from his fridge. Lekgotla entered the house, he spent some time inside the house and later he came out with a man with dreadlocks. He introduced this man as Maphunye who is a traditional doctor/healer. He told him that he helps him a lot and that should accused number 1 need to check himself, he can use this man. Accused number 1 got out of the car and they entered the house. The dreadlocked man took out some things and threw them on the floor. They appeared to be bones. After that he said man, the people of Kuruman don’t like you, you have “bad luck”. He said that he cannot do much for him, but could for now only sprinkle him with some water. He took the two of them into a nearby bush and sprinkled some water over them. They then drove back to the traditional doctor’s place and dropped him there. The traditional doctor asked him if he had some motor vehicles and he said yes. He said he must speak to Lekgotla, Lekgotla will contact him. From there they drove to Mothibistad. Lekgotla left him at his place.

 

384.         He found a Polo parked on his premises. The BMW was also still there. He got into the house and found the people he was waiting for, inside the house. He woke them up. He was meeting them physically for the first time as they had been communicating through the phones. He introduced himself to them. They were taken to his house in Mothibistad by his wife. He had arranged with his wife to pick them up at the Spur restaurant. After speaking to them, he took his Golf 5 motor vehicle which was in Mothibistad and drove back to his girlfriend’s house in Kuruman. When he arrived he realised that his cell phone starting with number 081 was not in his possession. He recalled that he had last lent it to Lekgotla when he wanted to make the call when they left town and he never returned it. He phoned Lekgotla and reminded him that he was having his phone. Lekgotla confirmed and apologised, saying that it was his mistake. He undertook to bring the phone to him the following morning. That was the last time he spoke to Lekgotla on 17 August 2016.

 

385.         The next morning, 18 August 2016, when he switched his phone on, he noticed that Lekgotla had phoned his number 060. He could not recall whether he had called Lekgotla back or if Lekgotla had called him again, but they did communicate. Lekgotla said to him that he was going to bring the phone. He requested accused number 1 to check for his wallet inside the Jetta. He mentioned that he was in possession of a bank card that he had swiped when he filled the Jetta with diesel when they left for Daniëlskuil but that he cannot find his wallet. He told Lekgotla that he was still sleeping but he will wake up later because he was supposed to go to Maruping for his project around 11. He will make arrangements for him to get his wallet should he find it. He sent his stepson with the keys to the Jetta to look for the wallet. He returned and said that he could not find the wallet, but saw something that appeared like a wallet, but which was a holster of a firearm and a bullet.

 

386.         He phoned Lekgotla between 9 and 10 to report that he could not find a wallet but that he had found some other items. Lekgotla told him that he was already in town and will come to his premises. Lekgotla came and he showed him the two items being a holster and a live bullet. He handed them over to Lekgotla and enquired from him how they got in the car and whether he has a firearm. Lekgotla said he forgot those things inside the car when he came from Postmasburg the night before. He took them saying that he is in possession of a firearm. He simply forgot those things in the car. As they were standing next to the Jetta, he realised that there were some bloodstains on the Jetta. He remembered that the previous night Lekgotla was trying to clean the bumper of the Jetta. He said to Lekgotla that he had to go to Maruping to check whether his people were busy working there. He then opened the boot with a view to show Lekgotla some papers. He used a key to open the boot as it was the only way to open it. The locking mechanism did not work from inside. Inside the boot he saw a Nike tekkie. He handled the tekkie (a training or canvas shoe) believing that it was his girlfriend’s tekkie. Lekgotla said the tekkie belonged to one of his friends he went to fetch from Postmasburg. They must have left the tekkie inside the boot when they changed their mind and took their bags out of the boot as they initially wanted to go to Kuruman. Lekgotla took the tekkie. He also took the holster and the bullet and left with them. He also gave him his phone back which he then put on the charger. When he looked at the phone, it had a message saying “INSERT SIM CARD”. He asked him what happened to his SIM card and Lekgotla replied that he did not know but that maybe the children took it out. He promised to buy him a new SIM card to replace that one. Lekgotla said he must clean the Jetta because his girlfriend might complain that it is dirty. He told Lekgotla not to worry and said that he would clean it as he intended to use it to drive back to his workplace.

 

387.         Lekgotla phoned again the Sunday and asked whether he had indeed washed the car. He said to him he should not worry about washing the car he will do so when he finds time. Sunday he was going to drive the car back to his workplace. Lekgotla said to him even if he could do a valet spring clean he would pay for it. He told Lekgotla not to worry he will attend to it. This was a telephonic conversation.

 

388.         Accused number 1 testified that on 18 August 2016 Lekgotla phoned him again from an unknown number. He asked him whether he had already washed the car so that he can pay for the washing services. He told him that he was going to wash the car that day when he leaves for his workplace. He phoned several times that day and even asked him where he was. Upon hearing that accused number 1 was at his place in town, he undertook to visit him. On that day accused number 1 had to fetch his cousin Solly Chauke from Johannesburg at the Engen garage. He was visiting him. Whilst he was at his place, Lekgotla arrived accompanied by a dreadlocked man, Maphunye Nkwe and another man whom they claimed was from Lesotho. They arrived in Lekgotla’s van. Nkwe told him that they had come to work on the car as previously promised. He mentioned that he needed to work on that car so that he can immunize it against accidents.

 

389.         The five of them, that is accused number 1, his cousin, Lekgotla, Nkwe and the man from Lesotho got into the Jetta and drove to a veld. On arrival Nkwe worked on the motor vehicle and sprinkled some water on it. He also took some small tekkie and tied it to the inside mirror of the motor vehicle and said that it would protect the vehicle. From there they returned to his place and promised to return the following day to work on the Audi. Solly Chauke is also a traditional healer. Whilst there, Solly Chauke was having a conversation with Lekgotla. In the late afternoon of 19 August 2016 accused number 1 communicated with Lekgotla through WhatsApp. He enquired from Lekgotla when they will come to work on the Audi as promised. Lekgotla indicated that the man from Lesotho had already left and they would come on the day of his return in Kuruman.

 

390.         That morning when accused number 1 was on his way to the Pick ‘n Pay, he passed a place where he normally washed his cars. One of the people washing cars, called at him and signaled  that he must wash his car. He reluctantly left his car there to be washed, but only on the outside. He locked the doors and left. On his return he had not finished and had to wait for him for some time to finish polishing the tyres. He paid him R20.00 for his services. He then returned to his workplace in Koffiefontein. Lekgotla communicated with him. He told him that there was a person who was killed at Mothibistad. He indicated that the police had come to demand  a firearm from him. Accused number 1 asked him whether he had a firearm and whether he had handed it to the police. Lekgotla mentioned that he actually lent his firearm to the person who had shot that person. Accused number 1 also heard from his brothers that a person had been killed next to the garage at Mothibistad.

 

391.         The Saturday when he was to return to Kuruman, Lekgotla spoke to him on the phone. He told Lekgotla that he must return to Kuruman and he wants him to prepare the R1, 000.00 so that he can have it on his return. His intention was to use that R1, 000.00 to buy alcohol for himself. Before he left Koffiefontein for Kuruman, he took his car for a wash.

 

392.         Accused number 1 mentioned that he had some quarrels with his girlfriend. She was supposed to go to work to complete some leave forms and was also to go to the Eastern Cape on maternity leave. That night accused number 1 slept in Mothibistad. Accused number 1 testified that the other day he was on his way to Blackrock. He received several calls from a person who wanted to know where he was. At some stage his brother called him and reported that there were people at his house who wanted to buy a car from him. He was surprised because he was not selling a car. Later he received a call from an unknown person who told him that there are lots of police together with a police forensic vehicle next to his premises. He later received another call from a person and he told this person that he knew there were police at his place and they are looking for him. They must wait for him, he will come, but it will take some time before he arrives.

 

393.         He went to his place and as he parked, Colonel Louwrens and another short white policeman approached him. They started interrogating him about an incident where people were killed. He was surprised and shocked to hear that. He was asked whether he had been to Postmasburg on 17 August 2016. He thought for a while and agreed that he went to Daniëlskuil and Postmasburg on that day. He was asked how many motor vehicles he had and he mentioned them. Colonel Louwrens asked him why he was not mentioning the Jetta. He explained that the Jetta belonged to his girlfriend and is not his. They asked him where the Jetta was. He replied that it could either be in the Eastern Cape or at his premises or at his girlfriend’s workplace. Colonel Louwrens told him that the Jetta was used in the crime of killing people in Postmasburg. He was surprised to hear that and told them that he knew nothing about that. He was further told that they knew that on 18 August he washed the Jetta. He said he did not do anything like that.

 

394.         They took him along and drove away. They arrived at his girlfriend’s place and entered the house. Colonel Louwrens asked him for a firearm, and he told him that he did not have a firearm. They searched the wardrobe but came out empty handed. As he was arrested they opened the Jetta and searched it after which Colonel Louwrens told him that he is seizing the Jetta. They asked him where his cell phone was.  He indicated that it was in the car. The short white policeman took the cell phone from the car. Accused number 1 told him that there was another cell phone and he returned with a second cell phone. When asked about Postmasburg, he indicated that there is a place where two coloured men got into the car. He thought they are coloured because they were speaking Afrikaans. He did not even see them and he cannot identify them if they were to appear before him today. Colonel Louwrens told him that he knows that he was going to be paid R6, 000.00. Accused number 1 disputed that and said that he only knows about the R2, 000.00. When the Jetta was seized, his girlfriend was present. She was highly pregnant. She was shocked to hear what the police said and even asked accused number 1 whether what they say happened is the truth. He denied any knowledge thereof. They drove to Kuruman police station. Along the way Colonel Louwrens asked him where the place was where he washed the Jetta. He took them there. Colonel Louwrens searched around there for the person who had washed the vehicle and they could not find him. They proceeded to the Kuruman police station.

 

395.         He was referred to page 219 of Exhibit ‘R’ and confirmed that his cell phone number was 081 836 3576. He was referred to a transaction at 21:15:51 on 17 August 2016 where a call appearing to have been connected with 083 856 2686 being a cell phone number of accused number 4, and the call duration was 4 seconds. He indicated that that was not a call that he made, but that at that time his phone was with Lekgotla who had kept it when he had borrowed it to make a call. On the same page 219 of Exhibit ‘R’, the activity at 21:56:22 where it is reflected cell phone number 072 449 4322 belonging to Matthews Legodi, accused number 5, had called his number and the call lasted for 69 seconds. Accused number 1 replied that even at that time he did not have the phone with him. It was still with Lekgotla and that he must have made that call. The area of reception of his phone for this call was Magojaneng. He replied that at that time he was not at Magojaneng but at Mothibistad and that Magojaneng is not far from Mothibistad. Further, at 12:27:08 there were activities indicated under Seodin, Mothibistad, Kuruman coverage arrears. He disputed ever making those calls as he did not have the phone in his possession. He was asked about the call made on 18 August at 8:33:48. He replied that the phone was still with Lekgotla because he only returned it between 10 and 11 and therefore he could not have made that call either.

 

396.         He mentioned that during the interrogation Colonel Louwrens told him that a used cartridge was found in the car. He actually told Colonel Louwrens that there was no used cartridge, but that it was live ammunition which Lekgotla claimed belonged to him. He denied that he ever saw any blood on the inside of the Jetta and that he never told Colonel Louwrens, when he mentioned the blood, that it was on the inside of the Jetta. Even on 19 August 2016 he never discussed anything concerning blood in the Jetta with Lekgotla. He further mentioned that he did not know any of his co-accused before his arrest. He only met them several days after his arrest at the detention centre and when they appeared in court.

 

397.         Mr Shamalane Solly Chauke was called as a defence witness on behalf of accused number 1. He testified that on 18 August 2016 he had visited Kuruman. He was supposed to meet his brother. He did not know where the brother lived and arranged with accused number 1 to pick him up and take him to his brother. Accused number 1 did as requested and they went to accused number 1’s girlfriend’s place in Kuruman. Whilst there he was given something to eat. Sometime later, at around 6 or 7pm a white van arrived with two occupants. It was a person with dreadlocks and one who introduced himself as Ditiro. Ditiro told him that he is a traditional healer. He promised to bring patients to Chauke because he is also a traditional healer. He told him that even the white van belonged to him. After some time, Ditiro, the man with the dreadlocks, Hasane and Chauke got into a motor vehicle. He cannot remember who the driver was, but they drove on the road leading to Kathu village.

 

398.         They stopped at a veld and the person with the dreadlocks started sprinkling some water on the motor vehicle. Ditiro indicated to Chauke that this man was performing some rituals on the vehicle and that they were supposed to perform rituals on the other vehicle. He did not know or understand which vehicle Ditiro was referring to. After performing the rituals, they all got back into the vehicle and drove back to accused number 1’s girlfriend’s place. From there the two men left with the white van. To date hereof, Ditiro has not brought the said clients/patients that he had promised him. He mentioned that accused number 1 must have been aware at that time that he was also a traditional healer. The reason for saying so, is because for one to become a traditional healer, you must leave the place for some time to go through some processes that would qualify him to be a traditional healer. However, accused number 1 never asked him to perform or assist him with a problem with his expertise as a traditional healer. On that day, 18 August 2016, he cannot say accused number 1 appeared upset because whenever the two of them are together, they are always happy. In response to a question by Mr Cloete on behalf of the State why does he specifically remember the day of 18 August 2016, he replied that the significance of that day is that he was promised some clients/patients by Ditiro, which never happened. After the testimony of the witness, Chauke, accused number 1 closed his case.

 

399.         Frank Tsame Baxane, accused number 2 testified that he is 35 years old and passed standard Eight at school. He resides at 4022 New Stand, Daniëlskuil. He was arrested on 5 October 2016. On the morning of 17 August 2016 he woke up and between 9 and 10 went to a lounge where drinks including alcohol was sold. He craved to drink as he had a hangover (babalaas). On arrival he bought himself one Redds cider. As he was busy drinking the Redds, one Dube arrived. Dube asked him where the other gents were. He replied that they were at Boitumelo Kaleche’s place. Boitumelo is also known as Douw and is his friend. Dube mentioned that he was craving to smoke oka pipe. Accused number 2 also, was craving to smoke the oka pipe and he suggested that they go to Boitumelo where they would definitely find the pipe. Between 11:00 and 12:00 they arrived at Boitumelo’s place. They found accused number 3, Boitumelo, Dan, Golo, Mamikie Thandiso Plaatje present and they joined them for the entire day. Mamikie was busy cleaning a sheep’s head (afval). Basil arrived after 5pm. There was loud music playing and they were drinking alcohol and smoking the oka pipe. That included accused number 3. At that time accused number 2 was using a Nokia Aisha phone with the number 082 761 0085. This phone was in his possession. At that time accused number 3 was his friend already. He knew accused number 4 through accused number 3. He only knew accused number 5 as someone known as Juluka in the community.

 

400.         Before the arrival of Basil, Nation Kaleche, who is Boitumelo’s wife, arrived with the children. She found them sitting inside the house. She enquired why accused number 3 was there as he is not used to coming to her place. Boitumelo told her to leave him alone because he is his friend. Boitumelo suggested that they sit outside. Basil arrived. Golo was busy chopping wood to prepare a fire. Accused number 3 and Basil stood to one side having a conversation. Accused number 3 suggested to Basil that he should buy them some liquor. Accused number 2 joined in and also requested Basil to buy some liquor. Accused number 2 got into Basil’s motor vehicle which was a black Corsa and they drove to 21 Jump Street to buy the alcohol. Accused number 3 followed them in the Avanza motor vehicle. At 21 Jump Street, they looked for Lebogang who was running the liquor place. They bought a case of Castle Lite for accused number 3, a bottle of Smirnoff 1818 for accused number 2 and Basil bought himself a can of Castle Milk Stout. They placed the liquor in the Avanza and he joined Basil in the Corsa and they drove back to Boitumelo’s residence. When they arrived, Boitumelo was sleeping. Dice arrived. He also offered to buy them alcohol. Accused number 3 offered him the vehicle to use for transporting the liquor. Accused number 3 handed the keys to Golo. The two left. After some time accused number 3 asked why they were taking so long. Accused number 2 offered his phone and he dialled Golo and he indicated that Juluka had arrived at that place and had taken the car keys. The phone was then handed to accused number 3 who spoke to accused number 5 and after that he told them that he was going to accused number 5.

 

401.         After accused number 3 had left, Dice and Golo arrived on foot. Soon thereafter accused number 3 returned with the Avanza. Thereafter, accused number 5 arrived in a blue Golf motor vehicle. He sent a message with accused number 3 to tell accused number 2 that he had long been looking for accused number 2 who had been pestering him for employment. Accused number 5 told accused number 2 to assist in getting at least 10 unemployed people. He thereafter told accused number 3 to see to it that accused number 2 goes and looks for people for him. Accused number 2 denied that he left Boitumelo’s place to go to his house or even to go and look for something to eat. After speaking to accused number 5, accused number 2 left for his house to go and switch on the lights. It was past 7 to 8 pm.

 

402.         Accused number 2 corrected his evidence by stating that during the day accused number 3 left Boitumelo’s place for about 20 to 30 minutes and thereafter returned. It was at that time that Basil arrived. He further corrected that he also at some stage went to his place to switch on the lights and also prepared something for himself to eat. After eating, because it was cold, he then put on more clothes. He put on a jacket that is used at the mines which had reflectors and was orange in colour. From there he returned to Boitumelo’s place. On arrival there, he found Boitumelo sitting around the fire. He left Boitumelo’s place after accused number 5 had spoken to him between 7 to 8 pm. He hiked a lift with accused number 3 who transported him up to his house. He unlocked his house and then started calling out for his neighbour. He explained to him that accused number 5 was looking for people to attend training which might lead to an opportunity for employment. His neighbour, Mchuja, also agreed to attend the training. Mchuja’s full names are Lopang Lekwene.

 

403.         The following morning, 18 August 2016, at 7:30 am, he left his house. He went via a certain Valdesh. On his way to Valdesh’s place, he called accused number 5 and reported to him that he had already got Lopang Lekwene for the training. After speaking to accused number 5 he went to Valdesh’s house. As he was busy knocking at the door, his phone rang and he realised that it was accused number 5 who was calling him. He requested accused number 5 to give him a minute so that he could speak to Valdesh Mosimanyana and recruit him for the training. After recruiting Valdesh he remembered a person called Thabang who was staying some distance away. On his way to Thabang’s place accused number 5 called again and asked him how many people he had found. Accused number 5 called him intermittently. He then reached Thabang’s place and recruited him. Whilst with Thabang, accused number 5 phoned again. He can’t remember how many times he phoned him, but according to him, it was many times. He can only think of calling accused number 5 once or twice, but most of the time, it was accused number 5 who was phoning him. He went to look for other people and could not find them and informed accused number 5 that they are only four in number. Accused number 5 said it is fine. He said he had a list and would go and look for other people. Accused number 5 further told him to make sure that he attends the training the following morning and that he must not return to Boitumelo’s place, but that he must go to bed immediately. He went home and he slept.[73]

 

404.         He woke up early the following morning and readied himself to go to the training. Before he left his house, he called Mchuja to tell him that he must finish so that they could go. As he was busy locking his house to leave, at around 7:00 am, a white motor vehicle stopped in front of his house. He saw a white person in the motor vehicle. The white male got out and approached him. He realised that this person was a police officer, Detective Coetzer. He told him that he was sent by Colonel Louwrens from Kimberley to borrow his phone. He asked him why and he said he should not worry he would return it. He handed his phone over to Detective Coetzer. It was still on and he left with the phone. From there he went to Valdesh and the two of them went to the training in town at the Red Club belonging to the mine.

 

405.         Accused number 2 mentioned that on the previous day, 17 August 2016, after having looked for Valdesh and Thabang, he went to his house at past 10 to 11 pm. He was referred to page 104 of Exhibit ‘R’ to the cell phone number which belongs to accused number 5. It was stated that he had made and received calls to and from this number. These calls were made between 19:58 and 21:42:38. He made the calls whilst he was in Daniëlskuil. He was referred to the time 19:30:13 whereat he had an SMS message and the tower which had serviced him was Postmasburg.

 

406.         Accused number 2 denied that on 17 August 2016 he travelled from Daniëlskuil to Postmasburg where these offences were committed and that he never went to Groenwater.

 

407.         When asked whether there was anything he wanted to add to his evidence, he mentioned that on 29 September 2016 Colonel Louwrens and Warrant Officer Henk van der Merwe approached him at his place and told him that accused number 3 had advised them that he possessed firearms and they were there to collect same. He denied knowing anything about any firearms. He said they must tell accused number 3 that he must come and dig out the firearms he was referring to.

 

408.         He further mentioned that on 18 August 2016 at midnight he heard people knocking and claiming to be police officers. When he opened the door he found Colonel Louwrens and Warrant Officer Henk van der Merwe and TRT police officials. They asked where accused number 3 was and he told them that he did not know as he had not met him. They told him that he should know his whereabouts and he denied any knowledge as he was resting with his girlfriend. They entered the house and searched it. They asked whether he had accused number 3’s contact numbers and where they could find him. He scrolled through his cell phone and dialled accused number 3’s numbers. Colonel Louwrens told him to speak to accused number 3 and ask him about his whereabouts. He told them that the phone was off and he could not speak to him.  They left his place and after they left he phoned accused number 4 to report that the police were there harassing him, looking for accused number 3. He asked him whether he knew where accused number 3 was and accused number 4, said he did not know.

 

409.         He was referred to page 106 of exhibit ‘R’ and showed that on 19 August 2016 at 2:37:24 there is a number under “other party” which is 071 850 9434 and he confirmed that that it is accused number 3’s number that he had phoned. The number below that is that of accused number 4 which he had phoned that evening.

 

410.         Mr Zonizelo Richard Magawu, accused number 3 testified that he knew both the deceased Nouse and Baaitjie. He attended school with Nouse. He knew Mr Baaitjie as one of his seniors in Daniëlskuil and was also a member of the ANC before 2011. He also knew him as a mechanic who used to assist him in repairing his motor vehicle. The last time he called him was with regard to the fan belt of the Toyota Avanza which was affecting the air conditioner and making a noise. He also knew Baaitjie as an entrepreneur doing some projects in the construction business.

 

411.         He further testified that in 2016 he was a candidate for the ANC in Ward 1 and Baaitjie was a candidate in Ward 2. When asked whether he had a cell phone on 16 August 2016 he replied that he did not have any. The cell phone that he had got lost on 15 August 2016 in the Toyota Avanza motor vehicle. Around 5 and 6 August 2016 he was at an ANC event/party after the elections. He lost a contract phone which was a Samsung Neo Plus, which he had given to one of the volunteers to keep for him. It was using the number 071 850 9434. At the time of his arrest on 19 August 2016, he did not have a cell phone.

 

412.         Accused number 3 confirmed that on 17 August 2016 he was at the cell phone shop and that he is the person on the video footage from that shop. He went there to report his lost phone in case someone had wanted to sell it. That would have made it possible for him to prove that it was his phone by producing the purchase documents as well as the box for that phone and would also report it to the police. Whilst he was on his way to that shop driving an Avanza a certain Larry who was employed at the police station as an administrator took a lift from him. He dropped him on the street leading to the police station and proceeded to the cell phone shop. He parked just in front of the door of the said shop to minimize chances of someone breaking into the car and steal the radio. When he locked the passenger door from the inside, he noticed a cell phone. He thought that it belonged to Larry. He placed it in his pocket and entered the shop. On his way out of the shop, someone called him from inside. He noticed that it was Boitumelo who requested some advice from him on a music system which he wanted to buy. The phone that was in his pocket rang. He answered it and the person on the other side of the line was Larry, the owner of the phone. He confirmed with Larry that he had the phone that he left in his car.

 

413.         In response to the question of what was handed over to him inside the shop by the shop owner/assistant, he said that it was an SD card. He could not remember the colour of the SD card. After Boitumelo had purchased the music system, they placed same in the Avanza. They went to Boitumelo’s place after having made a stop at the liquor store to buy some alcohol. They arrived at his place at around past 9:00 to 10:00 am. Whilst there, Larry phoned again enquiring about his whereabouts. He told him that he was at Boitumelo’s place and that he would bring the phone to him. Accused number 3 requested Boitumelo to lend him R100.00 so that he could fill up the Avanza with petrol. This was in consideration for having assisted him in transporting the music system to his residence and that would be in addition to the six pack of beers that he had bought for him. At that time, he also wanted to go to his place to have something to eat. He left Boitumelo’s place and went to town where he refilled the Avnza with petrol.

 

414.         From the fuel station he went to the police station where he was required to present himself and sign a register on daily basis as a condition in a matter unrelated to this one. It was around 10:17 or 11:17 am. After signing the register he returned Larry’s phone. He returned to the Kaleche residence. On his arrival he found the people he left still present together but Mamikie had joined them and was busy cleaning a sheep’s head (afval). After some time, accused number 2 arrived with Dube in a silver SUV Hyundai motor vehicle. Boitumelo’s wife arrived and accused him of being at her place only because Boitumelo had received his bonus and that he was there to exploit his money. This upset accused number 3 and he decided to arrange beers for himself. He went to negotiate with the son of the owner of the tavern called “The Lounge” for some beers. It took him 40 minutes to go there. Later Dice came. He gave the Avanza keys to Golo to go with Dice/Dise to the liquor store to buy more liquor. He did not make any calls during this time as he was not in possession of a phone. When Golo was delaying to return, he became worried. They learnt that accused number 5 had taken the Avanza keys from Golo.

 

415.         Accused number 2 handed him the phone to speak to accused number 5. Accused number 3 had said something which he had omitted in his evidence. On his return from “The Lounge” where he wanted to buy liquor, he stayed for some time at Kaleche’s place. Dube was not present, but accused number 2 was. After a while Basil arrived from work as it was his knock-off time. It was now past 5pm. When he arrived, accused number 3 reminded him of a case of beers which was due to him. Accused number 2 also joined in and wanted an 1818 Smirnoff. Basil and accused number 2 left in a black Opel Corsa to buy some liquor. Accused number 3 told them that he would follow them because he wanted to go via his house to drop the keys. On his return he found the Corsa at 21 Jump Street.  They struggled to get hold of the son of the owner, Lebogang, to assist them. He ultimately came and they managed to buy a case of Castle Lite beers, 2 Quarts of Black Label meant for Boitumelo, the 1818 Smirnoff and Milk Stout beers for Basil. They thereafter drove back to Boitumelo’s house.

 

416.         Golo was present chopping wood for fire. The axe was not sharp and accused number 3 gave him his axe from the motor vehicle to use. Later accused number 2 left. Boitumelo, who was drunk by then, took a nap.

 

417.         Reverting back to the incident where Golo was given the Avanza to go and buy liquor and when accused number 5 had taken the keys of the Avanza, accused number 3 went to 21 Jump Street. He met accused number 5 who complained to him that he had borrowed him the vehicle to use and was supposed to have returned it on 16 August 2016, but that he was using it to transport liquor instead. Accused number 3 apologised and accused number 5 handed the keys back to him. He asked him where accused number 2 was. He replied that he was also at Boitumelo Kaleche’s place. He told him that he must tell accused number 2 that he is looking for him as they must be at a training the following day. Accused number 3 agreed to tell accused number 2 and he left. On arrival at Boitumelo’s place, he parked the Avanza and entered the premises. He saw a blue Golf approaching them. This car parked  next to a house away from Boitumelo’s house as there was another motor vehicle, to wit a Ford Figo parked there. He heard a voice calling him and noticed that it was accused number 5. He walked towards the blue Golf and accused number 5 told him that he must make sure that he takes accused number 2 home because he gave him a task to do. Accused number 3 immediately went to accused number 2 and told him that his party was over as accused number 5 had said that he has something to do the following day and must go home immediately. Accused number 2 agreed to leave without any hassle, but did not do so before taking a last sip of alcohol. Before he left with accused number 2, Boitumelo woke up and came out dancing wearing only red underpants and all who were present saw the funny side of it and laughed.

418.         Accused number 3 took accused number 2 home with the Avanza. Along the way, accused number 3 decided to visit his girlfriend. He spent some time with his girlfriend and only arrived home past 10pm. He mentioned that he left Boitumelo’s house between 7 and 8 pm. It could also have been between 7 and 9 pm. When dropping accused number 2 off at his place, he told him that there is something that was bothering him being that he had lost his phone on the 5^th and that if he was to report it the phone was going to be blocked and that he would have to do a SIM swop which would cost him R250. He was also still paying R599 as per his contract and would also be expected to buy a new handset. He then gave accused number 2 his number, 071 850 9434 and requested him to dial it. Accused number 2 complied and he left.

 

419.         He was asked about the evidence of Dustin Moses that on 17 August 2016 at around 5 pm the accused drove past their house in an Avanza at high speed.  He denied ever being on that street. He did mention, however, that there is a huge speed hump on the same street next to Baaitjie’s house and that that would make it impossible to drive at an excessive speed in an Avanza which is not even a sports car.  Furthermore, Baaitjie’s street is a “square street” and there are other streets flowing onto it. His friend and colleague in the ANC, Paulus Mgcera, erstwhile accused number 6, lives on one of those streets. Rodney Lessing, who is a ward councillor also lives in that street. It happens therefore that he has to go to that area. He also assists people who have challenges with the burial of their family members and he has to go there and meet the councillor, including deceased Baaitjie.

 

420.         Regarding the evidence by Mrs Baaitjie that a tender in the amount of R800,000.00 had been offered to her husband and that he would have received 10 % thereof, accused number 3 mentioned that the deceased Baaitjie, as a councillor, should have known or familiarised himself with the provisions of the Municipal Structures Act. Furthermore, if indeed he was expected to pay 10 % of the R800, 000.00 to get the tender, it means he attended the proposed meeting carrying an amount of R80, 000.00 being the 10% of the capital amount. Therefore, he suggests, this case has not been properly investigated, the police should have looked for the R80,000.00. Mr Buthelezi referred him to the evidence of Colonel Louwrens that the suspect number was used in the Nokia N70 that belonged to him to send a message to Baaitjie. He replied that there is no proof before this Court that his number ending with 133 was ever inserted in the same handset.

 

421.         Accused number 3 questioned how Colonel Louwrens could send a request without a CCR number to Mrs Du Plessis for call data when at that time Mrs Du Plessis had already received a letter with a CCR number. He further questioned why the number ending with 133 was mentioned in that request already when it was also stated that it was only used on 17 August 2016 and without any other days being mentioned.

 

422.         Accused number 3 testified that when he was employed at the Defence Force he was holding office at the interception centre of which the South African National Intelligence Association, the National Intelligence of the Defence Force and the Crime Intelligence of the Police and other security agencies formed part, in order to supply information regarding e-mails, SMS’s, calls, phone recordings, etc. He mentioned that on 18 August 2016 it was highly impossible that at 03:28 Colonel Louwrens or any other officer could have known in which handset the SIM card with the number ending 114 was inserted. One could not obtain that information by merely opening Baaitjie’s phone to determine the particular handset in which the number ending with 114 was used to communicate with Baaitjies’s number. One can only determine the IMEI number from the handset that had used the SIM card ending with 114.

 

423.         He further accused Colonel Louwrens of changing numbers and fabricating information. He referred to page 18 of Exhibit ‘R’ and challenged the subpoena on that page. His challenge was that it could not have been urgent if it was not marked with the letters “URGENT”. As regards the fact that Colonel Louwrens punched the number that was used in the handset that sent the message/communication to Baaitjie in his own phone and it reflected ASH, he contended that Colonel Louwrens ought to have known at that time that the number belonged to him because he had several communications with him in connection with the matter that he was involved in at that time. Some of the arrangements related to the bail application that he wanted to launch.

 

424.         Regarding his photo that Colonel Louwrens had said he downloaded from his WhatsApp profile, he mentioned that he never posted that photo on WhatsApp but that he had it as a twin picture on his Facebook account. That would have been the only place where Colonel Louwrens could have seen that photo. Accused number 3 further took issue with the fact that Colonel Louwrens had lied to him by indicating that Nouse was alive and had made a statement about him. He demanded that the statement be produced and to date there is no such a statement, meaning that Col Louwrens is a liar.

 

425.         Regarding the SIM card that Colonel Louwrens had said he had obtained from the cell phone shop, accused number 3 mentioned that that cannot be true, because Colonel Louwrens was not even there. What he received at the shop was an SD card, for free, because they had bought a music system. The SD card was handed up as exhibit ‘Magawu 2’. He mentioned that Larry whom he had given a lift to his work and forgot his cell phone in the car, had passed away. He denied that he made a call to the deceased Baaitjie with the cell phone number ending in 114 for 181 seconds. He does not dispute that Lekgotla was phoned by this 114 number, but he was not involved.

 

426.         Accused number 3 mentioned that he did not sleep at his home on 18 August 2016. He went home in the morning at around past 10 am. He was informed by his mother-in-law, on his arrival, that his life partner had been arrested by Colonel Louwrens. When he asked why, she mentioned that it was in connection with murder. He remarked that it was unlawful but the mother-in-law indicated that the police had said that they will release her once he handed himself over to them. His niece Vaseka Muriel had arrived in the meantime and he requested her to take him to the police station. She accompanied him whilst he drove the motor vehicle to the police station. Along the way he noticed that a car was following him. It was not unusual for him to be followed because he had been placed under surveillance and his movements were monitored. In fact, at some stage he saw a car parked next to his house in the street and he saw the other one parked next to accused number 4’s house. He communicated with accused number 4 telephonically and both agreed to switch their lights on and went outside. Those cars then drove away.

 

427.         On the way to the police station, he had made up his mind that he was not going to be arrested military style on the street, but decided to drive with speed to make it clear that he was heading in the direction of the police station. On entering the police station he met Warrant Officer Coetzer. He enquired from him where his wife or life partner was. Warrant Officer Coetzer replied that Colonel Louwrens had arrested her. He asked why and he said that it was for housebreaking and theft. He asked whose house had been broken into and was told that Colonel Louwrens would be the one to explain the situation to him. He was taken into an office and TRT police officers said that he must be taken to the detective offices on the instruction of Colonel Louwrens.

 

428.         Accused number 3 referred to several newspaper clippings in which he said they had wrong information about him and the reasons for his arrest, and according to him this information was supplied by Colonel Louwrens. He worked at the ANC Parliamentary Constituency Office in Daniëlskuil. According to him the ANC will not kill someone for a councillor position. The ANC was not going to gain anything out of the death of Baaitjie. Personally, he stood to gain nothing from his death. He mentioned that the councillors are not involved in tenders in terms of the relevant legislation. It is a matter for the CFO. He mentioned that they were wrongly accused of killing Baaitjie. That they even included accused number 5, an honest person who has acquired all he had through hard work. His prosecution is in fact at the instance of the DA given the statements that were made by Mr Mmusi Maimane, the then leader of the DA and the placards that were carried by DA members when he appeared in court, in which they demanded that he should not be released on bail. In response to a question whether Colonel Louwrens had explained his rights at the time of his arrest, he agreed that they were explained to him and that he did not want a lawyer as he saw no necessity for one. In his statement he told Colonel Louwrens that he did not want to make a statement but that he was prepared to answer any question put to him. He told Colonel Louwrens that he slept at a hotel. What is attributed to accused number 5 by Colonel Louwrens when he was asked about his whereabouts in the early hours of the morning does not make sense. He could not have said he did not know where he was when he, as a matter of fact, knew where he was.  He denied ever meeting Tiro Lekgotla, whether at Daniëlskuil or at Daniëlskuil on the way to Postmasburg. He denied ever communicating with Tiro Lekgotla. He questioned why the State would use the services of the SBV employee, Mr Möller, when the State has sufficient resources and manpower at its disposal.

 

429.         Accused number 3 questioned why it was not Mr Schoeman who had obtained a statement from Lekgotla as his client and then hand it over to Colonel Louwrens. It should not have been Colonel Louwrens who obtained that statement, he contended. That, according to him, means that Mr Schoeman was a mere rubberstamp. He further questioned why Lekgotla was not taken to a Magistrate for a confession statement. Since Lekgotla is a self-confessed criminal, he should have been charged with them for these offences. According to information he had received, Lekgotla has been treated differently and was issued with a firearm whilst he was already a witness. According to him, the police can check the records and prove that Lekgotla has been issued with a firearm licence whilst under the witness protection programme.

 

430.         He explained why in his section 220 admissions he had not admitted that the blood that was in the boot of the Jetta was that of the deceased Baaitjie. He mentioned that there had been results for the first samples taken during the initial investigation and nothing positive was found. It was only on the second occasion when samples were taken that it had positively connected to the deceased Baaitjie. He maintained that it meant that the case was not properly investigated. He testified that on 18 August 2016 he picked up accused number 4 to go to the Magistrate’s court so that they could apply for the relaxation of their bail conditions in the unrelated matter. In those proceedings, they are represented by Mrs Lofty-Eaton. On their way to court, accused number 4 indicated to him that there was someone calling him on his phone with accused number 3’s number. He then replied that he does not know who that person is; that it means that someone has his phone number. During the day they met with their attorney, Mrs Lofty-Eaton, who told them that she had heard that a councillor had been shot and killed and asked whether it was accused number 3 who committed the crime. Accused number 3 said he merely laughed and asked her which councillor.

 

431.         He was referred to a statement made by accused number 5 to Colonel Louwrens in which he had indicated that he had known that accused number 3 had cell phone numbers 081 801 1667 and 082 667 6133 and that at paragraph 3 of the said affidavit accused number 5 mentions that he phoned number 082 667 6133 on 17 August 2016 using his cell phone number 082 617 1424 and that accused number 3 answered that call. He replied that that cannot be the case as he did not have a phone on the 17^th. It was further put to him by Mr Buthelezi that the State alleges that he had a SIM card ending with 133 which was inserted into accused number 2’s phone on 17 August 2016 and that he had used it on 18 August 2016. He denied that the SIM card was in his possession and that accused number 2 had responded to the question. 

 

432.         He was further referred to the evidence of Pamela Plaatje that on the said date accused numbers 2, 3 and 4 were inside the Avanza. He denied that he had ever met accused number 4 on 17 August 2016. It was further put to him that the State alleges that at 19:56:42 accused number 2 phoned him whilst the latter was at Groenwater and accused number 3 was in Daniëlskuil. He disputed calling him from that place. The call was made when they were together in Daniëlskuil and that the call diverted to voicemail. It was made on his instruction to trace where his phone was. He denied that they had connived to or had called each other to plan the killing of the deceased Baaitjie.

 

433.         Mr Jacobus Koper testified as a witness for accused number 3. He was residing with the deceased Baaitjie in ward 2 and were friends. On 17 August 2016 he was with him at his house between 11:00 and 12:00 during the day. The deceased received two calls in his presence. The first call he picked it up and dropped it without answering it. The second one he answered and engaged in a conversation and Koper could not hear what they were talking about. After the call he mentioned that those people had been looking for him for the whole week in connection with work. He did not tell him who those people were and where the work was to be done. He only said he must go to Postmasburg for a meeting.

 

434.         Mr Cloete referred the witness to a written statement he made to the police on 18 August 2016 which was provided to the defence. He referred to the fact that Koper indicated that two of the deceased’s sons were present; that after the first call the deceased mentioned that it was someone he did paving work with in Danielskuil; that after the second call he reported that the person he spoke to wanted to see him for a meeting in Postmasburg at 17:00 that afternoon. Mr Koper confirmed that it is how the events unfolded.

 

435.         Denver Denzil Baaitjie was called to testify as a witness for accused number 3. He is one of the twins of the deceased Baaitjie. He confirmed that he was with his father in the house on 17 August 2016. He was watching TV. A phone rang, the deceased picked it up and the caller dropped it. It rang the second time and he picked it up. He spoke for few seconds with the caller. The deceased did not tell him what the person was talking about. He was referred to his written statement wherein he stated that the deceased said that the man had been looking for him by Mr Buthelezi. Mr Buthelezi, visibly surprised, to say the least, put to him that he is differing from what he told him in consultation and submitted to him that he is not a credible and reliable witness. He was requested to refrain from cross examining his witness or put leading questions to him but rather follow the prescribed procedure in such circumstances.

 

436.         Ms Easthorpe on behalf of accused number 5 cross-examined the witness about the statement that he made to the police. In particular, she read to him paragraph 3 where it is stated that his father mentioned that the person he spoke to on the phone told him that he got his cell phone numbers from a certain Tony of Mafikeng who used to do paving work with his father. The witness conceded. He was further referred to a paragraph were he stated that his father said the paving work will be R800 000.00 and he confirmed.

 

437.         Mr Cloete also cross-examined the witness. He mentioned that his father parked the vehicle on the premises on 17 August 2016 before he said he was going to Postmasburg and that he left with Mr Nouse. He confirmed that her mother phoned her father several times to the number starting with 081. There was an issue about the fact that he also made a second statement on 11 July 2019. Nothing of relevance really turns on this aspect and need not be referred to any further.

 

438.         Accused number 4, Thompson Mphondomisa, is 44 years old. His highest standard of education is Grade 10. He was arrested on 6 September 2016 and that is the day upon which he met accused number 1 for the first time at the detective offices. He knows accused number 2, 3 and 5 whom he regards as his friends. Because they are friends, there is nothing wrong with them communicating telephonically from time to time. During 2016 he was using the number 083 856 2686. He knows Lekgotla as they used to work together. He does not dispute the telephonic contacts between him and Lekgotla. They were however for a different reason than what Lekgotla had testified about.

 

439.         He was working with Lekgotla at MSD Mining. He left MSD Mining and started working at John Riggs. Having changed jobs, there was a time when he did not meet with Lekgotla. He was once suspended from work due to a case.

 

440.         One day Lekgotla phoned him and said to him that it has been a long time since he had seen him at the workplace. He reported to Lekgotla that he had been suspended from work and was involved in a CCMA matter with the employer. According to him this was towards the end of July 2016, beginning of August 2016.

 

441.         Somewhere around August 2016, Lekgotla, accompanied by another person, walked passed accused number 4’s mother’s house. Accused number 4 was outside. Lekgotla told him that he had been looking for him and that he could not reach him on the telephone numbers he knew of accused number 4. Accused number 4 informed him that he was no longer using those phone numbers and gave him new numbers beginning with 083. Lekgotla also told him that he is also having problems at work and is likely to be suspended. Whilst there, Lekgotla took him aside and said there is something that he wants to show him. They parted company on that day.

 

442.         On or about the 10^th or 11^th of August, accused number 4 was watching movies at home with his cousin, Tebogo. Lekgotla arrived. Lekgotla showed him a stone (a diamond). He asked accused number 4 whether he could sell it for him. Accused number 4 told him that he knew of someone by the name of Lucky who is a Nigerian dealing in illicit diamonds. He told Lekgotla that he could sell it for him and that he would not knock him, meaning not rob him. He asked Lekgotla what he wanted for it, and Lekgotla said he wanted R10, 000.00. He promised to phone Lekgotla on the 11^th  after having sold the stone. Lekgotla then left.

 

443.         Accused number 4 went to Lucky to see whether Lucky would be willing to buy the stone for R10, 000.00. Lucky had R5, 000.00 only, which he gave to accused number 4, and undertook to pay the other R5, 000.00 the following day. The next day accused number 4 went to Lucky to demand the balance of R5, 000.00. He was informed that Lucky had moved out of that residence. The same day Lekgotla phoned him and asked him about the money. He replied that he had not yet sold the stone. The next day, 12 August 2016, Lekgotla phoned again demanding either the money or the stone to be returned to him. He told Lekgotla that he did not have the money but that he was prepared to give the stone back to him. Lekgotla came and he deceived him by giving him a piece of glass instead of the original stone. Lekgotla left but later phoned him and told him that what he did was not right as he had given him a piece of glass instead of the original diamond. He assured Lekgotla that it was not glass but a real diamond. He said that if he does not believe it to be a diamond, he will give him his money. The conversation ended on that note.

 

444.         Around 16 or 17 August Lekgotla called again demanding his money as a matter of urgency. The reason for the urgency was that he wanted to take his car for a service as he had an upcoming trip to Pretoria. They argued and accused number 4 promised to give Lekgotla his money but could not do so at that time. Lekgotla mentioned that if he does not pay him, he will do something to him that he will regret for the rest of his life and he will cry on his hands. The conversation ended.

 

445.         The following day, on 17 August 2016, Lekgotla called him again demanding his money. He called several times during the whole day demanding same and in return accused number 4 kept promising to give him the money. Right from the beginning, the reason why accused number 4 agreed to sell the diamond on behalf of Lekgotla, was because he wanted to “knock” him. Knocking was also referred to as breaking his head, which is understood to mean rob him whilst pretending to be honest.  

 

446.         He further testified that he exchanged several telephone calls with Lekgotla in that period and at times he used public telephones to phone Lekgotla because he was not staying far from a public telephone booth. He would do so because his phone’s battery would be flat due to him playing music on his cell phone. In one of these days which could have been the 16th when they were arguing over the money, he told Lekgotla that he could go and lay criminal charges against him and that his case will not be accepted by the police because it is an unlawful transaction.

 

447.         He denied being involved in the killing of Mr Baaitjie. What he remembers is that on 17 August 2016 he went to a “lounge” in Sloja called Moeng Bar Lounge between 5 and 6 in the afternoon. He consumed alcohol for the whole time he was there until he left at around 11 or 12 midnight. At some point, whilst there, he sent his phone home to be charged. Accused number 2 phoned him while he was there and invited him to join them at Boitumelo Kaleche’s residence. He refused to go as he was not on good terms with some of the people in their company. Around past 6 to 7pm his phone’s battery ran flat.

 

448.         On a question why Lekgotla would falsely implicate him in the commission of these serious offences, he said that Lekgotla was mad at him for knocking him with a fake diamond and that they had argued about it.  Lekgotla was demanding his money and accused number 4 had told him to go and lay criminal charges against him. Lekgotla was very unhappy and heartbroken at what he told him and that is the reason why he would falsely implicate him in these crimes.

 

449.         He denied being at Kaleche’s home on 17 August 2016 and that Pamela Plaatje is lying when she says that he was there at some stage with accused numbers 3 and 5 with the Avanza motor vehicle. He further mentioned that Pamela Plaatje had lied when she said that he and Valdesh were at Kaleche’s place on 24 August 2016. He recalls that on 21 August 2016 he received a call from Ms Lofty-Eaton, his and accused number 3’s lawyer in another matter. She asked him where accused number 3 was on 17 August. He replied that he was at Kaleche’s place. She asked until what time. He said he did not know. She then requested him to bring the people who were with accused number 3 to her the following day. It is then that he went to Kaleche’s place and found Dineo and Pamela Plaatje there. He reported to them that accused number 3’s attorney has sent him to request them to come to Postmasburg on 22 August 2016 for them to explain what they knew about the whereabouts of accused number 3. They agreed and he undertook to collect them the following day on 22 August 2016. Although he did not have transport, he would borrow accused number 5’s motor vehicle. He went to Kaleche’s place in a Citi Golf belonging to accused number 5. There he found accused number 5’s taxi. Accused number 2 got out of the taxi and went into the house. He also spoke to Boitumelo. They refused to go with him. Accused number 4 arrived and they also did not want to go with him.

 

450.          Accused number 4 was referred to the cell phone records of 19 August 2016 at 02:43 where a call was made between him and accused number 2 and later with accused number 5 at 02:50. His explanation was that accused number 2 had phoned him to report that the police were at his place looking for accused number 3 and asked him whether he knew where accused number 3 was. He told him that he did not know. Subsequent to that call, accused number 5 phoned and also asked him about the whereabouts of accused number 3. He too told him that he did not know where he was but that he had heard that the police were looking for accused number 3.

 

451.         He was asked about the incident of 3 September 2016 when Lekgotla testified that he had gone to his place and found him washing accused number 5’s Wildtrak Ford Ranger. He denied that Lekgotla had been at his place on that day and he denied that he washed the motor vehicle of accused number 5. He also denied being the person in the photo marked as exhibit “WW”. In the photo is a white van with Wildtrak written on it and a male person with his hands with something like a cloth hanging on it.

 

452.         Regarding Exhibit “UUA” he mentioned that although the cell phone number written on the paper is his, he is not the one who wrote it down. Asked where Lekgotla would get those numbers from, he replied that on 23 August 2016 he accompanied accused number 5 to Kuruman where he was going to buy some parts for his motor vehicle. Whilst in the shop, he remembered that Lekgotla lived in Kuruman. He requested accused number 5 to borrow him R1, 000,00 and he agreed. He phoned Lekgotla and requested to meet him in Mothibistad. He agreed. He borrowed accused number 5’s vehicle and went to Mothibistad to look for Lekgotla. He met him and during their conversation, he told Lekgotla that he had just bought a new SIM card and that he must use the new telephone numbers he provided him with, to contact him. He also showed Lekgotla the papers regarding his CCMA matter involving his employer. Lekgotla mentioned to him that he was also involved in a CCMA matter. He told Lekgotla that he will pay him R1 000.00 but would do so through e-wallet. At that time Lekgotla was driving a Corsa van and accused number 4 was driving accused number 5’s Citi Golf. They parted company and he went back to Kuruman where he reunited with accused number 5. He requested accused number 5 to lend him R1 000.00 but that he should pay it over to the number of Lekgotla that he provided to him. Accused number 5 sent the money through an e-wallet to Lekgotla.

 

453.         He was referred to exhibit ‘R’, page 66, where Colonel Louwrens testified that on 17 August 2016 at 21:15 there was contact between accused numbers 1 and accused number 4’s phones numbers and that that call had been forwarded. His reply was that when he had gone home from the bar lounge to check on his phone’s battery, on switching the phone on, he saw that there was a missed call from an unknown number. He did not have airtime. He returned to the lounge. Whilst outside the lounge, he saw accused number 5 approaching and he stopped him. They had a chat and he told accused number 5 that he had received a call from an unknown number and asked for his phone so that he could dial that number. Accused number 5 complied and he dialled the number. When the call was answered he asked who the person was and the response was Tiro. He asked Tiro who? The reply was Lekgotla. Immediately thereafter accused number 4 dropped the call. That is how it happened that there was contact with those numbers between him, the unknown number and accused number 5’s phone.  He denied ever phoning Lekgotla from accused number 2’s number.

454.         Accused number 5, Mr Matthews Legodu, testified that he is 52 years old, married, and has two sons aged 25 and 15 years respectively. He passed matric and thereafter obtained some diplomas in construction engineering, labour law and business management. Before his arrest he was self-employed in general construction, transport and farming. He is a member of the African National Congress (ANC) and a member of the Regional Executive Committee (REC).

 

455.         He testified about the various tenders that he had secured from the Idwala Mines, Daniëlskuil Municipality, Karoo Municipality and Sutherland. He made mention of various amounts, some in the millions, which he would get from these tenders. The mines also contracted him to transport people and he would receive money in exchange for these services. He testified about the procedures one needs to follow to secure jobs and tenders for work issued by government departments, mines and local government institutions. The purpose of his evidence was to place before Court the fact that in all his years of doing business, he dealt mostly with the private sector. He mentioned that everyone in Daniëlskuil knows that his work is dependent on the private sector. Municipalities do not have big capital work for them and can therefore not rely on municipal work. He further mentioned that when he was arrested it had been two years since he last had done any municipal work. The only contract that he had at that time was with the Sutherland Municipality. That municipality is run by the Democratic Alliance, but it notwithstanding, awarded him a project valued at R5 million.

456.         Accused number 5 testified that he did not know accused number 1, Mr Hasane and only met him for the first time at the detective offices after his arrest on 6 September 2016. Accused Number 2 is well-known to him as he grew up in front of him and they had played football together. He also saw him at some of the ANC meetings. He cannot say whether he was a member or not. He knows accused number 3 as a member of the ANC and he was also working at the Constituency Office. He also knows accused number 4 as they reside in the same township and he had grown up in front of him. He regarded him as a very handy person who was good at washing motor vehicles. He often gave him his motor vehicles to wash particularly the van and the Mercedes Benz. He further made use of him in other instances where he required his assistance, which mainly related to transport. 

457.         He testified that because the four of them knew each other, there is nothing strange with them being in contact with each other. They often phoned each other.

458.         Accused number 5 testified that on 17 August 2016 he woke up to go to work. He realised that his son had parked his motor vehicle behind his. Not willing to reverse his son’s car to get it out of the way, he decided to take his son’s vehicle to get to work. Later that afternoon, having returned from work, one of his supervisors at Idwala Mine, to wit Vicky Olyn, told him that the people at the mine wanted him to find ten people who would be sent for training the following day. The purpose was to have reserve employees he could utilise in cases of breakdowns or overtime. Accused number 5 saw this as an opportunity not to be missed and he decided to walk around the location to look for people to recruit for such training. He thought of going to places such as bottle stores and taverns where he is likely to meet unemployed persons. He did not see anyone as he walked past the bottle store known as Backstage. He then walked towards 21 Jump Street. There he saw his Avanza parked. He noticed two young men approaching the Avanza. He confronted them, asking them who brought the vehicle there. They told him that they were using the vehicle. He asked them whether accused number 3 gave them the keys. They confirmed that indeed accused number 3 had given them the keys. He took the keys from them complaining that he will not allow his motor vehicle to be used to transport liquor. The two men left.

459.         After a while, accused number 3 arrived and he demanded to know what accused number 3 was doing with his vehicle. Accused number 3 apologised for what he had done. He handed the keys back to accused number 3 who boarded the motor vehicle and drove away.

460.         Accused number 5 proceeded with his walk to look for people to recruit. A Golf approached with two occupants, being his son, who was driving and his younger brother. He mentioned that his younger brother has since passed away. On seeing him, his son parked the vehicle and decided to go home. He asked his younger brother why his son left. He replied that it was his rule that when they have to collect only a few employees at John Riggs or any other mine, they were not to use big vehicles but use smaller vehicles. He got into the passenger seat of the vehicle and drove away with his brother. He decided to go via where accused number 5 had said there were people sitting and drinking liquor, thinking that he might find some people to recruit for the training. He arrived just as accused number 3 was getting out of the Avanza motor vehicle.  He told accused number 3 that he must tell accused number 2 to go home because he wanted him to attend the training the next day. He thought of accused number 2 because he had once told him, after obtaining a driver’s licence, that he should provide him with employment. He knew that accused number 2 once worked at the mines and would grasp easily. It was around 8 or past 8 pm. He asked accused number 3 to make sure that accused number 2 goes home so that when he attends the induction or training the following day he should pass the alcohol breathalyser test. He further requested accused number 3 to ask accused number 2 to look for more people to attend the training.

461.         His legal representative asked him whether he had any telephonic communication or interaction with accused number 2. He replied that what he remembers is that his phone had rung and before he could answer, it went off. He returned the call and there was a conversation between the two of them. They were talking about the people to attend training. Most of the calls that day was from him to accused number 2.

462.         He went to Lime Acres accompanied by his brother to collect two or three people he provided transport to and from work. These people only came from underground at 8:30 pm and he could therefore only leave Lime Acres at 9 pm. The last person he dropped off was residing in the street to the back of the Lounge. He drove past the church and as he was passing the Lounge, accused number 4 flagged him down. After exchanging greetings and telling him that he had just dropped people off, accused number 4 asked him whether he could borrow his phone because there were numbers that he did not know that had called him. He handed his phone over to him and without taking too long, accused number 4 returned it to him. He then drove to his house.

463.         Accused number 5 lives in Daniëlskuil at Sloja. He was never in Papkuil, Postmasburg or Groenwater on 17 August 2016. He only went to Lime Acres.  When he was asked about his cell phone records, he did not dispute having made and/or receiving calls. He said however, that some of the calls he made were not answered.

464.         He further testified that he was awoken at his house by Colonel Louwrens in the early hours of the morning of 18 August 2016. He was requested to accompany him and he was taken to the detective offices. There he took his cell phones and requested him to unlock them. He did so. He asked him where accused number 3 was. He replied that he must be at his home and enquired as to why he was looking for him. Colonel Louwrens examined the phones and asked him when last he spoke to accused number 3. He said that he tried to locate him, but could not reach him, referring specifically to 18 August 2016.

465.         Colonel Louwrens scrolled through the phones and said to him that according to what he saw on the phones, he spoke to accused number 3 and indicated that their conversations had lasted for a few seconds. He told accused number 5 that he is making a note of that. Accused number 5 did not argue with him because he mentioned that he spoke to accused number 3 and he does not disputed that. Colonel Louwrens told him that he must look at what he has written down as being on his phone. He then asked accused number 5 whether he could phone accused number 3. Accused number 5 dialled accused number 3 on his instruction and the call was placed on speaker setting. He could not reach accused number 3. He asked Colonel Louwrens why he was looking for accused number 3. He replied that it was in connection with the murder of a councillor and that accused number 3 slept at his house. Accused number 5 denied that he slept there.  He was taken back to his house.

466.         When he arrived at home, he found his family waiting for him. They enquired what was happening and he explained to them why he was taken by the police. He phoned accused number 4 and told him that the police had been at his place looking for accused number 3. He mentioned that it was an army of police officials, meaning there were many of them. Accused number 4 mentioned that he too did not know where accused number 3 was and that the police had also been at his place. They discussed what was happening. Accused number 5 had already taken the Avanza from accused number 3 as his cousin was supposed to attend a funeral in Postmasburg and the duties that accused number 3 was supposed to have performed with the vehicle had been dealt with. He also mentioned that he phoned accused number 2 that morning to discuss what had happened to him and that he was questioned by the police.

467.         Accused number 5 testified that he does not know Tiro Lekgotla. He recalls accused number 4 requesting him for assistance with a cell phone banking transaction in sending someone money through e-wallet. The amount he had to pay was R1, 000.00. Accused number 4 provided him with the number to which the money was to be sent. He confirmed to accused number 4 that he received an acknowledgement of receipt of the R1, 000.00. This happened when they had gone to Kuruman where he was going to buy some parts for his taxis/motor vehicles. He mentioned that he had assisted people in the past with e-wallet transactions. He assisted accused number 4 because he was always available to help him when needed. He was also owing accused number 4 an amount of R350.00. He would use that amount as part settlement of the amount of R1, 000.00 and the remainder would be for washing his vehicles.

468.         Regarding the recording in which Lekgotla alleged that he was the person he was having a conversation with, accused number 5 denied that he was that person. He testified that it was not his voice and that it was a fake recording which Lekgotla created in collusion with the police. He referred in particular to Warrant Officer Henk van der Merwe, who is known to have attempted to influence a witness, Arauna Rossouw to lie in her statement. He questioned why Lekgotla used his two cell phones and not the recording device which he been given by the police. He further disputed Lekgotla having taken any pictures with that device or with his cell phones of accused number 4 washing his motor vehicle. He further denied that the motor vehicle in Exhibits “UU” and “WW” was his Wildtrak Ford Ranger as its licence plate did not correspond with his.

469.         Accused number 5 admitted that the cell phone numbers as well as the handwriting on the piece of paper that Lekgotla had in his possession, are his, but he denied meeting Lekgotla on the said day. He never gave Lekgotla his cell phone numbers, not even on the day of the alleged recording as they did not meet. He does not know how his handwriting and cell phone numbers found their way into that paper. He however, mentioned that his cell phone numbers are well-known as he is a businessman and he assists in transporting people. He mentioned that since Lekgotla said he once worked at Petra Mining and that he had seen accused number 5 there, it is possible that he may have known his cell phone numbers. He further mentioned that he does not have any money problems and it would have been very easy for him to simply give Lekgotla the amount of R20, 000.00 which he regards as mere pocket money. There would have been no need to arrange for the money to be collected on another day, even if it was under the pretext that it was meant for cattle. He further mentioned that accused number 4 would mostly wash his motor vehicle at his place as he has a steam washer and a vacuum cleaner.

470.         Mr Steynberg put it to accused number 5 that his instruction from accused number 4 is that on 3 September 2016 he had a telephonic conversation with accused number 5 to borrow his motor vehicle to drive to Kimberley. Accused number 5 indicated that that statement is correct because on the day of his arrest, accused number 4 was in possession of his motor vehicle.

471.         Kgomotso Vicky Olyn testified as a witness for accused number 5. He is currently unemployed. During August 2016 he worked for accused number 5 as a supervisor at Idwala mine in Danielskuil. His duties entailed supervising the employees he worked with and submit reports to accused number 5. He served him for six years. Besides his employment he served with accused number 5 as ministers in the same church. He testified that the mine company used to conduct training at least on a Thursday and Friday every month. The regular training is for mine workers. During August 2016 the training was held on the 12^th and the 15^th.

472.         The training held on the 18^th at the Red Club was meant for the truckers at the mine only. The miner informed him of the training and asked him if there were any of accused number 5’s employees who were going to attend. He personally did not attend the training. Accused number 5 phoned him and reported that the miner informed him that there was a belt that burnt and he was looking for people to attend to it. His recollection is that the training of the 18^th took place in the morning. He cannot comment on the evidence of accused number 2 that the training did not take place as he was personally not there and he never worked with accused number 2. He also did not assist to arrange for the training and was never requested to assist.

473.         The next witness called was Makamelo Legodu, a 22 years old son of accused number 5. He was in grade 10 in the year 2016. He owned a City Golf bought by his father. He did not have a driver’s licence. He at times used to drive it to school. On the 16 August 2016 he drove it to attend his cousin’s birthday party. He does not remember if he drove the motor vehicle the following day. He never assisted his father in his transport business. He remembers one day, a date he cannot remember, his uncle came to him and requested to use his City Golf as it was a small vehicle, to pick up people from the mine in Lime Acres. Because of the past experience of his uncle claiming to have been sent by his father to use his vehicle when it was not the case, he decided to travel with him to ensure that he is going to the right place. His father did not tell him of this arrangement. As they were travelling along one of the streets, they came across accused number 5 who was walking alone. He stopped the vehicle and left the two with his motor vehicle. He does not know what happened thereafter. That concluded his evidence and the case for accused number 5.

 

THE CASE FOR THE PROSECUTION

474.         As pointed out a lot of evidence had to be presented as a result of the stance taken by the accuseds in the conduct of their defence. Some of the evidence proved unnecessary as it was not seriously or at all challenged as well as the ultimate admissions made by the accuseds, albeit late, at the conclusion of the State’s case. In summary, the following facts have been proven and or are not disputed: that the deceased Baaitjie received a massage on his phone inviting him to a meeting at Kolomela Hub where at a tender to the value of R800 000.00 was to be discussed and awarded to him on condition that he pays R80 000.00 as a kick back. The message was sent through the suspect number at about 14h00; the said cell phone SIM card was obtained from the cell phone shop of Mr Alie in Danielskuil. The handset used to send the message is a Nokia N70 owned by accused number 3. Baaitjie travelled with the deceased Jeffrey Nouse to the said meeting in a Ford Ranger van belonging to Baaitjie. From Kolomela Hub Baaitjie was called by Lekgotla telling him to go to the open area next to the school. At the school Nouse was attacked and badly injured by being shot at close range by persons who were in the company of Lekgotla. Baaitjie ran away and was caught, subdued and placed in a boot of a Jetta motor vehicle which was driven on the road leading to Groenwater. Along the way Baaitjie managed to escape from the boot and fell on to the tarred road. He was removed from the tarred road part to the gravel part / tarmac. He was shot on the back of the head and died there and then. A fired bullet was found on the ground on which his head lay face down. Nouse was taken to Robert Sobukwe hospital where he later died of his wounds on 23 August 2016.

475.         The evidence has revealed the acussed number one and Lekgotla drove from Kuruman to Danieskuil in a Jetta provided by accused number 1. Lekgotla and accused number 1 picked up two male persons in Danielskuil and travelled with them to Postmasburg. The two are the ones who attacked and injured and ultimately killed Baaitjie and Nouse. Other than their identity being disputed, no suggestion was made that they are the attackers. At least on Lekgotla’s version the two attackers were left at the scene on the road to Groenwater.

476.         What is left for determination based on the evidence presented is who is the person who obtained the cell phone SIM card that sent the message to Baaitjie; who are the two persons who were picked up in Danielskuil and travelled to Postmasburg and killed the deceaseds. The determination of these issues will also lead to the determination of other aspects related to the case. First, some remarks on the witnesses whose evidence is relevant to the issues for determination.

477.         The key witness for the state turned out to be Colonel Louwrens. He is an investigating officer with vast experience, especially with regard to murder and robbery cases. He utilised cell phone information in his investigations for more than 20 years. Based on his experience, the manner in which he prepared and presented his analysis of the information or data contained in the cell phone billing records, qualifies him as an expert in that regard[74].

478.         He only became involved in the investigations on 18 August 2016 at around 10h50 when he was instructed to go to Postmasburg by his senior officer, Brigadier Mafalala.[75] Right throughout the trial an attempt was made to suggest that Colonel Louwrens imposed himself for some unknown reason on this investigation. This was specifically suggested by accused number 3. There is no substance to these vague and unsubstantiated allegations. Colonel Louwrens’ ulterior motive in imposing himself in the investigations seems to lie in the unsubstantiated and gratuitous allegation that he hated accused number 3. If anything, the state should be commended for utilising its most effective personnel resources in the investigation of these offences.  Upon his arrival in Postmasburg, Colonel Louwrens proceeded with the investigation in a systematic way and followed almost every lead that later proved vital.

479.         Colonel Louwrens’ evidence in some of the material aspects is that of a single witness and must be approached with caution. I have already referred to the authorities as to how the evidence of a single witness should be approached and treated and that is the approach I have adopted. He presented his evidence in a clear and satisfactory manner. He answered all questions put to him in satisfactorily. I found him to be a fair and honest witness. He also conducted his investigations of this case in a fair manner with no intention to trump any of the accuseds’ rights. He was subjected to a lengthy cross-examination by all the legal representative to test his evidence. He remained steadfast in his narrative of the events and was unshaken and not discredited. His evidence was consistent with uncontested facts, objective facts and is also supported by evidence in dispute implicating the accused.

480.         Lekgotla testified as a witness in terms of section 204 of the Act. His evidence must be approached with due caution on two fronts: as a single witness and as an accomplice. He was a particularly good witness. He gave his evidence in a clear and unambiguous manner. He was cross-examined at length by the legal representatives of all the accused, but his evidence was not discredited at all on the material aspects. His evidence does not stand alone. His evidence is corroborated by evidence which is in dispute and which clearly implicates the accused. His evidence is corroborated by circumstantial evidence. His evidence is further corroborated by the mendacity of all of the accused.  It is a striking feature of his evidence that he implicates persons who are in close association with each other. This is so, even though it is common cause that he had no knowledge of the association between accused numbers 2, 3, 4, and 5 before the relevant time. This aspect gives him no chance of fabricating a case in such detail, of people unknown to him, covering their day to day activities which are only privy to themselves.

481.         Furthermore, it is significant how his evidence aligns with the objective cell phone evidence and medical evidence. This cannot be a coincidence. These two objective facts conclusively confirm his honesty and reliability as a witness. He was able to answer questions which heavily implicated him in the commission of the crimes under consideration in an honest and frank manner. There is no reasonable basis to doubt that Lekgotla made a decision to approach the police even before receiving the call from Colonel Louwrens. The fact that Colonel Louwrens was on his trail does not negate the fact that Lekgotla went to the police in the full expectation of being arrested. His attorney must have told him that he is to be arrested[76]. Lekgotla was honest enough in admitting that he initially lied to Colonel Louwrens. His explanation that this was done as a result of the legal advice he received is not improbable. The important fact is that Lekgotla fully cooperated with the police after the initial lie and that everything he told the police thereafter, aligned with the rest of the objective facts and the evidence.[77] The honesty of Lekgotla as a witness is illustrated by his evidence where he conceded, completely on his own accord, that he only recognised accused number 2 “a little bit” on the 3^rd September 2016 when he was in Danielskuil to meet accused number 4. He was however, able to identify him at the Identification Parade.

482.          He identified accused number 2 because he had ample opportunity for the identification of accused 2 as well as accused number 3 on 17 August 2016. It was still light when Lekgotla met accused numbers 2 and 3 in Sloja. They had conversation which would have afforded the opportunity to identify a person. He also identified the voice of accused number 3 as the voice of the person he spoke with earlier that day. He also identified accused number 3 as the person on the election posters of the ANC. Lekgotla also had additional opportunities to observe accused number 2 on the way to Postmasburg, in Postmasburg and even after they left Postmasburg.

483.         The witnesses, Hilda du Plessis, Tsholanang Golele, Petro Heyneke and Francois Moller can be regarded as experts in their field. Their expertise was never seriously disputed and no evidence was led to rebut their evidence. I am mindful of the fact that during the cross-examination of all these witnesses on behalf of accused number 5 reference to some articles from unknown sources was made and terms like “ducting” which was never properly explained was made. Both Du Plessis and Golele explained how the cell phone network and towers are installed and configured in South Africa. Their explanation made sense and was based on sound reasoning. Nothing was placed on record or no tangible and admissible evidence was tendered to contradict their evidence and respective conclusions that coincided on those aspects. The evidence of the cell phone expert from the MTN service provider, was formally admitted without any dispute to the information contained in the relevant billings (Exhibit CCC). In my view, very little was in dispute as far as the information contained in the cell phone billings are concerned. Mostly, the attack boiled down to bold and selective denials, particularly on aspects that implicated the accused.

484.         Mr Cloete, on behalf of the state correctly conceded that the evidence shows that the kidnapping was part of a continuous criminal transaction aimed at killing Baaitjie. A conviction on the charge of kidnapping would be a duplication of the charge of murder. The State therefore, did not be argue for a conviction on the kidnapping charge.

485.         I need to mention that throughout the trial I adopted an unprecedented approach of allowing several interruptions during cross-examination of the state witnesses and the evidence in-chief of the accused and defence witnesses for counsel to obtain full and further instructions from their clients. Some of the interruptions were encouraged by me and counsel took advantage thereof to consult their clients to establish if there was anything they left out. The reason for my approach was to ensure that the accused are given full opportunity to instruct their legal representatives and nothing is left out.  I was also of the view that doing so will eliminate instances where counsel is blamed for not putting an aspect to a witness. Despite my patient and tolerant approach counsel could not escape blame on some aspects.

486.         The cell phone records and data used in casu, was obtained in terms of section 205 of the Act.[78] Colonel Louwrens, Magistrate Terblanche and several witnesses from the cell phone service providers confirmed the procedure that was followed to obtain these records. I am therefore satisfied that the State has proven that the information was properly and lawfully obtained. The only challenge to how the information was obtained came from accused number 3 only and his contentions have been covered by the evidence. More will be said on this aspect later in the judgment.

487.         Section 15 of Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) provides for and regulates the admissibility and evidential weight of data messages. It was not in dispute that the information that appears on the detailed cell phone billings (as reflected in Exhibit R) represents electronic representations data and data messages as contemplated in ECTA. Evidence relating to cell phone activities and records kept by the service providers in terms of legislation constitutes circumstantial evidence. In assessing the cell phone evidence, the Court should approach the evidence not on a piece-meal basis. By that is meant that the evidence should not be treated as individual pieces of evidence and be considered individually in determining whether it excludes the reasonable possibility that the explanations given by the accused are true. This evidence needs to be considered in its totality.[79]

488.         Before dealing with the case for each accused I may mention that the evidence presented by the accused, individually and collectively, was extremely weak and obviously mendacious. This was partly because they had a mammoth task of having to explain what was difficult to explain. They therefore had to resort to being creative in their versions, making unfounded allegations, vague assertions, far-fetched conspiracies and even direct and indirect threats at times aimed at diverting the relevant issues under consideration. The evidence is also riddled with improbabilities. It became obvious that the association between the different accused continued in their efforts to mislead the Court. In this regard, accused numbers 2, 3, 4 and 5 found a willing partner in accused number 1. This aspect will be highlighted in my consideration of the cases of each accused.

 

The case against Accused 1

489.         Mr Els on behalf of accused number 1 submitted that his version as to his actions is reasonably possibly true and should be found not guilty on all the charges. He contended that Lekgotla and Colonel Louwrens’ evidence relating to accused number 1 is of a single witnesses; that Lekgotla lied to Colonel Louwrens about the R6000.00 promised to accused number 1; the reason for driving to Kuruman from the murder scene via Postmasburg is improbable because it is not the shortest route from where they were to Kuruman; that driving via Postmasburg placed them at the risk of being arrested and that the only reasonable conclusion is that Lekgotla was alone in the Jetta and had to drive via Postmasburg to pick up accused number 1 where, on his version, they left him. It was further argued that Lekgotla struggled to answer simple questions when confronted with detail, for example how many occasions he met accused number 1 on 17 August 2016; not being honest about his communication with Nkwe who should have been called as a witness for the State; that since Lekgotla did not know accused number 1 is highly unlikely that he would include someone not close to him in the commission of offences like these; that for Colonel Louwrens to have mistakenly mentioned at the bail application that accused number 1 destroyed the holster could only have come from Lekgotla.

490.          Lekgotla testified how he came to know accused number 1 and how he got him involved in the case. One can simply conclude that in the circumstances of the case accused number 1 would not have been involved had it not been for Lekgotla. He did not know any of the accused and there is no possibility that he would have had any contact with them, but for Lekgotla. I do not understand why accused number 1 did not exploit this situation to his benefit by coming clean and play open cards. It is a lost opportunity. Lekgotla’s account of his involvement was not at all exaggerated. It depicted accused number 1 as someone who was only to provide transport up to a point initially agreed to, and not be part of the attack of the targets.

491.         As I understand accused number 1’s case, he blames Lekgotla for falsely implicating him in crimes that he did not commit or see being committed. It may have been easier for accused number 1 to blame Lekgotla for placing him in the company of people who ultimately made him part of their criminal activity rather than blame Lekgotla for lying in Court about crimes he did not commit or see committed. The latter would not have required any creativity on his part and would have been in line with Lekgotla’s version as supported by circumstantial evidence and objective facts.

492.         What complicates his case is his conduct and lack of an independent narration of what happened. He admitted his involvement with Lekgotla from Kuruman up until Postmasburg, for different reasons and circumstances. He denies ever being involved in the case. His evidence must be measured against that of Lekgotla, the circumstantial evidence and the common cause facts.

493.         Lekgotla gave his version as to the participation of accused number 1 on what transpired on 17 August 2016. Accused number 1 arranged the transport from his girlfriend. Lekgotla involved him because what he knew was that the two were to receive a substantial amount of money by merely dropping the accused number 4 and whoever was to accompany him at a particular spot and later return them to Postmasburg. This answers the question why he involved accused number 1. In his mind they were not to commit any offence. The carrot dangled at them, the R20 000.00 was enticing to both of them too good to refuse.

494.         The evidence clearly shows that accused number 1 must have known that something illegal is afoot when they left Kuruman. He would have known that R20, 000.00 is far too much to be paid for an innocent trip to Danielskuil and back. He must have known that somebody is likely to be killed after the conversation with accused number 3 in Sloja, especially after the firearm was given to accused number 2.

495.         Accused number 1 was in a position to see the targeted victims when they parked next to the graveyard around Kolonel Hub. There was already a suggestion that Baaitjie be attacked there and there. He was present when alternative arrangements were made to lure the target to a more convenient spot. He voluntarily approached Baaitjie and Nouse at the parking area in Postmasburg to divert their attention from the attackers, accused numbers 2 and 4. He drove the vehicle to the place where Baaitjie was captured and loaded in the boot.

496.         Accused number 1 drove off with Baaitjie in the boot at a high speed. When Baaitjie got out of the boot, he agreed to stop the Jetta, turned around and drove to where Baaitjie was on the tar road. He moved the vehicle further on so that the headlamps should not shine on him to alert any passer-by. He enabled accused numbers 2 and 4 to get out of the Jetta and to kill Baaitjie. The explanation by Lekgotla that from the scene where Baaitjie was ultimately killed, they drove via Postmasburg is not improbable. They had to act very fast to flee the scene with no time to think and reason as to which one would be the shortest route to Kuruman. The same route would ultimately take them to Kuruman. They could not have thought of the risk of being arrested if they travelled via Postmasburg because it never occurred to them that they have been seen or followed by anyone. It is only a realm of speculation as to what could have happened or not. It is a fact that the Jetta travelled via Postmasburg and was not stopped or pursued by anyone. This fact is confirmed by accused number 1. There is therefore no need to speculate on this aspect.

497.         Accused number 1 cleaned the Jetta in Kuruman. He flushed the cartridge. Colonel Louwrens testified that accused number 1 tried to mislead him as to the whereabouts of the Jetta. Calling the other police officers present at the time of his arrest and questioning, would in my view, not take the matter any further given the fact that Colonel Louwrens was cross-examined on this aspect and nothing came out of it. Accused number 1 informed Colonel Louwrens that somebody was placed in the boot of the Jetta. This admission confirmed the evidence of Lekgotla that he was at the scene of the killings. It is common cause that he had the vehicle washed on 18 August 2016. He attempted to contact accused number 4 later the night of 17 August 2016.

498.         Accused number 1 also received a call from the cell phone of accused number 5 that same night. Although accused number 4 claims that he made that particular call and denied that accused number 1 was the recipient of the call, his reasons for making the call and the circumstances under which the call was made are farfetched and do not make sense. It is such a coincidence that late at night accused number 5 suddenly appears and meets him in the street on his way home from the lounge. He then borrows his phone to call an unknown number. A big coincidence is that the person who answers the call says he is Tiro Lekgotla. The appetite to return the call ends there and he drops the call without even telling the person he called who he is. His version as to the two calls is so improbable that it falls to be dismissed as false. The negative aspect of this lie suggests that they had something to do with Lekgotla. There would have been no reason for Lekgotla, on their version, to want to speak to accused number 4 who cheated/knocked him of his diamond.

499.         There was also no reason for Lekgotla to borrow the cell phone of accused number 1. Lekgotla had his own phones available to make or receive those calls. The uncontested evidence has shown that Lekgotla used his own phones to make contact with accused number 4, even after 17 August 2016. Furthermore, Lekgotla would not have called the number of a cell phone which was in his own possession[80]. This aspect could not be explained by accused number 1.

 

500.         This evidence shows that accused number 1 continued an association with the rest of the accused even after the incident in Postmasburg. This conclusion is fortified by the fact that accused number 1 lied during his bail application and even during the trial to protect accused numbers 2 and 4. He clearly wanted to create the impression that it was not accused numbers 2 and 4 who went with him and Lekgotla to Postmasburg[81]. This aspect, like many others I will refer to later, is highly improbable. Firstly, he corroborates Lekgotla that two male persons were picked up in Danielskuil and the four of them travelled to Postmasburg. It is highly improbable that two male persons would get into his car without looking at their faces. He would travel such a long distance without trying to see who they are, how they looked like. He had sufficient time to see and identify these people. In his version Lekgotla was always speaking on the phone and that never got him interested or worried what was said. The Afrikaans language that he claims not to hear and understand was spoken, without worrying him. Not even a single word he could pick up as he claims. It would take a great deal of effort and skill to successfully suppress a natural instinct of curiosity in these circumstances. It is surprising that accused number 1 lived in Kimberley and Kuruman for so many years, on his version, and yet he could not pick up or understand a single word spoken in Afrikaans by Lekgotla. He now says he understands some Afrikaans words since his arrest.

501.         The ongoing association between accused number 1 and his co-accused is also reflected by his refusal to admit that they met accused number 3 in Sloja. His version is that they waited at the crossing, and the sole purpose of going to Sloja was for Lekgotla to buy airtime. He allows this delay to happen despite the fact that he decided to assist Lekgotla in a hurry and had to return to Kuruman to meet his visitors who were on their way from Pretoria. He also allows Lekgotla to delay his plans by spending a long time inside the tuck shop and to further to stand idle with someone without warning him that he is delaying him unnecessarily. It does not worry him that they are only there to pick up people and transport them to Kuruman.

502.         There were several contradictions between accused number 1’s version in this Court and what was placed before the Magistrate court during the bail proceedings.  The most significant of these highlighted by the State was his knowledge that they were to go to Postmasburg when they left Kuruman on 17 August 2016. When these contradictions were pointed out to him in cross-examination, he blamed his legal representative at the time, Mr. Mosala[82]. There are also numerous examples of where his evidence differed from what was put to the state witnesses in cross-examination or where his version was never put to the state witnesses in cross-examination. For this he blamed his legal representative, Mr. Els[83].

503.         He painted a picture of Lekgotla being of such bad character and who freely and boastfully volunteered information about his criminal activities, unsolicited. He testified that he met Lekgotla very briefly at a restaurant in Kuruman for the first time. Thereafter, they met at a park in Kuruman. He was prepared to accept a stone (probably a diamond) from Lekgotla and took it to his girlfriend’s house, where it remained for some days before it was returned. He also testified that on 16 August 2016 he met Lekgotla again who voluntarily informed him that he was involved in fraud involving dealing in unlicensed firearms at his workplace, and that he was about to commit a robbery at a farm in Reivilo. When these issues were raised in cross-examination he could not explain why he wanted to associate with such a person and eventually, he said he did not take things he said seriously. If Lekgotla was indeed of such bad character and volunteering his criminal activities, it would not make sense for him to suddenly withhold the plan to go to Postmasburg to commit crime from accused number 1. It boggles the mind why he decided to mention them in Court if he did not take them serious.

504.         Accused number 1 was determined to present Lekgotla in a bad light even after the commission of these offences. He testified that Lekgotla told him that a person was killed in Kuruman and he provided the firearm that killed that person. The relevance of this information to these proceedings was never disclosed. It was however, interesting to later hear the evidence of accused number 4 involving Lekgotla in illicit diamond dealing as motive for falsely implicating him in these offences. This clearly showed how the accused attempted to align their false versions[84].

505.         Accused number 1 was unable to explain why he arranged transport for Lekgotla. His reference to a certain person with the name of “Gauteng” was clearly a fiction. He could also not explain why he did not think that the two persons who had to be transported from Danielskuil, were not the farm robbers from Gauteng that Lekgotla was boasting about to rob in Reivilo[85]. He gave an exceptionally detailed version of events in his evidence in chief. The tiniest detail was mentioned. When he was cross-examined about what has happened in Danielskuil he was not able to give any significant detail. He even conceded that his “brain must have shut down”. This was a clear effort to distance himself from what happened in Danielskuil and also to protect accused numbers 2, 3 and 4. He even went to the extent of telling the Court that he did not introduce himself to the two persons who were picked up in Danielskuil and that he never spoke to them[86]. To remove himself from the Jetta and conversations taking place there, he suddenly goes and buy himself a sandwich. He does not even offer same to his companion from Kuruman. This version sounds highly improbable.

506.         He could not explain why he was prepared to go along with the sudden change of plan to divert to Postmasburg. This, in light of the fact that he expected visitors from Pretoria[87]. It does not make sense that Lekgotla says to him that he should now pick up the people in Postmasburg, and yet he does not go there, instead he goes to Sloja and also at the crossing, and worse still he loads two passengers, without being questioned by the person entrusted with the Jetta. He could not explain why he was prepared to make the vehicle of his girlfriend available to a person like Lekgotla who voluntarily disclosed his bad character to him. Lekgotla presented himself as a criminal to him. These are the facts that should have occupied his mind before he could think of approaching his girlfriend for her car. It is improbable that he would approach his girlfriend and tell her that a stranger to her is borrowing her motor vehicle. The State’s contention that the Jetta was used, because of the fact that accused number 1 had personalised number plates on his own vehicles and that sometimes it does not “pay to advertise” is meritorious[88].

507.         It is also improbable that he would get out of the Jetta in Postmasburg with the sole intention of buying beer and then left his cell phone and wallet in the vehicle.  Even more so, considering the fact that when he was reunited with his once neglected wallet, he decided not to buy any beer.[89] His thirst for beer was suddenly quenched by drought and loneliness.

508.         He did not seriously confront Lekgotla after the Jetta was returned to him in Postmasburg. This, notwithstanding his version that Lekgotla was leading him along all day. It is doubtful that any confrontation took place.[90] He again contradicts his evidence in chief where he gave the impression that when Lekgotla arrived with the Jetta he got onto the passenger seat, scrolled his phone and noticed missed calls from his girlfriend and immediately ordered Lekgotla to the passenger seat and took over the driving. On this version, it does not make sense to get angry at Lekgotla as he is not the one who caused him to leave his phone in the motor vehicle. It appears that it is not Lekgotla’s delay that made him angry, but the fact that he missed his girlfriend’s calls which he would have had the opportunity to take them had he not left his phone in the Jetta.  Furthermore, considering this aspect, it does not make sense for him to be angry if Lekgotla left for a minimum of 30 minutes when he did not know where and how far Lekgotla went to. On his version he gave him permission to go and drop those people at an agreed additional fee of R1 000.00. His attempt to remove himself from the Jetta in Postmasburg is illogical by all accounts, and is clearly unsustainable.

509.         Accused number 1 admits that reference was made to blood on the Jetta after their return to Kuruman. He testified that he did not pay much attention to that and that he did not see it. This is clearly improbable, considering the fact that it was the vehicle of his girlfriend[91]. Accused number 1 wants the Court to believe that even though he saw a live bullet and an empty holster in the Jetta on 18 August 2016, it did not raise any suspicion, even when he knew what kind of person was Lekgotla. This, in light of the fact that there was reference to blood in the Jetta the previous night. He also testified that he did not confront Lekgotla about this[92]. This evidence is so improbable that it cannot be true. It also became clear under cross-examination that his instructions to his legal representative as to the transportation of meat in the Jetta was designed to provide a false explanation for the blood of Baaitjie which was found in the Jetta[93].  Otherwise it does not make sense why he should disclose that he at times transports meat, exclusively, in his motor vehicle when it has no bearing in this case.

510.         It is improbable that he would check up on the visitors from Gauteng in Mothibistad when he could have phoned them from Kuruman. This version needs to be considered in light of the fact that Lekgotla testified that he left accused number 1 at the house of his girlfriend. He participated in two ceremonies with traditional healers. His evidence relating to the cleansing or ritualising of the Jetta in the presence and at the instance of Lekgotla is not corroborated by his witness, Solly Chauke. It may be accepted that accused number 1 had the Jetta cleansed or ritualised, but that it was done on his own accord and this was necessary because he was complicit in the killings of Baaitjie and Nouse.[94] As a matter of fact, according to Lekgotla, consulting a traditional healer to check what happened to them, was discussed on their return to Kuruman. Under normal circumstances, they should have been shocked by what happened especially if they were not supposed to have been part of the attack.

511.         Accused number 1 confirmed that he contacted Lekgotla after 17 August 2016 and that money was discussed. An amount of R6,000.00 was mentioned. This confirms that he was still expecting his cut of the R20,000.00[95].

512.         It is highly improbable that he heard nothing of the killings of Baaitjie and Nouse given the amount of media coverage which followed the events of 17 August 2016[96].  He was prepared to accuse the lead prosecutor of “changing evidence” without any basis for such an accusation. This became a theme which repeated itself in the evidence of some of the other accused as well. It represents a telling illustration of how the accused were prepared to lie in order to align their versions[97]. According to his evidence, Lekgotla was nothing but a nuisance and bother in his life. He could not give any explanation why he was prepared to allow himself to be run by Lekgotla who he dismissed of not being afraid of him when asked in court.[98]

513.         According to his version Lekgotla owed him more than R1, 000.00 but only demanded R1, 000.00 from him. When confronted about this aspect, he gave the answer that he only needed a R1, 000.00 to “get drunk”[99]. This version is not reasonably possibly true as discussed above.

514.         In my view the State has succeeded to prove that accused number 1 joined in with the other accused and actively participated in the killing on Baaitjie and Nouse.  His liability is based on the fact that he is a co-perpetrator, he became part of the agreement to kill in Danielskuil and his actions also complies with liability on the basis of common purpose. His version is false and stands to be rejected. The State has not succeeded in proving counts four and five against him. It cannot be concluded on the evidence presented that he was in possession of the firearm and ammunition or that he had any such intention either on his own, with or through his co-accused.

 

The case against Accused 2

515.         On behalf of accused number 2 Mr Setouto submitted that the state has failed to prove the guilt of the accused beyond a reasonable doubt and that his version is reasonably possibly true and should be acquitted on all the charges against him. He also contended that Lekgotla is a single witness regarding the trip to Postmasburg and as to the murders of Baaitjie and Nouse. Referring to section 204 of the Act, he submitted that his evidence is not satisfactory in all material respect and lacked corroboration.[100] He further submitted that his evidence must further be approached with caution because he is an accomplice.[101] He argued that Lekgotla’s story is riddled with inconsistencies and should not be accepted without any corroboration.

516.         Mr Setouto contended further that the manner and circumstances under which accused number 2 was identified were unfair to him. Lekgotla, he submitted, just went there to rubberstamp the identity of a person he already saw because the case was largely covered by both electronic and print media; that the police also took a picture of accused number 2 on 22 August 2016 at the Postmasburg court and that identification parade was in breach of the rules prescribed in section 37 of the Act in that Lekgotla was left in the company of people who are not in the employ of the police services.

517.         With regard to accused number 2’s defence of alibi, namely that he was at all times in Danielskuil and never went to Postmasburg, it was contended that he is to some extent corroborated by the evidence of the Kaleche couple who mentioned under cross examination that they cannot exclude the possibility that he left their place at around 7pm to 8pm.

518.         Lekgotla testified that accused number 2 was one of the two assassins. The cell phone was given to him and he clearly knew that this was the cell phone which was used earlier that day to contact Baaitjie. He was eager to have Baaitjie killed already at the Kolomela Hub. This means that he was not surprised by seeing Nouse at the Kolomela Hub and in no way did this fact divert him and accused number 4 from their mission to kill Baaitjie. By luring Baaitjie to a more convenient spot for the attack despite his company, Nouse was immediately included as someone to be killed if needs be. No attempt was made to remind Baaitjie that he must come alone as initially planned as an attempt to spare Nouse of his life.

519.         Accused number 2 played a contributory leading role by instructing Lekgotla to communicate with Baaitjie on the cell phone. At the parking area, he remained with accused number 4 when Lekgotla and accused number 1 approached the two deceased, clearly aligning himself with the shooter. He assisted in catching Baaitjie and in overcoming his resistance. He assisted in placing Baaitjie in the boot of the Jetta. He instructed accused number 1 as to the route to be taken out of Postmasburg. He urged accused number 4 to shoot Baaitjie whilst Baaitjie was in the boot of the Jetta. He assisted accused number 4 in dragging Baaitjie off the tar road and he was present when Baaitjie was killed.

520.         The fact that Lekgotla was able to identify accused number 2 at the identification parade, confirms the reliability of his identification. The identification parade was properly conducted and nothing untoward happened which could affect the reliability of the identification.[102] The photo album Exhibit AAA illustrates the reliability of the identification parade[103]. The persons who it is contended are not police officers are the members of the witness protection unit who Lekgotla was under their care. There was absolutely nothing wrong with that. On the contrary it added legitimacy to the identification parade process because they had no interest in the outcome of the process. Their only interest was the safety of Lekgotla. similarly, there is no evidence that Lekgotla was ever shown the picture of the person to point out or that his prior knowledge of accused number 2 was from the media. His unchallenged evidence is that he identified accused number 2 as one of the two male persons he travelled with to Postmasburg in the Jetta with accused number 1.

521.         It is tried that the evidence of identification must also be approached with due caution. In S v Mthetwa 1972 (3) SA 766 (A) at 768 the principle was explained as follows:

“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. This depends on various factors, such as lighting, visibility and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused face, voice, built, gait, and dress; the result of identification parades, if any, and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities.”

In this case Lekgotla had ample time to see and be able to identify accused number 2. They travelled together in the same motor vehicle from Danielskuil to Postmasburg. He saw him again on the 3^rd September in Danielskuil. His evidence meets the standard referred to in Mthethwa’s case.

522.         Conclusive corroboration for the evidence of Lekgotla is to be found in the cell phone evidence which places the cell phone of accused number 2 at Postmasburg and Groenwater at the relevant times[104]. The undisputed association of accused number 2 with accused numbers 3, 4 and 5 also provides corroboration for the evidence of Lekgotla. Pamela Plaatje also confirms the evidence of Lekgotla as to what accused number 2 wore on 17 August 2016[105].

523.         There is also undisputed evidence that accused numbers 2 and 3 left the place of Boitumelo Kaleche with the Avanza. This ties in with the evidence of Lekgotla who testified that when he met them they were travelling together in the Avanza. The Kaleche couple conceded that they could not exclude the possibility of accused number 2 leaving their place around 7pm to 9pm was based on the fact that they did not specifically look at the watch/ clock to confirm the time they left. There was nothing special for them to have done so. They mentioned that there was still light when they left. Accused number 2 vaguely says they left between 7pm and 8pm. If his version is to be accepted, then it means there would also have been something special or unusual that would make him to note or check the actual time he left the place. This version is merely created to remove accused numbers 2 and 3 from meeting Lekgotla and accused number 1 at the Jetta.

524.         Accused number 2 presented himself as a dishonest and unreliable witness. His counsel conceded that he was not a good witness in some instances. Where I differ with him is the word “some instances”. He should have said in many material instances. It is remarkable that he was prepared to confirm the correctness of the cell phone billing, except where it implicates him[106]. His version that Warrant Officer Coetzer took his cell phone on 18 August 2016, just to return it later the same day, is so improbable that it should be dismissed as false. It is surprising that he offered no resistance when his phone was politely requested from him. The police had no reason to take his cell phone. It was pointed out that his girlfriend was contacted from that cell phone when it was supposed to be in the possession of the police. [107] His evidence as to how and why Warrant Officer Coetzer took his cell phone is itself confusing. He was unable to present it in a coherent and satisfactory manner. He had to take us back in his evidence in order to accommodate this creation. He mentioned this aspect when he had already testified about having left his home to attend the meeting and busy recruiting other people to attend the alleged meeting in the morning of 17 August 2016. Taking us back to the 17^th was to accommodate the cell phone communications between him and accused number 5 that he had omitted.

525.         Accused number 2’s evidence as to the reason why the phone was taken from him is different from what was put to Colonel Louwrens in cross-examination.  This is significant because this evidence was clearly fabricated to provide an explanation for the fact that the handset of accused number 2, with the SIM card of accused number 3 in it, was used by accused number 4, to contact Lekgotla on 18 August 2016[108]. The implication of this false evidence, read with the false version of accused number 3, is that the police must have stolen the Nokia N70 from the Avanza on 15 August 2016. This notion is clearly ridiculous and defies logic. It does however, illustrates in a striking manner, how entangled the different fabricated versions of the accused had become[109].

526.         It was further pointed out to accused number 2 that the police could not have taken his cell phone on 18 August 2016 because accused number 2 had contact with the same numbers, on other days, which were contacted at the time the phone was supposed to be in the possession of the police[110]. It is clear from the cell phone billing that he did contact “Golo” on 17 August 2016. This evidence was clearly designed to align with the evidence of accused number 3 and is patently false. This evidence was designed to show that accused numbers 2 and 3 were engaged in other activities when they met Lekgotla.  Although accused number 2, in trying to explain the fact that the cell phone billing did not show a call to “Golo”, asserted that the cell phone billing was incorrect, this was never taken up with Golele or Heyneke.[111]  

527.         Accused number 2 went so far in his efforts to protect accused number 3 and generously volunteered a defence for him by testifying that accused number 3 was “scratching his ear” when it is clear on the video footage of the shop that accused number 3 was on a cell phone. However, accused number 3 discredited him by admitting that he was indeed using a cell phone at the time, that allegedly belonged to a certain Larry[112].

528.         He denied bluntly that he was in Postmasburg at 19h30 on 17 August 2016. This denial is made even in light of the damning cell phone evidence[113]. He denied that he wore a coat on 17 August 2016, a serious aspect that was never disputed when Pamela Plaatje testified to that effect[114]. He confirmed that he called accused number 4 at 18h45 and 18h49 on 17 August 2016. This important evidence corresponds with Lekgotla’s evidence that they had to call accused number 4 because he took long to join them at the crossing. He testified that he was in Danielskuil when he called the number 071 850 9434 of accused number 3 at 19h56 on 17 August 2016. The cell phone billing shows that he was in the reception area of Groenwater at the time[115]. The only logical conclusion in the circumstances is that this call was made to inform accused number 3 that accused numbers 2 and 4 were stranded in Groenwater. He obviously knew that he could not call accused number 3 on the number 082 667 6133, because the handset in which this particular number was used, was in the Jetta[116].

529.         The cell phone records reflect communications between accused numbers 2 and 5 after the aforesaid call to accused number 3. It cannot be a mere coincidence that all of his calls to accused number 5 from 19h58 to 20h26 were picked up by the Groenwater towers. Again, even in light of this conclusive evidence, he persisted in his lies that he was in Danielskuil at that time. Lekgotla’s evidence that they left them in Groenwater is corroborated by these calls and the cell phone records of both accused number 2 and accused number 5[117]. It is significant that the cell phone billings show that he and accused number 5 were back in the reception area of Danielskuil more or less at the same time.

530.         It was pointed out to accused number 2 in cross-examination that it is significant that the same people implicated in the evidence of Lekgotla communicated with each other in the middle of the night of 19 August 2016, after being informed that the police were looking for accused number 3[118]. The alleged events of 25 April 2016 and 29 September 2016 were never taken up with Colonel Louwrens when he testified. This evidence of accused number 2 was clearly an afterthought aimed at discrediting Colonel Louwrens[119]. He failed to explain all the “coincidences” of how the “fabricated” evidence of Lekgotla corresponds with the other evidence implicating him[120].

531.         Accused number 2’s version is not only not reasonably possibly true, but is in fact false. It stands to be rejected. The State has succeeded to prove his guilt beyond a reasonable doubt. His liability is based on the fact that he is a co-perpetrator; also that he was clearly part of the conspiracy or prior agreement to kill and his actions also complied with liability on the basis of common purpose. On the fourth and fifth counts the evidence shows that the firearm was in his physical detention at a certain stage.

 

The case against Accused number 3

532.         Mr Buthelezi represented accused number 3 until he concluded his submissions where after his mandate was terminated by accused number 3. He submitted that the state’s version is false and that accused number 3’s version is reasonably possibly true and should be found not guilty and be discharged on all charges against him. He contended that the State failed to prove that accused number 3 had his cell phone in the cell phone shop of Mr Ali and not that of the late Larry; that the State failed to prove that he received a SIM card and not an SD card; that the video recording of the events inside the shop is not authentic; that the deceased Baaitjie  knew accused number 3 and would have recognised his voice and told his wife who called him; that Ms Lebogang Nouse testified that her son Jeffery Nouse told her that Baaitjie  told him that a white man phoned him and that accused number 3 is not a white man, meaning he is not the one who called Baaitjie: that it is not true that Hilda du Plessis from Cell C sent the cell phone records to Colonel Louwrens after hours on 18 August 2016 because the records do not have a date; that Colonel Louwrens had no right to arrest accused number 3 because  Sergeant Moshe testified that they searched for accused number 3 on the afternoon of the 18^th when there was no evidence linking him to the offences; that although Colonel Louwrens did not know who the suspect was in the afternoon of the 18,^th Captain Charlie knew who the suspect was because he caused Exhibit JJ to be  sent to Cell C by Mepi already having the IMEI number of accused number 3’s Nokia N70 cell phone; that Lekgotla ‘s evidence be rejected because he lied to Colonel Louwrens and was evasive and defensive.

533.         Accused number 3 filed two sets of supplementary Heads of Argument in which he personally argued his case. In these documents he repeated and expanded on some of the contentions made by Mr Buthelezi. He also raised a number of issues of evidentiary nature which were not part of the evidence tendered in court; in some instances, he drew conclusions and inferences from such issues which were not presented as evidence during the proceedings. For obvious reasons no reference and reliance shall be placed on the evidential material which is not properly placed before Court. He contended inter alia, that Colonel Louwrens imposed and bulldozed his way into being the investigating officer in the case which was and should have, in his view, rightfully have been investigated by the police in Danielskuil; that there was no reason for the involvement of the HAWKS because there was no political motive established when he was arrested; that the case was in fact politicised by Colonel Louwrens who also together with the lead Prosecutor in this case want to tarnish the image of the ANC; Colonel Louwrens committed fraud by instructing then Captain Ramela to change the date in her statement.

534.         Accused number 3 contended that Lekgotla’s “confession” was not procedurally obtained and was unduly influenced by cell phone records and that Lekgotla’s statement did not comply with “Instructions of the SAPS 3 M”. As pointed out the rest pertain to irrelevant matters and references to evidence which was not tendered and some are baseless accusations. He also repeated matters he spoke about during his evidence in chief, some of which referred to matters not connected to his case, but to his co-accused whose counsel deemed irrelevant and not worthy to raise. It is not necessary to cover each and every contention made by accused number 3 in my analysis as they have been covered by the evidence tendered by the State. His repeated reference to the matters that he does not accept or agree with, without any acceptable reason, does not elevate his contentions to the truth or the correct legal position.

535.         The evidence of Lekgotla implicates accused 3 in the commission of the offences. Together with accused number 4, he communicated with Lekgotla to provide transport for the killings. He provided Lekgotla with the number 062 370 0114, the number which was used solely for their mission. He gave instructions to Lekgotla, accused numbers 1 and 2 in Sloja. He informed Lekgotla as to the motive of the “deal” and also why it was decided that he (accused number 3), would not be joining them for the trip to Postmasburg.

536.         He provided the cell phone which was used to contact Baaitjie in Postmasburg. He obtained the SIM card which was used to lure Baaitjie to Postmasburg. His cell phone was used to lure Baaitjie to Postmasburg. He clearly is the person who sent the SMS as per Exhibit K. The contents of the SMS show that he foresaw the possibility that Baaitjie would bring someone along and instructed him not to do so. Interestingly, Mr X made repeated references to the fact that there was a possibility that there might be two persons instead of one, and that provision should be made to cater for such an eventuality. Accused number 3 was a prominent member and official of the political party, and if evidence of the recording of 3 September 2016, is found credible and that Mr X is in fact accused number 5 speaking, he stood to gain politically from the death of Baaitjie.

537.         He is a known associate of accused numbers 2, 4 and 5 who are also implicated by the evidence as being complicit in the deaths of Baaitjie and Nouse as a collective. His SIM card was used in the handset of accused number 2 and contacted Lekgotla on 18 August 2016. He is placed, with accused number 2, in the Avanza more or less at the time when Lekgotla testified that he met them in Sloja. Dustin Moses testified that he drove passed the house of Baaitjie not long after Baaitjie left for Postmasburg. This evidence of Dustin Moses is significant because Colonel Louwrens happened to know about this aspect before he arrested accused number 3 on 19 August 2016. I doubt that Dustin Moses knew the importance of this aspect at that time. This conduct suggest that he went to establish whether Baaitjie indeed left for Postmasburg. He drove accused number 4, the shooter, to the crossing to board the Jetta. He did not only conspire with the others to kill but played an active role to ensure that the plan is executed.

538.         Accused number 3 was clearly a lying and unreliable witness. He refused to give straight answers to simple questions. He preferred to make long speeches which had no bearing on the questions which were asked. He reverted to wild, irresponsible and unfounded allegations as soon as he was unable to answer questions in cross-examination. It was obvious that he has no respect for the truth and that he is prepared to do anything and say anything to get his way. He came across as an intelligent person who had an idea of court proceedings and little knowledge of legal principles, which if it does not allow itself to be properly guided by someone trained in law will be counterproductive. He presented arguments instead of evidence and went to the extent of arguing the cases of his co-accused, especially where their versions or omission to deal with certain aspects implicated him in the offences. He further resorted to arguing against issues that he distanced himself from and would not accept obvious facts which were common sense. He was at pains to try and search for so-called contradictions in the State witness’s testimony on issues that are not germane to the case and immaterial.

539.         The record is replete with unsatisfactory aspects of his evidence which bear no repetition. His defence is that his Nokia N70 handset was stolen on 15 August 2016 and that he does not know what happened to that phone after 15 August 2016. This means that he could not dispute the fact that his lost phone was used to contact Baaitjie on 17 August 2016. Nevertheless, this did not prevent him from making unsubstantiated assertions as to which SIM card was used in this phone on 17 August 2016[121]. When confronted with the logical explanation of what is seen on page 26 of Exhibit R, he without any basis whatsoever, accused the lead Prosecutor of editing the document or that he should know who added the information on the document[122]. He refused to accept that there was clear evidence as to the number of Nkwe being used in the Nokia N70 handset on page 212 of Exhibit R[123].

540.         Page 26 of Exhibit R is a usage profile of the Nokia N70 handset and shows several cell phone numbers that were used in it in the period under review. His cell phone numbers and those confirmed by accused number 5 as belonging to accused number 3 are implicated. The document was never challenged when Colonel Louwrens and Hilda du Plessis testified. It was only when he testified that he contended that there is no conclusive proof that the suspect cell phone number was used in the Nokia N70 handset. However, he could not explain why this was never raised in the cross-examinations of Colonel Louwrens and Ms du Plessis. He was even prepared to accuse Ms du Plessis of lying, something she was never confronted with these supposed lies when she testified[124]. He blamed his legal representative for not raising the said aspect with the witnesses. He changed his version as to whether he instructed him to raise them or not.

541.         The fact that the suspect number does not appear in the usage profile of the Nokia N70 handset on page 26 of Exhibit R has been satisfactorily explained. The document itself explains that “There is also another Cell C number used with the handset”. Page 22 which is a usage profile for the suspect number clearly specify that it was used in the IMEI 3580018933250 which is the Nokia N70 handset. It was used in the Nokia N70 handset on 17 August 2016 from 09:57 until 19:28. It made and received several calls. It also sent and received messages. To dispose of this aspect, I find that the suspect number was indeed used in the Nokia N70 handset on 17 August 2016 and that it was used as such to send the message to Baaitjie for the meeting at which he was attacked with Nouse.

542.          Accused number 3, took issue with a subpoena in terms of section 205 which was issued to the service provider 8ta. When it was pointed out to him that this should have been raised in the evidence of Colonel Louwrens, because the information was available when Colonel Louwrens testified, he accused the State of not providing this information for purposes of trial. This is another example of an unfounded allegation[125]. When he was confronted with the fact that these issues were not raised with Colonel Louwrens he testified that it was part of the strategy employed by himself and his legal representative not to address all aspects in cross-examination. Later, he contradicted himself by testifying that he did not remember why it was not put to Colonel Louwrens[126]. The contention on behalf of the State that the cross-examination of accused number 3 revealed that he deliberately did not raise certain aspects with the state witnesses because he did not want to give them the opportunity to provide explanations for certain issues is not without basis[127]. His legal representation knows the importance of putting material aspect of an accused person’s case to the witnesses for the state. He could therefore not have advised him to only mention them when he testifies, perhaps as a secret weapon.

543.         He persisted in his unfounded accusations that Colonel Louwrens edited page 22 of Exhibit R, even when it was pointed out to him that it was impossible when taking into account the evidence of Ms du Plessis and Mr Moller that it is impossible to temper with cell phone data provided by the service provider[128]. He even went as far as accusing Colonel Louwrens and Ms du Plessis of colluding in defrauding the Court. He could however, offer no explanation why this was not raised in the cross-examination of Colonel Louwrens and Ms du Plessis[129]. It was explained to him how it was possible for Ms du Plessis to have a CCR number before Colonel Louwrens contacted her. He refused to agree with the logical explanation and rather decided to accuse the State of forging the email, Exhibit JJ[130]. Quite evidently, the process to get call data information was started by Crime Intelligence which came to the scene before Colonel Louwrens was tasked to take the investigation over.

544.         He could give no explanation why his legal representative did not put it to Boitumelo Kaleche that on 17 August 2016 he obtained an SD card and not a SIM card as he testified. This is central to his defence and the lack of cross-examination suggests that the version of the SD card is fabricated[131].  What he ultimately presented to court was not an SD card but its holder or Adapter. It is very clear from the video recording, Exhibit 3 and the still pictures taken from the video recording, Exhibits Magawu 3 and 4, that accused number 3 had an object similar to Exhibit 8 (the string of SIM cards) in his hands. When this was pointed out to him, he bluntly accused the State of intentionally manipulating the images.[132] It is such a coincidence, if he is to be believed, that he allegedly received an SD card at the time when a SIM card that was used in his alleged stolen Nokia N70 handset was sold by the shop owner.

545.         The existence of the Nokia N70 handset is a critical issue in this case. Mr Setouto, who owes a duty to his client to act ethically and act in his interest, cross examined accused number 3 on the said handset. His cross examination revealed that accused number 3 did not go to the cell phone shop to report and search for Nokia N70 handset but for the Samsung handset. He could not extract a satisfactory answer as to why he did not report the loss of the Nokia N70 handset as well, except that accused number 3 thought that he may have merely misplaced it. He also conceded that he does not know what happened to his Nokia N70 handset, it just got missing. He further conceded that according to him after he lost his phone someone proceeded to use it.

546.         Mr Setouto wanted to know from him why his friend, accused number 5 told Colonel Louwrens as appears in Exhibit R, page 34 that he phoned him on his supposed lost SIM card with number ending with 6133 and he answered the call. His response was simply that he did not have the phone in his possession. When further pressed on the issue, he said he cannot comment on accused number 5’s affidavit and he does not know the circumstances under which he made the calls. Mr Setouto pointed out to him that there are several calls between his number and that of Mgcera, former accused number 6, and he never together with accused number 5 and 4 complained that there was someone answering his phone and also phoning them. He mentioned something that was never put to the state witnesses namely, that accused number 4 mentioned to him on 18 August 2016 on their way to court to apply for relaxation of their bail conditions that someone is calling him from accused number 3’s number and he merely noted the report and dismissed it.[133] This was a vital aspect in the version of accused number 3. This was information which could have exonerated him.

547.         Mr Setouto was, expected, concerned that the logic of accused number 3’s version is that accused number 2 should have been the one who had the stolen Nokia N70 handset from 15 August 2016 in his possession because on 18 August 2016 accused number 3 ‘s SIM card for the number ending in 6133 was used in accused number 2’s handset. Accused number 3’s reply was that at the time accused number 2’s phone was taken by the detectives, meaning that the police had in their possession his lost cell phone and SIM card, and inserted his SIM card in accused number 2’s handset. This explanation does not make sense because it would also mean that the police exchanged calls with Mgcera and other accused number 3’s friends using the Nokia N70 handset and the suspect number. Interestingly, on 18 August 2016 the lost 6133 number was used in the same handset used by accused number 2.[134] It is very clear from the evidence that the numbers 082 667 6133 and 062 370 0114 had contact with the numbers of accused numbers 4, 5 and Mgcera after 15 August 2016. His inability to follow up on these leads to the inescapable conclusion that the Nokia N70 handset was in the hands of accused number 3 himself when these calls were made.[135] The trend of accused number 3’s evidence is that it must be accepted that he lost his phone on the 15^th . However, if it is established that accused number 2’s handset used his SIM card on the 18^th, then the phone is placed in the possession of the police. It would also mean that it is the police who sent the message to Baaitjie using accused number 3’s Nokia N70 handset.

548.         The contention by the State that accused number 3’s evidence about the now deceased “Larry” is suspicious has merit. Even more so, when considering that “Larry” was never mentioned when Colonel Louwrens testified.[136] He could not explain why he waited almost two weeks before he reported his stolen Samsung handset[137]. Larry is only placed in the picture to account for his use of the cell phone in the cell phone shop. Strangely, he did not tell Boitumelo about this phone and Larry, and that he must return it to him. He chose to drive to Sloja with Boitumelo and not drop the phone at the police station where Larry was and thereafter proceed to Sloja. This is despite the fact that Larry had phoned him looking for his cell phone. It is one of the mysterious coincidences that Larry would plant a cell phone in the Avanza for accused number 3 who allegedly had no cell phone, at the time, to be recorded using it at the crucial time. This version, given the evidence produced by the cell phone data, the evidence of Boitumelo, the video footage of the events at the shop and the circumstantial evidence as whole, makes his version not to be reasonably possibly true.

549.         When accused number 3 was confronted with the fact that Lekgotla was able to implicate people who were in close association with each other, he suddenly alleged that Colonel Louwrens told Lekgotla what to say.  Once again, this was not something which was raised in the cross-examinations of Colonel Louwrens and Lekgotla.[138] Be that as it may, the motive and reasons advanced for Lekgotla to falsely implicate accused number 2 and 4 differs materially from what he says. Theirs has to do with the illegal sale of diamonds and not Colonel Louwrens. Later he contended that his false implication in the case is aimed at tarnishing the image of the ANC, something which is baseless.

550.         It is in the context of this trial, significant that accused number 3 conceded that Baaitjie was a very strong candidate in Ward 2. He was well liked and respected and the type of candidate which could influence an election towards a particular result. He used to be a member of the ANC.[139]

551.         Accused number 3 accused Colonel Louwrens in his evidence of “scaring people off”, “bulldozing people” and “assaulting people” although this was never raised in the cross-examination of Colonel Louwrens. He was even prepared to accuse the lead Prosecutor of knowing all about it.[140] He came up with a surprising version that accused number 5 did not make the statement as per page 34 of Exhibit R. When he was asked in cross-examination to elaborate on this, he refused to give any more answers on this.[141] Once again, he is making up a case for accused number 5 in order to protect himself from evidence against him.

552.         When he was confronted with Exhibits N and O, he initially refused to answer questions, because he wanted the handwritten notes. This was something which came up for the first time in the trial and did not receive any mention when Colonel Louwrens testified. He also alleged that the latter was angry at him and that they had an argument during the interview. Again, this was never raised when Colonel Louwrens testified.[142] Very important, during this interview, he initially did not tell Colonel Louwrens that his Nokia N70 handset was stolen, but informed Colonel Louwrens that a Mobicel phone was stolen.[143]

553.         Although he disputed the information that accused number 5 paid for his hotel room on 18 August 2016, this was never raised when Colonel Louwrens testified.[144] He bluntly refused to comment on the contents of the SMS, Exhibit K. He rather decided to accuse the State of not following up on leads and of colluding with newspapers.[145] His evidence that the photo as per Exhibit M was not his WhatsApp profile but rather taken from his Facebook page was also something new which was never raised when Louwrens testified.[146] He was prepared to accuse the State of taking the photos as per Magawu 5 and 6 only on 14 August 2019, while it was common cause that these photos were taken before that. This is another example of him saying whatever he wanted to say and without establishing the real facts.[147] The photos do not take his case anywhere because his cell phone number is not disputed and also that he owned the Nokia N70 handset.

554.         Accused number 3 could not explain why someone would steal his phone, go to his contact list and freely phone his friends and acquaintances without any fear of being found out. [148] I seem to understand from accused number 3 that the police are against him and want to see him in trouble. After accusing Colonel Louwrens, Lekgotla, Ms du Plessis and the lead Prosecutor of fabricating evidence against him, he extended the conspiracy against him to the Crime Intelligence unit that allegedly kept him under surveillance and that they must have stolen his phone.[149] It was significant that accused number 4 who he alleged was also under surveillance, did not confirm the incident of the cars being parked next to his yard at night as he alleged.

555.         Accused number 3’s evidence that he was in the presence of accused number 2 when the latter called the cell number 071 850 9434 on 17 August 2016 cannot be true because the cell phone of accused number 2 was according to his cell phone data in the reception area of Groenwater at that time. Accused number 3 was confronted with this fact in cross-examination and dismissed the cell phone evidence as lacking reliability.[150] This was again to ward off evidence implicating him in the offence.

556.         The evidence of Jacobus Koper and Denver Baaitjie did not take the matter any further. [151] On the contrary Denver Baaitjie was accused of being an unreliable witness during his evidence in chief.

557.         I am satisfied that the State has succeeded to prove beyond reasonable doubt that accused number 3 was part of the conspiracy to murder Baaitjie and that he played an active role to ensure that the conspiracy was carried out. His liability is based on the fact that he is a co-perpetrator, but also on the basis of being part of the conspiracy or agreement to kill.

 

The case against Accused 4

558.         Mr Steynberg who appeared on behalf of accused number 4 submitted that the State did not prove its case against his client beyond a reasonable doubt and that his version is reasonably possibly true, entitling him to his acquittal on all charges against him. He contended that Lekgotla did not proceed out of his own accord to report the crimes to Colonel Louwrens. He knew he was in a pickle and then obtained the services of an attorney. He did not report the matter because he felt bad and wanted to play open cards. He firstly tried to protect himself by lying to the police, and when backed into the corner, he turned a section 204 witness, also to save himself.

559.         It was further contended that his statement to the police was not spontaneously made but was based on the cell phone data that Colonel Louwrens had in his possession at the time; that his evidence that he met accused number 4 on 3 September 2016 be rejected because there is no handwriting expert evidence to prove accused number 4’s handwriting on Exhibit UUA; that accused number 4 denied that he is the person depicted in Exhibit WW and Lekgotla confirmed that the picture does not show the tattoo that accused number 4 is having in his hand. It was further argued that the evidence of identification of accused number 4 being in the Avanza by Pamela Plaatje is of a single witness and is of such poor quality that it falls to be rejected. It was lastly submitted that Lekgotla’s evidence has improbabilities making it unclear and unsatisfactory.

560.         The State’s evidence implicated accused number 4 through the evidence of Lekgotla, Colonel Louwrens, call data and Pamela Plaatje.

561.         Accused number 4 is the one who took the initiative to contact Lekgotla on 16 August 2016 to arrange transport for the “deal” to be done in Postmasburg with a DA person. He spoke to Lekgotla several times during the course of 17 August 2016. He brought the pistol which was used in the killings to the Jetta. He showed no surprise when he saw Nouse in the company of Baaitjie in Postmasburg. The sight of Nouse did not divert him from the plan to kill Baaitjie. He overruled accused number 2 when he wanted Baaitjie killed at Kolomela Hub. The only reason that can be inferred for his refusal is that the circumstances were not opportune for the attack. He was not happy about the fact that accused number 2 had been drinking. He killed Nouse without any hesitation, after the attention of both Baaitjie and Nouse was diverted by accused number 1 and Lekgotla. He, with accused number 2, caught Baaitjie, overpowered him and put him in the boot of the Jetta. He fired two shots at Baaitjie after dropping the backrest of the backseat of the Jetta. He alighted from the Jetta and assisted in dragging Baaitjie from the tarred portion of the road. He administered the final headshot to Baaitjie, considering that he boasted about that to Lekgotla the next day.  He also introduced Lekgotla to accused number 5 on 3 September 2016, with a view to assisting Lekgotla to get his money for the transport. He advised him to put pressure on accused number 5 to pay for the transport used to commit the offences and to threaten him that accused number 1 will report the matter to the police if he does not pay. He facilitated payment of the amount of R1000.00, connected to the crimes, to Lekgotla by accused number 5.

562.         Accused number 4 is a supporter of the political party (ANC) which contested the seat that was won by Baaitjie and the DA. According to what is said in the recording in Exhibit 10, the killing of Baaitjie would have benefited the ANC. The person appearing on the still photo as per Exhibit WW bears a striking similarity with accused number 4. It is save to conclude that it is him regard being had to the fact that he was preferred by accused number 5 to wash his motor vehicles; he is the only person that Lekgotla would approach to pay for services rendered; he is the only person that would have connected Lekgotla with accused number 5 and it is only him that Lekgotla knew where he stayed. He is a known associate of accused numbers 2, 3 and 5. He admitted that he called the number of accused number 1 on 17 August 2016 and according to the cell phone billings there was a conversation following upon that call. He together with accused number 2 and 5 showed interest in the case by inter alia organising support for accused number 3 by getting potential witnesses to falsely support his defence of an alibi.

563.         The evidence of accused number 4 was also riddled with inconsistencies, improbabilities, contradictions and blatant lies. According to his own evidence he is involved in illegal diamond dealing. He still wants to tell the court that he respects the law.[152] It is his version that he “knocked” Lekgotla out of R10, 000.00 with an illegal diamond deal and that this is the reason why Lekgotla gave false evidence against him. In fact, he even took this further by saying that this trial would not have taken place if it was not for the fact that he defrauded Lekgotla. It is his case that Lekgotla put the wheels in motion which led to this trial as a result of the actions of accused number 4.  However, he was unable to explain how it then happens that accused numbers 2, 3 and 5 were also involved. He was even less so able to explain how come accused number 1 was involved.[153] Further, why was accused number 3 the first to be arrested, if the reason for false implication had to do with his alleged illegal diamond deal story. Accused number 3 did not know Lekgotla and had not met him before this ordeal.

564.         In his evidence in chief, he testified that the “diamond knock” took place on 10 or 11 August 2016. However, his legal representative put it to Lekgotla that accused number 4 could not remember the date.[154] During cross-examination by the State he could not explain how he was able to dupe Lekgotla with a fake diamond.[155] In attempting to deal with these questions, he came up with new evidence that he bought a fake diamond from a certain “Tshepo”.[156] He testified that Lekgotla called him on either the 15th, the 16th or the 17th of August 2016 for his money so that he could service his vehicle to go to Pretoria. He said that he was unsure about the date. However, his legal representative put the specific date of 16 August 2016 to Lekgotla when Lekgotla testified.[157]

565.         In his evidence he could not remember what he told Lekgotla during this conversation. However, his legal representative put it to Lekgotla that accused number 4 informed Lekgotla that he promised Lekgotla that he would pay him and in so doing, tried “to keep his hopes up”.[158] It is improbable that he would make a debt with “Tshepo” without having had any money to pay “Tshepo” back.[159]

566.         He testified that he communicated with Lekgotla on 10 August 2016. He mentioned that he used his phone, at times used friends and the neighbour’s phone and at times the paid public phone. It was pointed out to him that there was no reason for the communication on 10 August 2016 as the diamond only arrived on 11 August 2016.[160] When it was pointed out to him that there was no communication between him and Lekgotla before 16 August 2016 according to the cell phone billing as per Exhibit R, he suddenly came up with the evidence that Lekgotla had a fifth phone. This is something which he conceded he never discussed with his legal representative.[161] In any event, it was never put to Lekgotla that several calls were made to Lekgotla on 10, 11 and 13 August 2016.[162] These answers can only confirm that the diamond is fictitious.

567.         The story of the diamond knock is something that was created to provide for the reason why there was a sudden communication between accused number 4 and Lekgotla. It was also intended to be used as a motive for false implication. To give some credence to the diamond story, accused number 1 had to mention something about Lekgotla and illegal diamond dealing as well. I say so because accused number 1 provided no reason why he had to mention the diamond story and how was it relevant to this case especially that, according to him, he returned the diamond to Lekgotla through his girlfriend. The diamond story was not well planned by accused number 4. It came as a surprise to him when the prosecution probed the story during cross examination. Accused number 4 had to keep on developing the story further in order to provide answers to the probing questions. There is for example no reason why Tshepo was not introduced during cross-examination of Lekgotla and in the evidence in chief of accused number 4. The involvement of Tshepo in creating a fake diamond at a fee would have made better sense if he was even called to testify.

568.         Accused number 4 had to explain who he was speaking to in a communication he had with a cell number of accused number 3 on 17 August 2016 at 13h35. He mentioned that someone just said “I am not Magawu” and that he dropped the phone. It was pointed out to him that this is not possible because the cell phone billing shows a conversation of 25 seconds.[163] He could also not explain the communications with the same number of accused number 3 during the evening of 15 August 2016.[164]

569.         It was pointed out to him that according to the cell phone billing he was called at more or less the same time by Lekgotla and accused number 2 in the early evening of 17 August 2016.  It was put to him that this ties in with the evidence of Lekgotla that they were waiting for him at the crossing and was delaying to come.[165]  He could give no explanation why he continued to answer calls from Lekgotla after the “diamond knock” and especially why he called Lekgotla on 18 August 2016.[166]

570.          It was pointed out to him that he must have called Lekgotla in the morning of 18 August 2016 from the handset of accused number 2 using the SIM card of accused number 3. This was so because it was never disputed that he had two communications with Lekgotla on 18 August 2016.[167] He also contacted Lekgotla on 19 August 2016. This could only have been to check on Lekgotla’s whereabouts and possibly to inform him that the police were looking for accused number 3.[168]

571.         It is significant that accused number 4 changed his SIM card after the events. He could give no reason for that.[169] It is also surprising that accused number 4 “knocked” Lekgotla and out of nowhere went to the trouble to repay him. The “knock” that he carefully executed had been successful and had achieved his intention.  If he intended to pay him back, why would he only pay him a R1, 000.00 with no concrete arrangement for the payment of the balance of R9 000.00 being made.  This version was clearly designed to provide an explanation for the fact that accused number 5 paid a R1, 000.00 to Lekgotla.[170] It is improbable that Lekgotla would have been prepared to receive only a R1, 000.00 and then had to wait for an unspecified time for the outstanding R9, 000.00.[171] It is also a coincidence that Lekgotla was demanding a refund of R1, 000.00 and he received it from the people he believed they owed him. One must also keep in mind the context in which the payment of the R1, 000.00 was made in the recording between Lekgotla and Mr X.

572.          Accused number 4 could not give an acceptable explanation for showing Lekgotla his CCMA documents. This version was designed to provide an explanation for the evidence of Lekgotla that he saw these documents at the house of accused number 4 on 3 September 2016.[172]

573.         He was not able to explain the fact that he was contacted from the number 062 370 0114 on 17 August 2016.[173] The first call was for 33 seconds and the second one for 18 seconds. He confirmed that accused number 3 never asked him about these calls even after receiving his call data. He is sure that it was not accused number 3 who called him, but at the same time he says it happened a long time ago as such, he does not remember who called him, be it the police or anybody else. This is another example of accused number 4 trying to protect accused number 3 at his personal risk.[174]

574.         The video recording, Exhibit 10, transcript Exhibit XX and the still pictures Exhibits VV and WW, confirms that accused number 4 met with Lekgotla on 3 September 2016. The fact that his new cell number appears on Exhibit UU(a) further confirms this.[175] His denial that he is not the person appearing to be washing the Wildtrak is baseless. He has similar features as the person depicted in the still picture. 

575.         The visit by Lekgotla is also confirmed by the fact that accused number 4 called accused number 5 more or less at the time when Lekgotla testified he was in Danielskuil. Lekgotla’s version that the call was made to establish the whereabouts of accused number 5 to facilitate payment of the money promised is more plausible.

576.         Accused number 4 was able to remember the contents of the conversation he had with accused number 5, but when the prosecution asked about the conversations he had with accused number 5 on 2 September 2016, he could not remember it. This question was posed by the State to demonstrate that accused number 4 fabricated the evidence as to what he and accused number 5 discussed on 3 September 2016, because he could not disclose  to the court that accused number 5 was contacted to set up a meeting with Lekgotla.[176]

577.          Without any basis, accused number 4 also accused Colonel Louwrens of fabricating evidence and alleged that Colonel Louwrens went through the cell phone billing as per Exhibit QQ1 and told Lekgotla what to say. It was pointed out to him that this cell phone billing was obtained years after Lekgotla made his statement with regard to the events of 3 September 2016.[177] Accused number 4 denied that he did volunteer work for the ANC. This was never denied when Colonel Louwrens testified to this effect. This sudden change of his version was designed to align himself with the evidence of accused number 3. [178]

578.         His explanation for the communication between the cell numbers of accused numbers 5 and 1 on 17 August 2016 was clearly false. He testified that he immediately “dropped the call” when he heard it was Lekgotla who answered. However, the cell phone billing shows a conversation of 69 seconds.[179] He contradicts accused number 3 as to the alleged surveillance done by Crime Intelligence.[180] This aspect has been dealt with in more detail in the analysis of accused number 3’s case.

579.         It was pointed out to him that it would have been impossible for Lekgotla to devise a plan to falsely incriminate him from 16 August 2016. Not surprisingly, he could not respond to the logic of what was pointed out to him.[181]  The version of accused number 4 as to the reason for Lekgotla lying about his involvement is completely different to the reason advanced by accused number 3 as discussed above. Their versions are irreconcilable and mutually destructive.[182]

580.         I am satisfied that the State has succeeded to prove the guilt of accused number 4 on the charges against him beyond a reasonable doubt. His liability is based on the fact that he is a perpetrator, and in addition on the basis of being part of the conspiracy or agreement to kill. The evidence show that the firearm and ammunition were in his physical detention.

 

The case against Accused 5

581.         Ms Easthorpe on behalf of accused number 5 also submitted that the State has failed to prove its case against his client beyond a reasonable doubt and should be acquitted on all counts against him. She joined hands with the other legal representatives that Lekgotla is a single witness and an accomplice whose evidence is riddled with discrepancies; he must have been aware that with the amount of money he was promised that he was engaging in illegal activity; he wants the court to believe that he was remorseful and yet he persisted in trying to obtain payment for his part in the murders; he did not spontaneously approach the police but was approached by the police and that he would have been shown cell phone records and in order to exonerate himself, implicated accused number 5.

582.         It was also contended that accused number 5’s version that he was in Lime Acres and not in the immediate vicinity of the cell phone towers of Groenwater and Papkuil on 17 August 2016 be accepted and that the evidence of the experts, Golele and Heyneke cannot be safely relied upon. She mentioned that they did not explain the capacity of towers to receive the maximum number of calls and the implication thereof should there be a higher number of calls received; and that they had no knowledge of what the phenomenon of “ducting” meant and could not explain that to the Court.

583.         Regarding the meeting of 3 September 2016 and recording as per Exhibit 9 she testified that accused number 5’s denial be accepted especially that the recording was made from the cell phones of Lekgotla and not the device provided by the police. She contended that the recording is a fabricated evidence against accused number 5.

584.         Lekgotla testified that he met accused number 5 on 3 September 2016 and that they had a long conversation. The conversation was recorded as per Exhibit 9 and a transcript of the conversation is before the court as Exhibit XX. During this conversation the person said to be accused 5 not only admitted knowledge of the killings of Baaitjie and Nouse, he confirmed that he was part of the planning thereof. He confirmed that he even foresaw the presence of a second person and that provision for this second person to be killed be made so that there should not be an eye witness. He admitted that his pistol was used to kill Baaitjie and Nouse. He promised to pay R20, 000.00 for the part Lekgotla and accused number 1 played. Put differently, he financed the killings. He confirmed that Lekgotla was only there to provide transport. He confirmed that Lekgotla sought cover after the first shot rang out. He could only have received this information from accused numbers 2 and 4. He confirmed that he picked up the assassins at Groenwater. He paid R1, 000.00 to Lekgotla on 23 August 2016. His vehicle was used to take the pistol to the crossing. One of his vehicles was used to transport the shooter, accused number 4, to the crossing. He drove past the house of Baaitjie on 17 August 2016. He was a senior member of the political party who according to him stood to gain by the killing of Baaitjie. This is something he explained to Lekgotla.

585.         He is a known associate of accused numbers 2, 3 and 4. He summoned accused numbers 2 and 3 from the house of Boitumelo Kaleche, in order for them to meet with Lekgotla. This conclusion is not only based on his own evidence and that of accused numbers 2 and 3, but also on the circumstantial evidence presented by the state. The cell phone billing shows that his cell phone was in the reception area of Groenwater at the same time as the cell phone of accused number 2. He could only have gone there to fetch accused numbers 2 and 4 who were left stranded with transport by accused number 1 and Lekgotla. He wrote down his cell number on Exhibit UU(a). Amongst the accused, he was the only person with the financial means to pay R20, 000.00 to Lekgotla. This means that accused number 4 and 3 could not have offered to pay R20, 000.00 without him being part of the arrangement.

586.         Accused number 5 did not do well as a witness. He was evasive. Like his co-accused, he resorted to allegations against the State which had no foundation. He gave long speeches when short answers to simple questions were required. His evidence is also riddled with inconsistencies, improbabilities and contradictions. He confirmed that he was a senior member of the Regional Executive Committee of the ANC and that the main centre of the region is situated in Upington.[183] He confirmed that he would not have struggled to obtain R20, 000.00. He admitted that for him, it was “like pocket money”.[184]

587.         Colonel Louwrens testified that accused number 5 was not a suspect during the early hours of 19 August 2016. This evidence was undisputed. However, during the bail application, accused number 5, falsely and under oath, asserted that he was arrested by Colonel Louwrens on 19 August 2016 and released later. When confronted with this serious contradiction, he blamed his former legal representative, Adv. Nel who told him that once he is being questioned by the police he is under arrest..[185] He confirmed that the Ford Ranger Wildtrak was not in the possession of the police on 3 September 2016 making room that it could have been at accused number 4’s place for washing.[186]

588.         He suddenly disputed that he provided Colonel Louwrens with the information contained in pages 34 and 35 of Exhibit R. He gave long, but unconvincing explanations for this. It is important to note that the evidence of Colonel Louwrens as to the contents of this statement was never disputed. It is further important to note that accused number 5 on 19 August 2016 confirmed that accused number 3 still made use of the cell number 082 667 6133. This is fatal for the case of accused number 3. Accused number 5 had to disown this statement so as to protect accused number 3. His efforts to do so, were unimpressive and unconvincing which says much about his own credibility as a witness.[187] Following upon this, he refused to give a straight answer on whether he spoke with accused 3 on the cell number 082 667 6133 on 17 August 2016.[188] At one stage he admitted that he told Colonel Louwrens that accused number 3 picked up the call made on 17 August 2106 lasting 72 seconds.[189] He later changed that he never told him that; later, he said Colonel Louwrens suggested that or took it from the call register of his phone and did not dispute it. These conflicting versions show how he tried to conceal the truth. He was placed in this predicament among others, by what accused number 3 said, namely that accused number 5 told him “that Colonel Louwrens wrote that statement himself and took his phone.”

589.         It was pointed out to him that he had several conversations with accused number 3’s cell number 082 667 6133 on 16 and 17 August 2016. He said that it was someone other than accused number 3, but he never discussed this with accused number 3.[190] This is so improbable in the context of this case, that it cannot be true. At some stage he mentioned that he can’t remember who he spoke to meaning that he does not exclude accused number 3. He tried by all means to suggest that he at no stage volunteered incriminating evidence against accused number 3 but that it was information taken by Colonel Louwrens as he scrolled his phone and put it in the statement. This is despite the fact that he personally read the statement and signed it. Given his level of experience in life, the manner in which he spoke to his employees in Exhibit XX and the way he performed in Court, he is not the type of person who would accept or sign a statement he does not agree with. His attitude of avoiding to admit that he spoke to accused number 3 on17 August 2016, goes against his evidence that because of his friendship and association with his co-accused excluding accused number 1, they often communicated telephonically and that there is nothing wrong with that. It should have been easy for him to slot this communication within those, rather than deny it, obviously to protect accused number 3.

590.         He confirmed that he still relied on public contracts and that the last contract he received from Kgatelopele Municipality was in 2012.[191] This confirmation contradicts his evidence that public contracts were not important to him and he made his money from private contracts only. He confirmed that the route from Danielskuil to Groenwater would be to pass Owendale and not to drive through Lime Acres.[192]

591.         It was pointed out to him that the cell phone billing supports the information as it appears on pages 11 and 12 of recording 10 of Exhibit XX (where he said he went to Groenwater). He could not provide any explanation for this.[193] Ms Easthorpe tried to create doubt that it is not the closest tower with the strongest signal that would service a cell phone device. She referred to articles by authors and referred to the phenomenon of “ducting”. The expert witnesses, namely Ms Heynecke and Golele explained how the towers are set up in South Africa which is inter alia that the nearest tower should be the one with the strongest signal to service a device. The articles they were asked about were never placed before them to read and even understand the context they referred to. Their evidence on this aspect is unchallenged and is satisfactory. It is also supported by the objective facts on the specific instances of this case. There is no basis for speculation on even unsubstantiated hypothetical scenarios.

592.         The State contended that it is improbable that he would pick up three workers at the mine in Lime Acres with a small Golf vehicle when there are already two adult passengers in the Golf.[194] This contention has merit when one considers the evidence supporting the version that accused number 5 went to Groenwater and not Lime Acres.

593.         Accused number 5’s reason for the sudden and frequent telephonic contact between himself and Accused 2 on 17 August 2016 does not make sense.  He testified that they had to arrange people for induction training the following morning. He could not explain why they waited until the night before the training to recruit people. He could not explain why they recruited people drinking alcohol at taverns while breathalyser tests were to be conducted for entry at the training. His explanation was that it is not everyone who goes to a tavern who consumes alcohol and is unconvincing. It was also pointed out to him that according to accused number 2, the training never took place.[195] I have already referred to the poor quality of accused number 2’s evidence in trying to factor in the reason for these sudden calls between him and accused number 5. It suffices at this stage to mention that if indeed accused number 5 requested accused number 2 to organise more people for the training, one would have expected accused number 2 to be the one calling him only after he has rounded the people he was recruiting and not for accused number 5 to phone him several times at such short intervals and not giving him the freedom and time to recruit. There would not have been anything to report at that stage since accused number 2 was to start recruiting people. As I have indicated, this is a weak attempt to justify these calls against the strong evidence presented by the cell phone call data that he went to Groenwater to fetch accused number 2 and 4. The only reasonable inference is that the calls were made to establish the exact place in Groenwater where accused number 2 and 4 were, to assist them.

594.         It was interesting to hear accused number 5’s response when he was pressed in cross-examination about his unsatisfactory evidence on the training. He urged the lead prosecutor not to insist on ‘milking a cow that has run out of milk as it would ultimately bleed” and that he stands by his previous answer.[196]

595.         The recording as per Exhibit 9 was played in open court. Although accused number 5 denied his presence, the voice of Mr X is clearly recognisable as his voice.[197] The vehicle as per Exhibit VV can only be his Ford Ranger Wildtrak.[198] The evidence tendered already is that accused number 4 was a preferred person to wash his cars and for the van to be there was nothing unusual.

596.         His handwriting on Exhibit UU(a) conclusively confirms that he met Lekgotla on 3 September 2016. He was given the opportunity to provide an explanation for this compelling evidence against him, but failed dismally to explain it.[199]

597.         An audio recording is real evidence to which the rules of evidence relating to documents are applicable.[200] The authenticity of an audio recording is a matter of trustworthiness and weight. The evidence of an audio recording can be gainsaid by presenting evidence to cast doubt on its authenticity and veracity.[201] The main criticism against the audio recording is why Lekgotla used his cell phones and not the device provided by the police. Lekgotla explained that it was difficult to use the device which was attached to his motor vehicle keys; that pointing the device at the accused would have placed his life in danger. The criticism that Van der Merwe should have been called by the State to testify about the device is without merit. Van der Merwe would not have advanced this anywhere as he was not present when the recording was made. He could only have confirmed that Lekgotla went to Danielskuil on that day. This aspect is not in dispute. What is disputed is that he met accused numbers 2, 4 and 5 on 3 September 2016. It is therefore a matter of credibility among the role players.

598.         The detail which appears in Exhibit XX could only have come from accused number 5 and that the detail confirms the meeting between him and Lekgotla on 3 September 2016. Some of the details pointing at him being Mr X are the following:[202]

a.         The fact that he is a contractor (page 56 lines 2 – 5).

b.       The fact that he was in regular contact with leaders of the ANC (page 56 line 6 -17)

c.       The fact that he transported members of the public as well as workers from the mine (page 56 line 19 to page 57 line 16)

d.         The fact that “Oom Abel” worked for him (page 57 lines 17 – 19)

e.        The fact that “Bra Shorty” is someone he knows (page 57 lines 20 – 23).

f.        The fact that the person travelled with Lekgotla to one of his employees to specifically arrange transport which was requested from accused number 5.

g.       The fact that the mines pay salaries on the 7th and 8th of each month (page 57 line 24 to page 58 line 9)

h.       The fact that reference was made to the allegation that the State prevented accused number 3 from calling witnesses in his bail application (page 58 lines 10 – 24) 

i.        The fact that he had knowledge of the house breaking case against accused numbers 3 and 4 and that this case led to accused number 4 encountering some problems at his workplace (page 58 line 25 to page 59 line 7)

j.        The fact that his drivers were used on different shifts (page 58 line 8 to page 60 line 15)

k.     The fact that he was the owner of cattle and goats (page 61 line 3 to 6).

 

599.         In addition, the fact that accused number 5 towards the end of his evidence alluded to the fact that accused number 4 worked at an “other place” and whatever he has learned he must have learned there. This corresponds with what is to be found in Exhibit XX where it was said that accused number 4 “learned a lot” while he was in Pretoria (page 79 line 23 to page 80 line 14)

600.         The fact that the person confirms that Lekgotla has his cell phone number and should get it from the e-wallet transaction that he sent him the amount of R1000.00 with. This is a factually correct statement which is admitted by accused number 5.

601.         He also “could not remember” who called him from the cell number 062 370 0114 on 17 August 2016. This was the first time the number called him.[203] He confirmed that he is a leader figure amongst accused numbers 2, 3 and 4 in terms of his age, his financial status and his political position.[204]

602.         The onus of proving the admissibility of evidence obtained by a trap rests upon the State.[205] Evidence obtained as a result of a trap shall be admissible if the conduct of the trap does not go beyond providing an opportunity to commit an offence. Even where the conduct goes beyond providing such an opportunity, the court still has the discretion to admit the evidence so obtained. [206] The burden of proof resting upon the State is beyond reasonable doubt and not only on the balance of probabilities.[207]

603.         The accused shall furnish the grounds on which the admissibility of the evidence is challenged. [208] The court has a judicial discretion on whether to try the admissibility of trap evidence as a separate issue.[209] I have already recorded that the only challenge to the evidence of the recording and the trap is the denial by accused number 5 that he is the person who met Lekgotla and that he had any conversation with him. Other than to say that the recording is a fabrication and it is not accused number 5 in the recording, there are no claims or a suggestion that it has been interfered with. There is no other basis placed on record for the Court to investigate the authenticity of the tape recording and whether it should be excluded as evidence. It is only the version of the State presented which is not challenged, save for the person in it.

604.         I therefore come to the conclusion that the State has proved beyond reasonable doubt that the person, Mr X is accused number 5.

605.         The evidence of the two witnesses, Vicky Olyn and Phenyo Legodu, called on behalf of accused number 5, did not take his case any further. Olyn conceded that he was not involved in the arrangements for the training and cannot confirm if it took place or not. His son, Phenyo could not remember when he handed his Golf motor vehicle to his father. Even if it could be on the 17 August 2016 he does not know what happened there after.

606.         In the result I find that the state has proved its case against accused number 5 beyond a reasonable doubt only on the first and second counts. His liability lies as a co-perpetrator, but also as being part of the conspiracy or agreement to kill.

 

Verdict.

A. Accused number 1: Richard Hasane

  a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

  b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

  c) Count 3: Kidnapping: Not Guilty.

  d) Count 4: Possession of a Firearm: Not Guilty.

  e) Count 5: Possession of Ammunition: Not Guilty.

 

B. Accused number 2: Tshame Frank Baxane

  a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

  b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

  c) Count 3: Kidnapping: Not Guilty.

  d) Count 4: Possession of a Firearm: Guilty.

  e) Count 5: Possession of Ammunition: Guilty.

 

C. Accused number 3: Zonizelo Richard Magawu

  a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

  b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

  c) Count 3: Kidnapping: Not Guilty.

  d) Count 4: Possession of a Firearm: Not Guilty.

  e) Count 5: Possession of Ammunition: Not Guilty.

 

  D. Accused number 4: Thompson Mncedisi Mphondomisa

  a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

  b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

  c) Count 3: Kidnapping: Not Guilty.

  d) Count 4: Possession of a Firearm: Guilty.

  e) Count 5: Possession of Ammunition: Guilty.

 

E. Accused number 5: Mattheuws Legodu

  a) Count 1: Murder of Johannes Baaitjie: GUILTY as charged.

  b) Count 2: Murder of Shuping Jeffrey Nouse: GUILTY as charged.

  c) Count 3: Kidnapping: Not Guilty.

  d) Count 4: Possession of a Firearm: Not Guilty.

  e) Count 5: Possession of Ammunition: Not Guilty.

 

 

 

L.P TLALETSI

JUDGE PRESIDENT

Northern Cape Division, Kimberley

 

 

 

On behalf of the State:                                Adv J.J CLOETE   (DPP Northern Cape)

Assisted by:                                                Adv. k. Ilanga

 

On behalf of Accused 1:                             Adv W. Ells                                     (Legal Aid SA)

On behalf of Accused 2:                             Adv. L. Setouto                              (Legal Aid SA)

On behalf of Accused 3:                             Adv. Buthelezi                                (Legal Aid SA)

From ----                                                     Adv. Moroke                                  (Legal Aid SA)

On behalf of Accused 4:                             Adv. H Steynberg                           (Legal Aid SA)

On behalf of Accused 5:                              Ms. S Easthorpe                           (Legal Aid SA)        

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