IN THE HIGH COURT OF SOUTH AFRICA FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO Of Interest to other Judges: YES/NO Circulate to Magistrates: YES/NO

Case no. 4/2018 In the matter between:

THE STATE

and

DITHABA PETRUS MAFAHLE & 12 OTHERS

CORAM: I VAN RHYN, AJ

HEARD ON:

JUDGMENT BY: I VAN RHYN, AJ

DELIVERED: 2 JULY 2019 & 5 July 2019

INTRODUCTION: 2

[1] The fifteen (15) Accused before Court have been indicted on seven (7)

charges which include three (3) counts of murder read with the relevant

provisions of Section 51(1) and Part 1 of Schedule 2 of the Criminal Law

Amendment Act 105 of 1997 (the “CPA”). The Accused are also charged

with three (3) counts or robbery with aggravating circumstances and one (1)

count of contravening Section 9(1)(a) of the Prevention of Organized Crime

Act 121 of 1998 (“POCA”), alternatively contravention of Section 9(2)(a) of

POCA also known as “gang-related offences”.

[2] Counts 1 to 6 of the indictment relate to the attack, murder and robbery of

three (3) minor males, the 19-year old Lefa Soaisa, the 16-year old Vuyani

Jacobs Makhapela and Mojalefa Nathan Franse who was 17-years old at the

time of his death.

[3] The allegations as elaborated upon in the summary provided by the State,

against the Accused are that upon or about 30-31 January 2017 and at or

near Limo Mall, Bloemside, in the district of Bloemfontein, the Accused who

are members of the Born to Kill gang, (the “BTK’s”) met with the three (3)

deceased. The three (3) deceased were members of the Maroma gang.

Under the false pretence that the Accused were also members of the

Maroma Gang the three (3) deceased were lured to the “shack” of Accused

no. 5 in the Pieter Swarts Settlement.

[4] The deceased indicated that they were looking for a specific member of the

BTK gang known as Dimeche. Under the false impression that the Accused 3

were also members of the Maroma gang, the three (3) deceased were

informed by the accused that they should all go to Namibia Square to look

for members of the BTK gang.

[5] At Limo Mall the deceased were instructed to sit whereafter the Accuseds’

allegiance with the BTK’s were revealed. The Accused encircled the three

(3) deceased and attacked them with knives. Some of the Accused removed

shoes and a K-way beanie (hat) from the deceased’s bodies which were left

at an open space behind Limo Mall where the bodies were later discovered.

Counts 4, 5 and 6 deal with the three (3) charges of robbery with aggravating

circumstances as defined in Section 1 of the (“CPA”) read with the provisions

of Section 51(2) of the CPA in that on the 30th to 31st January 2017 and at or

near Lima Mall the Accused did unlawfully and intentionally assault the

deceased and with force took from Lefa Soaisa one (1) pair of shoes, from

Vuyani Jacobs Makapela, one (1) pair of black and white Adidas shoes and

a blue K-way hat and from Mojalefa Nathan Franse one (1) pair of shoes.

Aggravating circumstances being present in that, during the commission of

these offences the Accused were in possession of dangerous weapons.

[6] The State alleged that the Accused acted in the execution of a common

purpose when performing the acts described in Counts 1 to 7 of the

indictment. The common purpose existed prior to and during the

commission of the offences on which the Accused are arraigned.

[7] All the Accused have been charged with Count 7. The basis of the crimes

created by the POCA legislation have bearing on the criminal gang activities 4

and provides that any person who actively participates in or is a member of a

criminal gang and who wilfully aids and abets any criminal activity committed

for the benefit of, at the direction of, or in association with any criminal gang

or who performs any act which is aimed at causing, bringing about,

promoting or contributing towards a pattern of criminal gang activity, shall be

guilty of an offence.

[8] All the Accused pleaded not guilty to all the charges and elected not to

provide plea explanations or to make any admissions. When the trial

commenced Accused no. 14, who was still a minor at the time of his arrest

and not held in custody awaiting trial, failed to appear at Court. A warrant for

his arrest was issued upon request of the prosecutor. The Court was

furthermore informed that the charges against Accused no. 2 are withdrawn.

Due to Accused no. 14’s failure to appear an application for a separation of

the charges in terms of the provisions of Section 157 of CPA of Accused no.

14, Karabo Kenneth Thita, to facilitate continuation of the case against the

other Accused was granted. For the remainder of the trial only thirteen (13)

of the original fifteen (15) Accused were involved.

[9] Advocate Ferreira, who appeared for the State called more than fifty (50)

witnesses, some of whom testified more than once during the trial. Counsel

on behalf of the State furthermore led evidence in six (6) trials within a trial

and exhibits “A” to “JJJ” were handed in as documentary evidence. The

State also tendered exhibit “1” consisting of a pair of black and white Adidas

Superstar shoes (“tekkies”) and exhibit “2” a blue K-way hat as evidence.

5

[10] All thirteen (13) Accused were legally represented contended that they are

innocent. With the exception of one or two of the Accused, they are not

acquainted with each other and only met while being in custody awaiting

trial. Even though it is not denied that they used to be members of the BTK

gang before their arrest, they, at least since their arrest, broke all ties with

the BTK gang and have no knowledge of the three (3) young males whose

bodies were found at Limo Mall. According to their evidence, anything they

did or alleged to have done, whilst in custody, was done under duress due to

the assaults perpetrated on them by members of the South African Police

Service (“SAPS”) during their arrest up until their detention. Due to assaults

and due to fear of further assaults some of the Accused caused to sign

statements against their will which constitutes manufactured evidence

against them. They furthermore aver that all the members of SAPS, for

various reasons and with the intent to secure their conviction on the charges,

told untruths to this Court.

[11] During the course of the trial the Court gave rulings in six (6) trials within a

trial and delivered judgment subsequent to application in terms of the

provisions of Section 174 of the CPA launched by several of the Accused.

My reasons for provisionally allowing the pointing outs and/or statements

allegedly made by the Accused are contained in this judgment.

[12] Prior to the charges being put to the Accused, the Court appraised the

Accused that the provisions of Sections 51(1) and 51(2) of the CPA are

applicable. At the outset of the trial it was pertinently brought to their

attention that, in terms of the minimum sentence regime, a minimum 6

sentence of fifteen (15) years will be applicable with regard to the robbery

charges and a minimum sentence of life imprisonment for the murder

charges, unless compelling and substantial circumstances allows this Court

to deviate from the prescribed minimum sentences.

THE PREVALANCE OF GANG-RELATED ACTIVITIES IN THE DISTRICT OF

BLOEMFONTEIN:

[13] It is appropriate to elaborate on a factor, presented by the State, that has

become a growing phenomenon not only on the so-called Cape Flats and

Mannenburg, but apparently throughout our country. The offences in this

case were manifestations of gang-related violence in the suburbs of

Bloemfontein, where the accused and the deceased lived and had grown up.

The State adduced evidence of Captain Mthunzi Dasheka (“Captain

Dasheka”) and Warrant Officer Jacobus Cornelius Lombaard, regarding the

prevalence of gang-related activities in the Free State Province. Captain

Dasheka, who is stationed at the Crime Intelligence Cluster at Park Road

Police Station in Bloemfontein explained, that a constant war between the

rival gangs are fought on the streets and countless youngsters from the

tender age of 11-years are engulfed in this battle. During the past eighteen

(18) years he had gained extensive experience in the investigation of gang-

related crimes and the prevalence of gangsterism in the Bloemfontein area.

Relevant to this matter is the two (2) rival gangs namely the BTK’s and the

Maroma gang also referred to as the “Romans”.

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[14] Since 2014 the numbers of allegiance with the BTK’s grew tremendously

and throughout this case, this Court became acutely conscious of the socio-

economical challenges that so many children and young adults face. The

constant pressure and enticement to become involved in gang membership

and gang-related activities are factors that are real and therefore I take

cognisance thereof. The reasons for their allegiance to certain gangs are

due to unemployment, poverty and obviously also because of the prevailing

social norms in the local suburbs, which seem to accept gang culture as part

of the way of life. Since 2014 the incidents of gang-related activities and

crimes in the Greater Bloemfontein area escalated each year and the

membership of the two (2) rival gangs, the BTK’s and the Romans, grew in

numbers.

[15] Captain Dasheka explained that members of the BTK gang tend to be more

mature than their counterparts, the Romans, who recruit young boys and

girls from the age of 11. The BTK members range from the age of 16 up to

the age of 40 years. The various gangs operate in certain territories within a

suburb where they rule and hold influence, for example, in the Pieter Swarts

Township most of the Romans have moved out and the BTK’s rule the area.

Members of these gangs drop out of school at an early age and roam the

streets day and night or as described by one of the accused in this matter

they “do their rounds” apparently looking for fellow gang members, drugs

and guarding their territory.

[16] Members of the BTK gang adhere to a code, they have specific hand signs

and obtain promotion within the hierarchy of the BTK’s by committing certain 8

acts of violence for example, to join the BTK gang each prospective member

has to commit a murder. The members of the BTK’s have tattoos, some

affix these tattoos on their arms, legs or even their faces where these tattoos

are clearly visible and are indicative of their rank and membership to the

BTK gang. Once a member of the BTK’s, there is no way out and you

remain a member for life.

[17] The members of the Romans are generally much younger and give

preference to wearing clothing with certain labels such as K-way, Nike,

Adidas and Puma. They also wear Rosaries normally used by members of

the Roman Catholic Church. On photograph 12 and in the closer view on

photograph 13 of exhibit “A”, an example of such a Rosary is visible. The

Rosary visible on photograph 13 is made of red beads and a few green ones

in between, with a white cross and was discovered close to the bodies of the

three (3) young victims behind Lima Mall., Heidedal in Bloemfontein.

[18] The forty seventh (47) witness for the State was Warrant Officer Jacobus

Lombaard, a Crime Information Analysis Officer stationed at Bloemspruit

Police Station. Information is gathered from suspects in criminal matters and

Warrant Officer Lombaard has interviewed an estimated eighty (80) gang

members and also family members of suspects with a view to compile

profiles which he then captured on a system for use by SAPS. Warrant

Officer Lombaard became interested in the growing phenomenon of gang

activities and started investigating the gang structure, the specific crimes

gang members tend to commit and the inner workings of how these gangs

operate. Through his investigations he gained knowledge on the BTK gang, 9

666 gang and the Natural Born Killers (the “NBK’s”) and also assisted gang

members who expressed the desire or wish to leave the gangs and end their

membership by providing means to relocate these ex-gang members. He

testified that he encounters BTK cases on a daily basis and has testified in

approximately seven (7) High Court cases relating to gang-related crimes in

the past year.

[19] Only one of the trials in which he testified related to the Maroma’s. The

Maroma’s came about due to constant attacks and crimes perpetrated

against Lesotho citizens living illegally in the Republic of South Africa. Due

to their illegal status, they were prevented from obtaining legal assistance

from the SAPS and joined forces to protect themselves from the BTK’s.

Recently, South African Citizens also joined the Maroma’s in an effort to

combat the onslaught of the BTK’s in the townships. The BTK’s is part of a

larger gang called the 666 gang. The BTK’s resort as a separate leg of the

666 and are actually the “money-makers” of the larger conglomerate

comprising of the BTK’s, the NBK’s and the 666 gang. According to the

information obtained by Warrant Officer Lombard the 666 gang is a satanic

group which encapsulates or comprises western Satanism with African

witchcraft. The 666 gang is accountable to a higher order referred to as the

“evil church”. The “spiritual leaders” control the 666, the BTK’s and the

NBK’s”. The second leg comprises of the NBK’s who are the soldiers.

[20] During 2011 to 2012 a war raged between the BTK’s and the International

Junior Portuguese (“IJP’s”) and the IJP’s were overpowered by the BTK’s.

Many of the IJP’s crossed over to the BTK’s and embraced the goals of the 10

BTK’s. The IJP members were identified by a tattoo on the left or right

shoulder and since their allegiance with the BTK’s these tattoos were

removed in a horrific way which would leave a plastic surgeon in

amazement. A peace of molten plastic will be placed on the tattoo which left

disfiguring scars where the IJPs’ tattoos were removed.

[21] The most prominent crimes committed by members of the BTK’s, are

robberies, burglaries and murders. Warrant Officer Lombaard testified that

many of the gang members join voluntarily for protection or to gain wealth,

however many minors are forced to join. These minors are usually from

poor dysfunctional families or single parent homes. A number of gang

members are lured into gangs with drugs, while female members seduce

young men with sexual favours in an attempt to make gang life seem

attractive and glamorous.

[22] Warrant Officer Lombaard corroborated the evidence presented by Captain

Dasheka concerning the seven (7) ranks in the BTK gang commencing with

the first rank associated with the number “2 – 20 – 21”. To be accepted as a

member of the BTK’s a prospective member has to complete three (3) tasks,

firstly show his skill with a knife for example to rob or scare a victim with a

knife. The second task will be to kill a victim, anyone of his own choosing

and the third task will be to commit a murder on instruction. The number “7”

is of special significance in the BTK gang.

THE STATE’S CASE:

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[23] The first witness in the case against the Accused was Constable Daniel

Khumalo, who was stationed at Heidedal Police Station and was on duty on

the morning of 1 February 2017 when he received a call from the control

office concerning a murder scene behind the Limo Mall. On his arrival he

found three (3) bodies of young black males with obvious stab wounds. He

further noticed that the victims were without shoes. The area were cordoned

off for further investigation. The photo album marked exhibit “A” was

provisionally handed in and with reference to the photographs depicting the

crime scene Constable Khumalo indicated what he observed regarding the

three (3) bodies. The bodies were found as if positioned in close proximity to

each other behind heaps of soil and rubble. He furthermore observed that

the victims’ shoes had been removed as one of the victims still had a blue

sock visible on his left foot.

[24] Dimakatso Makate (“Mrs Makate”), a 25-year old female residing in a shack

in Pieter Swarts Township testified that she came upon “Chippa”, whom she

identified as Accused no. 5 (Lebohang George Teele) on the morning of 1

February 2017. She had known him for approximately a year and regularly

saw him in the vicinity of her place of residence. She was in the company of

a friend called Keke and Accused no. 5 was in the company of another

unknown male. Accused no. 5 was in possession of a white plastic bag

containing a pair of Adidas Superstar tekkies.

[25] Mrs Makate referred to questions that Keke put to Accused no. 5 which

evidence was provisionally allowed as the State indicated that Keke will be

called to testify in this case. Keke indicated that she owns a similar pair, but 12

white in colour and declined Accused no. 5’s offer to purchase the tekkies.

Mrs Makate then expressed her willingness to purchase the tekkies but

explained that she does not have the financial means. Keke thereupon

immediately volunteered a loan in the amount of R100.00. The selling price

being R150.00, Mrs Makate concluded an arrangement to pay the remaining

R50.00 by the 9th February 2019, when her husband will be receiving his

salary. The deal was done and Mrs Makate, after obtaining Accused no. 5’s

assurance that the tekkies belonged to him and was not stolen merchandise,

left with the black tekkies with white stripes on the sides. The black and

white Adidas Superstar tekkies were submitted as exhibit “1” and identified

by the witness.

[26] On 9 February 2017 an unknown member of SAPS arrived at Mrs Makate’s

place of residence and requested her to hand over the tekkies that she

bought on the 1st February 2017. In cross-examination it was put to Mrs

Makate that Accused no. 5 was in the company of two (2) other males. Mrs

Makate could not dispute the fact that other males could have accompanied

Accused no. 5, but she was only aware of one (1) other person. Accused

no. 5’s version of the conversation was that the tekkies belonged to one of

his companions and after receiving the R100.00 from Mrs Makate he

immediately handed the money to the owner of the tekkies. It was

furthermore denied that Accused no. 5 indicated to Mrs Makate that he was

the owner of the tekkies. Mrs Makate testified that she did not pay the

remaining R50.00 to Accused no. 5 due to the fact that the police claimed

the tekkies before she made the final payment.

13

[27] By agreement, the State handed in documentation regarding the

identification of the three (3) deceased bodies. Exhibit “C” concerns the

identification of Lefa Soaisa, the deceased on Count 1 by his brother with

death register number: BDR 79/2017. The deceased was born on 29 July

1997 and resided at Chris Hani Square, Bloemfontein. Exhibit “D” concerns

the identification of the deceased on Count no 2, Vuyani Jacobs Makhapela

by his mother, Nombulelo Melita Greinhout of Chris Hani Square,

Bloemfontein. The death register number is: BDR 80/2017. Exhibit “E”

concerns the identification of the deceased on Count 3, Mojalefa Nathan

Franse, with BDR number: 81/2017.

[28] On 2 February 2017 Dr Vincent De Wet Brandt conducted a post-mortem

examination on the body of Lefa Soaisa as per exhibit “KK1” (BDR 79/2017).

The cause of death is recorded as multiple stab wounds, comprising of forty

six (46) stab wounds, mostly to the chest, back and right hand of the

deceased. The position of the injuries was indicative of an attack launched

from multiple sides on the deceased. Photographs of the body, depicting the

injuries sustained during the attack as well as photographs depicting the

clothing worn by the deceased at the time of his death were handed in as

exhibit “KK2”.

[29] Dr Brandt conducted a post-mortem examination on the same day, on the

body of Vuyani Jacobs Makapela, the 16-year old victim in Count 2. The

post-mortem report was handed in as exhibit “LL1” with reference number

BDR 80/2017. Dr Brandt testified that sixty seven (67) stab wounds, ranging

between five (5) – twenty (20) mm in length were found and noted in his 14

report. The stab wounds were of such severity that it appeared as if no skin

remained intact on the left side of the victim’s neck. Fifty (50) stab wounds

were located over the lateral and posterior aspect of the deceased’s neck.

With reference to photograph 7 and 8 of exhibit “A”, depicting the position of

the bodies on the crime scene, Dr Brandt opined that not a lot of blood is

visible on the photographs and the bodies appeared as if grouped together

after they had been killed, possibly elsewhere.

[30] Photographs taken of the body of the deceased and of the clothing worn at

the time of his death were handed in and marked exhibit “LL2”.

[31] Dr Ignatius Stephanus Ferreira conducted the post-mortem examination on

the deceased in Count 3, the 17-year old Mojalefa Nathan Franse as per

exhibit “NN1” with reference number BDR 81/2017. On 2 February 2017 Dr

Ferreira found that the slender victim weighed a mere 48.9 kg at the time of

his death, was the victim of a vicious attack and approximately seventy (70)

stab wounds were recorded. Once again fourteen (14) incision wounds were

noted on the left side of the victim’s neck, three (3) incision wounds on the

left side of the head and two (2) incision wounds on the left side of the

deceased’s face. Forty (40) stab wounds were located on the victim’s back.

Point 6 of Dr Ferreira’s report refers to diffuse subarachnoid bleeding of the

brain, indicative of blunt trauma to the head. Even though Dr Ferreira had

conducted between 1 500 and 2 000 post-mortem examinations he

described the injuries found on the body of the deceased as a vicious attack

beyond the normal, usually referred to as an “overkill”.

15

[32] Photographs of the body with reference number BDR 81/2017 depicting the

severe stab wounds to the neck, upper back as well as the bleeding found

on the brain as well as the clothing of the victim were handed in as exhibit

“NN2”.

[33] During the post-mortem examination conducted on the three (3) deceased,

blood samples were taken for the purposes of DNA analyses. The blood

sample taken from the body on Count no 1, (BDR 79/2017) was marked

(05D4BA9212MX) and handed to FPO MP Khumalo by Dr Brandt.

[34] The blood sample taken from the body of the deceased in Count no 2, (BDR

80/2017) was marked (05D3BB3501) and handed to FPO MN Stonga.

[35] The blood sample retrieved from the body of the deceased on Count no 3,

(BDR 81/2017) was marked (05D3BB3485) and handed to FPO M N

Stonga.

[36] The defence did not dispute the evidence placed on record by the State

relating to the bodies of the three (3) victims found behind Limo Mall on 1

February 2017 nor the contents of the three (3) post-mortem reports.

[37] The State presented the evidence of Mrs Melita Nombulelo Greinhout, the

mother of the deceased relating to Count 2 (Jacobs Vuyani Makapela). She

last saw her son on Monday, 30 January 2017 at approximately 17H00 at

their place of residence located at Chris Hani Square, Bloemfontein. Her

son was in the company of his friend, Mojalefa Franse, the deceased in 16

Count 3. Her son was wearing a black t-shirt, a camouflage trousers and

black Adidas Superstar tekkies with white stripes on the sides. He was

wearing a blue hat referred to as a “beanie” with a white mark. Mrs

Greinhout identified the contents of exhibit “1” as the Adidas Superstar

tekkies that she bought her son. The tekkies does not only resemble the

same label, colour and markings to those she bought her son but also the

size namely size 6. She paid R600.00 at a Chinese shop located at Central

Park for the Adidas tekkies.

[38] Mrs Greinhout identified the blue beanie, exhibit “2” as similar to that worn by

her son on the day he disappeared. It is a blue K-way beanie. She however

did not know where her son obtained the beanie from and once questioned

him about this beanie. He however refrained from answering her questions.

[39] Her son never returned after he left with his friend Mojalefa Franse and the

following day she enquired as to his whereabouts from her eldest son and

her daughter-in-law who resides at Phase 4, Bloemfontein. Being

unsuccessful in searching for her son, she decided to contact the police.

Detectives of the SAPS, who was accompanied by Mojalefa Franse’s brother

arrived at her home to inform her that three (3) bodies had been found

behind Limo Mall and she was requested to visit the State mortuary in an

effort to identify whether one of the deceased was her missing son.

[40] In an effort to spare this witness the trauma of identifying her butchered son,

she was shown photographs, seemingly of the face of the deceased persons

and mostly of the clothing worn by the deceased. The witness was able to 17

identify the body of her son from the black t-shirt and camouflage trousers as

well as photographs of his face. After the burial of her son, members of

SAPS requested her to identify the black Adidas Superstar tekkies with white

stripes at the Heidedal Police Station. She at that stage also identified the

blue beanie as the property of her son.

[41] Mrs Greinhout indicated that her son left school in February 2016 due to fear

of being attacked and/or intimidated by gangsters. She however did not

have any knowledge of her son’s possible affiliation with a gang or not.

During cross-examination it was put to her that the Adidas Superstar tekkies

as well as the blue K-way beanie are both popular pieces of clothing and are

commonly worn by members of the public, to which the witness conceded.

[42] Captain Dasheka testified that subsequent to the discovery of the bodies of

the three (3) victims, informers were tasked to gather information in

connection with these offences. On the 9th February 2017 at 13H30

information led Captain Dasheka and his crime intelligence colleagues to the

residence of Accused no. 1 at 5636 Pieter Swarts, Bloemfontein. Captain

Dasheka received information regarding a person called “Seun” or “Lepetla”

who turned out to be Accused no. 1, Dithaba Petrus Mafahle. Subsequent to

explaining his constitutional rights, Accused no. 1 was arrested and then

proffered information which prompted Captain Dasheka to take Accused no.

1 to his office. Lieutenant Colonel Sefuthi of the detectives unit and Captain

Khene and their teams convened at the office of Captain Dasheka and after

reaffirming the information obtained from Accused no. 1, the aforementioned

members of SAPS as well as members of the Tactical Response Team 18

(“TRT”), accompanied by Accused no. 1 proceeded to house no. 19707,

Grassland, Phase 4, Bloemfontein. At house no. 19707 Accused no. 2, no.

3, no. 4 and 6 were arrested. Accused no. 2, Mojalefa Karel Shangane is

also known as “Bota”, Accused no. 3, Kabelo Simon Senoge is known as

“KB”, Accused no. 4, James Teboho Makao is known as “Crazy” and

Accused no. 6, Mosa Ernest Mokara is known as “Mosa”.

[43] Captain Dasheka explained that at the time of their arrival at house no.

19707, the TRT moved in to immobilise the occupants and stabilize the

scene in order for Captain Dasheka and the investigation team to enter the

premises. Subsequent to their constitutional rights being explained and

effecting their arrest by Captain Dasheka, he left the premises in the care of

the investigation team to proceed with a thorough search of the premises.

[44] During cross-examination by Mr Nel on behalf of Accused no. 1, no. 3 and

no. 6, it was put to the witness that the accused were assaulted by Captain

Dasheka at the time of their arrest and that they were slapped in their faces.

The witness denied the accusation. During the arrest of Accused no. 3 and

no. 6, the door of the premises was broken and some of the accused were

also kicked, though no specific allegations in this regard were put to the

witness. The Accused also denied that Captain Dasheka was responsible

for their arrest.

[45] Accused no. 5 disputed the evidence of Captain Dasheka that he arrested

him and it was put to the witness that Captain Khene was responsible for his

arrest. The Accused, more particularly Accused no. 1, no. 3, no. 4 and no. 6 19

denied that their constitutional rights were explained to them at the time of

the arrest and Accused no. 4 was assaulted at the time of his arrest, but not

by this particular witness. Captain Dasheka testified that the arrest of

Accused no. 1 occurred at around 13H30 and Colonel Sefuthi and Captain

Khene arrived at his office at approximately 15H30. It was furthermore put

to Captain Dasheka that several of the Accused were assaulted after their

arrest at the tourism centre located in Park Road, Bloemfontein. Accused

no. 1’s version was that after his arrest and the arrest of the other Accused

they were taken to the Mangaung Police Station and from there to the

Tourism Centre. Accused no. 1’s version was that he was slapped in his

face several times and Accused no. 3, no. 6, no. 7 and no. 8 were also

assaulted by other members of the SAPS at the Tourism Centre in the

presence of Captain Dasheka.

[46] This judgment does not concern the evidence lead concerning accused

no 1, no 6 , no 9 , no 10 , no 11 , no 12 and no 15 since they were

acquitted of all charges on the 31 May 2019. I will again refer to this aspect.

The evidence by Captain Dasheka pertaining to the arrest of Accused no. 1

placed on record in the main trial and again in a trial within a trial regarding

Accused no. 5, no. 7 and no. 8 was not repeated as agreed between the

prosecution and the defence and was included in the trial within a trial of

Accused no. 1.

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

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[47] On 14 January 2019 the prosecution presented the evidence of Colonel

Sefuthi regarding the warning statements obtained from Accused no. 3,

Kabelo Simon Senoge and Accused no. 4, Teboho James Mokoai. Mr Nel,

on behalf of Accused no. 3, indicated that the inadmissibility of the warning

statement, allegedly obtained from his client is disputed on the grounds that

the statement was not made freely and voluntarily due to assaults by

members of the SAPS perpetrated upon Accused no. 3. Accused no. 3

signed the documents presented to him without being informed of the

contents thereof and while certain sections of the warning statement were

left blank at the time of affixing his signature to the document. Mrs Patrinos

for accused no 4 contended that he was instructed to sign his warning

statement and due to threats of further assaults to be executed by the

members of TRT, he affixed his signature to the document without being

aware of the contents of the document.

[48] Colonel Tankiso Moses Sefuthi testified in the trial within a trial that followed

regarding the warning statement he obtained from Accused no. 3 and the

warning statement obtained from Accused no. 4. The warning statement of

Accused no. 3, of which the last three pages were stapled together by Mrs

Ferreira was handed in and marked exhibit “OO”. Colonel Sefuthi who

recorded Accused no. 3 and also Accused no. 4’s warning statements

testified that on 11 February 2017 at 14H10 and at Mangaung Police Station

he held an interview with Accused no. 3. The witness read the constitutional

rights as contained in the pro forma warning statement and then proceeded

to obtain Accused no. 3’s personal particulars in order to complete the first

section of the document. The charges against Accused no. 3 were again 21

explained to him and the questions contained under the heading “Certificate

by Suspects” were read to Accused no. 3 whereupon the Accused

responded to the questions as indicated in the document. These questions

concerns the willingness of the Accused to make a statement regarding the

offence and whether the Accused is making the statement voluntarily.

Accused no. 3’s reply to the question whether he has any injuries was noted

as follows:

“Yes, pain in my eye.”

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

was noted as:

“No”.

Page 1 and 2 of exhibit “OO” was signed by accused no. 3 in the presence

of Colonel Sefuthi. The witness explained that he read the contents of

exhibit “OO” in English but then translated each sentence into Sesotho for

the benefit of the accused. Colonel Sefuthi affixed his signature to page 2

and page 3 of exhibit “OO”.

[49] Colonel Sefuthi witnessed the arrest of accused no. 3 on 9 February 2011 at

no. 19707 Grassland by Captain Dasheka and confirmed the evidence by

Captain Dasheka that accused no. 3, and for that matter none of the other

accused persons before Court were assaulted during the arrest, or

subsequent to the arrest. Mrs Ferreira furthermore handed up, marked as 22

exhibit “PP” the Notice of Rights in terms of the Constitution (“SAPS 14A”)

form pertaining to accused no. 3.

[50] From exhibit “PP” it is evident that Captain Khene read Accused no. 3’s

constitutional rights to him on 9 February 2017 at 23H40 at Mangaung Police

Station. The signature of Accused no. 3 and Captain Khene appears on

exhibit “PP”. Exhibit “QQ” was handed up provisionally during the testimony

of Colonel Sefuthi. This particular exhibit is a copy of the occurrence book of

commonly known as SAPS 10 indicating where Colonel Sefuthi recorded at

entry no. 392 the following:

“Suspect detained. Lieutenant Colonel M Sefuthi from provincial detectives

detains Kabelo Senoge for murder and robbery as per Heidedal CAS

7/2/2017.”

This entry was recorded on Thursday, 9 February 2017 and signed by

Colonel Sefuthi at 23H40.

[51] Colonel Sefuthi explained that the inscription “correctly detained” next to his

signature is indicative that the detainee did not have any injuries and was in

a good physical condition at the time when he was so detained. The witness

confirmed that the warning statement obtained from accused no. 3 was

freely and voluntarily made by the accused without any undue influence.

[52] With regard to the warning statement obtained from accused no. 4, Colonel

Sefuthi testified that on 10 February 2017 at 11H50 and at Bainsvlei Police 23

Station he conducted an interview with Accused no. 4 Teboho James

Mokoai and completed the pro forma document provisionally handed in as

exhibit “RR”. The witness explained the procedure followed with Accused

no. 4 in obtaining the warning statement, which in essence is exactly the

same as placed on record with regard to Accused no. 3.

[53] Accused no. 4 indicated to Colonel Sefuthi that he is willing to make a

statement, that he is without any injuries and that he was not assaulted or

threatened and therefore the statement is made voluntarily. Once again,

Mrs Ferreira covered the content of the statement of exhibit “RR” when same

was handed up as an exhibit. The witness confirmed his signature on the

document and identified Accused no. 4’s signature on the document. With

reference to exhibit “F”, already handed in as an exhibit, Colonel Sefuthi

explained that Accused no. 4’s constitutional rights were read to him at the

time of his arrival at the cells, prior to being detained. A copy of the SAP 14

pro forma document completed on 10 February 2017 at 01H29 was handed

to accused no. 4 at the time of his detention. Later the same morning

Colonel Sefuthi conducted the interview with accused no. 4 with a view of

obtaining his warning statement. In his evidence he confirmed that the

content of exhibit “RR” emanated from accused no. 4 and comprised of a

detailed statement concerning the events. Mrs Ferreira informed the witness

that the accused’s defence will be that there were certain threats made

towards him whereupon Colonel Sefuthi responded that both accused no. 3

and accused no. 4 made their respective warning statements freely and

voluntarily.

24

[54] A copy of the SAP 10 occurrence book reflecting the date, time and physical

condition of accused no. 4 was handed in and received as exhibit “SS”. On

Friday, 10 February 2017 at 01H15, entry reference number 280 reflects the

issuing of SAP 14A and the detention of accused no. 4 as well as the fact

that no visible injuries were noted. During cross-examination by accused no.

3’s legal representative, Colonel Sefuthi was extensively questioned on his

failure to provide medical assistance to accused no. 3 since his complaint

concerning pain in his eyes were noted by the witness. The answer to this

question was rather unsatisfactory in the sense that Colonel Sefuthi

indicated that he is not responsible for reporting medical ailments of

detainees and the accused should have reported any medical problems to

the police officers at the station where he is detained who will ultimately

arrange for further medical attention. Being the investigating officer in

charge of the case, one would have expected the witness to at least report

the complaint received from Accused no. 3 to the officer in charge at the

particular police station, or at least follow up on the complaint to ascertain

whether the complaint was attended to.

[55] The second aspect that raised concerns is Colonel Sefuthi’s response to Mr

Nel’s question pertaining to the procedure followed when obtaining a

confession or pointing out by the investigating officer of the particular case.

According to Colonel Sefuthi it is advisable to request assistance from a

colleague when obtaining a confession or conducting a pointing out in order

to maintain transparency. However, according to Colonel Sefuthi when there

is little time, the investigating officer will obtain the confession or pointing out

himself. 25

[56] Accused no. 3’s version that he was punched with fists on both eyes was put

to Colonel Sefuthi who disputed this contention. It was furthermore put to

the witness that accused no. 3 was held by his hands and feet and thrown

into the air and left to fall to the ground. This occurred at the time of his

arrest. While lying on the ground he was kicked on his ribs. It is furthermore

denied that the five (5) questions, contained in exhibit “OO” were put to

accused no. 3 by the witness. Furthermore, certain sections of exhibit “OO”

was not completed when accused no. 3 affixed his signature to the

document. Due to this fear of being assaulted again, any statement that

accused no. 3 may have proffered to Colonel Sefuthi was therefore not freely

or voluntarily made. The version of accused no. 3 was denied by Colonel

Sefuthi. Subsequent to obtaining further instructions from his client, it was

also contended by Mr. Nel that the witness was not present at the time of the

arrest of accused no. 3 and when accused no. 3 met the witness for the first

time at the police station, Colonel Sefuthi introduced himself as Mr Motseki,

a detective. Subsequent to obtaining further instructions from his client, Mr

Nel put to Colonel Sefuthi that photographs were taken of the accused at the

Mangaung Police Station and these particular photographs will provide proof

of his allegation that both his eyes were swollen due to the assault

perpetrated on him by members of the SAPS.

[57] The version of accused no. 3 is that photographs were taken of nine (9) of

the accused now appearing in Court soon after their arrest. Colonel Sefuthi

was not able to deny the version regarding the photographs but denied that

the accused were assaulted in his presence. During cross-examination by 26

Mr Patrinos, on behalf of accused no. 4 Colonel Sefuthi testified that any

assaults on detainees are investigated by the police watch dog, the

Independent Police Investigate Directorate (“IPID”) and he again explained

that at the time of the arrest of the accused in this case, no assaults

occurred. Mrs Patrinos also questioned Colonel Sefuthi regarding the

preferred procedure pertaining to the taking down of a warning statement or

confession by the investigating officer of the particular case. Colonel Sefuthi

remarked that there is nothing prohibiting the investigating officer from taking

down a warning statement from a detainee but conceded that it might be

preferable to request a police officer who is” independent” to rather obtain

the statement.

[58] Accused no. 4 denies that the five (5) questions contained in the pro forma

warning statement under the heading “Certificate by Suspect” were posed to

him. The written part of the statement furthermore did not emanate from him

and Colonel Sefuthi threatened to call in the assistance of the TRT members

to assault accused no. 4 in the event of him refusing to sign the already

written statement contained in exhibit “RR”. These contentions were denied

by Colonel Sefuthi. It was put by Mrs Patrinos that her client did not provide

the information contained and recorded in exhibit “RR” and he does not even

know three (3) of the names mentioned in the statement. Accused no. 4’s

eyes were red at the time of his detention and injuries to his chest

underneath his clothing were indeed visible.

[59] Accused no. 3 testified in his trial within a trial and mentioned that he was

assaulted by members of the SAPS and TRT at the time of his arrest in 27

Bergman Square. He explained that the members of the SAPS hit him in his

face, on both eyes, with their fists and others held him by his hands and feet

and he was thrown into the air and left to fall to the ground. He was kicked

on his ribs and according to accused no. 3 his injuries were clearly visible

when he reported his injuries at the clinic at Grootvlei. Accused no. 3’s

testimony was further to the effect that soon after his arrest the accused

persons were taken to Mangaung Police Station where photographs of each

individual accused were taken and subsequently a photograph of the group

of accuseds were also taken. Accused no. 3 denied that his constitutional

rights were explained to him at the time of his arrest but conceded that he

was indeed handed a copy of exhibit “PP”, which he signed and which

document contains his constitutional rights. Accused no. 3 testified that

Colonel Sefuthi was the police officer who detained him but he emphasized

that the injuries to his eyes were visible. According to accused no. 3 Colonel

Sefuthi introduced himself as Mr Motseki, a provincial detective. The

witness indicated to Colonel Sefuthi that he was assaulted by members of

SAPS at the time of his arrest, but it appeared to him as if this information

was of no concern to Colonel Sefuthi. The witness signed exhibit “OO”

without any knowledge of the content thereof and some portions of the

document were left blank. The content of the document was furthermore not

read back to him. Accused no. 3 testified that he saw the assault on

accused no. 4 at the time of their arrest.

[60] During cross-examination by Mrs Ferreira accused no. 3 testified that he is

acquainted with accused no. 4 and no. 6. On 9 February 2019 at

approximately 18H00 accused no. 3, who was in the company of accused 28

no. 2, no. 4 and no. 6 arrived at accused no. 4’s place of residence at 19707

Grassland. The police arrived at the residence of accused no. 4 between

18H00 and 19H00. The witness testified that the occupants of the premises

were assaulted by the police as they entered the premises. Afterwards the

accused were thrown outside the house and cuffed. Accused no. 3

explained that he was hit in his face and after he fell to the floor, he was

grabbed by his hands and feet and thrown into the air. He was subsequently

kicked on his ribs. The witness testified that the assault upon him was of a

severe nature and with full force. The photographs taken at Mangaung

Police Station will serve as evidence of the injuries sustained during these

assaults.

[61] The accused was questioned as to the reason why his version that he was

punched in the face with fists, thrown into the air and subsequently kicked

were not put to Captain Dasheka. Contrary to his testimony in the trial within

the trial it was put to Captain Dasheka that accused no. 3 was slapped in his

face at the time of his arrest and the assault perpetrated against him has

now escalated into a much more severe form of assault and injuries to his

eyes and ribs. Accused no. 3 responded that he did not even see Captain

Dasheka at the time of his arrest, let alone being assaulted by him.

According to his testimony he, accused no. 2, no. 4 and no. 6 were taken in

a van from the property to the direction of Phase 4 and thereafter to Pieter

Swarts. At Pieter Swarts he noticed accused no. 5 and no. 7 who were

cuffed together. At a later stage they were taken to Mangaung Police

Station where photographs were taken. Accused no. 3 was furthermore

questioned regarding his evidence that he reported his injuries when he 29

arrived at Grootvlei Prison. The witness testified that he reported to the

clinic at three (3) different times and complained about pain in his eyes. Due

to the unavailability of medication at the clinic he was advised that he will be

called as soon as medication for his eye injury was available. Accused no. 3

testified that a record of visits to the clinic is kept at Grootvlei Prison. He

however failed to inform the Magistrate, during his first appearance about the

assault upon him and the reason for his swollen eyes.

[62] Accused no. 3 was confronted with the improbability that Colonel Sefuthi,

without posing any questions to him, would have known of the pain in his

eyes and furthermore would make up an exculpatory version on behalf of

accused no. 3 and thereafter force him to sign the warning statement.

Accused no. 3 was furthermore confronted with his belated version regarding

his visit to the clinic at Grootvlei Prison, which aspect was only placed on

record during cross-examination.

[63] The prosecution applied to reopen the State’s case in the trial within a trial of

accused no. 3 and called Sergeant L.S. Mfazwe to testify. This witness

testified that on 9 February 2017 he was on duty at the Crime Intelligence

Unit and was requested to assist with the detention of a suspect arrested

during the operation where several suspects were arrested. Exhibit “SS”,

which was provisionally handed in, was identified by this witness as his

recording made in the SAPS 10 register regarding the detention of Accused

no. 4. The witness confirmed the information contained in the register that

accused no. 4 had no visible injuries and did not report any injuries at the

time of his detention at Bainsvlei Police Station. Sergeant Mfazwe 30

furthermore confirmed his handwriting on exhibit “F” and testified that he

explained accused no. 4’s constitutional rights according to the contents of

the SAP 14A and subsequently handed a copy of the SAP 14A to accused

no. 4.

[64] The prosecution handed in exhibit “TT”, a bundle of documents containing

the Magistrates’ Court charge sheets, the notes made by the Magistrate on

15 June 2017 that all thirteen (13) accused confirmed their instructions that

they are abandoning their bail application and instructions from the Director

of Public Prosecutions, dated 21 September 2017, with the request that

photographs be taken of all the accused depicting the tattoos on their

bodies. Furthermore the content of the bundle of documents records the

appearances of the accused in the Magistrate’s Court and is indicative of the

fact that no complaints were lodged of any assaults or injuries during their

numerous appearances at the Magistrate’s Court.

[65] The prosecution called Colonel Demakatso Mabitle, the Assistant Manager

of Health Care Services at Grootvlei Correctional Services. She has twelve

(12) years’ experience in health care services and explained that she

received a request on 16 January 2019, the day prior to her testimony in

Court, to search the registers at the clinic at Grootvlei Prison to ascertain

whether a detainee with the name Kabelo Simon Senoge (accused no. 3)

requested medical assistance at the clinic since February 2017. Exhibit

“UU” comprises of the “Health Risk Assessment” form of accused no.3 and

was compiled by Mr Motloung, a professional nurse in the employment of the

Department of Correctional Services at Grootvlei. The exhibit was received 31

provisionally on the basis that Motloung will give evidence pertaining to the

information contained in the document. Exhibit “UU” evidences the

questions posed to accused no. 3 and his reply thereto on 14 February 2017

by Mr Motloung regarding his health and/or injuries at the time of his

detention. The “Medical Practitioners’ History Continuation Sheet”, marked

exhibit “VV” was provisionally allowed, also on the basis that Mr Motloung

will be called to testify regarding the completion of this particular document.

Exhibit “VV” known as the “G 335 A” is a record of visits by a particular

detainee to the clinic and complaints received or medical attention provided

to the detainee. It is recorded that on 14 February 2017 at 10 o’clock in the

morning, accused no. 3 raised no medical complaints and/or injuries at the

time of his detention or ever since being detained at Grootvlei prison.

Exhibit “WW” evidences that accused no. 3 did not complain of any injuries

or ailments at the time of his detention at Grootvlei. Any complaints received

at the time when the warrant for his detention was issued would have been

noted on exhibit “WW” or the so-called “J 7”.

[66] The prosecution handed in exhibit “XX” containing a bundle of lists with

names of inmates at Grootvlei Correctional Facility who reported at the clinic

and comprises of approximately eleven (11) pages dating from 6 February

2017 to 17 April 2017. Nowhere on any of these pages could any indication

of accused no. 3’s name be traced.

[67] However, accused no. 3’s version pertaining to the testimony of Colonel

Mabitle and the exhibits marked “UU”, “VV”, WW” and “XX”, remained that

he was assaulted at the time of his arrest and that he has no recollection of 32

any documentation compiled at the time of his detention at Grootvlei, but that

he indeed reported his injuries to his eyes at the clinic. Mr Motloung a

professional nurse with twenty four (24) years’ experience at Grootvlei

Correctional Services with a Bachelor degree in Nursing, testified that he

completed exhibit “UU” and explained the procedure followed after a

detainee is admitted at prison. The witness confirmed that accused no. 3 did

not complain of any injuries and no injuries were visible at the time of his

detention. During cross-examination by Mr Nel, it was put to the witness that

no interview with accused no. 3 took place at the time of his admission and

that the documents, exhibit “UU” and “VV” must have been compiled since

the allegations regarding his report to the clinic was placed on record, thus

on the day prior to the witness’s testimony in court.

[68] The testimony of Accused no. 3 pertaining to the procedure followed when

he arrived at Grootvlei Prison was that he was interviewed by a lady called

Tsidi concerning his medical condition but that she did not complete any

documentation during her interview with him. He did not receive any medical

treatment for his swollen and bloodshot eyes at the time when he was

detained at Grootvlei Prison. Accused no. 3 testified that the documents that

were handed in by the State, indicating that he was interviewed on the day of

his admission to Grootvlei Prison, were actually completed on the day prior

to his testimony in Court, namely on 16 January 2019.

[69] The testimony of accused no. 4 was that he was forced to sign his warning

statement, exhibit “RR” by Colonel Sefuthi. He conceded that his signature

appeared on the said exhibit but the contents thereof did not emanate from 33

him. According to accused no. 4 his constitutional rights were never

explained to him but he testified that he signed and received a copy of

constitutional rights but failed to read same.

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

1. In the trial within a trial in which the admissibility of an admission by

accused no. 4, made to Colonel Sefuthi was placed in dispute, the

State requested leave to cross-examine accused no. 4 on the contents

of the statement as contained in exhibit “RR”.

2. Mrs Patrinos, on behalf of accused no. 4 objected to leave being

granted on the basis that, until the question of its admissibility has been

resolved in the trial within a trial, the contents of the warning statement,

exhibit “RR” may not be disclosed to the Court.

3. Having heard and considered the arguments on behalf of the State and

accused no. 4 and the case law on this point I ruled that the contents of

the statement contained in exhibit “RR” may be disclosed in as far as it

is deemed necessary to cross-examine accused no. 4 for the limited

purpose, namely to resolve the question of credibility. In particular, it

will not be used for the purpose of considering and deciding the

question of guilt or innocence unless it is duly proven to be admissible.

I therefore ruled that Mrs Ferreira on behalf of the State may put

questions relating to the contents of the statement to accused no. 4.

The reasons for this ruling are included in the reasons for the ruling 34

pertaining to the trial within the trial regarding the admission of accused

no. 4’s warning statement.

[71] During cross-examination of accused no. 4 he conceded that his

constitutional rights were indeed explained to him by an unknown member of

SAPS. He also testified that all the names referred to in the statement were

already written in the statement at the time when he signed the document.

[72] Having heard the evidence and considered the arguments on behalf of the

prosecution and on behalf of the defence, I ruled that the evidence pertaining

to the warning statement, exhibit “OO” and the warning statement exhibit

“RR” be provisionally allowed.

[73] In accordance with the general rule, the onus of proving both facts and

conclusions relevant to the inquiry into the admissibility of evidence rests on

the State and must be discharged beyond reasonable doubt. Different

considerations may apply where Section 35(5) of the Constitution of the

Republic of South Africa, Act 108 of 1996 (“the Constitution”) comes into

play. It provides that evidence, obtained in a manner that violates any rights

in the Bill of Rights must be excluded if the admission of the evidence, would

render the trial unfair or otherwise be detrimental to the administration of

justice. For purposes of this ruling I accepted that the State bears the onus

of proving the two (2) requirements in Section 35(5) of the Constitution. The

State sought to introduce a written statement made by accused no. 3, exhibit

“OO” to Colonel Sefuthi and a written statement made by accused no. 4,

exhibit “RR” also made to Colonel Sefuthi as evidence in this case. The 35

legal representatives of accused no. 3 and accused no. 4 informed the Court

that the contents of these statements were not confessions but that both

statements were of an exculpatory nature and neither were made freely and

voluntarily. The requirement that an extracurial statement to someone in

authority must be made freely and voluntarily is reinforced by the two

provisions in the Constitution, most obviously Section 35(3) under

subsection (h) and (j) which guarantee an accused the right to a fair trial by

which is also included the right to remain silent (which would be undermined

if there is, for instance, coercion) and the right not to be compelled to give

self-incriminating evidence; which I understand to include evidence that may

damage the accused’s credibility. It remains evident that the evidence will

be prejudicial to both accused and therefore it remains essential to ensure

that if, admitted, it was done freely and voluntarily.

[74] The testimony of the witnesses on behalf of the prosecution were that none

of the accused were threatened or assaulted in any way during their arrest

that occurred on the afternoon and evening of 9 February 2017. The State

witnesses denied that any threats were made to accused no. 3 and accused

no. 4 or that they refused to sign the written statements, exhibit “OO” and

exhibit “RR”. Accused no. 3’s version regarding the assaults perpetrated

upon him at the time of his arrest escalated in seriousness as the trial

progressed and so did his injuries. Both ccused said that they were merely

told to sign the statements but did not have it read back to them nor were

they provided with an opportunity to read these statements.

36

[75] Every one of the witnesses called in the trial within a trial relating to accused

no. 3 and accused no. 4 vehemently denied in their evidence that they or

any one of them, maltreated the accused in any way. The exhibits handed in

by the prosecution provides an evidential paper trail confirming the several

occasions on which each accused’s constitutional rights were explained, the

right to legal representation were explained and questions posed regarding

threats of violence or injuries sustained since their arrest on 9 February 2017

and during the period of their detention in the police cells and at Grootvlei

Prison.

[76] When Accused no. 3 took the stand he contradicted his instructions to

counsel regarding the assault upon him at the time of his arrest and the

seriousness of his injuries. It became apparent that accused no. 3’s version

regarding the signing of the warning statement is unconvincing and can

safely be rejected as false. Accused no. 3’s initial evidence that he was well

aware of signing documents relating to DNS samples and further documents

regarding his constitutional rights changed as he gained more confidence

and his injuries escalated in seriousness to a point where he could hardly

see and had to be assisted by Colonel Sefuthi to hold a pen and sign his

warning statement. He had obviously forgotten his initial evidence regarding

his ability to ascertain the contents of the string of documents that he already

signed in the short period since his arrest.

[77] Accused no. 4’s version that he was forced to sign an exculpatory statement

of which the content did not emanate from him can safely be rejected as

unconvincing and false. Mrs Ferreira’s contention that all the State 37

witnesses were good, credible and reliable and that both exhibit “OO” and

exhibit “RR” should be allowed into evidence are supported by the evidence.

On the other hand, both accused no. 3 and Accused no. 4 came across as

untruthful and unreliable witnesses. The Accused clearly concocted their

stories of duress, threats of assaults and assaults by the members of SAPS.

I was at the time of my ruling, and, still am, of the opinion that the State

succeeded in establishing that the warning statements made by accused no.

3 and accused no. 4 were made freely and voluntarily by both accused,

while in sound and sober senses and without having been unduly influenced

thereto.

[78] I accordingly allowed the contents of exhibit “OO” and exhibit “RR” into

evidence and, as I was not swayed during further evidence in this matter or

arguments to come to a contrary conclusion, the provisional ruling to admit

both exhibits became a final ruling and the contents of the warning

statements will be assessed together with the other evidence.

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

“I, Kabelo Simon Senoge, suspect in this case hereby state that I am in my

sound and sober senses, that I know the allegations against me and willing

to make the following statement/answer questions voluntarily. On

2017/01/30 in the afternoon I was at Mosa’s place with Mosa and Rasta. I

then went to the nearby shop to buy cigarettes. Mosa and Rasta came to

me and told me that they got a phone call that the Maroma gang members

are captured at Phase 3 we must go join the BTK’s because the deceased 38

were looking for Dimeche and we must pretend to be the Maroma. Other

BTK members arrived and we all moved to the direction of Limo Mall except

Mosa who moved (eligible). At the crime scene Dimeche wanted Rasta to

also be present because we left him behind. Rasta was (eligible) and while

moving toward the crime scene. After Rasta’s arrival the three deceased

were instructed by Dimeche to sit down. Dimeche started to stab the first

deceased. Nkomo, Karabo and Ditaba, Messi, Zamele, Lloyd and others,

whose names I don’t know also stabbed after Dimeche. Also Simon and

Cosmo stabbed the deceased all of them, as well as Lebeko stabbed.

Myself and Rasta did not take part in the stabbing and we left the whole

BTK’s stabbing all three deceased. We went to report the incident to Mosa’s

brother who then told us to move away because he doesn’t want trouble at

his place and we went to Bergman Square where I was arrested.”

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

“I Teboho James Mokoai, suspect in this case hereby, state that I am in my

sound and sober senses, that I know the allegations against me and willing

to make the following statement/answer question voluntarily. On 2017/01/30

in the afternoon, I was at Mosa’s place. It was myself, Mosa, Baba and

Mosa’s brother with Kabelo when Mosa got a phone call from Lebeko that

they have captured the three Maroma gang. We should join them. Myself,

Mosa and Kabelo went to them. Coming there, I saw three Maroma gang

members seated with them. I wanted to withdraw and me and Mosa went

back to where we were seated. Dimeche called again and talked to Mosa 39

that we must join them. Me and Mosa didn’t go join them. Dimeche called

for the second time. I went alone and leave Mosa behind. On my arrival to

them I tried to stop them, but they started assaulting the Maroma gang with

knives. Me and Kabelo walked away. They then took the direction of Lima

Mall and I don’t know what happened there. That’s all.”

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

NO. 8:

[81] On 11 October 2018 I was informed by Mrs Ferreira on behalf of the

Prosecution that she intends leading evidence concerning a pointing out

made by accused no. 5 and also evidence regarding certain statements made

to a police officer by accused no. 7 and accused no. 8. Mrs Ferreira also

informed me that she discussed these aspects with the defence and was

informed that the admissibility of the evidence regarding the pointing out as

well as the statements made by accused no. 7 and no. 8 are disputed by the

said accused.

[82] The State then proceeded to call the first witness in the trial within the trial,

Constable Setjhaba Link Ralekgolela of the Welkom Detective Unit. He

testified that during January 2017 he was stationed at the Navalsig Detective

Unit in Bloemfontein. On 10 February 2017 Colonel Sefuthi telephonically

requested the witness and his colleague, Constable Thulo to assist with the

pointing out. They proceeded to Park Road Police Station to collect the

suspect who was then taken to hospital for a medical check-up and to

complete a J 88 form. According to Constable Ralekgolela’s recollection of 40

the events the suspect then directed him and Constable Thulo to an unknown

mall near Heidedal where he remained in the police vehicle and the suspect

and Constable Thulo alighted from the vehicle. After his colleague and the

suspect returned to the vehicle they took the suspect back to the Park Road

Police Station.

[83] A copy of the occurrence book register evidencing that Lebohang George

Teele (Accused no. 5) was booked out by the witness on 10 February 2017 at

13H40 was submitted and marked exhibit “G”. Accused no. 5 did not

complain of any injuries and the witness could not detect any visible injuries.

The witness testified that accused no. 5 made the pointing out to Captain

Strydom who followed the police vehicle in his private vehicle. The witness

was unsure whether a photographer accompanied them during the pointing

out as it was his first pointing out that he ever dealt with. Entry number 624

on the second page of exhibit “G” indicates that the suspect was brought back

by Constable Thulo to the Park Road Police Station and the suspect was

without visible injuries. Constable Ralekgolela was unsure whether accused

no. 5’s constitutional rights were explained to him prior to the pointing out. Mr

Kgoelenya, on behalf of accused no 5 put it to the witness that accused no.

5‘s rights was not explained on the day in question.

[84] The second witness in the trial within a trial, Captain Barend Strydom

stationed at Welkom Detective Service with thirty one (31) years’ experience

in the SAPS testified that on 10 February 2017 he was requested to conduct

a pointing out in Bloemfontein. At his arrival at the Provincial Detective

Offices in Bloemfontein he met Colonel Sefuthi and arrangements was then 41

made for the pointing out to proceed from Park Road Police Station. At Park

Road Police Station Constable Ralekgolela and Constable Thulo brought

accused no. 5 from the cells whereafter the interview took place. Constable

Thulo acted as an interpreter. Exhibit “H” was handed in on a provisional

basis and consisted of the notes on the pointing out of a scene conducted by

this witness. The witness testified that on 10 February 2017 at 09H30 he

was requested by Colonel Sefuthi to assist with the pointing out and at

15H40 at Park Road Police Station accused no. 5 was handed to him to

proceed with the pointing out. The photographer, Constable G P Moleko

was also present in the office at the time of the interview and during the

pointing out.

[85] Captain Strydom informed accused no. 5 that he was not obliged to point out

any scenes or places and warned him that whatever he may point out or

may say will be noted down and photographs will be taken of the scene or

places pointed out and may be used as evidence during his trial. Once

again accused no. 5’s rights, pertaining to legal representation and his right

to remain silent were explained to him by the witness. Captain Strydom

noted that accused no. 5 wore black trousers, black and green MTN sports

top and appeared normal. Accused no. 5 indicated to Captain Strydom that

he is willing to show what he knows and that he was not influenced to make

the pointing out. Captain Strydom reassured accused no. 5 that if he had

been forced, threatened or assaulted in any way to make a statement or to

point out anything he is able to assist him. Accused no 5 indicated that he

understood, and that they may proceed with the pointing out. Accused no. 5 42

furthermore indicated that the incident took place on 2 February 2017 and

again indicated his willingness to proceed with the pointing out.

[86] From the office where the interview took place they moved to the State

vehicle where photographs were taken. Captain Strydom sat in the front left

passenger seat while accused no. 5 sat behind the driver in the back seat.

Next to accused no. 5 was Detective Constable Thulo who acted as the

interpreter and the photographer Constable Moleko accompanied them. The

pointing out started at 15H45 and was completed at 16H50. Captain

Strydom testified that he did not accompany Constable Ralekgolela and

accused no. 5 to the National Hospital, but prior to conducting the pointing

out, he convinced himself that the person doing the pointing out was free

from injuries which information he learned from the completed J 88 medical

form. Exhibit “J”, containing photographs of the pointing out were handed in,

however only the initial and the very last two photographs were left

unstapled when handed in as an exhibit. The initial photographs where of

accused no. 5 and depicted the tattoos on his body and was furthermore

indicative that no injuries, open wounds, blood or scars are visible.

Photograph 8 is a close-up facial photograph of accused no. 5 and no visible

injuries are visible on the photograph.

[87] The witness confirmed the content of photograph 21, photograph 23,

photograph 24, the full frontal photograph of the accused showing no visible

injuries and the odometer of the vehicle. Mr Kgoelenya cross-examined the

witness concerning the contradictions between his evidence and the

evidence of Constable Ralekgolela who testified that they left from the 43

National Hospital where Captain Strydom followed the police vehicle in his

private vehicle to the scene of the pointing out. The witness denied the

version put to him and testified that he did not proceed in his white double

cab bakkie to the scene of the pointing out but everybody travelled in a blue

Toyota Corolla motor vehicle which is visible in the photographs.

[88] Colonel Sefuthi testified that accused no. 5 was located at an unnumbered

corrugated iron sheet house in Pieter Swarts Township.. He arrested

accused no. 5 who was in the company of two (2) other accused. The

witness explained that he informed accused no. 5 that he was busy

investigating a murder case and informed him of his constitutional rights in

Sesotho. At Mangaung Police Station and during an interview with accused

no. 5 he indicated that he is willing to make a pointing out. Colonel Sefuthi

then arranged with Captain Strydom as well as Constable Thulo and

Constable Ralekgolela to proceed with the pointing out on the following day.

[89] During cross-examination by Mr Kgoelenya, accused no 5’s version that he

was arrested on the street and not in a shack, was put to the witness. At the

time of his arrest accused no. 5 was immediately instructed to hand over the

clothes that he was wearing whereafter the police started searching his

shack. It was furthermore denied that accused no. 5 granted permission to

search his house.

[90] It was put to Colonel Sefuthi that accused no. 5 was not interviewed at

Mangaung Police Station but was arrested with other accused who were

indeed taken to the Mangaung Police Station. He was however transferred 44

to the Tourism Centre where he was assaulted by Captain Dasheka and

members of the TRT. Captain Sefuthi was present at the Tourism Centre. A

plastic bag was placed over his head, covering his face which nearly

suffocated him. Captain Khene stopped the assault by Captain Dasheka on

him. During cross-examination by Mr Kgolenya on behalf of accused no. 5,

exhibit “M”, Colonel Sefuthi’s statement as well as exhibit “N”, accused no.

5’s warning statement were handed in as exhibits. The warning statement

was obtained from accused no. 5 on 11 February 2017 and indicates that

accused no. 5 declined to make any statement. It was placed on record that

accused no. 5 was made aware of his rights at about midnight on 10

February 2017.

[91] Captain Alfred Khene of the Detective Unit at Park Road Police Station, who

has thirty one (31) years’ experience in the SAPS, confirmed that he took

down the warning statement of Accused no. 5. He confirmed the testimony

of Colonel Sefuthi regarding the arrest of accused no. 5. After the arrest,

permission to search the corrugated iron shack was requested and obtained

whereafter the shack was searched. The arrested persons were removed to

Park Road Police Station.

[92] Exhibit “K”, the Notice of Rights in terms of the Constitution (“SAPS 14A)

indicated that accused no. 5’s rights in terms of Section 5 of the Constitution

were read to him on 10 February 2017 at 00H27 at Park Road Police

Station. No indication of any threats or assaults were recorded on exhibit

“K”. During cross-examination by Mr Nel it was denied that the accused

were found hiding in the corrugated iron shack.. Captain Khene responded 45

that the shack was locked. It was put to Captain Khene that accused no. 5

who was in the company of Mzwele, Messi and Seun in the street, saw the

white Polo motor vehicle and that Captain Khene was the driver of the

vehicle at the time of their arrest.

[93] The next witness in the trial within the trial was Captain Basil Anthony

Sandy of the Local Criminal Record Centrum and part of the provincial task

team. Captain Sandy has thirty two (32) years’ experience in the SAPS. On

9 February 2017 at 20H50, Captain Sandy met up with Colonel Sefuthi and

Captain Khene in the Bloemspruit area. Several vehicles moved in a convoy

and Captain Sandy was alone in his vehicle at the rear of the police convoy.

At 21H05 the convoy stopped in front of a corrugated iron shack without a

number in Pieter Swarts informal settlement. Captain Khene was in the

company of a young boy and the boy, whose further particulars was

unknown to Captain Sandy, pushed open the door of the property where a

bed with two (2) pedestals next to each other were found. Exhibit “O”,

containing photographs taken by the witness was handed in and Captain

Sandy indicated the corrugated iron shack visible on photographs 1, 2 and 3

in exhibit “O”. Photograph 4 to photograph 10 depicts a sports bag, found in

the left pedestal next to the corrugated iron wall. Photograph 6 depicts the

content of the sports bag, a t-shirt, more clearly visible on photographs 7 to

12. The t-shirt was removed from the bag as seen on photographs 9 and 10

and was placed in an exhibit bag with number PA3000710996 and marked

as exhibit “1A1”. A pair of beige/brown, Chino, “Oak Ridge” pants, marked

exhibit “1A2”, depicted on photographs 14, 15 and 16 were seized and 46

placed in an exhibit bag with number PA3000711002 as depicted on

photographs 17 and 18.

[94] The convoy then proceeded to house no. 9045 in Pieter Swarts township.

Photographs 21, 22 and 23 shows the inside of this property. At a third

property, house no. 5365, Bloemside 1, depicted on photographs 24 and 25

the witness entered through the kitchen door and a blue washing basket,

visible on photograph 26 was shown from which a pair of blue jeans,

removed at the top of the heap in the basket and marked as exhibit “3A1”

and depicted on photographs 27 to 30 in exhibit “O”. Next to the blue

washing basket was a cupboard from which a yellow t-shirt was removed

after it was pointed out to the witness. The yellow t-shirt (Nike) was marked

exhibit “3A2” as shown on photograph 35 and placed into an exhibit bag

numbered PA3000706213. According to the testimony of Captain Sandy a

young boy and Colonel Sefuthi then moved to a bedroom where the

investigating officer, Colonel Sefuthi, lifted the bedding and underneath the

bed a pair of brown shoes, which was marked exhibit “3A3”, as shown on

photographs 38 to 39 was removed and packed into exhibit bag

PA300071100 as shown on photograph 42. The exhibits were booked in a

register for safekeeping in the exhibit office, SAP 459, with exhibit number

96/2017. On 14 February 2017 the witness compiled his forensic letter,

inspected all the exhibits to ascertain whether all the seals were still intact

and sent all the exhibits per courier to the forensic laboratory. The letter

dated 14 February 2017, accompanied the exhibits to the Chief Forensics

Science Laboratory and was received as exhibit “P”. The exhibit log, part of

Captain Sandy’s crime scene report, completed on the scene as he collects 47

the exhibits, marked “LCRC reference number 07/02/2017” with a reference

number of each exhibit, a description of each exhibit, the place and position

where it was found, the date and the packing number was accepted as

exhibit “Q”.

[95] During cross-examination by Mr Nel, Captain Sandy indicated that the

exhibit bag containing the brown shoes found underneath the bed, was

sealed and a photograph depicting the sealed bag, though not included in

exhibit “O”, is available on his laptop and was subsequently handed in and

marked exhibit “R”. It was furthermore put to the witness that accused no.

7’s instructions are that the property referred to as House no. 9045 belonged

to a man called Lehlohonolo Motsepe, who is much taller than accused no. 7

and he wears a size 8 or size 9 shoe. The shoes found underneath the bed

belong to Lehlohonolo Motsepe, who left the shoes at the house whereafter

accused no. 7 kept the shoes underneath his sister’s bed.

[96] According to accused no. 7, he informed the members of the police that the

shoes belonged to the said Lehlohonolo Motsepe at the time the shoes was

seized by the witness. Accused no. 5’s version that he stayed with Thabang

Makibinyane in the shack and the sports bag belonged to the said Thabang

Makibinyane was also put to this witness, who had no knowledge thereof. At

the time when the sports bag was discovered, accused no. 5 made the

police aware of the fact that he is not the owner of the sports bag, nor the

contents thereof and it was the property of Thabang Makibinyane. Captain

Dasheka testified in the trial within the trial and explained that on 9th

February 2017 at around 15H30 and subsequent to the arrival of Colonel 48

Sefuthi and Captain Khene, and due to information received after the arrest

of accused no. 1, it was decided to proceed with the investigation and to

secure further arrests and seize clothing with possible blood stains as soon

as possible. Therefore it was decided not to obtain a search warrant at the

Magistrate’s Court due to the fact that time was of the essence. According

to Captain Dasheka, it was highly likely that, after the arrest of one member

belonging to a gang, the message could soon reach the other members

which could lead to the destruction of evidential material.

[97] The witness confirmed his evidence in the main trial that suspects were not

threatened, assaulted or manhandled in any way and further denied that any

of the accused were taken to the Tourism Centre where they were

assaulted.

[98] It was put to Captain Dasheka by Mr Nel on behalf of Accused no. 7 and 8

that the police had sufficient time to obtain a search warrant prior to

launching the operation, search of the properties referred to and the seizure

of the evidential material referred to by Captain Sandy. Captain Dasheka

was accused of assaulting accused no. 7 at the Tourism Centre by

smothering him with a surgical glove, filled with water and held over his nose

and mouth, which accusation was denied by Captain Dasheka. Thereafter

Captain Dasheka smothered accused no. 7 with a plastic bag, sprayed with

teargas and pulled over his head, which accusation was also denied by

Captain Dasheka.

49

[99] It was put to Captain Dasheka that accused no. 8 was slapped in his face

several times and accused no. 1, 3, 6, 7, 8 and 10 were all assaulted by

other members of the SAPS at the Tourism Centre.

[100] Warrant Officer R.J. Motseki, who has 26-years’ experience as a member of

the SAPS, testified that on 11 February 2017 he was requested to obtain a

warning statement from accused no. 7, Pogisho Paul Nathane, also known

as Messi. Page 1 and page 2 of the warning statement marked exhibit “S”

was provisionally allowed and the last paragraph on page 2 was covered by

Mrs Ferreira. At 14H15 and at Heidedal Police Station, the witness

questioned accused no. 7 whether he understood the charges levelled

against him and whether he is prepared to make a statement voluntarily to

which accused no. 7 replied that he is willing to make such a statement.

Accused no. 7 did not report any threats of violence, assaults nor any

injuries at the time. After completion of the statement it was read back to

him whereafter accused no. 7 signed the statement on several pages. After

completion of the interview and taking down of the statement the witness

returned accused no. 7 to the cells.

[101] At 16H30 on the same day, the witness also took down the warning

statement of accused no. 8, Zwelinlungile Ntlathi, as per exhibit “T”. The

witness conducted the interview at Heidedal Police Cells and accused no.

8’s rights were explained to him during the interview. The pro forma

document was completed and the accused did indeed provide a statement.

The statement was then read back to accused no. 8 and upon replying that

he was satisfied with the contents thereof, signed the statement. There were 50

no threat of violence or assaults reported by accused no. 8 to the witness

and the statement was given freely and voluntarily.

[102] During cross-examination it was disputed that accused no. 7 and 8 were

requested to undress to ascertain whether they might have any injuries to

their bodies. The witness confirmed that neither accused no. 7 nor accused

no. 8 reported any assaults perpetrated against them. Both accused no. 7

and 8 denied that they proffered any information to the witness and that the

contents of the statements contained in exhibit “S” and exhibit “T” were read

back to them after the interviews. It was put to the witness that both

accused no. 7 and 8 were assaulted by members of the SAPS even though

they did not display any visible injuries at the time of the interview with the

witness. It was also put to Warrant Officer Motseki that both accused no. 7

and no. 8 were terrified of being assaulted again and it was furthermore

denied that the content of the statements were written in the presence of

accused no. 7 and 8. It was put to the witness that both accused no. 7 and 8

merely signed the documents handed to them for their signature without

knowing the contents thereof.

[103] Accused no. 5, a 25-year old male who, according to him resided with

Thabang Makibinyane at the time of his arrest on 9 February 2017, testified

that he was arrested in the street close to his residential address. At the

time of his arrest he was in the company of accused no. 7 and accused no. 8

as well as Lehlohonolo Motsepe also known as Mediele. At the time when

the police vehicles approached them, Mediele ran away but he was arrested

and later released at Mangaung Police Station. Accused no. 5 was informed 51

that he was arrested in a murder case whereafter they were removed to the

Mangaung Police Station. Accused no. 7 and 8 and Madiele was in the

police van with him. At Mangaung Police Station, Madiele alighted from the

police vehicle and Accused no. 5, no. 7 and no. 8 were taken to the Tourism

Centre where Captain Dasheka took him into an office and made him lie on

his back. Captain Dasheka sat on his chest and put a plastic bag, filled with

pepper spray on his head.

[104] Accused no. 5 claimed that a statement was obtained from him by Colonel

Sefuthi at the Tourism Centre, however this version was never put to Colonel

Sefuthi for his response. Accused no. 5 saw accused no. 1, who was placed

in another vehicle at the Tourism Centre whereafter they left the Tourism

Centre and went to Bergman Square, to accused no. 4’s residence. This

occurred at around 15H30 to 16H00. Accused no. 5 was cuffed together

with Accused no. 7. At the residence of Accused no. 4 Captain Dasheka,

Colonel Sefuthi, the TRT members and the photographer, Captain Sandy

entered the premises. From there the police took him to his place of

residence where he informed the police that he was staying with Thabang

Makibinyane at the shack. This information was relayed to members of the

TRT, whom he also saw during the trial when they attended the Court

proceedings. Thabang Makibinyane joined him in 2016 and had been living

with him for a period of five (5) to six (6) months. The last time he saw him

was at the time of his arrest.

[105] Accused no. 5 denied granting permission for his shack to be searched by

the members of the police. Thereafter they left to accused no. 7’s place of 52

residence and thereafter to the Mangaung Police Station. Accused no. 5

conceded that his Notice of Rights as per exhibit “K” was given to him when

he was taken to the cells. Regarding the pointing out as per exhibit “H” he

testified that Constable Ralekgolela accompanied him from Park Road

Police Station for the pointing out whereafter they went to Limo Mall. He

denied the evidence presented by the State that he was willing to make a

pointing out. He furthermore denied making the pointing out freely and

voluntarily as he was instructed to point to certain spots. According to

accused no. 5 he never met Captain Strydom before the pointing out and he

found Captain Strydom at the Park Road Police Station while he was

completing a form.

[106] Accused no. 5 testified that he indeed sold a pair of tekkies to the witness,

Dimakatso Makate. The tekkies belonged to three (3) gentlemen who came

to him and requested him to assist with the sale of the tekkies. He confirmed

her evidence that she indeed purchased the tekkies and paid an amount of

R100.00. Having been told that the tekkies belonged to one of the deceased

he would not have assisted in the selling of the tekkies. During cross-

examination by Mrs Ferreira, accused no. 5 conceded that there was no

assault at the time of his arrest but the assault on him by Captain Dasheka

took place at the Tourism Centre. From the Tourism Centre the arrest of

accused no. 3, 4 and no. 6 took place whereafter the members of SAPS

returned to his place of residence to search his shack. In his reply to the

question how the police knew to seize the green t-shirt and brown pants at

his shack if nobody told the police about these particular items, he replied

that he showed them his cupboard, whereupon the police decided which 53

items to seize. Accused no. 5’s reply to the prosecution’s question why it

was put to Colonel Sefuthi that he was ordered to show them his shack and

the clothes that he was wearing, accused no. 5 replied that he was indeed

asked to indicate where he kept his clothes. He however denied replying to

these particular questions. Accused no. 5 then testified that when the police

came they did not ask him where his shack was located. They took him to

the Tourism Centre, and then left to arrest the other accused whereafter they

took him to his shack to search for the clothes. It was therefore put to

accused no. 5 that his version now differs from the version put to Colonel

Sefuthi. It was furthermore put to accused no. 5 that it is unlikely that

Colonel Sefuthi, while conducting an illegal search would request a

photographer to photograph the illegal search. Accused no. 5 replied that he

does not have the answer to these questions as he was outside during the

search and whatever happened inside his shack he does not have any

knowledge of.

[107] During cross-examination accused no. 5 testified that the plastic bag that

contained pepper spray was held over his face while members of the TRT

was holding his hands and legs in order to immobilise him. It was put to him

by Mrs Ferreira that in his evidence in chief he explained that the plastic bag,

apart from the pepper spray, also contained water. Accused no. 5 then

informed the Court that when you pour pepper spray into a bag it forms a

liquid, something like water and that is why he referred to water inside the

bag during his evidence in chief.

[108] It was put to him that his version that he informed the police that the clothes

that were seized belonged to Thabang Makibinyane was not put to Colonel

Sefuthi nor Captain Khene when they testified. Accused no. 5 replied that he 54

did inform members of the TRT at the time of the search but not Colonel

Sefuthi nor Captain Khene nor Captain Strydom. Due to his distrust of the

police officers, he did not inform Captain Strydom of any threats or assaults

perpetrated against him and did not ask his assistance to arrange protection

against any further harm. Accused no. 5 conceded that he informed the

police about the black and white Adidas Superstar tekkies sold to Dimakatso

and provided information to the police regarding the sale of the tekkies.

[109] Accused no. 5 testified that the office where he was tortured at the Tourism

Centre was located on the ground floor and there were no other businesses

or shops at the particular centrum. Accused no. 5 was taken to the Tourism

Centre during the day at approximately 14H30 to 14H45. According to

accused no. 5, the police vehicle parked in front of the door where they

entered the building. He was not able to provide a description of the parking

area where the police vehicle stopped in relation to the Tourism Centre and

whether the parking area was at the side of the building or not.

[110] Accused no. 7, Pogisho Paul Nathane, testified that he was arrested while

standing with accused no. 5 and no. 8 in the street. He knew accused no. 8

from the soccer but only met accused no. 5 on that particular day. Accused

no. 7 corroborated accused no. 5’s version that, at the time of the arrest,

Madiele ran away and was caught by Captain Khene. After their arrest they

went to Mangaung and did not see Madiele afterwards. From Mangaung

they departed to the Tourism Centre. Accused no. 7 testified that accused

no. 5 was made to lie face down whereafter he changed the version to say

that accused no. 5 was laying on his back. Accused no. 7 was taken into a 55

separate office and was made to lie facing downwards. Captain Dasheka

used a glove with water and placed it on his face to suffocate him. From the

Tourism Centre they went to Bergman Square where Accused no. 2, 3, 4

and 6 were arrested whereafter they returned to accused no. 5’s shack and

where he was cuffed with accused no. 5 when they alighted the vehicle.

Accused no. 7 testified that the police requested the clothing that he was

wearing on the previous Monday and he agreed to this request. He testified

that the police demanded the shoes that he was wearing on the Monday.He

replied that he was still wearing the very same shoes, but the police

proceeded to a bedroom where they found a pair of dirty Caravella shoes

whereupon he informed the police that the shoes belong to Madiela.

Madiela informed him that the particular pair of shoes were too small and he

left the Caravella shoes with the witness and borrowed a pair of flip flops

(from accused no. 7). The witness did not provide the information as per

exhibit “S” but merely signed the document due to fear of further assaults.

During his evidence in chief accused no. 7 conceded that he indeed received

a document containing his rights. Accused no. 7 confirmed that the contents

was read to him but not explained and his signature does indeed appear on

the document.

[111] During cross-examination, Accused no. 7 testified that the police were not

interested in the shoes that he was wearing on the Monday and they did not

remove the shoes from his feet. Accused no. 7 then testified as follows:

“I then showed them the other shoes that were there. I took them out under

the bed. They then took them because they were dirty.” 56

And further:

“I did not give them. I only showed them that these were the only shoes that

are there. They then took them.”

[112] It was put to the accused that he is adjusting his version regarding the size

of the shoes as it was put to Captain Sandy that Lehlohonolo’s shoes were a

size 8 or 9, but during his testimony in chief he replied that Lehlohonolo wore

a size 7 or 8 shoe. Accused no. 7 replied that even though Lehlohonolo’s

feet were much bigger in size he was still able to comfortably wear his “flip

flops” and even kept accused no. 7’s shoes for a period of more than two (2)

weeks. However, accused no 7 adjusted his version to a period of a week or

a few days. According to accused no. 7 he learned from Captain Dasheka

that Lehlohonolo was killed by a person called Satan.

[113] Subsequent to the testimony of accused no. 5 and no. 7 in the trial within the

trial the State applied for the reopening of the State’s case and presented

the evidence of Johan Abraham Putter, a Captain with the HAWKS and

stationed at the Tourism Centre, Bloemfontein. (Park Road, Bloemfontein).

Captain Putter has twenty seven (27) years’ experience and is stationed at

the Directorate of Priority Crimes Investigation, also known as Organized

Crime. Their offices are situated on the first Floor of the building which was

shared with a training centre. Access to the first floor is gained by lifts or

stairs. There are two glass doors at the entry leading to a communal entry

hall and the offices are situated to the right of the entry hall. Entry to the 57

offices situated at the Tourism Centre can only be obtained upon signing a

register controlled by security guards. There are approximately twenty five

(25) offices occupied by the DPCI and all of the offices are occupied by

investigators. There are no vacant offices.

[114] Due to the seriousness of the crimes investigated by the DPCI it is a general

practice to lock one’s office as soon as you leave your office and therefore it

is highly improbable for other SAPS members to gain entry to these offices

to assault suspects and if any assaults took place at these offices it would

have become known due to the fact that the walls are not soundproof. The

ground floor of the Tourism Centre is occupied by various businesses for

example a bus service, an optometrist, a security firm, a hair salon and a

restaurant as well as the general inquiry offices of the Tourism Centre. A

pharmacy is also located on the ground floor.

[115] Accused no. 8 Zwelinlungile Ntlathi testified that he was arrested on 9

February 2017 in the street at Pieter Swarts township. He was accompanied

by Madiele, accused no. 5 as well as accused no. 7 whom he knows as

“Messi” from playing soccer. At the time of his arrest his rights were not

read to him and he was taken to the Mangaung Police Station whereafter he

was also taken to the Tourism Centre with accused no. 5 and no. 7 and

testified regarding the allegations that they were assaulted. Accused no. 8

testified that he did not make a statement as per exhibit “T” but merely

signed the statement due to fear of further assaults. The document was not

read back to him and he denies any knowledge of the incident.

58

[116] Accused no. 8 called his mother, Ellen Hlengiwe Ntlathi to testify as a

witness. She corroborated accused no. 8’s version that the blue K-way

beanie was bought by her other son, Simphiwe Jolimvava who lives and

works in the Eastern Cape and who gave the particular K-way beanie to

accused no. 8 during November 2016 as a Christmas present. Her son in

fact bought three (3) K-way hats which he gave to his siblings for Christmas.

During cross-examination she was able to remember the dates when

Simphiwe brought the beanies during November 2016 but was unable to

provide clear information regarding the damage to her cell phone, which only

happened approximately three (3) months prior to her testimony in court, as

being the reason why she was not able to provide the police with the contact

number of her son, living in the Eastern Cape. Accused no. 8, in his

testimony in chief testified that his brother brought him the beanie during

December 2016, but in the trial within the trial he testified that it was during

November 2016. During her evidence the mother of Accused no. 8 was not

aware of the fact that Accused no. 8 failed at school on several occasions

and indicated that he was actually a good student. The witness furthermore

testified that soon after Accused no. 8’s arrest she relocated and refrained

from informing Accused no. 8 that she no longer stayed at her former

address. It was actually clear that Accused no. 8’s mother did not have

contact with Accused no. 8 since his arrest during February 2017, however

she was able to provide precise information regarding the three (3) K-way

beanies which her children received as presents. That was actually the only

aspect of which she was sure of.

59

[117] On 24 October 2018 I, subsequent hearing the evidence of members of

SAPS as well as the evidence of Accused no. 5, 7 and 8 pertaining to severe

assaults, threats as well as the fact that their constitutional rights were

breached, ruled that the evidence pertaining to the pointing out by accused

no. 5 made to Captain Strydom as well as the evidence concerning the

statement made to Warrant Officer Motseki by accused no 7 and the

statement made by accused no. 8, are provisionally allowed.

[118] All the State witnesses made a favourable impression during their testimony

and there were no material contradictions in their evidence. It was however

clear that Constable Ralekgolela, as conceded by Mrs Ferreira, was

obviously mistaken concerning the events that took place during the pointing

out conducted by Captain Strydom of Accused no. 5. Constable Ralekgolela

was unsure of the procedures that were followed, the sequence of events

and the fact that Captain Strydom was driving with the witness in the police

vehicle. He was a poor witness, uncertain about his assertions and

obviously confused. On the other hand, Captain Strydom, who appears to

be a highly experienced police officer and who explained that his colleague,

Constable Ralekgolela who travelled with him to testify in the trial within a

trial, was inexperienced and nervous at the time when he testified. The

other witnesses on behalf of the prosecution corroborated each other in all

material respects and I can find no reason to question the reliability of the

testimony of each of them. Accused no. 5, no. 7 as well as accused no. 8

however were generally vague and uncertain about events, which obviously

led to accused no. 5’s adaptation of his version pertaining to the pepper

spray becoming water through the process of condensation and their vague 60

description of the offices at the Tourism Centre. In this regard the evidence

of Captain Putter pertaining to the description of the location of their offices

at the Tourism Centre is accepted as the truth while the testimony of

accused no. 5, accused no. 7 and accused no. 8, that no other businesses

are located at the Tourism Centre can safely be rejected as false. It actually

became clear that accused no. 5, no. 7 and no. 8 has no indication of where

the Tourism Centre is located or the fact that several businesses are located

in this double storey building. It is furthermore highly improbable that the

accused were interrogated and tortured in the way described as it was

obvious that the version that they were suffocated with a surgical gloves and

plastic bags containing liquid pepper spray were fabrications.

[119] Accused no. 7’s version concerning the shoes found underneath his sister’s

bed is obviously an adaptation of his initial version that he pointed the shoes

to the police but later testified that he did not make any pointing outs at the

time and the police searched underneath the bed and found the shoes

without his assistance. Accused no. 7’s version that he handed a pair of “flip

flops” to Lehlohonolo, which would have been, according to his own version,

too small for Lehlohonolo, is rather opportunistic and is rejected as false.

[120] The Court is fully aware of the possible dangers lurking in the acceptance of

the evidence of Accused no. 8’s mother who obviously refrained from visiting

her son while incarcerated but provided support for Accused no. 8’s version

that his received the K-way beanie as a present from his brother.

61

[121] The notes pertaining to the pointing out by Accused no. 5 was accepted as

exhibit “H1”. The contents read as follows: “Captain Strydom noted that

Accused no. 5 gave directions to proceed to an open area where he and his

friends met three (3) males who enquired as to the identity of “Match”. The

three (3) males were informed that Accused no. 5 and his friends are

members of the BTK group and revealed their BTK tattoos whereafter Match

was pointed out to the three males. Match then instructed the three (3)

males to lie down on their sides and to close their eyes. According to

Accused no. 5 they then took out their knives and stabbed all three (3 males

in their necks. He himself and all the members of his BTK group then took

“big stones” and threw the stones at the heads of the three males. Match

then took his knife and cut the three victims’ throats. After realizing that the

victims were dead they then left them at the scene, split up and took different

directions. Accused no. 5 then told Captain Strydom that he and his group

came back the next morning and found the bodies of the deceased still on

the scene.

[122] The notes were signed by Accused no. 5 as well as Captain Strydom.

Further evidence regarding the procedures followed as soon as Captain

Strydom and Accused no. 5 returned to the Park Road Police Station were

then placed on record. The contents of exhibit “S1”, the warning statement

of Accused no. 7 was then revealed and placed on record. On the second

page the contents thereof read as follows”

“On Monday, 1 February 2017 at about ± 20H00 I left my residing place

Pieter Swarts and I went to my friend’s shack. BTK’s where we always 62 meet. The owner shanti belongs to Lebohang Tele. Also known as Lebeko.

On my arrival at Lebeko place shanti I found unknown male and Zweli standing outside. On my arrival this unknown male came to me and told me that the t-shirt that I am wearing is short and my tattoos of BTK can be seen.

And I must not get inside the shanti because they capture three guys of

Maroma gangsters. Then I asked him to explain further. This unknown male explained to me that this three guys met with them at Bangladesh tuck shop in Phase 4. They said that they are looking for Dimach. This three Maroma gangsters. This unknown male asked them why are they looking for Dimach and they did not answer him and left. And afterwards this unknown male went to Dimache and told Dimach that this three guys are looking for him.

Then Dimach went to this three guys then asked them whether they are looking for Dimach. Then this three guys did not answer Dimach. Then

Dimatch while he realized that this three guys are not answering him, he then asked guys it seems as if you belong to BTK’s. This three guys respond by saying no they do not belong to BTK. Then Dimatch told them he heard that they are looking for Dimatch. Then he asked them to which gangster are they belonging. As they are looking for Dimatch. They told

Dimatch that they belong to Maroma gangster. Then Dimatch show a sign of

Maroma and told them that he also belonged to Maroma gangsters and he is also looking for this Dimatch and also gangsters known as Makauta are also looking for Dimatch at Pieter Swarts. Dimatch and this three guys went to shack and found BTK members. Then Dimatch and some BTK’s members and this three guys ‘Maroma’ were smoking ndanda drug inside the shack while I was still outside with this unknown male who was telling me this whole story. I told this unknown male that I am going to change the t-shirt 63 that I was wearing. After I have change I met Lavas, Pule and we went back to that shanti where Maroma have been captured. The same day at about

22H00 we left the shanti, K7, KB, Zweli, Cosmo, Bongani, Zamile, Rasta,

Mokome, Lepetla, Lebeko, Frans, Lehlozi, Pina, Dimatch and others are unknown to me as they are residing in Phase 4 and are known to Dimatch.

Cosmo was in possession of knife, Zamile was in possession of a panga,

Rasta Mokome was in a possession of a panga, Lebeko was in possession of a long knife, KB was in possession of long knife called stainless steel.

Lehlozi was in possession of a Rambo knife, Poke was in possession of a knife, 3Star and also this unknown Phase 4 BTK were also in possession of knives. Along the way we are just saying we are going to Dimeche place in

Namibia. On our arrival behind Limo Mall then Dimeche instructed us to sit down so that passing cars must not see us. Rasta was behind and KT called him with his cell phone and Rasta arrived. Then after that the

Dimeche instructed us to sit in a circle but this three Maroma were a little out of the circle. Then Dimeche asked them to join the circle properly.

Afterwards they were put inside the circle. While sitting there Dimeche stand up and hold this three Maroma guys with their hands and told them, guys you have been looking for Dimeche and here I am and if you can scream I am going to kill you. Then Dimeche said to Cosmo he must borrow him his

3Star knife he is going to cut this guy’s testicles and he took a 3Star from

Cosmo and cut the first guy or slaughter him and he give Cosmo his knife back and told him that his knife is slow. Dimeche took a stainless knife and cut the second one throat with it and Cosmo stabbed the last one who was a little bit younger and fall down after that. Dimeche again cut his throat. After that Dimeche said no one is going to chop this three guys Maroma we are 64

only going to stab them. Then they started to stab them. Then Bongani

asked to break the three guy’s eyes and he only breaks one guy’s eyes with

his knife. Lebohang Tele, Cosmo, KB, Zamile, Poke were part of the people

who were stabbing this three guys. Zwele took a K-way blue hat from one of

the deceased. Cosmo took an All Star tekkies black and white from the

deceased. Lebohang Tele and Bongani Pitso took Adidas called Superstar

from the deceased and they were arguing for it. Then at last Bongani took it

but the agreement was that they are going to sell it both of them. Rasta

Mokone took the power land tekkies blue in colour from the deceased.

Myself, Zwele also he has took a blue hat and Soso, Pina, Rasta, Lepetla did

not stab the deceased our duty was only to escort. All people who has took

the deceased’s property are the last persons who has left the scene. Cosmo

was in possession of a (eligible) Zwele blue K-way hat, Lebohang Tele Pitso

Adidas Superstar, Rasta took a power land tekkies.”

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

following:

“On Monday, 1 February 2017 at about ± 21H00 I met with Soso in Pieter

Swarts. Soso was with Messi. Soso informed me that there are three guys

at Lebeko’s shanti and that they belong to Maroma gangster and told me

that on my arrival I must do the sign of BTK but of … and Soso further told

me that he is going to look for other members of BTK then Soso and Messi

left and I went to shanti where Maroma gangsters have been captured. On

my arrival I find Lebeko, Cosmo, Dimeche and BTK and this three guys

belonging to Maroma gangster and they were smoking ndada drugs. While 65

sitting there Rasta, Mosdef, KB, Rasta Nkomo arrives. While relaxing

Dimeche was saying we must go and look out for Dimeche. Afterwards

Frans and Messi arrived, Frans went into the shack and Messi remained

behind. Someone informed Messi not to enter the shanti because his tattoo

of BTK is visible. We went outside one by one and Dimeche informed us we

are going to coronation. After we had an agreement that we are going to

coronation, Dimeche said that we are going to kill them. Some few minutes

after we have left the shack Dimeche told us that we are no more going to

coronation but we are going to Namibia. This three guys of Maroma were

also in our company. Behind Limo Mall Dimeche instructed us to sit there to

take a decision where are we going. Then Dimeche said we must relax

behind Limo Mall to wait for the other group which was still coming. On

arrival of the other group we formed a circle and this three Maroma

gangsters were inside the circle. The Dimeche hold them by their hands and

told them guys I am Dimeche you don’t scream or else I am going to kill you.

Then Dimeche instructed them to lie down and these three Maroma lie

down. After that while lying Cosmo took a knife and stabbed one of the guys

on the neck then Dimeche took a knife from Cosmo and stabbed this other

two and was busy cutting their throats. Then K7, Frans, Zamile, KB and

other unknown BTK stabbed the three Maroma. Bongani took a knife and

stabbed one deceased eyes. Some of the BTK left and stay behind and I

took a K-way hat from the deceased, Cosmo took a black All Star from one

deceased. Lebeko took power land tekkies from the deceased. After that

we left the scene.”

TRIAL WITHIN A TRIAL: ACCUSED NO. 13: 66

[124] Evidence pertaining to a warning statement obtained from Accused no. 13,

Sefale John Molefe were as follows: Mrs Patrinos who by then also

appeared on behalf of Accused no. 13 since Mr Nell’s retirement indicated

that Accused no. 13 was informed to sign the warning statement and due to

fear of assaults he affixed his signature to the document. Therefore the

element of “freely and voluntarily” is absent. Warrant Officer Ramodula, who

was stationed at Park Road Police Station during February 2017 was called

to testify and informed the Court that he was requested to obtain a warning

statement from Accused no. 13. The witness identified his handwriting on

exhivit “YY”. The witness conducted an interview with Accused no. 13 on 22

February 2017 at 13H17 at Heidedal Police Station where the suspect was

informed of the witness’s rank and informed of his rights in Sesotho

whereafter the certificate by suspect on the first page of exhibit “YY” was

completed.

[125] It is evident from the document that the five (5) questions put to Accused

no. 13 were responded to in the following ways; that he understands the

alleged offence and that he is prepared to make a statement on a voluntarily

basis. Accused no. 13 indicated that he did not suffer any injuries nor was

he assaulted or threatened. During cross-examination Accused no. 13’s

version was put that he did not give any statement to the witness. Accused

no. 13’s version was that he was slapped by Sergeant Jona in the face and

that he informed Warrant Officer Ramodula of the assault upon him.

[126] The next witness, Sergeant Shadrack Jona is stationed at Provincial

Organized Crime with fourteen (14) years’ experience and testified that he 67

does not recall Accused no. 13 and only became involved in this case on the

15th February 2017. He denied Accused no. 13’s version that he assaulted

him or threatened him into making a statement. Sergeant Jona had no

recollection that he attended the Comtech School where Accused no. 13

was arrested and due to the fact that he has knowledge of this particular

school, he would have remembered if he was involved in the arrest.

[127] Sergeant Kenneth Motaung, stationed at Provisional Organized Crime with

eighteen (18) years’ experience in the SAPS testified that he was on duty on

21 February 2017 at Heidedal Police Station when Colonel Sefuthi arrived

with three (3) or four (4) suspects. He was tasked to detain three (3) of the

suspects and testified that he followed the normal procedure to explain their

rights and to check whether they had any injuries. Exhibit “ZZ”, the SAP 14A

of Accused no. 13 was received as an exhibit. Sergeant Motaung

recognized his handwriting on exhibit “ZZ”. Exhibit “AAA”, the copy of the

occurrence book was signed by Sergeant Motaung when he handed the

accused over to the cells at Heidedal Police Station. Accused no. 13 was

detained at 15H40 and did not report any police brutality to him nor was any

bruises or injuries observed. The witness was able to identify accused no.

13 in Court and explained that even though he met the suspect two (2) years

ago he is able to remember his face. Colonel Sefuthi testified that he as well

as other members were involved in the arrest of Accused no. 13 on 21

February 2017 at Comtech School.

[128] Accused no. 13 testified that he was 19 years old at the time of his arrest at

Comtech School, where he was called to the Principal’s office and met with 68

Captain Kene, Sergeant Jona and Colonel Sefuti. Accused no. 13 denied

that his rights were explained to him at the time of his arrest. He testified

that along the way Sergeant Jona told him that he is not telling the truth

about the incident and he was slapped with an open hand on his face, more

than once. His injuries were not visible. Accused no. 13 identified his

signature on Exhibit “YY”, but explained that it was affixed to the document

under duress. Accused no. 13 denied that the questions under the heading

“Certificate by Suspect” were posed to him and that he provided the answers

recorded on Exhibit “YY”. He in effect denied that his rights were explained

to him and he furthermore cannot recall telling anybody about a murder and

therefore the content of the warning statement did not emanate from him.

During cross examination Accused no. 13 testified that his personal

particulars were taken in the Principal’s office at the school and once again

in the kombi, but he could not provide a reason why it was necessary for the

police to obtain his personal particulars twice. This aspect was also not put

to the State witnesses for their response. The threat made towards accused

no. 13 consisted of a warning that he will be assaulted in the same manner

as Constable Jona assaulted him, if he refused to sign the warning

statement. Accused no. 13 could not provide any explanation from whom

the content of the warning statement emanated from, if not from him.

[129] On 13 May 2019, the ruling in the trial within a trial of accused no. 13 and

subsequent to the evidence of four State witnesses, Warrant Officer

Ramadula, Sergeant Jona, Sergeant Kenneth Motaung and Colonel Sefuti

as well as the evidence of accused no. 13, was that the contents of the 69

warning statement of Accused no. 13, Sefali John Molefe, Exhibit “YY” is

provisionally allowed as evidence in this matter.

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

“On Monday 2017/01/30 I was at my residence at Phase 4 with my friend

Lerato. One of our friends, Lebeko phoned Lerato on his phone and

informed him that our gang Group BTK caught some other three guys are at

a certain corrugated iron house and they were brought by Dimesh. We went

there and we found the three guys. We, a group of men belonging to the

gang BTKs. We went near Lemo Mall and these three guys were encircled.

Dimesh asked these guys whether they have knives with them and they said

they don’t have any knives with them. Dimesh asked them again that how

can they come to a fight without knives. Dimesh borrowed a knife from one

of the group members and started stabbing one of these guys several times

in the neck. Other gang members also started stabbing all these three guys

with knives all over their bodies until all three of them died. Thereafter we

left the scene leaving all the deceased there. We parted to different

direction. I never participated in the stabbing of these three men. I don’t

know who were those three men that were killed. The people that I saw

stabbing these guys are Dimesh, (illegible), Rasta. The others I don’t know

their names. That is all.

[131] The State also presented evidence in a trial within a trial pertaining to

Accused no. 15, Teboho Solomon Ntsheno, and called several witnesses

regarding the arrest of Accused no. 15. The disputed document was ruled 70

inadmissible and it is therefore unnecessary to recount the testimony of

these witnesses.

THE CASE AGAINST THE ACCUSED:

[132] The State in this case has no direct evidence against the accused and

argued that due to the fact that the members of the community fear the

gangsters, the availability of witnesses, willing to testify against gang

members remains a problem. Mrs Ferreira conceded that the onus rests on

the State to prove beyond reasonable doubt that the Accused are guilty as

charged on each count. Only accused no. 5, no. 7 and no. 8 testified in their

own defence. At the last day of the hearing of this matter, on 31 May 2019,

and subsequent to the address by Mrs Ferreira as well as the arguments on

behalf of the defence, the State conceded that the burden of proof beyond

reasonable doubt has not been met with regard to Accused no. 1, no. 6, no.

9, no. 10, no. 11, no. 12 and no. 15 on counts 1 to 7 and that the said

accused are entitled to their acquittal.

[133] Subsequent to hearing the arguments on behalf of the state and the

Accused represented by Mr Kgolenya and Mrs Patrinos and in consideration

of the right to freedom of movement entrenched in the Constitution, this

Court immediately proceeded with the judgment in this matter. Due to the

concession made by Mrs Ferreira that the guilt of the seven accused

mentioned on all seven (7) charges were not proved beyond reasonable

doubt by the evidence adduced during the trial and furthermore that the

accused mentioned, are therefore entitled to their acquittal and due to the

unavailability of some of the legal representatives to proceed with the 71

judgment in this matter during June 2019, it was of paramount importance to

proceed with the immediate acquittal of the accused so mentioned. I was

satisfied that no evidence, proving their guilt beyond reasonable doubt was

placed before this Court and therefore Accused no. 1, no. 6, no. 9, no. 10,

no. 11, no. 12 and no. 15 were found not guilty relating to all the charges

against them and they were discharged

[134] The trial was postponed to 2 July 2019, and further postponed to 5 July

2019, to proceed and finalize the judgment in this matter.

[135] The case presented by the State comprised of more than fifty (50)

witnesses, however no eyewitnesses testified during this trial.

[136] At the close of the State’s case Accused no. 1, no. 3, no. 4, no. 6, no. 7, no.

9, no. 10, no. 11, no. 12 and no. 13 applied for their discharge in terms of

Section 174 of the CPA in submitting that there was no prima facie case

linking them to the charges against them. Evidence in this case commenced

on 8 October 2018 and numerous witnesses on behalf of the State testified

and 6 trials within a trial pertaining to statements, pointing outs and

admissions by the accused were held. After hearing evidence in a trial within

a trial concerning the admissibility of the warning statements made by

Accused no. 3 and Accused no. 4, both warning statement were allowed as

evidence in this case.

[137] Subsequent to a trial within a trial the warning statement of Accused no. 7,

marked Exhibit “S” and the warning statement of Accused no. 8, Exhibit “T”, 72

were found admissible as evidence. Furthermore the pointing out by

accused no 5 was also admitted as evidence.

[138] The warning statement of Accused no. 13, Exhibit “YY” was also ruled to be

admissible as evidence in this case. Regarding Accused no.9, 10, no. 11

and no. 12, no warning statements or other evidence apart from their arrest

in this case were placed before this Court. Section 174 provides the Court

with a discretion, which must be exercised judicially in deciding whether to

discharge an accused at the conclusion of the State case. With regard to

the general principles that a Court must act judicially, with sound judgment

and in the interest of justice and due to the evidence before this Court which

connects all the Accused in this matter with the BTK gang through

photographs depicting the tattoos on the bodies of the Accused as is evident

from the more than 90 photographs comprising exhibit “U” and an inference

that all the Accused associated with, at least the BTK gang, if not the NBKs

or 666 gang, as well as the items handed in as exhibits which linked some of

the Accused to the deceased in count one (1), the application for discharge

of the Accused referred to, were refused.

[139] Mr Kgoelenya, who ultimately argued the case of Accused no. 3, accused

no. 5, accused no. 7 and accused no. 8 contended that accused no. 3 did

not testify in this trial and the only evidence that links Accused no. 3 to the

murder of the three deceased found at Lemo Mall, is contained in the

warning statement of accused no. 3, Exhibit “OO”. Mr Kgolenya argued that

the warning statement was provisionally allowed as evidence against

accused no. 3 and due to the nature of the warning statement being 73

exculpatory in that accused no. 3 stated that he as well as Rasta did not take

part in the stabbing of the deceased and left the other members of the BTKs

at the scene, accused no. 3 is entitled to his acquittal.

[140] On behalf of the prosecution, Mrs Ferreira submitted that the State produced

sufficient evidence to establish a prima facie case against accused no. 3 and

that his failure to testify placed him at risk and that the Court is entitled to

draw a negative inference from his silence. On the evidence before Court

accused no. 3 was present at the scene of the murder and robbery and the

court cannot speculate in his favour and his association with the rest of the

gang as they carried out the offences.

[141] The same arguments were proffered with regard to the situation of accused

no. 4 regarding the available evidence as contained in his warning

statement, exhibit “RR”.

[142] Mrs Patrinos, who represented accused no. 4 throughout the trial, contended

that the contents of the warning statement, Exhibit “RR”, obtained from

accused no. 4 are in essence exculpatory of nature and therefore accused

no. 4 should be acquitted of the charges against him. Accused no. 4 did not

testify and none of the accused who testified in the trial implicated accused

no. 4 in any way.

[143] Mrs. Ferreira argued that accused no. 4’s failure to testify placed him at risk

and the provisions of the POCO Legislation requires that not only accused

no. 4, but also accused no. 3 and accused no. 13, being members of the 74

BTK gang, proves a connection between the accused and the murders that

occurred at Limo Mall. The contents of the statements made by accused no.

3, accused no. 4 as well as accused no. 13 placed them at the scene of the

crime and one must therefore accept that the accused knew about the

crimes, did not report the crimes committed nor did they disassociate

themselves from the BTK gang. Mrs Ferreira therefore argued that at least

Section 9(1) of POCA becomes relevant to this matter. On behalf of the

prosecution it was contended that the court cannot simply accept the content

of accused no. 3, accused no. 4 and accused no. 13’s statements for the

truth, nor can the court speculate in their favour and therefore their failure to

testify posed a real risk to them in the absence of version from them on

record. None of the accused before court came to explain his presence on

the crime scene and therefore, so the argument goes, at least accused no.

3, no. 4 and no. 13 were all wilfully aiding and abetting the BTK gang with

any criminal activity committed for the benefit of, or at the direction of, or in

association with the gang. Accused no. 3, no. 4 and no. 13 therefore made

the statements, not necessarily truthfully but downplaying their roles at the

crime scene and in essence to confuse the police and ultimately the court

regarding their role in the crimes committed against the deceased.

[144] Mrs. Patrinos’s argument that taking cognisance of the fact that the police

formed a task team from the outset with the view that the murders and

crimes relevant to this case were gang related and the perpetrators were

BTK members, the police only arrested BTK members as suspects in this

case. The mere fact that an accused was a member of the BTK gang, does

not imply guilt pertaining to the crimes outlined in the indictment and 75

therefore the mere fact that an accused can be identified as a BTK member

due to the tattoos on his body does not automatically indicate his allegiance

with the BTKs nor guilt beyond reasonable doubt.

[145] On behalf of the accused it was argued that an accused is entitled to be

acquitted if it is reasonably possible that he might be innocent and even if a

court subjectively disbelieve an accused’s version of the events, the court is

still required to consider whether there is a reasonable possibility of his

version being true1. Regarding the warning statement of the accused and

also the pointing out by accused no. 5, the legal principles stipulating that

admissions of an accused cannot be used against a co-accused remains

applicable and the Court was referred to the matter of S v Litako 2014 SACR

431 (SCA).

[146] Warrant Officer Surprise Mnisi’s affidavit in terms of Section 212 of the

Criminal Procedure Act, 51 of 1977, handed in by the prosecution as Exhibit

“MM” on 1 November 2017, evidences the DNA analyses and results. The

findings of Warrant Officer Mnisi can be summarized as follows:

The DNA result from a pair of trousers [blood] (PA3000711002) matches the

DNA result from the reference sample (05D3BB3485MX(FSC-1029774))

“BDR81/2017”.

1 S v Van der Meyden 1999 (1) SACR 447 (W); S v Trainor 2003 (1) SACR 35. 76

[147] The DNA result from the pair of shoes [blood] (PA3000711000) matches the

DNA result from the reference sample (05D4BA9212MX(FSC-1029908))

“BDR79/2017”.

[148] It was not disputed by accused no. 5 that a pair of beige/brown trousers

were found at the shack where he resided on 9 February 2019. The

reference sample (05D3BB3485MX) retrieved from the body of Mojalefa

Nathan Franse, BDR81/2017 matches the DNA result of the bloodstains

found on the trousers.

[149] The pair of brown shoes seized by the police at the residence of accused no.

7 was tested for blood stains and the DNA results found on the pair of shoes

(PA3000711000) matches the DNA results from the reference sample

retrieved by Dr. Brandt on 2 February 2017 from the body of the 19 year old

Lefa Soaisa mentioned in count 1.

[150] The pointing out by Accused no. 5, conducted by Captain Strydom, connects

accused no. 5 with the murder charges, counts 1 – 3 as well as the robbery

charges counts 4 – 6. The DNA evidence furthermore links accused no. 5 to

the death of the deceased. Accused no. 5 did not dispute the sale of the

black Adidas Superstar tekkies and was corroborated in this regard by the

witness, Dimakatso Makate.

[151] Accused no. 5’s evidence, that the clothing found in the sport bag belonged

to his friend, David Makibinyane, (Exhibit “CC”), also a former BTK member

and his evidence that he immediately upon retrieval of the sport bag 77

informed the police as to who the owner of the clothing were, was denied by

the State witnesses causes his evidence to be regarded as untruthful. As

Mrs Ferreira argued, accused no. 5’s reliance on an alibi came to late.

Accused no. 5’s testimony that the Adidas tekkies belonged to Sizwe and his

friends furthermore came at a late stage during the trial and his failure to

present corroborating evidence pertaining to his evidence that he kept his

own clothes at his parental home, causes his version to be improbable and

actually ridiculous. It is therefore regarded as false.

[152] Accused no. 7’s version that his Constitutional rights were not read upon his

arrest, nor during the pointing out of the clothes and that no permission were

obtained to search his parental home can safely be rejected. Accused no.

7’s is furthermore linked to the death of the 3 victims by the DNS (blood)

found on the pair of brown shoes found at his place of residence. The Court

is satisfied that Accused no. 7 is untruthful in his version pertaining to the

pointing out of the shoes and in this regard the version that he himself

pointed out the shoes to the State witnesses is held to be truthful, reliable

and probable.

[153] The untruthfulness of Accused no. 7 in this respect and the concocted

version that the shoes belonged to Medeila, who passed away in the

meantime, can safely be rejected as fabricated and false.

[154] Accused no. 8’s version pertaining to the blue K-Way beanie, pointed out to

the police at his place of residence, but which, as the time passed had

nothing to do with the murders but was a gift from his elder brother is a 78

further example of a complicated and contrived story by Accused no. 8 since

being incarcerated pending trial. Accused no. 8’s mother was called as a

witness by him, but her evidence was not convincing since the State also

placed evidence on record that her daughter, Nombuyiselo, attended the

Court proceedings on 24 May 2019 as per the register held at the security of

which a copy, was handed in, Exhibit “JJJ”. Accused no. 8’s mother

furthermore informed Colonel Sefuthi, according to his testimony that she,

prior to his enquiries regarding the beanie, already had knowledge

concerning this aspect due to information received from her daughter.

Accused no.8’s mother’s evidence in this regard is therefore rejected. With

regard to the alibis of accused no. 5, no. 7 and no. 8, it would surely have

been the first thing that the accused would have told their respective legal

representatives who would have canvased the alibi defences at the outset of

the trial during October 2018. The Court therefore accept that accused no. 8

was also being untruthful in his evidence relating to his allegations of

assaults and the gift, the blue beanie received from his brother during 2016.

[155] The evidence reveals that the murder and robbery of the three deceased

were a well organised joint operation, most likely by all 15 the initial accused

as well as other BTK gang members who are not before court. They

obviously contacted each other per cell phone and lured the deceased into a

trap to the crime scene, as suggested in the summary provided by the State.

The accused must have foreseen the possibility that the deceased will be

eliminated in pursuit of the common purpose of killing the members of the

rival gang and that they, as members of the BTK gang were reckless as 79

regard that result.2 Our law recognises a concept known as “the doctrine of

common purpose”. In line with this doctrine, an accused may be found guilty

of an offence where he or she did not necessarily and actively participate in

the physical commission of the crime, if the conduct of such a person fulfils

certain requirements.

[156] An example of such an instance is in the case of S v Shaik3 where the court

stated the following: “Our law provides that where two or more people,

having a common purpose to commit a crime, act together in order to

achieve that purpose, the conduct of each of them in execution of that

purpose is imputed to the others” It is required among others that the

accused actively associates him or herself with the common purpose.4 The

requirements for proof of common purpose were outlined in the case of S v

Mgdezi5 and S v Safatsa6 as follows: In the first place the accused must

have been present at the scene where the violence was being committed.

Secondly he must have been aware of the assault. Thirdly, the accused

must have intended to make common cause with those who were actually

perpetrating the assault. Fourthly the accused must have manifested his

sharing of a common purpose with the perpetrators of the assault by himself

performing some act of association with the conduct of the others. Fifthly, the

accused must have had the requisite mens rea in respect of the killing of the

deceased, he must have intended them to be killed, or he must have

2 Lungile and another v The State [2000] 1 ALL SA 179 (SCA); S v Nkosi 2016 (1) SACR 301 (SCA) para 13. 3 1983 (4) sa 57 at 65A 4 CR Snyman, Criminal Law (Fifth Edition) at p 267. 5 1989 (1) SA 687 (A) 705 I- 706 C. 6 1988 (1) SA 686 (A) 80

foreseen the possibility of them being killed and performed his own act of

association with recklessness as to whether or not death was to ensue.

[166] Mrs Ferreira submitted that Accused no. 3, no. 4, no. 5, no.7, no. 8 and no.

13 must be convicted on counts 1 – 7 as per the indictment.

[167] I am not convinced of the guilt of accused no. 3, no. 4 and no. 13. Although

the requirement of being present at the scene of the crime and aware of the

attack are met concerning these three accused, the State failed to prove the

other three requirement as set out above. Although the accused placed

themselves to some extent on the scene, all three of them made exculpatory

statements. There is no evidence before court that they manifested a

common purpose with the perpetrators of the assault by performing some

act of association with the conduct of the others. To the contrary the three

accused stated that they did not participate in the attack on the deceased.

This court is not willing to speculate about their participation in these acts.

Therefore accused no. 3, no.4 and no. 13 are found not guilty and

discharged on all charges against them.

[168] Regarding accused no. 5, no. 7 and no. 8, I am satisfied that the State has

proved, beyond reasonable doubt that the accused are guilty on all counts

they were charged with. Therefore accused no 5, no7 and no 8 are found

guilty on counts 1-7 as charged.

81

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I VAN RHYN, AJ