OPINION

The State vs Pieter Doorewaard and Philip Schutte: High Court Judgment

Hendricks J convicts two men of murder on the basis of sole witness testimony (17 Oct 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST HIGH COURT) MMABATHO

CASE NO: CC 33/17

DATE: 2018-10-17

In the matter between:

THE STATE

And

PIETER DOOREWAARD – Accused

PHILLIP SCHUTTE – Accused

JUDGMENT

HENDRICKS, J

Mr Pieter Doorewaard, hereinafter referred to as accused 1 and Mr Phillipus Lodewyk Schutte, hereinafter referred to as accused 2, are arraigned before this court and indicted with the following charges:

1) Murder, read with the provisions of Section 51(1) of the Criminal Law Amendment Act 105, 1997;

2) Kidnapping;

3) Contravention of Section 1(1)(a) read with Section 2 and 3 of the Intimidation Act 72, 1982;

4) Theft;

5) Unlawful possession of a firearm;

6) Unlawful possession of ammunition; and

7) Pointing of a firearm.

According to the indictment all the charges pertain to events that took place on 20 April 2017 at or near Rietvlei Farm, in the district of Coligny in the North West Province.

The allegations can be summarised as follows with regard to count 1, that is a count of murder. It is alleged that the accused unlawfully and intentionally killed Mathlomola Jonas Mosweu, hereinafter referred to as the deceased, by assaulting and throwing him from a moving motor vehicle and that the death of the deceased was caused by the accused acting in furtherance of a common purpose.

Count 2, kidnapping, that the accused unlawfully and intentionally deprived Bonakele Bendel Pakisi, hereinafter referred to as Pakisi, of his freedom of movement by means of force and drove around with him in a motor vehicle.

Count 3 is that of intimidation, it is alleged that the accused unlawfully and with the intent to compel or induce Pakisi to do or abstain from doing any act or to assume or abandon any standpoint, to wit not to report the murder of the deceased by assaulting and threatening to kill him.

Count 4 is that of theft and it is alleged that the accused unlawfully and intentionally stole a Nokia-cellphone, the property or in the lawful possession of Pakisi with the intention to deprive him permanently of his possession.

Count 5 relates to the unlawful possession of a firearm. It is alleged that the accused had in their possession firearms without having licences to possess same.

Count 6 is that of unlawful possession of ammunition, it is alleged that the accused had in their possession ammunition without being in lawful possession of firearms from which such ammunition can be discharged.

Count 7 is that of the pointing of a firearm, it is alleged that the accused unlawfully and intentionally pointed a firearm at Mr Pakisi without good reason to do so.

Both accused pleaded not guilty to all the charges preferred against them and submitted plea explanations in terms of Section 115 of the Criminal Procedure Act, Act 51, 1977 as amended.

In terms of these plea explanations, they deny all the allegations levelled against them as contained in the respective charges in the indictment. According to the plea explanations they attended to their farming activities on the morning of 20 April 2017 when they saw two boys having sunflower heads in their possession.

They then confronted them and the boys ran into different directions. The deceased ran across the gravel road linking Coligny and Lichtenburg and ran into a maize field. He stood there at a distance of approximately 15 to 20 metres from the fence.

Accused 1, who was the driver of the van, alighted and called the deceased. The deceased voluntarily approached him and he instructed the deceased to climb onto the loading bin of the van. The deceased obliged. The deceased was cooperative.

They drove for a short distance in search of the other boy, but could not find him. They then made a u-turn and drove towards Coligny. Whilst so driving, accused 2 shouted that the deceased, to whom he referred to as the boy, has jumped.

Accused 1 then turned the van around and they saw the deceased lying motionless on the gravel road. He appeared to be unconscious.

They then saw two people in the road a short distance away, walking towards Coligny town. They decided to approach them and request that they should look after the deceased whilst they will proceed to Coligny to request medical assistance as they did not have any medical service telephone numbers.

They went to Coligny police station to request an ambulance. They spoke to Warrant-Officer Modisane and described the location of the accident scene to him. They left their contact details with Warrant-Officer Modisane and they then left.

Admissions were made in terms of the provisions of Section 220 of the Criminal Procedure Act, Act 51, 1977 as amended. The contents of the post mortem reports were admitted, save for any conclusion, inference or speculation it might contain which suggest that the deceased was thrown from a moving motor vehicle and/or that the deceased was assaulted. The truthfulness of the injuries or clinical findings noted, were conceded.

So too was the admissibility and truthfulness of the emergency care technician, Mr Ledikwa's report, the statement of the ambulance driver, Mr Phutiagae, and the clinical observations of the medical practitioner at Coligny Health Care Centre, which will be referred to as the clinic, admitted.

The transportation of the body of the deceased to the mortuary, the accompanying police report, the identity of the deceased and the respective photo-albums were also admitted and handed in by consent, however the cause of death was disputed.

Mr Bonakele Pakisi is the only eyewitness to the events that unfolded on 20 April 2017 at Rietvlei Farm in the district of Coligny.

He testified that he was from his place of abode, on foot, heading towards Scotland, an informal settlement outside Coligny. He was walking on the Lichtenburg- Coligny gravel road. When he was near the sunflower field he heard the sound of a firearm being discharged.

He saw accused 2 running out of the sunflower field holding a firearm in his hand. Accused 2 ran towards a quad bike, got onto it and drove to a van which was stationed nearby. At the van was accused 1 who was holding the deceased. He heard the deceased crying and uttered the words: "mother please help, I am dying".

There was another man, a third man, with accused 1. This third man is not an accused before this court.

The witness then saw accused 2 got onto the loading bin of the van where the deceased was. Accused 1 and the other man got into the cab of the van. Accused 1 was the driver.

The van drove into the sunflower field. Accused 2 then threw the deceased from the moving van. The van stopped and accused 2 then picked up the deceased and put him again onto the loading bin of the van. The process of throwing the deceased from the van was repeated.

The van was then driven back to where the quad bike was parked. Accused 2 alighted from the van and got onto the quad bike. Accused 2 then approached this witness and asked him what did he see. The witness said that he saw nothing. Accused 2 then pointed the witness with a firearm and instructed him to get onto the quad bike. They then drove to the van.

The witness was instructed to get onto the loading bin of the van. He then saw the deceased lying on his stomach inside the loading bin of the van. The deceased was bleeding through his mouth and nose.

They drove to a nearby farmhouse where the quad bike was parked outside the gate. Accused 2 then got onto the loading bin of the van where the witness and the deceased were. Accused 2 instructed the witness to lie down inside the loading bin of the van and not to raise his head. They then drove off. They proceeded to Noordwes Kooperasie.

There the accused asked him what did he see. When he said that he saw nothing, they assaulted him with open hands and clenched fists in his face. They thereafter instructed him to get onto the van and accused 2 also got onto the loading bin of the van. They then drove to the Lichtenburg- Putfontein T-junction.

The van was stopped and they alighted. Accused 1 took out a bottle of liquor, namely Captain Morgan, and accused 2 took the liquor from accused 1 and instructed the witness to drink it. He was assaulted and forced to drink the liquor.

He was then instructed by accused 1 and 2 at gunpoint to jump over a fence and to walk at gunpoint to a nearby dam. He was instructed at gunpoint to walk into the water. When the water was about knee-high and upon realising that they wanted to shoot him inside the dam, he ran towards accused 2 and pleaded with him not to shoot him.

By then the third man came running towards them and told accused 1 and 2 not to shoot as there were people working on the nearby farm.

He was then taken back to the van and told to lie at the feet of the deceased, which he did. They then drove along the road leading to Lichtenburg. They then stopped at the Lichtenburg -Doornhoek T-junction and he was caused to alight.

They instructed him to run whilst firing shots at his feet on the Doornhoek gravel road. It sounded as though two different firearms were being discharged. He felt very nauseous. He vomited and they caused him to eat his vomiting. By then he was also feeling dizzy.

Accused 1 and 2 then thereafter took him to the van and told him to get onto the van. They then drove towards Lichtenburg. At the Coligny turnoff they turned and then drove onto the Coligny road. They caused him to alight again and instructed him to run. He vomited again and the process of eating his vomiting was repeated.

Accused 2 loaded him onto the van and they drove off. After a short distance of driving, the van was stopped. Accused 1 and 2 instructed him to alight. By then accused 2 told him that he should feel whether the deceased was still alive. They also told him to take off his jersey and to wipe the blood from the deceased, which he did.

They asked the witness's address and he provided same. They asked him also whether he was in possession of a phone and he said yes. They then enquired whether he took pictures and he said no. Accused 1 then took his phone and he never recovered it.

They said that he should remain there whilst they will take the deceased to the clinic at Coligny. Accused 1 told him to look down and he was struck behind his head. It became dark for him and he became unconscious. Later he woke up and found that he was alone. By then he did not know what happened to the van, the accused and the deceased. He then walked home.

That same Thursday afternoon he proceeded to the Coligny police station to report the matter to the police. He was not assisted by the police, instead he was turned away and being told that he was drunk. He then met a police official by the surname of Seponkane, who refused to take his statement on that day.

On the Saturday morning at about 03:50 am, there was a knock on the door of the house of this witness. He opened and he saw that it was the two accused. Accused 2 was holding a firearm in his hand.

They entered the house and they asked this witness whom did he inform about the incident and he replied that he did not inform anyone. He was afraid of them. Thereafter they left.

Around 10:00 am that same morning he went to town and he came across accused 2 who told him to meet with him on the Sunday, that is the following day, behind the First National Bank building.

On that Sunday he again went to the police station to report. A lady police officer told him that she would send a police van. This never happened. No police van ever came to him. He then decided to report the matter to the school principal, Mr Nyakama.

Mr Nyakama contacted one Ndlela who in turn contacted Seponkane. It was arranged that Seponkane met with the witness at the soccer field in the presence of Mr Nyakama and some community members.

They then went to the police station where the witness was interviewed. Instead of taking down his full statement, Seponkane told the witness to sign blank pages and said that he will copy what was taken down on a piece of paper onto the pages signed by the witness. This statement was never given to him to read or read back to him.

After appending his signature to these pages, Seponkane asked the witness to take him to the scene where the deceased was thrown from the van. He obliged.

There was still blood visible at the scene. Seponkane said to this witness that he will call the forensic personnel of the South African Police Service. The witness was taken home. He again met Seponkane the following Tuesday when Seponkane told him that he had forgotten to summon the forensic personnel of the South African Police Service.

This witness was subjected to vigorous and gruelling cross-examination that extended over a number of days. He was also confronted with some differences between his viva voce evidence in court and the three statements he made to the police officers.

These differences relate inter alia to 1) The number of times that the deceased was thrown from the van, whether it was once or thrice. He explained that he saw the first incident and the van drove further away from him and stopped on two other occasions. He assumed that the process of throwing the deceased from the van was then repeated.

2) Whether he was ordered to clean the blood from the deceased and was it at the first scene or was it at the last stop.

3) Whether the van followed the quad bike driven by accused 2 or whether the quad bike drove behind the van.

4) Whether all three, that is accused 1 and 2, as well as the third man, alighted at Noordwes Kooperasie or whether it was only accused 1 and 2 that alighted and the third man remained seated in the van.

5) Whether it was accused 1 or accused 2 who took out the Captain Morgan bottle of liquor from behind the seat of the van.

6) Whether it was accused 1 or the third man who remained at the van at Putfontein and who later came and said that accused 2 should not shoot the witness as there were workers on the nearby farm.

7) The fact that he did not mention the Lichtenburg- Koster T-junction and the Henwill Abattoir in his evidence-in-chief, but it is contained in one of the statements.

8) Whether only handguns were used by the accused or whether there was also a rifle.

9) Whether it was accused 1 or accused 2 who took his cellular phone.

10) Whether this witness was told to lift the deceased or whether it was accused 2 who lifted deceased as mentioned in his statement.

11) Whether he was right next to the farm dam or next to the road when he was hit behind the head and lost his consciousness.

12) Whether he went home to rest and recover from the alcohol or whether he was afraid that he may come across or in contact with the accused again.

The state submitted that these contradictions are not material to the extent that it warrants the rejection of this witness's evidence.

The defence contended that these are material contradictions which have a bearing on the truthfulness and reliability of this witness's evidence.

I will refer to these submissions later on in this judgment.

An inspection in loco was conducted where different places were pointed out by Mr Pakisi. These are the places mentioned in his testimony, except for the Lichtenburg- Koster T-junction and the Henwill Abattoir. The route travel is a roundabout route using different roads in the circle with a total distance of 47.6 kilometres. Mr Matlhaolwa and the accused also pointed out certain points during the inspection in loco.

Warrant-Officer Modisane was on duty in the Community Service Centre and Coligny police station on the day of the incident. He testified that the two accused arrived at the police station and asked that an ambulance be summoned.

Accused 2 was doing the talking. He made a report to the effect that they caught a boy stealing sunflowers, arrested him and put him on the van. On their way to the police station the boy jumped from the van.

Warrant-Officer Modisane requested that they should accompany him to the scene. They refused, stating that they have other things to attend to. They did not show the sunflower to him nor did they open the case of theft against the boy. They also did not inform him that the van that they were driving was used to transport the deceased. They only asked for an ambulance, but did not explain why they could not themselves arrange for an ambulance. They also did not explain the injuries that the deceased sustained. They however left their contact details and drove away.

This witness then proceeded to the scene which was 1.7 kilometres away from the police station and found the deceased lying on the Lichtenburg Coligny road. The deceased was still breathing.

COURT: Constable Kgabi with whom Warrant-Officer Modisane communicated through the radio and other police officers were present at the scene, as well as some civilians. He then summoned an ambulance.

He testified that there is a clinic at Coligny which is situated 900 metres from the police station. This is less than three kilometres from the scene where the deceased was lying.

He then went back to the police station and wrote a report in the Occurrence Book. Later on he phoned accused 2 and told him that the deceased passed on. The phone was dropped and accused 2 never phoned back or went back to this witness at the police station.

Constable Kgabi confirmed that she received radio contact from Warrant-Officer Modisane about the incident that was reported by Schutte, who is accused 2. She attended the scene and found the deceased lying in a pool of blood on the Lichtenburg-Coligny road. The deceased was still breathing. She found two people at the scene, one of whom was Mr Matlhaolwa. They did not see what happened, but were only asked by the accused to remain with the deceased. An ambulance arrived and the deceased was taken away.

Mr Matlhaolwa was one of the two persons that Constable Kgabi found at the place where the deceased was lying. He testified that on the morning of the day of the incident, he and Ms Nthimkulu were walking from Scotland proceeding to the clinic.

He saw a van passing at a high speed in the direction of Lichtenburg. They then walked onto the Lichtenburg-Coligny road towards Coligny. The deceased was lying on the road behind them after they entered onto the road.

The van then stopped where the deceased was lying. Two men alighted, looked at the deceased, got back into the van and then drove towards them. These two men then requested that they should stay with the deceased whom they referred to as the child because they were on their way to the police station. The two men drove away with the van. He and Ms Nthimkulu remained. Motshabi and another police officer arrived and they called other police. The police arrived, took down their particulars and they then left.

Mr Ledikwa, a paramedic based in Lichtenburg together with his colleague, M.r Phutiagae, was called as ambulance personnel to attend to the deceased. Mr Ledikwa explained the procedure followed to attend to the deceased. He took the spine board and asked his colleague to hold it whilst he held the neck of the deceased so that it does not turn or tilt. He then locked rolled the deceased onto the spine board. The deceased was stabilised, head blocks were placed in position, the deceased was loaded into the ambulance and they started to treat the deceased inside the ambulance.

He explained in detail the procedure followed and how they attended to the deceased. The deceased was transported to Coligny clinic and he observed that the deceased was bleeding profusely from his nose and mouth.

He handed over the deceased to the doctor and the nurse on duty. While still busy with the paperwork, he learnt that the deceased had passed away. The deceased sustained no further injuries whilst being attended to and during transportation to the Coligny clinic.

Dr Moorad, a specialist forensic pathologist, testified. She was the pathologist who performed the second post mortem on the body of the deceased. She recorded her findings in a post mortem report to which she referred to during her testimony. She confirmed the correctness of the contents of the post mortem report. She has vast experience as a specialist forensic pathologist and had conducted an estimate of approximately 8 000 post mortems.

The report of Dr Letabile, who conducted the first post mortem report, chief post mortem findings are the following:

"Left subarachnoid haemorrhage with left cerebral swelling and atlanto-axial fracture dislocation which is consistent with falling head first to the ground at high velocity."

Dr Moorad also confirmed the correctness of the affidavit she deposed to. According to her the injuries sustained by the deceased are ·consistent with injuries due to a fall or jump from a moving vehicle. She opined that it is more probable that the deceased fell from the vehicle, as the protective defensive types of injuries were not noted during the autopsies.

"These protective mechanisms would include injuries to the outstretched hands, limbs for example abrasions to the palms, fractures of the wrist or wrists or forearms referred to as the 'protective extension reflex which protects the head'. It is not possible from the injuries to state with certainty whether the deceased jumped from the vehicle (intentional) or fell from the vehicle (unintentional); however the injuries to the front of the face and the absence of more injuries to the forearms and hands suggest that the deceased fell off the vehicle".

According to her the deceased fell from the vehicle as he did not have time to prepare for the fall. It is more probable that he fell rather than jumped from the motor vehicle.

Various different and possible scenarios were sketched to this witness and she was asked to comment on it. The possibility of each scenario being answered. However, this was more speculative than anything else. She was steadfast that primitive reflexes as protective measures not be injured on the head was absent.

Brigadier Kgorane testified about his involvement in this case. On 24 April 2017, some four days after the incident, he was tasked to attend to the challenges posed by the Coligny community.

He learnt from community members about their dissatisfaction with the police investigations into the death of the deceased. He went through the docket and discovered that the statement of Mr Pakisi was not filed.

He approached the investigating officer, Warrant-Officer Seponkane, about this. Warrant-Officer Seponkane told him that the eyewitness is crazy. He rebuked Warrant-Officer Seponkane. He obtained the statement, went through it and changed the docket from an inquest docket to a charge of murder.

He interviewed Mr Pakisi and even visited some of the different scenes. By then, on the 24th , no arrest had been effected. According to him the motor vehicle was by then not examined or inspected and the investigations were prejudiced as a result of this delay.

On 25 April 2017, five days after the incident, the accused handed themselves over to the police at approximately 19:00 that evening. Lieutenant-Colonel Nkosi was appointed as the new investigating officer. It is only on 25 April 2017 that a van was handed over for investigations.

I will refer to the police investigations of this matter later on in this judgement.

That concluded the evidence tendered on behalf of the State.

Applications were made in terms of the provisions of Section 174 of the Criminal Procedure Act, Act 51 of 1977, as amended, for the discharge of the accused.

Their discharge were refused in respect of counts 1, 2, 3, 4 and 7. They were found not guilty and were discharged on count 5, that is the unlawful possession of a firearm, and count 6 the unlawful possession of ammunition.

The basis for their discharge on these counts is that the State failed to prove that the accused were unlawfully in possession of the firearms and ammunitions they had.

With regard to the other counts, I was of the view that based on the evidence presented by the State, a prima facie case had been made out calling for an answer. It is for these reasons that I ruled as aforementioned.

Both accused testified in their defence and accused 1 also called witnesses to testify on their behalf.

Accused 1 testified on the day of the incident he was in the company of accused 2 who is his colleague. They drove towards the peanut crops in order to collect peanut samples to take to Sethlagole. He then saw two boys in the sunflower field busy picking sunflowers. He then drove towards them in order to ascertain what was happening.

These boys dropped the sunflowers and ran into different directions. The deceased ran across the road into a mealie field.

The other boy ran deeper into the sunflower field. He then picked up the sunflower heads and load it onto the van.

He saw the deceased standing in the mealie field and he called him. The deceased approached and he informed the deceased that the deceased should get through the fence. Whilst getting through the fence the deceased got stuck in the fence and accused 1 then assisted him. He then asked where the other child is and the deceased pointed in the direction of Scotland informal settlement.

He then asked the deceased to get onto the van. The deceased wanted to sit on the side of the load bin. He requested him to sit against the cab. He was speaking Afrikaans to the deceased and the deceased replied in the Setswana language, which he did not understand.

He then got into the van and drove slowly in the Lichtenburg direction. This was done in order to see whether they cannot locate the other child. When he drove past the Scotland footpath he stopped the vehicle, alighted and asked the deceased again where is the other child. The deceased replied in the Setswana language which he did not understand.

He then got back into the motor vehicle, drove it for 100 to

200 metres and then made a U-turn to drive back into the direction of Coligny. By then he was on his way to the police station to lay a charge against the deceased.

When he looked into the rearview mirror he saw that the deceased was still seated in the load bin on the back of the van. Whilst still driving he approached a curve in the road, reduced speed and he focussed on the road. The road was badly uneven and corrugated. It is then that accused 2 told him that the deceased jumped from the van. He did not see the deceased jumping from the van. He was shocked, but drove further to an appropriate place in the road to make a U-turn.

He drove back past where the deceased was lying on the road and made another U-turn and came to a standstill next to where the deceased was lying. The deceased was lying inside the road but more to the left-hand side. He then got out of the vehicle and looked at the deceased. The deceased was injured. He was still breathing. Blood was flowing from his mouth. Because he did not have any medical experience, he could not do anything to the deceased. He also did not have ambulance contact numbers.

He asked accused 2 whether there is anything that they can do about the situation or anyone that they can call. They then decided to drive to the police station at Coligny rather than to phone the police station because of their past experience. In the past phones usually rang and are not answered and there are usually no police van available.

Whilst driving they then saw a man and a woman walking towards Coligny. He then told accused 2 that they should ask these people to look after the child, referring to the deceased, because they are on their way to the police station to report the matter.

This was indeed done. Whilst driving, accused 1 then called Esme Oelofse, a lawyer and family friend. She is always helpful, helping him when he is in trouble and she answers her phone quickly. He thought that she may have the numbers of the ambulance services and may be able to contact them. Esme Oelofse told him that he should proceed to the police station and that she will see what she can do.

At the police station both he and accused 2 entered. They requested an ambulance to the scene. The police officer who was on duty was Warrant-Officer Modisane. He then explained to Warrant-Officer Modisane that a child jumped from the van. By then the attorney Esme Oelofse called him and enquired whether he managed to get an ambulance and he said yes. Warrant­ Officer Modisane then asked for the contact numbers of accused 1 so that he can contact him. They then left.

At a later stage someone called him. He is not sure whether it is was Warrant-Officer Modisane, but the call was from the Coligny police station. A report was made that an ambulance has reached the scene.

From the police station he and accused 2 went to their workshop whereupon accused 2 went to his house to collect his work telephone. He in turn went to his mother. That whole day they were just at their workplace. Later on he went with the peanuts to Casper le Roux's farm and they went about their usual business.

According to accused 1 he does not know Mr Pakisi. He never saw him on 20 April 2017. He first saw him during the inspection in loco.

He further testified that on previous occasions they encountered problems with people stealing the crops to the extent that at one stage they had to acquire the services of a security company. In the past they arrested some of the perpetrators and they took them to the police station at the back of the van and they never encountered any problem. The suspects were usually cooperative. Although dockets were opened because complaints were laid, they never heard anything or got any feedback from the police. ,

He testified that he did not lay a complaint on this day against the child and the condition of the child was much more important than the case of theft. He ensured the safety of the deceased at the back of the van by telling the deceased not to sit on the edge, but to sit on the loading bin with his back against the cab.

He drove at a reasonable speed. There was no indication whatsoever that the deceased would jump from the van. The deceased cooperated. There were other opportunities when the deceased could have escaped, but did not. When looking for the other child he drove very slowly in order to look into between the rows of the sunflower field. At one stage the van was even stationary and the deceased could have escaped if he wanted to at that stage.

He had one cellular phone with him which is his personal number. He testified that the motor vehicle depicted in Exhibit "G" is the van that was used on 20 April 2017. He confirms that the vehicle was seized by the police on 25 April 2017.

Lynette van Zyl, a specialist employed by Vodacom, who is an expert in data of cellular phones, testified. She printed reports with regard to the cellphone records of both accused. She testified that the cellphone or handset must be switched on so that the data can go to the server if it is used. If the cellphone is switched off no data will be received.

She confirmed that there was a call made from the

telephone number of the Coligny police station being 0186731174 to number 0828843193, said to be the cellphone number of accused 1.

Sam Hallatt, a senior forensic agent employed by Vodacom, testified. His evidence centred mainly on the technical information of Vodacom's cellphone towers.

He compiled a report and also presented a map on the location of the Vodacom towers in the Coligny area. He testified that call data cannot be tampered with. Of importance in his evidence is the fact that only when you make or receive a call will the tower pick up and register it. If there is no new transaction, whether it is a call made or received or a sms sent or received, the last tower will reflect although you may have travelled past other tower or towers.

He testified that for example if one makes a call at Coligny and then drive to Gruisfontein without making or received a call or data message, the last tower that will reflect is that' of Coligny and not Gruisfontein although there are other towers on the way to Gruisfontein and at Gruisfontein. The Vodacom network does not show any handover between towers and only show when and where the call is made and not where it is ended. If one would make a call at Coligny and switch off the cellular phone, the last call will be Coligny even though one can travel past other towers.

On being asked specifically whether a handset or cellular phone can register on a tower if no call is made, he said not on Vodacom's information. There must be a transaction, although the transactions are not person specific.

The relevance of his evidence to this case is that although both accused had their cellular phones in their possession, no information would be recorded unless a transaction took place at or near the specific tower or area, for example if one looks at the telephone records of the number 0828843193, said to be the cellphone belonging to accused 1, on 20 April 2017 there is a time lapse between 08:55 and 09:52 of almost an hour.

Sumaya Rajan of a private ambulance service testified she is a paramedic and a nurse. She attended 600 to 700 accident cases of which seven to eight had to do with a person who fell or jumped from a motor vehicle. She testified that of this seven to eight, two to three survived. It differs from case to case.

She explained some of the terminology and also gave examples of a general nature and at times also speaks about her experience. According to her the deceased as a patient aspirated and that is the cause of death. According to her the injury to the atlanto-axial fracture dislocation was not fatal. The patient could be quadriplegic but will definitely not die. In her opinion because there was blood or fluid in the lungs of the deceased it compromised breathing and/or ventilation. According to her the deceased as patient was turned on his back which caused the blood to flow from the heart into the lungs. She criticised the procedures followed by Mr Ledikwa, especially because a cervical collar was not used to keep the airway open.

She was shown a photograph of the deceased depicted on a stretcher inside Coligny clinic, depicting that there was only one head block. Her comment with regard to this was that blocks should have been used on both sides of the head in order to prevent any further injury. The blocks were not fitted on both sides and should not have been removed even for the taking of a photograph by a photographer.

This in my view is illogical, because after the passing of the deceased and in order to take a picture, one of the head blocks can be removed. What she conceded though is that head blocks can be used as a substitute for the cervical collar. Although she initially wanted to create the impression that it was the C-collar and nothing else. The C-collar is of vital importance.

I find this illogical, because what if there are only head blocks available and no C-collar. She ultimately conceded that there is nothing wrong if head blocks are used instead of the C-collar.

During cross-examination it further emerged that this witness is not a forensic pathologist and therefore not equally qualified with Dr Moorad. She also does not perform post mortems and never did perform any. She is therefore not on equal footing with either Dr Moorad or Dr Letabile. She does not determine the cause of death of a patient. She can only certify a patient dead on the scene.

I find it difficult to comprehend how this witness who did not even attend to the deceased or saw him at the scene can express an expert opinion that the procedures followed by Mr Ledikwa and his colleague were totally inappropriate under the prevailing circumstances. Not much weight, if any, can be attached to her so-called expert opinion about the cause of death. She saw one line in the post mortem report as to what was the condition of the body of the deceased, especially the lungs that were congested, and then conclude that the cause of death was as a result of aspiration. Her conclusion as to the cause of death is rejected.

That concluded the evidence tendered by accused 1 in accused 1's case.

Accused 2 testified in his defence. He corroborates the version in essence as testified to by accused 1. His evidence is to the effect that he was with accused 1 on the morning of 20 April 2017. Testified and corroborates that he and accused 1 went to collect peanut samples and on their way back they saw two boys picking sunflowers. He testified that accused 1 then drove towards where they were in the sunflower field. He testified and corroborates that the two boys then left the sunflower field and ran in different directions.

Furthermore, he corroborates the version of accused 1 how the deceased ran into a mealie field on the opposite side of the road. He was called by accused 1 and he obliged. The deceased got onto the bakkie, that is the loading bin of the van. When the deceased wanted to sit on the edge, accused 1 told him to sit inside the loading bin. He sat with his back against the cab and flat on his buttocks.

When he looked at the deceased, the deceased was not frightened or did not panic at all.

They got into the bakkie and it was turned around, heading in the direction of Lichtenburg. According to him there was no reason for him to sit at the back with the deceased, because he did not think that the deceased would run away.

Furthermore, when asked, he explained that this was a single cab bakkie with no space in front for any other person than him and accused 1. He did not deem it necessary that the deceased should sit in front with them. They drove slowly, according to him less than 20 kilometres per hour, in order for them to look between the rows of the sunflowers. By then the deceased was still seated in the same position.

Accused 1 then stopped the van and switched it off. Accused 1 alighted and he instructed the deceased to call the other boy who was with him. Accused 1 then realised that he and the deceased did not understand each other. Accused 1 then got back into the van, turned around and drove in the direction of Coligny.

When approaching the curve in the road, he (accused 2) then checked if the deceased, whom he called the boy, was still seated at the back of the van. It is then that he saw dust in the road and a movement. He was unable to see the deceased at that stage. He then informed accused 1 that the boy must have jumped off the van.

He estimated that they travelled at a speed of approximately 60 kilometres per hour. There was no sudden or fast movement of the bakkie that could have thrown the deceased from it. Logically he thought that the deceased must have jumped off the van although he did not see him actually jumping from it. He stated that he saw the movement and the dust in the side mirror.

He testified further that accused 1 turned the van around in order to go and look for the deceased. He thought that the deceased might have run away and that they would look for him in order to apprehend him again. After the van turned, he then saw the deceased lying in the road. They drove past the deceased, turned around and stopped next to him.

Both he and accused 1 alighted. Accused 1 then said to him that the child was injured. Accused 1 then asked whether he had any emergency numbers as the child was bleeding and he replied by saying that he does not have any. They then thought of getting an ambulance from the police station at Coligny. He did not have any medical training so he could not assist the deceased at all. They then saw two people emerging from the footpath leading to Scotland. They then asked them to remain where the child was lying in order to guard that other motor vehicles do not drive over the deceased.

They then drove to the police station where accused 1 reported the incident. The police officer took down accused 1's particulars and said that they would call for an ambulance and would inform them accordingly.

He testified that they were not requested to stay at the police station or to accompany Warrant-Officer Modisane back to the scene. The police officer, Warrant-Officer Modisane, said that he would contact them.

They then went back to their workshop. At the workshop he got his own motor vehicle and then drove home in order to pick up his work cellular phone, which was on charged.

Like accused 1, he testified that he did not know or even saw Mr Pakisi before the inspection in loco. Mr Pakisi was definitely not at the scene on 20 April 2017. He denied that he or accused 1 did anything to Mr Pakisi. He also denied that they travelled the routes as indicated by Mr Pakisi during the inspection in loco on 20 April 2017.

Mr Pakisi is a single witness with regard to the events that unfolded on the day in question. His evidence should be treated with caution. In terms of Section 208 of the Criminal Procedure Act a court may convict on the evidence of a single witness if it is satisfactory in all material respects or if there is corroboration for such evidence. A lot of criticism was directed at the differences in the evidence of Mr Pakisi here in court and the statements he made.

In S v Govender and Others 2006 (1) SACR 3226 it was held:

"It should always be borne in mind that police statements were frequently not taken with as much care, accuracy and completeness as was desirable. The purpose of such statement was to obtain details of an offence in order to decide whether or not to institute prosecution. The statement was not intended to be a precursor to the witness's court testimony. They were often written in a language other than that of the witness with the assistance of an untrained interpreter and tended to be a summary of what the witness had said to the police officer expressed in terms familiar to the officer, but not necessarily the witness. Accordingly it was neither unusual nor surprising that discrepancies occurred between witness's evidence and the contents of that witness's police statement."

In Mafaladiso en Andere 2003 (1) SACR 583 (SCA) the following was said:

"The mere fact that it is evident there are self contradictions, must be approached with caution by court, firstly it must be carefully determined what the witness actually meant to say on each occasion in order to determine whether there is an actual contradiction and what is the nature thereof. In this regard the adjudicator of fact must keep in mind that the previous statement is not taken down by means of cross-examination, that there may be language and cultural differences between the witness and the person taking down the statement which can stand in the way of what is precisely meant and that the person giving the statement is seldom, if ever, asked by the police to explain their statement in detail.

Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of witness; non-material deviations are not necessarily relevant.

Thirdly, the contradictory versions must be considered and evaluated on a holistic basis, the circumstances under which the version were made, the proven reason for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given sufficient opportunity to explain the contradictions and the quality of the explanations and the connection between the contradictions and the rest of the witness's evidence amongst other factors to be taken into consideration and weighed up.

Lastly, there is the final task of the trial judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth has been told despite any shortcomings."

In S v Mkohle 1990 (1) SACR 95 (A) the following was stated by the then Appellate Division:

"Contradictions per se do not lead to the rejection of a witness's evidence. They may simply be indicative of an error, not every error made by a witness affects his credibility. In each case the trier of fact has to make an evaluation, taking into account such matters as the nature of the contradiction, their numbers and importance and their bearing on other parts of the witness's evidence."

In S v Sauls and Others 1981 (3) SA 172 it was stated

that:

"There is no rule of thumb, test or formula to apply when it comes to a consideration of the credibility of a single witness.

The trial judge will weigh his evidence, will consider it merits and demerits and having done so will decide whether it is trustworthy and whether despite the fact that there are shortcomings or defects or contradictions in his testimony, he is satisfied that the truth has been told."

With regard to the cautionary rule it was said that:

"It may well be guide to right decision, but it does not mean that any criticism however slender of witness's evidence may be well founded. It has been said more than once that the exercise of caution must not be allowed to displace the exercise

of common sense."

To deal with some of the contradictions in the evidence of Pakisi vis-a-vis his statements. In his police statement Mr Pakisi said that the quad bike was in front and in his evidence he said that the quad bike was behind the van. Clearly this is not a material contradiction.

In his police statement Mr Pakisi said that accused 2 took the Captain Morgan liquor bottle from the passenger seat and gave it to him to drink. In his evidence in court he testified that it was accused 1 who took the bottle from the van and gave it to him. Clearly this too is not a material contradiction.

In his statement it is stated that Pakisi said that the deceased was thrown from the van thrice. In his evidence in court he testified that it was once and then that he is not sure about the other two acts, but infer that it must have been a repetition. Once again this is not material. What is material is the fact that the deceased was thrown from the van which is consistent with the evidence as testified to by Dr Moorad.

So too is it not material where precisely was Pakisi ordered to clean the blood of deceased, whether it was at the first stop or at the last stop. Whether all three - that is accused 1, 2 and the third man, alighted at NWK, Noordwes Kooperasie and at Putfontein or that he did not mention the Lichtenburg-Koster T-junction and the Henwill Abattoir in his evidence-in-chief. Whether handguns only were used and/or a rifle also. Whether it was accused 1 or accused 2 who took his cellphone or whether he or accused 2 lifted the deceased or even whether he regained his consciousness at the dam or next to the road, because the dam is not far from the road or whether he went home to rest and sleep off the alcohol or was afraid that he might ran into the accused again in town.

Although on the face of it these contradictions seem to be many. One must look at it in context. They are not material and may be indicative of an error or mistake on the part of the witness. Not every error or mistake will necessarily lead to the rejection of this witness's evidence. Not every error, how trivial it might be, necessarily impacts negatively on the reliability of this witness's evidence.

Sight should not be lost of the fact that this was a very traumatic experience for this witness and it happened unexpectedly. He happened to be at the wrong place at the wrong time. Fortunately he survived the onslaught and the ordeal and live to tell the tale of what happened.

The witness Mr Pakisi was very emotional at times, so much so that this court had to adjourn in order to allow him an opportunity to compose himself.

Because he is a single witness, this court must look for corroboration of his evidence as a safeguard. Mr Molefe on behalf of the state submitted the following as corroboration.

Mr Pakisi testified that the deceased was thrown from the van. This evidence is supported by the evidence of Dr Moorad. In her evidence Mr Moorad stated that it is more probable that the deceased fell from the vehicle as the protective defensive types of injuries were not noted during the autopsies done by her and Dr Letabile. She also testified that the protective mechanisms would include injuries to the outstretched hands and limbs for example abrasions of the palms, fractures of the wrist, forearms, referred to as "protective extension reflex which protect the head". Just like Dr Letabile she did not see any injuries of the arms and hands.

Dr Moorad concluded that the injuries to the front of the face and absence of more injuries to the forearms and hands suggested that the deceased fell off the van unintentional - this is a material corroboration of Pakisi's evidence that the deceased was thrown from the van and this was an independent and expert conclusion.

Mr Pakisi testified that accused 1 was the driver of the van. In this regard his evidence is supported by the evidence of Mr Israel Motlhaolwa who said that accused 1 was the one driving the van when they asked them to look after the deceased.

Interestingly accused 1's own version is that he admits that he was driver. Accused 2 also says that accused 1 was the driver of the van. So, if Pakisi was not at the scene how would he have known that accused 1 was the driver of the van?

Mr Pakisi testified that the deceased was bleeding from his nose and mouth. Mr Ledikwa also testified to that effect. The same was said by Constable Kgabi. Once again, how would Mr Pakisi have known about these injuries if he was not at the scene?

The description of the features of the accused by Mr Pakisi in his police statement and repeated here in court fits the accused. This description was never disputed. Again, how would Mr Pakisi have been able to describe the accused clearly in his police statements if he did not see them at the scene?

According to Mr Pakisi's evidence, accused 2 appeared to have been very active during the incident. This finds support in Warrant-Officer Modisane's evidence that it was accused 2 at the police station who was doing the talking. Accused 2 also alerted accused 1 about the fact that the deceased had jumped from the van. This means that accused 2 was very active according to Mr Pakisi.

Mr Pakisi's evidence that he did not see a sunflower at the back of the van also finds support in the failure of the accused to produce such at the police station or to open a case of theft. The fact that the sunflowers are depicted on the load bin of the van five days after the incident is not very helpful as it could have been placed there afterwards.

Pakisi's evidence that the accused were less concerned about the deceased's injuries is further corroborated by the fact that from the police station they went to their workshop and did not go back to the scene or enquire about the condition of the deceased.

I am in full agreement with these contentions by Mr Molefe. There is one thing that needs special mentioning and that is that Mr Pakisi described different scenes and what happened at each and every of these scenes. One can think of no other cogent reason as to why would Pakisi be so innovative to think about the different scenes and what transpired at each of these scenes, if it did not in fact happen.

He could easily have testified only about the initial scene on the Lichtenburg-Coligny road if there was no truth about any of the other scenes. These scenes cannot be wished away. Pakisi must have been very innovative to think about all these things and what transpired at these different scenes in order for him to invent this story. This is almost rocket science.

Warrant-Officer Seponkane was not called as a witness by the State.

Mr Du Plessis, on behalf of accused 1, placed it on record that Warrant-Officer Seponkane was not willing to consult with them. This is a clear indication that the witness was made available by the State to the defence to consult.

Steps could have been taken by the defence to secure the presence of this witness at court if he was unwilling to cooperate. An application could have been made to court to have this witness subpoenaed. This was not done. The fact that he was not called as a witness by either the State or the defence is a neutral factor. No adverse inference can be drawn against either the State or the defence under these circumstances.

The onus is on the State to prove the guilt of the accused beyond a reasonable doubt. There is no onus on the accused to prove their innocence. The version of the accused need only be reasonably possibly true in order to be accepted by this Court and for the accused to be given the benefit of the doubt and be acquitted.

The court must look at all the facts of this case holistically. Mr Molefe, on behalf of the State, submitted that the following strange features in the testimonies of the accused shows that their versions are not reasonably possibly true and submitted that it is indeed false.

Mr Molefe mentioned the non-producing of the sunflower at the police station and the opening of a theft docket. He contended that the value of the sunflower heads was minimal compared to human life.

It was contended by the accused that it was more important to report the injury of the deceased than to open a case of theft against the deceased - what a noble idea or thought if it was indeed genuine and true.

If this was the reason why the charge or the complaint was not laid at that juncture, then the question that begs an answer is why did they not accompany Warrant-Officer Modisane back to the scene? Why did they not themselves go back to the scene afterwards to assist the deceased or to ascertain the extent of the injuries sustained by the deceased? If the value of these sunflower head were so little, then why was it in any event necessary that they apprehended the deceased in the first place?

Mr Molefe further contended that the accused testified that the deceased volunteered and he had climbed out of his own free will onto the van and cooperated with them. It is strange that the deceased later on jumped from the van according to the accused. It is also strange that the deceased who ran away and screamed: "mamma help me, I am dying" and then suddenly thereafter cooperated with the accused. If the deceased jumped from the van in order to escape, then surely the voluntariness and his cooperation holds no water.

According to the evidence of Mr Pakisi, the deceased pulled himself away from accused 1. This was not a sign of cooperation. The version of Mr Pakisi better explains why the deceased then jumped from the van. He was not cooperative.

On their version there is no reason why the deceased jumped from the van. It is also interesting that in their evidence the accused are not sure of the jumping itself. In the light of the evidence of Mr Pakisi it is difficult to believe the assumption that the deceased jumped from the van.

Furthermore, on the version of the accused the deceased had ample opportunity to escape. They drove slowly in order to look between the rows of the sunflower field, they even stopped and switched off the engine of the van. The deceased was seated all along on his buttocks flat on the surface of the loading bin with his back against the window of the cab. It makes no sense that the deceased would all of a sudden and for no apparent reason after being so cooperative, jump when the motor vehicle was travelling fast as testified to by Mr Matlhaolwa.

According to the evidence of Mr Pakisi, the deceased was lying on the surface of the loading bin of the van and did not move for the entire route travelled of 47.6 kilometres because of the injuries he sustained. He could not all of a sudden get up and jumped from the moving van. This is highly improbable.

The following factors should also be considered with regard to the version of the accused. If the accused seriously wanted to help the injured deceased, it is strange why they did not take him to the clinic or go to the clinic to arrange an ambulance or treatment or even take a doctor or a nurse that was on duty at the clinic, to the scene in order to assist. This thing happened on a Thursday and the clinic was open as testified to by Mr Matlhaolwa who was himself on his way to the clinic on that specific day, bearing in mind that the clinic is situated a mere 900 metres from the police station. So it is in close proximity to the police station.

It is strange why the accused did not go back to the scene to check on the deceased whom they left with total strangers. They instead went to their workshop and continued with their daily routine. One gets the impression that they were least concerned about the condition of the deceased who was according to them fatally injured.

According to accused they did not have any emergency knowledge. What is strange is that with this lack of knowledge they were able to decisively decide that on the basis of the deceased's injuries, it would be dangerous to take him to the clinic. Surely such a decision must have been based on emergency knowledge. This is the reason why accused 2 was able to say that it was illogical to take the deceased to the clinic. There is also no plausible reason why accused 2 could not have remained with the deceased when accused 1 drove to the police station, knowing very well that the deceased was severely injured. They did not care. They, after reporting the incident at the police station, went to their workshop and continued with their day to day duties.

I am satisfied that the evidence of Mr Pakisi is honest, truthful and reliable and must be accepted, especially because it is corroborated in material respects as alluded to earlier on in this judgment.

The State alleged that the accused acted in concert with one another in furtherance of a common purpose or common goal. It is quite apparent that at no stage did any of the accused dissociate himself from the conduct of the other. They were together throughout, from the time that they saw the deceased and the other boy allegedly stealing sunflowers up until they left Warrant-Officer Modisane and the Coligny police station in order to proceed to their workshop.

With regard to common purpose see S v Mgedezi 1989 (1)

SA 687 (A) and S v Thebus 2003 (2) SACR 319 (CC) and with regard to dissociation see S v Musingadi and Others [2004] (4) All SA 274 (SCA).

The State contended that it succeeded in proving that the accused are guilty of the crime of murder on count 1 on the basis of do/us eventualis. In Director of Public Prosecutions Gauteng v

Oscar Pistorius 2016 (2) SA 317 (SCA) the following is stated by the Supreme Court of Appeal with regard to do/us eventua/is:

"In cases of murder there are principally two forms of do/us which arise do/us directus and do/us eventualis. These terms are nothing more than labels used by lawyers to connote particular form of intention on the part of person who commits criminal act.

In the case of murder, person acts with do/us directus if he or she committed the offence with the object and purpose of killing the deceased.

Dolus eventualis on the other hand, although relatively straightforward concept, is somewhat different. In contrast to dolus directus in case of murder, where the object and the purpose of the perpetrator is specifically to cause death, person's intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating the death may well occur, therefore 'gambling' as it were with the life of the person against whom the act is directed.

It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. The second element has been expressed in various ways, for example it has been said that the person must act 'reckless as to the consequences', (a phrase that has caused some confusion as some have interpret it to mean gross negligence) or must have been 'reconciled' with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as probable consequence of his or her action. It is sufficient that the possibility of death is foreseen which, coupled with the disregard of that consequence, is sufficient to constitute the necessary criminal intent."

It was submitted on behalf of the State that when the deceased was thrown from the moving van, the accused foresaw the risk of death occurring, nevertheless continued to do so, appreciating that death may well occur. The accused gambled as it with the life of the deceased and reconciled themselves with the possibility of his death.

I am in full agreement with this contention.

The evidence also indicates a possible motive on the part of the accused and that is that they wished to punish the deceased because of previous incidents of stealing and what they experienced in that regard. The results of four cases which were opened at the police station were never conveyed to the accused.

They were not aware of the results thereof and despite the fact that they went to great lengths in order to curb the occurrence of stealing of crops, even employing a security company, the stealing of crops, on their version, continued.

According to the evidence of Mr Pakisi, which this court accepts, is that after being knocked unconscious, the accused must have driven off with the van on which the deceased was in the direction of the clinic at Coligny as they said they were on their way to.

The only reasonable inference that can be drawn from the proven facts, excluding any other reasonable inference and putting speculation and conjecture aside, is that the accused must have thrown the deceased from the van on the Lichtenburg­ Coligny gravel road where Mr Matlhaolwa and Ms Nthimkulu saw the deceased lying. This is also the place where Warrant-Officer Modisane, Constable Kgabi and the paramedics, Mr Ledikwa and his colleague saw the deceased lying. This was done in order to create the impression that the deceased jumped from the van. This is inconsistent with the independent expert evidence of Dr Moorad as pointed out earlier.

Speaking of the deceased jumping from the van, accused 2 was at pains to try and explain why he say that the deceased jumped from the van. He did not see the actual jumping from the van. Accused 1 testified that he drove at a moderate speed, plus minus 60 kilometres was suggested, he slowed down in order to drive safely around a curve in the road when accused 2 shouted that the deceased had jumped. This is nothing but an inference drawn by accused 2 based on speculation.

I am of the view that their versions in the light of the evidence of Mr Pakisi, as corroborated by other evidence, are not reasonably possibly true and are rejected.

In accepting the evidence of Mr Pakisi, and in finding that the State succeeded in proving that the accused acted in concert with one another, foresaw the possibility of death ensuing by throwing the deceased from the moving van, I am of the view that they are guilty of murder on count 1. It is not necessary to consider the submissions made with regard to negligence and possible culpable homicide as suggested by defence counsel.

So too with regards to counts 2, 3, 4 and 7 is this court satisfied that the State succeeded in proving the guilt of both accused beyond reasonable doubt. They took Mr Pakisi against his will and therefore kidnapped him, pointed him with firearms, intimidate him not to tell anyone, took his phone without his consent.

Allow me to express also my disquiet about the manner in which the police at Coligny handled the complaint of Mr Pakisi and also investigated this matter. Not only was the police officer unhelpful when Mr Pakisi reported his complaint and told him to go away otherwise he would be locked up, but Mr Pakisi was also insulted, stating that he was drunk.

The actions of Warrant-Officer Seponkane leave much to be desired. He totally neglected to perform his duties at all, never mind doing it diligently. He was not of any assistance to Mr Pakisi. The matter was reported on the same day of the incident, namely 20 April 2017. It took him four days to take down a statement and to even start his investigations. The manner in which he took down the first statement of Mr Pakisi, if one can call it taking down of a statement at all, is totally unsatisfactory.

Brigadier Kgorane had to ask Warrant-Officer Seponkane for the statement so that he can read it. A lot of evidence either went missing or was not timeously investigated or gathered at all. The van was at the police station when the incident was reported. It was not at all inspected or impounded at that stage. Neither were the details of the van taken down for further investigations.

The van was only taken five days after the incident, if it was at all the van that was used on the day in question.   The evidence, if this was indeed the van, disappeared.

The scene was visited by Warrant-Officer Seponkane and blood was still visible. No forensic evidence was obtained. It was simply left and on the following Tuesday Mr Pakisi was told by Warrant-Officer Seponkane that he forgot to contact the forensic personnel of the South African Police Services. No investigations were made as to whether the accused possessed firearms and ammunition lawfully. Mr Seponkane dismissed Mr Pakisi's complaint and even insulted him by saying that he is crazy. The behaviour of Warrant-Officer Seponkane was totally unacceptable and unprofessional.

Action should be taken against the police officers who are implicating for the dereliction of their duties. This must be brought to the attention of the relevant police authorities to act.

Ask the accused to stand.

BOTH ACCUSED are found GUILTY AS CHARGED ON:

COUNT 1, that is the count of murder; 

COUNT 2, kidnapping;

COUNT 3, contravention of Section 1(1)(a) read with Section 2 and 3 of the Intimidation Act 72 of 1982;

COUNT 4, theft;

COUNT 7, pointing of a firearm.

HENDRICKS J