S v Kekala

• Jurisdiction: South Africa
• Judge: Landman J
• Court: North West High Court, Mafikeng
• Citation: 2009 JDR 0718 (NWM)
• Docket Number: CC120/07

Landman J:

Messrs E M Kekela and L N Ntjinyane, accused 1 and 2 respectively, are indicted on the following counts:

Count 1: Murder:

Count 2: Attempted murder;

Count 3: The contravention of section 117(b) of the Correctional Services Act 111 of 1998, which is an attempt, or conspiracy, or assisting, or inciting escape;

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Count 4: Robbery with aggravating circumstances;

Count 5: Possession of a firearm.

And then we have the alternatives to the above, the contravention of section 182(a) of the Riotous Assemblies Act 17 of 1956.

Accused 1 pleaded not guilty to all counts.

Initially accused 2 pleaded guilty to count 1 and to the alternative on count 3. This was not in accordance with the instructions of Mr Moja, who appeared on behalf of both accused and accused 2 subsequently changed his pleas and a plea of not guilty to all counts was recorded.

Mr Moja provided a plea explanation on behalf of accused 1. Accused 1 relies on non-pathological criminal incapacity. He does not remember inflicting any blow to the deceased or fighting with the deceased. He knows that he was in the Magistrate's Court cells in Ga-Rankuwa. There he was given dagga mixed with Mandrax to smoke while he was in the cells. He smoked that at the time that he and the other prisoners were to be transported back to the correctional facility. The next thing that he knows is that he was being assaulted later in that day at the Ga-Rankuwa Police Station. The assault took place in the presence of journalists who asked that he not be assaulted any further.

Accused 2 elected to remain silent.

Certain admissions were made. Mr Zakes M Zulu was the first state witness. He was cautioned in terms of section 204 of the

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Criminal Procedure Act and elected to give his evidence. His testimony sets the scene. He was then cross-examined on central aspects, to which I shall revert.

Inspector Phelo gave evidence and he was not cross-examined.

Ms Z Nyatikazi, a female detained with other females in the opposite cells, also testified. She testified as to what she had observed. She was merely cross-examined as regards her observations of accused 1 and whether he appeared to be under the influence of drugs.

Inspector T E Ragosi testified but his account of a confession was inadmissible. Accused 1 had not been warned before that was taken down.

Inspector T R Letswane testified about the safekeeping of firearms and in particular the firearm which had been issued to the deceased. He also testified that this firearm had been sent for forensic tests after the murder of the deceased.

This evidence was followed by a further admission by accused 1 that officer Modise booked the firearm out of the SAP 13 store and handed it to logistics without tampering with it.

This was then the state's case.

Accused 1 testified in his defence. His evidence concentrated on what and when he smoked and its effect on him and his memory of what happened in the cell and the surrounding events and I will deal with this fully later.

Accused 2 did not testify, nor did he call any witnesses.

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I then proceed to set out the facts, pausing when it is necessary to deal with disputed issues.

Accused 2 appeared in the Magistrate's Court at Ga-Rankuwa on 6 October 2006. He was returned to the correctional facility from whence he had come on the same day. On the next day he was detained in the same cell at the correctional facility as accused 1 and Mr Zulu. He told them he had hidden a knife in the Magistrate's Court cells at Ga-Rankuwa. Accused 2 asked if accused 1 and Zulu wanted to escape from those cells. They both said yes. They were all to appear in the Ga-Rankuwa Magistrate's Court on 9 October. Accused 2 said that he would then show them where he had hidden the knife.

Come 9 October 2006 the three of them found themselves in the Ga-Rankuwa Magistrate's Court cells. They were put into cell number 2 after their court appearances. Accused 2 was the last of the accused to arrive in cell number 2. He retrieved a knife, wrapped in plastic, from the toilet bowl. He washed it and handed it to accused 1 and when accused 2 demanded that accused 1 return the knife to him, accused 1 declined to do so.

This action was preceded by a conversation. Zulu says accused 2 and Zulu conspired and said "let us disarm a police officer of his firearm so that we can escape". Accused 2 was present and he listened to this conversation. It was agreed that Zulu and accused 2 would take the firearm off a police officer and run out of the cells. Accused 2 demanded the knife from accused 1. Accused 1 refused to give it to him, saying that accused 2 had had an operation on his

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stomach.

Later Zulu and both accused smoked a substance. I will revert to this later as there are different versions on this issue.

Next it was time to leave the cells for transportation to the correctional facility. The inmates started filing out because the cell door had been opened. Accused 2 went off with the others to the truck. Accused 1 and Zulu went into cell number 3 to collect the possessions which they had brought with them from the correctional facility. In cell 3 Zulu said to accused 1: "Accused 2 is not here, let us rather go out." Zulu walked out first. The deceased and a police officer were standing at the cell door. He was wearing his police pistol. It is common cause that the magazine was not in the pistol.

Zulu says he heard a scream from the inspector: "Why do you stab me, why do you kill me?" The female inmates were screaming and crying. Inspector Phelo was standing at the entrance to the cell block. He saw the deceased and two inmates. He called to the inmates to get out of the cells. Then he saw the deceased go into a cell in the company of an inmate. Inspector Matlou told him that there was fighting with the prisoner in the cell. Inspector Phelo ran forward and was about to insert his magazine in his pistol but before he could do so accused 1, who was 2 metres away, pointed a firearm at him. Inspector Phelo stood still. Accused 1 pulled the trigger twice. Inspector Phelo, when he realised that he had not been struck by a bullet, hit accused 1 on the head with the butt of his firearm. Inspector Phelo picked up the pistol which had fallen out of accused 1's hands.

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In the meanwhile the deceased came towards them. He called out Inspector Phelo's name but then fell down and Inspector Phelo saw blood on the deceased's left upper chest. The deceased was taken to hospital and it is common cause he died of a knife wound to the heart.

Inspector Phelo, when accused 1 and Zulu had been secured, handed in the Z88 pistol which had belonged to the deceased and which had been in the possession of accused 1. Inspector Phelo explained that his life was saved because it is standard police practice to remove magazines from their service pistols when entering cells.

Ms Kekela, a female detainee, told what she had witnessed. She says that accused 1 pointed the pistol at the female detainees and pulled the trigger twice without firing any shots.

Accused 1 gave evidence. He says he was detained in the Pretoria Central correctional facility and this was on the weekend of 7 to 8 October 2006. He and his co-accused were to appear again in the Ga-Rankuwa Magistrate's Court on the Monday, that is 9 October. Zulu, who was with them, suggested a plan to escape. He, accused 1, did not concur in the plan and he recused himself from that plan. Zulu then approached accused 2 about this plan.

On 9 October accused 1 and Zulu were transported to the Ga-Rankuwa Magistrate's Court. They appeared in court, their case was remanded and they were locked into cell number 2. Later accused 2 and his co-accused were also detained in cell number 2 and they would all remain there until the end of the day.

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Zulu produced a matchbox. The accused was invited to take a few pulls of dagga from the matchbox which had been converted into a pipe. The next thing he remembers is waking up and seeing people with cameras at the police cells. They told the police not to continue assaulting him. He was injured and swollen. When he awoke it was after sunset.

He has no recollection of committing the crimes for which he is indicted. He does not remember conspiring to escape. He did however want to be lawfully released.

Under cross-examination he said that accused 2 was not present when Zulu allegedly approached him on the weekend with a proposal to escape. No plans to escape were mentioned on 9 October. Zulu and accused 2 also smoked the dagga. He was seated while the other two were smoking. He was seated because he felt dizzy, tired and sleepy. He felt things walking in his bloodstream. He was also listening to the thing he smoked. He was used to smoking dagga but he says that this dagga that he smoked was mixed with something. He says that while he was detained at the police cells Zulu told him that the dagga was mixed with Mandrax. He did not see the Mandrax being inserted in the dagga which he smoked on 9 October. When he awoke in the police cells he found that his jaw was broken. He says accused 2 can confirm what Zulu said about mixing the dagga with Mandrax. He also said that he had not known about the presence of a knife in the cells until he heard it mentioned in court.

Accused 2 did not give evidence and as I have said he did not

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call any witnesses.

On the previous occasion Ms van Niekerk, who appears on behalf of the state, addressed me, as did Mr Moja and it was at that stage when Mr Moja had submitted that accused 2 had withdrawn from the conspiracy that I stood down to consider the issue and then decided to postpone the case. Ms van Niekerk and Mr Moja prepared their arguments, which they delivered to me today, on this aspect and I am indebted to...