S v Mkize

• Jurisdiction: South Africa
• Judge: Van den Heever JA
• Judgment Date: 27 May 1997
• Citation: 1992 (2) SACR 347 (A)
• Counsel: T L Skweyiya SC (with him S A Majiedt) for the appellant L S Moffit for the State
• Hearing Date: 22 May 1997
• Court: Appellate Division

Van den Heever JA:

Four accused were charged with murder in the South Eastern Cape Local Division: in numerical order, Vuyisile Koos Ndima, I Luyanda Mkize, Jonguxolo Witbooi and William Tshebe Phukwana. I refer to them in what follows by the numbers given them at the trial.

The incident which formed the subject of the charge, was a 'necklacing' murder which took place on the evening of Sunday, 16 November 1986, at Veeplaas near Kwazakele in the Port Elizabeth district.

The deceased, a 44-year-old German employed as a marketing projects J manager by Volkswagen, Gens Paul Bassel Lorck, on occasion gave black

Van den Heever JA

A fellow employees a lift home, and visited in the township. A colleague last saw him at the Folk Music Club in Port Elizabeth on Sunday evening, 16 November. He left at about 9 pm and was not seen again.

The police received information at about 10 o'clock that night that the company car allocated to him for his use had been involved in an armed robbery at Algoa Park Motors and, again, an hour later, at Despatch B Motors. At about midnight the burned-out shell of this was found at the Phakamise school, adjoining Veeplaas and less than a kilometre from the Veeplaas graveyard. A search was launched for the deceased. His incinerated remains were found after some days, and later identified only by means of dental comparisons.

We know that, on foot in the black area, deceased was noticed by so-called 'comrades', chased, caught, assaulted in various ways, taken to the Veeplaas graveyard and set alight. C

All four accused (ranging in age at the time from 18 to 52 years) were alleged to be comrades and part of the crowd that participated in the assault upon and killing of the deceased.

The trial commenced on 30 October 1989, virtually three years after Lorck's murder. All four pleaded not guilty and chose to make no D admissions. The only eyewitness called by the prosecution was Nontshembiso Heshu. In November 1986 she was 13 years old, and had received minimal schooling. At the trial her evidence was found by the Court a quo to be totally unreliable. She sketched the outline of what happened to deceased after he had been (as an inescapable conclusion) robbed of his car, as summarised above. She named comrades she saw participating in the attack on the deceased, included all four accused in her list and identified them E in Court. Her evidence conflicted in material respects with a statement she had made to the police much earlier, especially in regard to whether, and how, accused Nos 3 and 4 had participated in the events of that night. However, in both that statement and in Court she said that accused Nos 1 and 2 actively participated in necklacing the deceased, who was alive at the time.

F After she had testified the prosecution tendered statements made by accused Nos 1 and 2, and the record of what each pointed out and what he said while doing so. These were ruled admissible after a series of trials within the trial.

Accused No 1 in his statement (exh M) made during a pointing out to then Lieutenant Jonker (not the same person as Major Jonker who was in charge of the pointing-out done by accused No 2) admitted having initially taken G part in the assault on the deceased to the extent that he and a certain Koni held the German down. A third person stabbed him while the two of them were so holding him. After this he, accused No 1, was merely a spectator. His statement to magistrate Morgenthal (exh Q) is in similar vein, with more detail and some use of the plural

'ons het gewag . . . ons is daarna beveel . . .', H

which may suggest greater participation than exh M does, but remains ambiguous, inter alia, because admission that orders given were obeyed, is lacking.

Warrant Officer Els told the Court that he arrested accused No 2 in the early hours of the morning of 14 October 1987. As the result of what accused No 2 told him, Els asked him whether he would be willing to point I out places of which he had spoken. On receiving an affirmative answer, Els took him to Major Jonker, who was not involved in the investigation of this matter, for this purpose. Major Jonker recorded the procedure preceding, and what happened and was said during, the...