S v Ndhlovu and Others

• Jurisdiction: South Africa
• Judge: Goldstein J
• Judgment Date: 22 June 2000
• Citation: 2001 (1) SACR 85 (W)
• Hearing Date: 22 June 2000
• Counsel: H Knopp for accused No 1. S W Dlwathi for accused Nos 2 and 3. S I Bhabha for accused No 4. D Vlok for the State.
• Court: Witwatersrand Local Division

Goldstein J:

[1] The four accused are charged with four counts. The first is that of murder of the late Johannes Jochemus Jansen van Rensburg, the second, robbery with aggravating circumstances described in s 1 of the Criminal Procedure Act 51 of 1977, the third, possession of a firearm in J

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contravention of s 2 of the Arms and Ammunition Act 75 of 1969, and A the fourth, possession of ammunition in contravention of s 36 of the latter Act.

[2] All the charges arose from a single incident. On Sunday morning 17 January 1999 at about 08h00 the deceased was accosted in his bakkie in Ramakonopi, Katlehong by a number of men one of whom fired a B single shot at him which killed him almost immediately and another of whom seized and removed the cellphone in the deceased's possession. It is common cause that all four accused were arrested by the police in the early hours of Monday 18 January 1999.

[3] One of the bases of the State's case is that when accused No 3 C was arrested he made certain statements to the police and took them to the other accused and to Mr Richard Mdunana. The police found the stolen cellphone in the possession of the latter and the firearm which admittedly caused the death of the deceased in the possession of accused No 1.

[4] Accused No 3 denies that he made any of the statements the State alleges and denies that he pointed out any of his fellow accused D to the police. He also alleges that soon after his arrest he was subjected to repeated assaults by the police. If such assaults did occur they would render any statements or pointings out he may have made inadmissible.

[5] The State alleges that accused No 4 made a written statement at E 14h30 on Monday 18 January 1999. Accused No 4 denies making such statement. He too alleges that he was subjected soon after he was arrested to numerous assaults which persisted intermittently because of his alleged refusal to make the statement. In his case too if such assaults did occur they would render his statement inadmissible even if he did make it. F

[6] In order to resolve the questions of admissibility aforesaid a trial-within-a-trial was held in respect of accused No 4's statement and this was later consolidated with a trial-within-a-trial in respect of accused No 3.

[7] Much of the evidence relevant to the consolidated trial-within-a-trial was led prior to any such trial-within-a-trial G having commenced. In adjudicating upon the trial-within-a-trial it is permissible to look at the evidence in the main trial. See S v Muchindu and Others 2000 (2) SACR 313 (W) per Schutz J (as he then was).

[8] The State called three policemen who were on duty at the H Katlehong Police Station during the night of 17 - 18 January 1999 commencing at 19h00 on the 17th. They were Inspector Sipho Nhleko, Sergeant Meshak Makhubo and Constable Sipho Lawrence Motsamai, who is no longer a policeman. All three of these witnesses participated in the arrests of the four accused and of Mdunana.

[9] They told substantially the following tale: At about 03h00 on I 18 January 1999 Makhubo received a telephone call from an informant concerning the murder of the previous day in Katlehong. The informer furnished him with four names and addresses. Seven policemen went out as a result of the report in two vehicles to arrest the four suspects. Nhleko and Makhubo travelled in a white Mazda sedan police vehicle driven by J

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the latter. The other policemen Sergeants Maja, Malatji, Thanza and Constable Ndumiso Anthony Maci travelled in a A Venture driven by Motsamai.

[10] The police first went to No 67 Ramakonopi East, where accused No 3 was resident. There Makhubo informed accused No 3 in the presence of Nhleko that he was arresting him on a charge of murder involving a B white man at Mnisi (another name for Ramakonopi) Section on Sunday morning. He warned him in the following terms:

'You have the right to remain silent. If you elect to say anything that will be reduced into writing and may be used as evidence in a court of law. You have the right to consult a lawyer of your choice. If you cannot afford one the State may assist you to obtain one. You also have the right to apply for bail. You also have the right C to use any telephonic facilities to consult with your family.'

I interpose to say that exh L1 contains a printed warning in six different languages including English and Zulu, the latter being the language of all the accused. The English version is substantially in accordance with the State's version of the warning reflected above. And the State's case is that the printed warning was in Makhubo's D pocketbook and that he read from it in warning accused No 3.

[11] After having been thus warned, accused No 3 said, according to Makhubo, that 'he was not alone when this thing happened'. Makhubo asked how many they were and he said four. Makhubo asked who pulled the trigger and he said Vusi. Makhubo asked if he could point out the E person and he said he could.

[12] Accused No 3 thereafter travelled in the Venture and directed its driver Motsamai from place to place. Their first stop was at No 15 Ramakonopi where accused No 4 was arrested on the murder charge. Makhubo says he explained accused No 4's constitutional rights to him. F He was thereafter placed in the Venture and accused No 3 directed Motsamai to No 20 Ramakonopi where accused No 2 was arrested. Makhubo says he explained his constitutional rights to him. Thereafter accused No 3 directed Motsamai to No 165 Ramakonopi, the home of accused No 1. The latter's parents were there but accused No 1 was not. Makhubo asked accused No 3 where they could find Vusi. Accused No 3 said he G should give him a chance and that he was still thinking. Later on he said the police should be very careful because Vusi had a firearm in his possession. Makhubo asked accused No 3 what he was doing whilst Vusi shot the white man. Accused No 3 said they were actually going to take the cellphone from the white man and that they were surprised when H they realised that Vusi was shooting the man. Once Vusi had shot the man they took the cellphone and ran away. He did not say who took the cellphone. Makhubo asked if accused No 3 could show him the cellphone or tell him where it was. Accused No 3 said that they sold it. He asked to whom and accused No 3 said to Richard. He then asked for how much I and he said they asked for R400 and were given R150 by the buyer. He asked accused No 3 if they could fetch it from the buyer and accused No 3 said that they could go. Makhubo told Motsamai that accused No 3 would show him the way. Accused No 3 thereupon directed Motsamai to 82 Ramakonopi where Richard Mdunana lived. There the stolen cellphone was found in the latter's possession and he J

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was arrested and placed in the Venture. Thereafter accused No 3 directed Motsamai to No 193 A Ramakonopi. There accused No 1 was arrested and the firearm which killed the deceased was found in his possession.

[13] All the accused and Mdunana were taken to Katlehong Police Station and into what was termed a zozo hut there which apparently B served as a kind of charge office. From there they were taken to a cell at the police station.

[14] Later that day, according to the State's case, Inspector James Michael Harmse received the docket in this case as investigating officer. He is stationed at Katorus Murder and Robbery. He went with a C colleague whose name he can no longer recall, but who, he says, was white, to fetch the four accused and Mdunana at Katlehong Police Station. They travelled in what he called a 'Hi-Ace bussie' and what I shall refer to as 'the kombi', to the offices of Katorus Murder and Robbery at Alrode.

[15] There he placed the five prisoners in a lecture room. He D commenced with Mdunana, taking the latter into his office where he took a so-called warning statement from him. After that he took Mdunana back to the lecture room and caused him to sit separately from the remaining prisoners. He repeated the procedure with each of the accused and is unable to recall the order in which each was separately interviewed. In E one respect at least the procedure in respect of all of the accused changed. He now made use of the services of a policeman Sergeant Pitso Petrus Mafereka as an interpreter. Mafereka's primary language is Sesotho but he speaks a number of other languages including Zulu, the language of the four accused. Harmse and Rafereka both gave evidence. What they said amounted substantially to the following: Each of the F accused was interviewed separately in the office where Harmse had one of the several desks in the room. The interviewee and Harmse sat on opposite sides of the desk and Mafereka interpreted what was being said.

[16] In the case of accused No 4 a document headed 'Waarskuwingsverklaring deur Verdagte' has been placed before us as exh N1, which is a printed form containing spaces which have been G filled in in handwriting. The first portion of the form was read to accused No 4 before he made the statement the State seeks to have admitted against him, and the second portion after he had made such statement.

[17] The first portion commences by reading as follows:

'KATLEHONG MAS 445/01/99A6 H

WAARSKUWINGSVERKLARING DEUR VERDAGTE

Om 14:30 op hierdie 18 dag van Januarie 1999 te Katorus Moord en Roof kantoornommer 909 - 4870, voer ek 'n onderhoud met Jabu Sweetdream Nkosi, hierna die verdagte genoem. In my kantoor is daar slegs ek, die verdagte en Sers Mafereka, wat as tolk in die Zulu taal, wat deur die verdagte verstaan word, optree en I niemand anders nie.

Die verdagte word meegedeel dat ek 'n Sersant (rang) in die Suid-Afrikaanse Polisie (Diens) is en ampshalwe 'n Vredesbeampte is. Ek toon aan hom/haar my aanstellingssertifikaat.

Sy reaksie daarop is: Ja

Ek deel die verdagte nou mee dat...