S v Petersen

• Jurisdiction: South Africa
• Judge: Desai J
• Judgment Date: 01 December 2008
• Docket Number: 02/08
• Court: Cape Provincial Division
• Hearing Date: 01 December 2008
• Citation: 2008 JDR 1447 (C)

Desai J:

1. This case relates to the untimely and brutal death of music icon Abdul Mutaliep Petersen, better known as Taliep Petersen. The first accused was

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his wife. The other three accused are men she allegedly solicited to assist in causing her husband's death.

2. The court's assessors are Mr D Du T Marais, a retired magistrate, and Ms J J Thaysen, a practising advocate at the local bar.

3. The accused appeared before us on five different charges. The first charge is one of murder, it being alleged that on 16 December 2006 and at Athlone here in the Cape the accused unlawfully and intentionally either killed the deceased by shooting him with a firearm or facilitated the plan to do so. There is an alternative to this charge, namely a conspiracy to commit the aforementioned offence. The second and third charges arise from the firearm used in the incident. The accused are charged with being in unlawful possession of the firearm and ammunition. Counts four and five are charges of robbery with aggravating circumstances. It is alleged that threats of violence, and the firearm, were used to rob Achmat Gamieldien and his wife Insaaf. The various items stolen are specified in the indictment. I may mention at this stage that Achmat Gamieldien is Accused No. 1's son from an earlier marriage.

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4. Accused No. 1, the 46 year old Ms Najwa Petersen, or Ms Najwa Dirk as she elects to be called, was represented by different counsel at various stages of the trial. She was initially represented by Mr C Webster SC in the Magistrate's Court and then by Mr H Raubenheimer SC. When the trial commenced before us, Mr Raubenheimer withdrew as her counsel. He was succeeded by Mr K P C O von Lieres und Wilkau SC who in turn was replaced by Mr J Engelbrecht SC. On at least two occasions these changes of counsel resulted in the matter being delayed for several weeks.

5. Accused No. 2, the 42 year old Abdoer Raasiet Emjedi, Accused No. 3, the 35 year old Walleed Hassen and Accused No. 4, the 31 year old Jefferson Tion Snyders were represented throughout the trial by advocates L Abrahams, P Scott and R Konstabel respectively.

6. The accused pleaded not guilty to all the charges. They elected to exercise their right to silence and accordingly did not furnish any plea explanation. Certain formal admissions were, however, made shortly thereafter. For instance, Dr S Potelwa's post-mortem report was handed up in evidence and the parties were in agreement that the cause of death as

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determined during the post-mortem examination and recorded in the report is correct. Photographs of the deceased's body, photographs and a plan of the place where the crime was committed, the record of a bail application by Accused No. 1 before Mr Robert Henney in the Wynberg Regional Court and certain cell phone records were also made available to the Court with the consent of the accused.

7. It was not really in dispute that the deceased was murdered during the night of 16 December 2006 by a person or persons who shot him in the neck with an unidentified firearm and that the incident took place in the house where the deceased resided, that is 101 Grasmere Street, Athlone. Nor is it in dispute that the deceased and Accused No. 1 were married according to both Muslim rites and the civil law since 1997. The marriage to Accused No. 1 was the deceased's second. He was previously married to Madeegha Anders with whom he had 4 children. Their eldest daughter, Jawaahier Petersen, was a witness for the State in this trial. Accused No. 1

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has two children from two previous marriages, the one being Achmat Gamieldien, the alleged victim of the robbery. The items stolen from him and his wife that night are not in issue. The deceased and Accused No. 1 have a daughter, the nine year old Zaynab, who was the beneficiary of an insurance policy on the life of the deceased, valued at R5,3 million. Accused No. 1 suffers from a bipolar mood disorder or some such illness for which she is on prescribed medication. During the month of December 2006 there was telephonic contact on numerous occasions between Accused No. 1 and the witness Fahiem Hendricks. Accused No. 1 and Hendricks give different explanations for the calls between them. The resolution of this factual dispute is of some importance in the ultimate outcome of this matter.

8. Before dealing with the State's case against the accused, two other aspects warrant noting. While Ms S Riley, who appeared with Ms S Galloway on behalf of the State, was leading evidence against the accused, Accused No. 3 consented to the admission in evidence of an inculpatory statement made by him to the police. Moreover, certain admissions were made by him in terms of section 220 of Act 51 of 1977 ("the Act"), placing him on the scene and implicating him in the commission of the offences. Similarly, Accused No. 4's statement, made to a Superintendent M A Barkhuizen, was also admitted in evidence against him with his permission. In the said statement he placed himself on the scene for the purposes of a

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robbery but alleges that he left the house immediately prior to the deceased being shot. I shall revert to these statements at the appropriate stage in this judgment.

9. The evidence of the State's first witness, Mr Mogamat Riefaat Soeker ("Soeker") is probably of some significance, more especially in that he was the last person to speak to the deceased before his death. Soeker is Accused No. 1's cousin and resided for a number of years in a flatlet on their property. Soeker described the layout of the house as reflected in exhibit "A" and the extensive security system employed by the Petersens. His evidence in this regard was confirmed at the inspection in loco. It is apparent from his evidence that from the time of the so-called stabbing incident – I shall deal with this incident in detail later – in April 2006 until his death 9 months' later the deceased and Accused No. 1 had not shared a common bedroom. Soeker's attempt to describe their relationship as a loving one was not entirely satisfactory. In any event on the night the offences were allegedly committed, Soeker was with the deceased in his kitchen conversing from about 21h00 until shortly after 23h00. During the course of their conversation the deceased mentioned that he wanted to get

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another house as the children of his previous marriage no longer wanted to come to 101 Grasmere Street. Shortly after returning to his flatlet Soeker heard a noise. It sounded like a firecracker or a firearm going off. While he was in the shower, about 10 or 15 minutes later, his cell and landline phones rang. He then heard a commotion and saw Accused No. 1's family and the police outside. He checked his cell phone and saw that Accused No. 1 had called him at 23h54.

10. During his cross-examination of this witness, Mr von Lieres pointed out discrepancies with regard to the time of this call. It was pointed out, and Soeker agreed, that various people had remote controls giving access to the house. It also emerged from the cross-examination of this witness that from the upstairs area where the deceased was shot the front door to the house is visible.

11. I note one other aspect of Soeker's evidence. The witness Fahiem Hendricks ("Hendricks") was not seen visiting Accused No. 1 before 16 December 2006. Soeker saw him twice thereafter: Once at 101 Grasmere Street and then at a house in Gordon's Bay belonging to Accused No. 1's

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family. It was suggested that he was in the company of Accused No. 1 during the period of iddah, the period of "waiting" or "mourning" in which Muslim widows are expected not to be in the company of strange men.

12. The evidence of Inspector Brian Trevor Hermanus ("Hermanus") does not take the matter much further. He was the investigating officer for a very short time. He arrived on the scene after other police officers were already there. The deceased had already been certified as dead by Metro personnel but the body was still lying on the front floor about two meters away from the stairs. The deceased's head was covered with a towel which Hermanus lifted and saw the deceased's bloodied head. He found Accused No. 1 in an upstairs bedroom. Her daughter, Zaynab, was with her. Hermanus endeavoured to obtain from her information with regard to what had happened that night in the house. Accused No. 1 was quite clearly distraught. She was crying. More significantly, she was confused. It emerged later that she had already been seen by a doctor who had given her an injection. In the circumstances, not much weight, if any, can be placed upon what she told Hermanus at that stage. There are also the unsatisfactory features of the statement made by Hermanus which Mr von

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Lieres highlighted. Hermanus also interviewed Achmat Gamieldien with regard to the robbery and noted the broken door frames of two bedrooms.

13. The door frames, on both the doors, were kicked in by Mr Igshaan Petersen ("Igshaan") the next State witness, and his son Zahir. At about 11h56 on 16 December 2006 Igshaan received a call from his sister Ma'atoema to the effect that there had been a robbery at his brother's house and that his brother had been shot. Ma'atoema confirmed this aspect when she testified. It appears from the evidence that Igshaan resided in Glenhaven and Ma'atoema in Surrey Estate. Igshaan was thus much nearer to 101 Grasmere Street. When Igshaan and his son approached the deceased's house they saw another car already there. This car spun around and went to another entrance to the house. Koekie – one of the Petersen's domestic assistants – let Igshaan into the house. He went upstairs and found his brother lying in a pool of blood. A piece of cloth was stuffed in his mouth, his hands...