S v Soni

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Navsa ADP, Saldulker JA, Mbha JA, Weiner AJA and Unterhalter AJA
• Judgment Date: 05 May 2021
• Court: Supreme Court of Appeal
• Hearing Date: 29 March 2021
• Citation: 2021 (2) SACR 241 (SCA)
• Counsel: M Hellens SC (with JE Howse SC) for the appellant. J du Toit for the state.
• Docket Number: 465/2019 [2021] ZASCA 57

Saldulker JA and Unterhalter AJA (Navsa ADP, Mbha JA and Weiner AJA concurring):

Introduction

[1] On the night of 13 May 2013, at around 19h00, when Dr Bhavish Sewram (the deceased), a medical doctor, left his surgery in Raisethorpe, Pietermaritzburg, little did he know that he was to meet an untimely

Saldulker JA and Unterhalter AJA (Navsa ADP, Mbha JA and Weiner AJA concurring)

death at the hands of assassins hired to execute him. Mr Sabelo Dlamini, who fired the shots that killed him, and those who waited in the getaway vehicle to drive him away, were arrested, convicted and sentenced for his murder. One would think that Dr Sewram's family had closure, in that those responsible for his death were held to account and were to pay for their dastardly deed. But this was not to be.

[2] This was only the beginning of a saga which led to revelations of corruption, conspiracy, incitement, defeating the course of justice, and the laying of false charges, all of which eventually culminated in the arrest of a businessman, the appellant, Mr Rajivee Soni, for the murder of Dr Sewram.

[3] The appellant was arrested and charged with six counts, namely, on count 1, the murder of Dr Sewram; on counts 2, 3 and 4, for defeating or obstructing the course of justice; on count 5, for assault with intent to cause grievous bodily harm; and on count 6, for contravening s 18(2)(a) of the Riotous Assemblies Act 17 of 1956 (conspiracy to commit murder).

[4] It was a lengthy trial that lasted in excess of three years. The appellant was convicted on all charges by the KwaZulu-Natal Division of the High Court, Pietermaritzburg (Henriques J) (the High Court), and sentenced to imprisonment as follows: 25 years on the murder count; 18 months on counts 2 and 3, for defeating the course of justice; two years on count 4, for defeating the course of justice; 18 months for the assault on count 5; and, on count 6, five years for conspiracy to commit murder. The sentences on counts 2 – 5 were ordered to run concurrently with the sentence on count 1. The appellant was sentenced to an effective 30 years' imprisonment. This appeal against the conviction and sentence of the appellant is with the leave of the High Court.

Background

[5] Doctor Sewram, who was 33 years old at the time of his death, was a doctor who conducted a number of practices, one of which was located at Old Greytown Road, Raisethorpe, in Pietermaritzburg, KwaZulu-Natal. The appellant and Dr Sewram enjoyed a friendship for several years and their wives were also friends. However, during January 2012 their friendship soured, after the appellant formed a suspicion that Dr Sewram was engaged in an extramarital affair with the appellant's wife.

[6] At the commencement of the proceedings in the High Court the appellant tendered a plea of not guilty on all six counts, and a statement in terms of s 115 of the Criminal Procedure Act 51 of 1977 (the CPA) was handed in on his behalf, in which he denied any involvement in the murder or in any of the offences with which he had been charged. The appellant stated that at a family meeting he and the deceased had reconciled and that over time he had made peace with his wife.

[7] The state's principal witness was Mr Sugen Naidoo, who, at the time of the murder, was a policeman serving at the Mountain Rise Police Station in Pietermaritzburg. He testified that in 2012 the appellant had

Saldulker JA and Unterhalter AJA (Navsa ADP, Mbha JA and Weiner AJA concurring)

visited him and in due course recounted that his wife had been having an affair with his friend, Dr Sewram. The appellant wanted to teach Dr Sewram a lesson and was willing to pay for this to be done. Sugen Naidoo, a self-confessed drug addict and corrupt policeman, was willing to assist the appellant and make some money at the appellant's expense.

[8] Sugen Naidoo's evidence was that he and the appellant planned various actions to be taken against Dr Sewram so as to harm him, and ultimately cause him to leave Pietermaritzburg. Over the course of 2012, Sugen Naidoo lent his efforts, together with the appellant, to this enterprise. First, Sugen Naidoo approached a fellow policeman, WO Daryl Gounder, to assist him to plant drugs at Dr Sewram's surgery and then have the doctor arrested for illegal drug possession. Sugen Naidoo purchased the drugs with money given to him by the appellant from his brother-in-law, Mr Hoosen Shaik-Cassim. Sugen Naidoo, however, informed the appellant that the plan to plant the drugs had been thwarted by senior officers, but he was nevertheless paid by the appellant.

[9] Undeterred, the appellant then conceived a plan to have Dr Sewram charged with sexual assault, and sought Sugen Naidoo's assistance. Sugen Naidoo, in turn, asked Gounder to arrange that a woman would consult Dr Sewram and then lay a false charge of sexual assault against the doctor. This Gounder did by persuading Ms Mariamma Kisten to consult Dr Sewram and then lay a charge of sexual assault against him. Dr Sewram was arrested and charged. But the charge was later withdrawn.

[10] The appellant then sought to escalate the actions against Dr Sewram and wanted him physically hurt. The appellant asked Sugen Naidoo whether his brother-in-law, Mr Morné Emersleben, would be willing to do so. Sugen Naidoo approached Emersleben and they contrived a plan to plant an unlicensed firearm at Dr Sewram's surgery, and, later, to hire men to assault Dr Sewram. In fact, they intended to carry out neither plan, and used the appellant's connivance in these plans to extract money from him.

[11] Next, the appellant came to Sugen Naidoo with a plan to lay a false complaint of assault against Dr Sewram, that would be corroborated by a friend of the appellant. The appellant did make the complaint. A docket was opened by Sugen Naidoo, and Dr Sewram was arrested and released on a warning. The appellant paid Sugen Naidoo for his efforts.

[12] Sugen Naidoo then made contact with Mr Zaheer Khan, at the instance of the appellant, to have Dr Sewram assaulted against payment of R5000. The assault did not take place, but a different plan was agreed with Khan. His stepdaughter, Ms Sonali Sookraj, would consult Dr Sewram and then lay a false charge of sexual assault against him. This she did. Dr Sewram was again arrested and charged, but the charge was also withdrawn.

[13] Finally, Sugen Naidoo also testified that he had introduced the appellant to two policemen, Mr Ricky Naidoo and Mr Nishal Maharaj.

Saldulker JA and Unterhalter AJA (Navsa ADP, Mbha JA and Weiner AJA concurring)

They conceived a plan to spray-paint 'sex pest' and 'sex doctor' at Dr Sewram's surgery. This was then done. Emboldened, the appellant then conspired with the two policemen to have them shoot Dr Sewram with a paintball gun, discharging hard objects. The appellant, Sugen Naidoo, Ricky Naidoo and Maharaj set off on an expedition to buy a paintball gun. This they eventually procured in Pinetown. Ricky Naidoo and Maharaj carried out the assault upon Dr Sewram, who was injured as a result. And the appellant paid them for their efforts.

[14] We have set out this sequence of events, to which Sugen Naidoo testified, because they are central to the case that the state made against the appellant. The state led the following witnesses to corroborate the account given by Sugen Naidoo. First, Emersleben testified that the appellant had asked him to procure assailants to assault Dr Sewram. He had done so, but the assault did not take place, because the hired assailants had taken the money for the task and fled. The appellant also wanted Emersleben to procure an unlicensed firearm. He agreed to do so, but in fact did not. Second, Shaik-Cassim testified that the appellant had paid him to hire men to break Dr Sewram's arms and legs, and had described Dr Sewram's surgery. Shaik-Cassim testified that he had no intention of carrying out the appellant's request and appeared to acquiesce only in order to extract money from the appellant. Third, the state called Mariamma Kisten and Sonali Sookraj, the two women who had laid the false complaints of sexual assault. They testified as to how they had come to do so. Sookraj explained that her stepfather had asked her to lay the charge and had thereafter climbed into a white double-cab vehicle, in which she identified the appellant seated in the front of the vehicle. It is necessary to pause to record that the appellant owned a white double-cab vehicle. This part of the evidence is explored further, later in this judgment.

[15] The state also called two further witnesses of importance. The first was Mr Mlungisi Sithebe. Sithebe testified that the appellant had asked him to scare Dr Sewram by shooting him in the leg. The appellant wanted this done because Dr Sewram had had an affair with the appellant's wife. The appellant drove Sithebe to show him Dr Sewram's surgeries. Sithebe entertained the proposal, but ultimately decided that it was against his religious convictions. He then reported the matter to Dr Sewram and the police.

[16] The other witness called by the state was Sabelo Dlamini. He, together with Mr Mfaniseni Nxumalo and Mr Brian Treasurer, was convicted of the murder of Dr Sewram. Dlamini testified that Nxumalo had persuaded him to shoot a man who had failed to pay Nxumalo for cutting his grass. Dlamini was driven to Dr Sewram's surgery by Treasurer and given a firearm. Treasurer explained who was to be murdered. When Dr Sewram came out of his surgery, Dlamini shot and killed him. Treasurer then drove him and Nxumalo away. Treasurer placed a call in the course of the journey and said that the job had been done.

[17] These were the principal witnesses called by the state.

Saldulker JA and Unterhalter AJA (Navsa ADP, Mbha JA and Weiner AJA concurring)

[18] The appellant testified in his own defence. He explained how he came to suspect...